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Nunez Attorneys Inc.
Key Factors To Ensure The Legality Of Your Last Will And Testament
Elanie Nunez
22/09/2023
Attorney Deceased Estate Last Will and Testament Law Lawyer

You drafted your own will or you instructed an attorney to draft one for you. That means you can just sign it like any other important document, put it in your safe, advise your loved ones of its location, and rest at ease knowing that your estate has been taken care of, right? Not necessarily.

In terms of the Wills Act, No. 7 of 1953, South African law imposes a few requirements and formalities in order for a Last Will and Testament to be valid, and before the Master of the High Court will accept such will for purposes of administration of your deceased estate. 

Consider the below key aspects to determine whether your Last Will and Testament is indeed compliant or whether any adjustments are necessary. 

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1. Who is competent to make a will? 
  • The person who draws up a will is known as the testator (male) or the testatrix (female).
  • Any person 16 years or older is competent to make a will, if they can appreciate the nature, effect, and consequences of their actions at the time of making the will.
2. What are the requirements for a will to be valid?
  • It must be in writing (handwritten, typed, or printed).
  • The testator / testatrix must sign in full (not initial) every page (including annexures) anywhere on the page and the last page at the end in full (not initial).
  • At least two independent witnesses must attest the will and sign it on the last page (good practice however dictates that every page is signed in full). 
  • The testator / testatrix and all the witnesses must sign at the same time in the presence of each other.
  • If the testator / testatrix cannot sign, they may ask another person to sign on their behalf or they can sign by making a mark (thumbprint or cross), provided that - 
  • if another person signs, it is signed in the presence and at the direction of the testator / testatrix;
  • every page is signed in full (not initialled) by such other person;
  • it is signed in the presence of the witnesses;
  • it is signed in the presence of a commissioner of oaths (who may not also be a witness); and
  • the commissioner of oaths puts a certificate on any page (usually the last page) certifying that they are satisfied as to the identity of the testator / testatrix, that the will so signed is the will of the testator / testatrix, and every other page is also signed by them.
  • Although an attestation clause or date is not required, it is standard practice to include this, to determine the most recent valid version the testator’s / testatrix’s will and to avoid any confusion.
  • The will should be clear, readable, and not ambiguous or vague.
  • Although not a requirement, every page should be numbered to avoid pages from going missing or being removed.
3. Who can sign as a witness?
  • Any person 14 years or older and who is competent to give evidence in a court of law.
  • In terms of the Wills Act, No. 7 of 1953, any person who signs as a witness, who signs on behalf of a testator / testatrix, or who writes the will or part thereof in their handwriting, and the spouse of any such aforesaid persons, are disqualified from benefiting under the will (receiving an inheritance or being nominated in any capacity such as executor, trustee, guardian etc.). The exceptions are that –
  • a court may declare any such person or their spouse competent to receive a benefit if it can be proved that such person or their spouse did not defraud or unduly influence the testator / testatrix in executing the will (this is however a costly and lengthy process as it requires a court application);
  • if such person or their spouse would have been entitled to inherit from the testator / testatrix under the intestate succession laws had the testator / testator died intestate, they are not disqualified but the value of the benefit that such person or their spouse may still receive will be limited to the value of the share that they would have inherited under the intestate succession laws (effectively the inheritance of such person or their spouse may then be smaller than what they would have received had they not sign as a witness); or
  • a witness or their spouse is not disqualified from receiving a benefit if the will was also attested and signed by at least two additional competent witnesses who will not receive any benefit (it is not always possible to have such two other additional independent witnesses readily available to all sign in each other’s and the testator’s / testatrix’s presence).
  • To avoid any of the above risks, it is highly recommended that all witnesses that sign a will must be independent and should not be a person or a spouse of a person who will receive any benefit (inheritance or nomination) under the will.
  • The general rule of thumb is that if their name (or their spouse’s name) is mentioned in the will, or if they (or their spouse) can inherit either directly or indirectly from the testator / testatrix, they should not sign as a witness.
  • It is recommended that a neighbour, colleague, or acquaintance sign the will as a witness.
4. Where must you Store the original signed will?
  • In a safe place where it cannot be lost, burned, or destroyed, and may even be kept by a trustworthy person or institution.
  • A copy or photocopy of a will is unacceptable as the Master will require the original signed will when it becomes necessary to report your estate. If the original will cannot be submitted, the Master may be ordered by the High Court in terms of section 2(3) of the Wills Act, No. 7 of 1953, to accept a photocopy but this is a very time-consuming, costly process and is also not a guarantee. This may have the result that your estate will be administered in accordance with the intestate laws of succession as provided for in the Intestate Succession Act, No. 81 of 1987, and that people will inherit whom you did not intend to inherit.
  • It is recommended that the testator / testatrix sign an original and a duplicate original and entrust the duplicate original to someone trustworthy. (If we drafted your will, we will store a signed duplicate original thereof free of charge)
  • Inform a family member or friend as to where the original and/or duplicate original will is kept, so that it is easy to obtain when it becomes necessary.
5. What is a codicil?
  • It is a schedule or annexure to an existing will, which is made to supplement or amend such existing will.
  • It can only exist in relation to an already existing valid will (it cannot exist on its own).
  • It should not contradict the will, otherwise there is a risk that both the will and the codicil can be seen as ambiguous or vague, with the result that both may be invalid. (It is highly recommended that a professional drafts the codicil to ensure consistency and validity)
  • To be valid, it must comply with the same validity requirements for a valid will (i.e., manner of signature and witnesses).
  • It does not need to be signed by the same witnesses who signed the original will.
6. Can you make amendments to a will or a codicil after signature thereof?
  • Any amendment to a will or codicil must be identified by the signature of the testator / testatrix (or such person who made it in their presence and at their direction) or by them making a mark.
  • The amendment must also be identified by the signatures of two competent independent witnesses.
  • The testator / testatrix (or such person who made it in their presence and their direction) and all the witnesses must sign at the same time in the presence of each other.
  • If an amendment is made and the testator / testatrix signed by making a mark or directed someone else to sign on their behalf, a commissioner of oaths must also sign in everyone’s presence and attach a certificate as mentioned above.
7. When must I update my will?
  • The general rule of thumb is that you must update your will on an annual basis or whenever a big life-changing event took place, whichever occurs first. 
  • A big life-changing event includes a marriage, divorce, death of a loved one that may have been an heir or a nominated person in your will, birth of a child or grandchild, or any other event which may directly or indirectly have an impact on the contents of your will or the manner in which you wish your estate to devolve or be administered.
  • To illustrate the importance of updating a will, in terms of the Wills Act, No 7 of 1953, if a person dies within 3 (three) months after their marriage was dissolved (by divorce / annulment) their will shall be implemented in such manner as it would have been implemented if their previous spouse died before the date of dissolution, unless the will clearly provides that they intended their previous spouse to still benefit regardless of such dissolution. This effectively provides a testator / testatrix an automatic safeguard of 3 (three) months after their divorce during which their spouse will not inherit. If the testator / testatrix however fails to update their will within those 3 (three) months, the deemed revocation rule no longer applies, and the divorced spouse can still benefit as provided for in the will.

*Disclaimer: The articles on our website are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided therein is not intended to stand alone as legal advice. Please arrange for a consultation or consult an independent and suitably qualified attorney on any specific legal matter. 

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