We believe that one of the most important actions in life is to draft a last will and testament. It is not only a means of estate planning, but a way in which a person may bequeath his assets as he pleases. In order for testamentary writing or document to be valid, it must comply with the requirements as set in section 2(1)(a) and (b) of the Wills Act. These basic requirements include the following:
i. A testator must sign the document;
ii. in the presence of two competent witnesses (who are also required to sign);
iii. on each page, as well as;
iv. at the end of the document.
The testator my sign by making a mark, or instruct someone to sign on his behalf and should this be the case, a commissioner of oaths must attach the prescribed certificate to the last will and testament.The goal of the requirements, as stated above, is to prevent fraud.
In the case where the testator passes away without a valid last will and testament, his estate will be administered in terms of the Intestate Succession Act.
If there is a last will and testament and it does not comply with the aforesaid formalities, an application may be made to the court in terms of section 2(3) of the Wills Act, to condone such will. The court has the discretion to condone the document as a valid last will and testament if it is proved that:
i. A document exists;
ii. A document or amendment thereof was drafted or executed by a deceased person who had since passed away; and
iii. The deceased intended the document or amendment thereof to be his last will and testament.
Should you require assistance with the drafting and execution of a will, or with the application to condone a document as a valid will, kindly contact one of the legal professionals at Haasbroek & Boezaart Inc. Attorneys.
By Natalie Mulvaney