Thinking of getting your will drafted what you need to know

2022 / 07 / 13

It is imperative to have a Will, we cannot emphasize its importance whether you have a small estate or a multi-million rand estate. A person without a Will has no voice regarding their assets and their estate will devolve in terms of intestate succession. A Will provides you the ability to express your last wishes regarding disposing of your assets once you are no longer here to manage them. However, there are certain requirements that must be fulfilled in order to render your Will as valid.

In terms of section 2 of the Wills Act they are as follows:

1. You have to be above the age of 16 years old in order to draft a Will and you have to be of sound mental capacity.

• The Will must be signed by the testator/testatrix at the end of the document in the presence of two witnesses who will also sign as witnesses. Should the testator/testatrix be unable to sign due to their physical inability, the testator/testatrix can sign by marking a mark or a thumbprint or they can instruct another person to sign on their behalf in the presence of the witnesses and before a commissioner of oath who will issue a certificate.

• Should the document exceed more than one page, then they ought to sign each and every page of the Will. This also applies to the testator/testatrix.

• The witnesses have to be above the age of 14 years of age(duplicated) and they don’t have to know the contents of the Will. They only attest that the testator/Testatrix did indeed sign the Will.

• The Will MUST be in writing, whether it’s handwritten or printed. A video recording, a Facebook post, or a WhatsApp voice note does not comply with the requirements of a valid will.

• The beneficiaries and the executor are not permitted to sign as witnesses. Should they sign the Will, they will be disqualified from inheriting from the testator/testatrix.

Also, remember that a testator/testatrix has freedom of testation which that simply means that you can bequeath your assets to any individual or organisation you wish. You are not compelled to bequeath to your family members. The only limitations are that your wishes should not be illegal, discriminate in any form or manner and in terms of the Constitution or be against public policy.

The purpose of this article is to provide general information however the drafting of a Will can be quite complex and delicate depending on the personal circumstances of the testator/testatrix. We would advise that you get personalised advice from our legal specialist practitioners. Should you have any further questions, you can contact us at Louise Tonkin Incorporated for further information.