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Signature Instructions
Please carefully read the below lockdown and post lockdown instructions and procedures to avoid unnecessary errors which may cause your Will to be invalid.
A. Introduction: Requirements of a Will
Section 2 of the Wills Act, Act 7 of 1953, as amended, (“the Act”), sets out the formal requirements for executing a valid last Will and testament in order to give effect to the intentions and final wishes of the testator/testatrix, being a person who is at least 16 (sixteen) years of age. We have extracted some of the most pertinent requirements applicable to the executing of your Will and have set them out below.
Given that South Africa is currently in lockdown it is important to take note of the lockdown and post lockdown procedures.
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B. Lockdown Procedures
Procedure:
To execute your Will under lockdown, please follow these steps:
Step 1: download your Will and save it to one of your devices;
Step 2: email your executor (who you listed in your Will), attach the Will, and let them know that the attachment is your final Will. If this is a joint Will your partner should do the same in a separate email to the executor;
Step 3: once lockdown is lifted, print the Will and sign it in accordance with the post lockdown instructions.
The law:
Notwithstanding the formal requirements to execute a valid last Will and testament, including signature, witnessing and other formalities, the Act provides that a court may nevertheless condone an otherwise non-compliant Will where the court is satisfied that the Will was intended to be a person’s last Will and testament.
The Supreme Court of Appeal has ruled, (in Van der Merwe v Master of the High Court and another (605/09) [2010] ZASCA 99), that the ultimate question, for a Will to be condoned, was whether the drafter intended the document to be his/her final Will and testament. In this case the deceased had emailed his Will to a friend and had never signed it. The Will was held to be valid.
Accordingly emailing your executor a copy of your Will, stating that it is your final Will, will be sufficient during lockdown.
C. Post-lockdown Procedures
If you had executed your Will during lockdown or you have just downloaded your Will outside of lockdown, your Will now needs to be printed, signed and witnessed. Please take note of the below principles when signing your Will.
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1. Testator’s/Testatrix’s Signature
1.1 The first formal requirement to execute a valid Will, is that the testator/testatrix signs the Will. Such a signature must be made on every page of the document in full. Where the Will consists of more than (1) one page, such signature may be made anywhere on each page, except for the last page, which has to be signed at the end, i.e. after the last sentence of the Will.
1.2 The signatures of the testator/testatrix can be made in any one of the following ways: 1.2.1 full signature;
1.2.2 the making of a mark (X) or thumbprint, where the testator/testatrix is incapable of signing;
1.2.3 another competent person may, by the direction and in the presence of the testator/testatrix, 2 (two) or more competent witnesses and a Commissioner of Oaths, sign the Will on behalf of the testator/testatrix.
1.3 The testator’s/testatrix’s signature is that it must be consistent throughout the document, i.e. a testator/testatrix may choose any of the above methods to sign the Will but they have to sign in that way, consistently, on each page of the Will.
1.4 Where a testator/testatrix has signed the Will without 2 (two) competent witnesses, that Will shall be invalid, unless he/she acknowledges his/her signature in the presence of at least 2 (two) competent witnesses thereafter, them all being present at the same time.
1.5 Where the testator/testatrix signs the Will by making a mark, or by directing another person to sign the Will on his/her behalf, a Commissioner of Oaths must be present and such Commissioner will need to attach a certificate, in terms of section 2(1)(a)(v) of the Act, to the Will. Such certification confirms that the Commissioner of Oaths has satisfied himself/herself with the identity of the testator/testatrix and that the Will so signed. is in fact the Will of the testator/testatrix. In addition, at least 2 (two) competent witnesses must witness the signature on each page of the Will. The Commissioner of Oaths follows the signature or mark of the testator/testatrix by also signing each page of the Will, as well as the last page, which must be signed at the end, i.e. after the last sentence of the Will.
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2. Witnesses
2.1 The signature of the testator/testatrix, in whatever form as set out above, must be made in the presence of two or more competent witnesses, who shall each be persons of the age of 14 (fourteen) years or older who are competent to give evidence in a court of law.
2.2 The witnesses must also sign the Will. It is good practice for the witnesses to sign each page, and as close as possible to the signature or mark of the testator/testatrix.
2.3 In the event that the testator elects to sign his/her Will by the making of a mark, or directs another person to sign the Will on his/her behalf, the Commissioner of Oaths, certifying the Will, may not be one of the 2 (two) competent witnesses. In those circumstances the Commissioner of Oaths Will sign in addition to the 2 (two) witnesses.
2.4 The witnesses are precluded from making a mark and must sign each page in full.
2.5 Section 4A of the Act disqualifies witnesses from receiving benefits under the Will. However, a witness Will not be disqualified from receiving such benefits (including nomination of such a person as Executor, Trustee or Guardian) if such Will has been signed by at least 2 (two) other competent witnesses who are not named in the Will. The Act therefore requires the signature of at least 2 (two) competent witnesses who will not receive any benefit under the Will.
2.6 A court may, however, on application declare such disqualified beneficiary competent to receive benefits under the Will if it is satisfied that such person did not in any way defraud or unduly influence the testator in execution of the Will. This situation should however be avoided and two impartial witnesses, not taking a benefit under the Will, should be used.
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