Is your Will valid? – Kenny Smith

We have been asked by one of our readers to write on the requirements of a valid Will as it has relevance to their current situation.
 
Essentially the scenario is that Mrs. X has passed away. A Will has been found which leaves Mrs X’s entire estate to family friends. After Mrs. X’s daughter sees the Will she disputes the validity of the Will as one of the pages wasn’t initialled by one of the witnesses.
 
Firstly the let’s lay out the requirements for a valid Will. A valid Will must :
 
1. Be signed by a person over the age of 16 (sixteen) years.
2. be in writing. A Will can by typed or handwritten. If the Will is handwritten, it must be remembered that the person who writes the Will is not allowed to be mentioned as a beneficiary in that specific Will.
3. Each page of the Will, including the last page, must be signed by the testator (a testator is the person who’s estate the Will deals with). The Will must also be signed by two competent witnesses. A person will qualify to be a competent witness if s/he is 14 (fourteen) years of age or older.
 
A person who cannot sign his/her Will, can sign it by making a thumbprint.
 
If a thumbprint is used, the Will must be certified by a Commissioner of Oaths indicating that s/he is satisfied with the identity of the testator and that it is indeed the Will of the testator.
It is important to note that the above requirements do not make specific mention that a Will must be initialled on each page by the witnesses. There is case law that states that a Will is not automatically invalid just because an initial by one of the Witnesses is missing.
 
Should a party wish to dispute a Will they will have to apply to the high court for an order that the Will in question is declared invalid.

Failing an order to this effect there is a high likelihood that the Will be accepted and process accordingly.

For any further information on this topic please feel free to contact our offices at info@tuckers.co.za or 011 897 1900.
Article contributed by Kenny Smith

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