Although the technological age has presented new challenges in ensuring that a Will is validly executed with the introduction of electronic signatures, dictation, video recordings, and the like it is important to note that in terms of South African Law the provisions of the Wills Act 7 of 1953 have not been amended to incorporate any of the aforementioned developments in technology and the current formalities set out in Section 2 of the Wills Act 7 of 1953 still apply.
South Africa’s jurisprudence is littered with cases dealing with the lack of compliance with the formalities required to execute a valid Will thereby resulting in Wills being rejected by the Master of the High Court. The Master has no discretion to accept a Will which has not been validity executed in terms of the relevant legislation.
The legal repercussions of an invalid Will may be that the testator’s assets are distributed in terms of the laws of intestate succession which may result in the estate being left to someone whom the testator may not have wished to inherit amongst other unforeseen unfortunate consequences.
The Wills Act does make provision for a safety net clause, namely section 2(3) which allows the High Court in certain instances to issue an order compelling the Master to accept the Will as being valid despite the fact that the formalities have not complied. This application can be contested or uncontested and is an expensive exercise.
The fundamental requirements for the valid execution of a valid Will, as set out in section 2 of the Wills Act 7 of 1953, are that the Will must be in writing and that it is signed in the correct manner by the required persons which can be summarised as follows:
The Will must be signed by the Testator/Testatrix in the presence of the witnesses, all being present at the same time.
Each page must be signed in full by all parties.
The witnesses must be over the age of 14 (Fourteen) years.
A beneficiary, in terms of the Will may not act as a witness to the signing of the Will.
The spouse of a beneficiary may also not act as a witness to the signing of the Will.
The Executor/Trustee/Guardian is regarded as a beneficiary and may not act as a witness to the signing of the Will.
The spouse of the Executor/Trustee/Guardian may also not act as a witness to the signing of the Will.
It is important to take note that legislation dictates the requirements for the valid execution of a Will in those instances where the Testator/Testatrix signs by way of a thumbprint, a cross, is blind, or instructs a third party to sign on their behalf which requirements differ to the above to those listed above.
For more information or to arrange a consultation, contact our Wills & Estates Department on 041 363 6044 or info@kaplans.co.za.
