A Will is one of the most important documents a person has to create in their life time.
It represents a person’s last wishes as to what he/she wants to happen to his /her assets after they pass away. In addition it is an act that conveys your wishes providing for the care of your loved ones. You also appoint an legal executor to your will.
The current legislation to ensure that the documents drafted are in the line with the Wills Act. Such decisions should not be taken lightly and yet it can be easily go wrong because of poor draftsmanship.
It should not be difficult to convey a person’s intention if it is clear, unambiguous and capable of being acted on. But how to write a will correctly is subject to specific rules governed by the Wills Act.
The Wills Act
An affidavit does not constitute a valid Will since it does not comply with the formalities of a valid Will in terms of Section 2 of the Wills Act.
Section 2 of the Wills Act 7 of 1953, provides one with some formalities and requirements for a valid Will:
1. A Will must be in writing;
2. The Will must be signed at the end of the last page by the Testator/testatrix or some other person in his/her presence and by his/her discretion;
3. It must be signed in the presence of two or more competent witnesses present at the same time who are 14 years old and competent to give evidence in court;
4. If the Will contains more than one page the testator must initial the first page or other pages and sign the last page;
5. The testator /testatrix can make a mark, initials or thumb print such mark will be accompanied by a Commissioner of Oaths certificate confirming the identity of the testator. Include when a person signs on behalf of the testator.
A competent draftsman should be familiar with these requirements when drafting the Will otherwise this may lead to rightful or intended heirs being disinherited or worse being faced with unnecessary legal costs having to approach the courts as to the ‘true’ intention of the deceased.
Even though the Master is the guardian of the Will, when it comes to the interpretation, such powers are limited in the accepting and rejecting of the Will on face value.
The Master is faced with having to reject Wills because of non-compliance or poorly drafted documents and those who cannot afford to approach the High court end up having to administer the estate intestate.Approaching the High Court
In one particular case the testator knew there was going to be a dispute among the children(heir)when he passed on and approach a draftsman to draft a Will which specifically dealt with a dispute should one arise.
The Master of the High Court then rejected the Will in 2010 because it did not comply with the requirements of a valid Will which meant the estate was dealt with intestate succession. He then referred the heirs back to the draftsman to make an application to the High Court since the attorney was the executor and the children could not agree among themselves. This could have been avoided if there Will was properly drafted.
A Will that does not comply with the requirements leaves the rightful heirs with having to administer the estate intestate, if they cannot afford to approach the High court to have the document accepted as a Last Will testament.
Section 2(3) of the Wills Act provides for a rescue provision.
It permits the High court to order the Master to accept a document which has been drafted or executed but does not comply with the formalities of a Will for execution; it includes for instance where there is an amendment of the Will.
The courts are left with discretion to accept such documents as the deceased person’s intention to be a Will.
A person who seeks to validate such document as a Will in terms of Section 2(3) will have to prove the intention of the testator (a person making a wish) E.g. the letter of wishes which was signed and dated was not intended to be an amendment to the Will of the deceased in Taylor v Taylor ECHC (Port Elizabeth) case no 257/2011.Free Will Drafting Service
Greyvensteins Incorporated are Estate Administrators and offer a free will drafting service when we administer the estate or are executors. We'll even keep it safe for you.
Our Estate Planning Department has extensive experience working with the Master’s Office and with Executors of Estates to assist you with drafting a valid Will.