South Africa’s jurisprudence is littered with cases dealing with the lack of compliance with the Law of Succession, often resulting in wills being declared invalid and thus unenforceable. The legal repercussions of an invalid will are that the testator’s assets are subject to the law of intestate succession. This can lead to the contents of the estate being left to someone whom the testator may not have wished to inherit. The technological age has further presented new challenges to the administration of estates, with the introduction of electronic signatures, dictation, video recordings and the like. The manipulation of the Law of Succession and the importance of strict compliance thereof was recently highlighted in Ditmar and Others v Lotter NO and Others 2021.
The fundamental requirements for the drafting of a valid last will and testament, as set out in section 2 of the Wills Act 7 of 1953, are that the will must be in writing and signed in the correct manner by the required persons.
1. Who must sign?
As per section 2(1)(a)(i) of the Wills Act, and confirmed in jurisprudence (Kidwell v The Master), the will must be signed at its end by the testator (the person making the will) and two competent witnesses. The testator also needs to sign each page, anywhere on it, in addition to the last page. The signature should be made by the testator himself/herself or by another person (in which instance the fact that another person is signing must be acknowledged by the testator) in the presence of two competent witnesses. A competent witness is any individual who is over the age of 14 and who is competent to give evidence in a court of law. There is no express indication why the law requires two witnesses to attest a will. As my Law of Succession professor in university said to us: The requirement for the number of two witnesses to attest a will is similar to the rules regarding the consumption of Gin and Tonics. One is too little, three too many but two is just right.
2. Dictating one’s will
The law does not bar one from dictating their will to another, provided there has subsequently been compliance with the formalities. However, an unfortunate position can arise where the testator has dictated his will to his attorney for typing a draft, but then passes away before signing it. The court may use its discretion, granted in section 2(3) of the Wills Act, to have the will declared valid despite a (minor) lack of formality, depending on the circumstances.
3. Copies of wills
Although in terms of the common law, one can apply to the Master to accept a “reconstructed copy” of a will, our courts are more likely to adopt a strict approach in this regard and prefer original documents.
There are a few shortcomings in the Law of Succession which have presented themselves over the years and which have resulted in heirs finding themselves in precarious positions. Therefore, to avoid any possibility of an invalid will, it is recommended that you take into consideration the below.
1. Witness signatures
As per Section 2(1)(a)(iii) of the Wills Act, the witnesses need only sign anywhere on the last page of the will, in the presence of the testator, and after the testator has signed. There is no law which requires witnesses to sign on each page. This is however recommended.
2. Consistency is key
It is important to note that the definition of a “signature” is wide in terms of the Wills Act, in that it includes a simple initial, mark or printing of one’s name. However, the Testator may not initial one page and sign the next. Therefore, when “signing” your will, ensure that you use the same manner on each page to avoid any surprises or uncertainty when the will is scrutinised by the executor, Master’s office or heirs.
3. Date your will
The wills act does not state that a will need be dated for it to be valid. This is interesting, as it would make it clear that a will is the last will of the Testator. Therefore, to ensure that your most recent wishes are adhered to (and not those recorded in an earlier will of a younger you), date your will.
Although strict adherence to the abovementioned requirements is advised, the Wills Act does have a safety net clause, namely section 2(3). This clause affords a court the overriding discretion to overlook minor non-compliance with formalities, provided it is apparent or can be proved that the will represents the testator’s true intention. One would prefer not o to chance this risk: apart from the cost and time delays associated with an application to court, one has no certainty what the outcome would be.