Requirements for a valid will

Is there more to preparing a will than recording your wishes in writing, signing the document and keeping it somewhere safe for future reference?

Yes, in South Africa wills must comply with certain strict formalities, or they may not be valid.

After a death, the deceased’s family members will hand over the deceased’s will to the Master of the High Court, in order for it to be implemented. The Master is entitled, at his/her discretion, to refuse to accept any such document until a court has pronounced upon its validity as a will. If the formalities haven’t all been complied with, the court will order the Master to accept the will if it is satisfied that the document was prepared by the deceased with the intention that it would serve as his or her will.

Taking the document before a court to resolve the question of its validity is a very expensive and time-consuming process, however – and one best avoided at virtually all costs! It is common for a High Court matter to costs hundreds of thousands of rands, and to take a number of years to reach the doors of the court.

The purpose of imposing strict formalities is to reduce fraud where wills are concerned, through for example someone impersonating a testator (the person making the will) or misrepresenting to a person what exactly they are signing.

What follows are the basic requirements to be met to ensure the validity of a will:

1. The testator must be at least sixteen years of age, and must be mentally capable of appreciating the nature and effect of his/her act in making the will. If the testator is intoxicated or extremely unwell at the time, to the point that s/he lacks sufficient understanding of what s/he is doing, then the will is not valid.

2. The will must be signed by both the testator and the two competent witnesses. A competent witness is a person aged at least fourteen years, and also having sufficient mental capacity.

3. The testator can sign through making a mark (such as an X or a thumb print) but this must be certified by a commissioner of oaths, who states that s/he is satisfied that the testator is who s/he purports to be and that the will is in fact his/her will. Witnesses cannot sign by making a mark.

4. The signatures at the end of the will must appear sufficiently close to the final substantive words of the will. If too large a gap is left, then the signatures and will may be invalid. Even a gap of 17cm has resulted in a will being deemed invalid.

5. The testator and witnesses must sign in each other’s presence and at more or less the same time.

6. If the will is more than one page long, then each page other than the final page must also be signed by the testator. It is not essential for the witnesses to also sign each other page, but it is wise that they should do so anyway. 

While the formalities are few and simple, small omissions can have significant consequences. It is wise to sign your will in the presence of someone with the necessary knowledge of the formalities, to ensure that seemingly minor oversights do not cause major problems down the line.


Race-based charitable bequests

The Supreme Court of Appeal recently handed down judgment in a matter concerning a deceased woman’s wish to set up bursaries to be available to white students only (amongst other criteria).

The other criteria specified the universities at which the students should be studying, their field of study, and the level at which they should be studying. The bursaries would help them further their studies overseas, on condition that they returned to South Africa to put their new skills into practice.

The trustees tasked with putting the deceased’s wishes into effect, approached the universities which the deceased had identified. They all indicated that they could not accept any bursary unless it was open to students of all races. The trustees then approached first the High Court and later the Supreme Court of Appeal, asking the courts to remove the race criterion from the deceased’s bequest, on the basis that it was discriminatory and therefore against public policy.

Both courts refused to remove the race criterion.

The High Court suggested (without making a finding) that the deceased’s intention was not necessarily unfairly discriminatory, as it appeared to be directed at limiting the “brain drain” in the identified field of expertise. The court found that it could only vary the provision in the deceased’s will if it had consequences which she had not foreseen – that is, if the discriminatory nature of the bequest meant that it could not be carried out and her will thus failed to dispose of her estate. The evidence in the specific case was clear that the deceased had foreseen that her wishes might not be given effect to, and she had indicated certain charities which should in that event receive the funds that would have been used for the bursaries. There was no need to tinker with the deceased’s will as it could still be put into effect, albeit on an alternative basis. If the universities would not accept the bursaries, then the charities would benefit in their place.

In upholding the High Court’s ruling, the Supreme Court of Appeal pointed out that this case differed from another similar case decided in the intervening period, in which the racial criterion had indeed been removed by the court. In the other case, there had been no alternative to cater for the possibility that the racial bequest would not be carried out. In order to avoid a situation whereby the deceased’s wishes were completely frustrated, in the other case the racial criterion had been removed. In this case, on the other hand, the deceased had set up an alternative which she had clearly intended to follow in the event that her racial bequest failed. The court found that it was possible in this case to give effect to the deceased’s intentions without amending her will, and so this was what should be done. The deceased had, in general, the freedom to frame her will and dispose of her assets as she wished. It was not for the trustees or the court to decide that it would be preferable to amend her will to make the bursaries acceptable to the universities, instead of simply applying the alternative provision she had put in place.