A will is a specialised legal document, which contract how upon your death, your assets and belongings will be distributed in accordance with your wishes to your beneficiaries and legal heirs. When you make a will, you are referred to as the testator if you are a man and testatrix if you are a woman.
The testator must be mentally capable of knowing the consequences of his or her actions at the time that the will was drafted. At the end of the will, the testator has to sign. While the act is not clear in this regard, it is recommended that the signature be placed just below or as near as possible to the last line of the will. A testator may sign a will by making a mark or a thumbprint in the presence of at least two competent witnesses and a commissioner of oaths. The commissioner of oaths must certify the will and sign each of its pages. Witnesses cannot sign by thumbprint. For a valid Will, it must be executed and witnessed according to the legal requirements. The witnesses must be older than 14 and these witnesses cannot be beneficiaries of the will.
Every deceased estate must have an executor. You may choose anyone you wish to, to be the executor. If the testator/testatrix fails to appoint an executor in his/her Will, the High Court will appoint an executor on behalf of you. This will make a delay in the administration of your estate. The duty of the executor is to ensure that all the terms and conditions of your will are complied with. If you don’t have a Will in place when you pass away, you die intestate. What then happens is the courts take over and make up a Will on your behalf, according to the laws, and split up the assets between the spouse and children.
The requirements for drafting a valid will are contained in section 2(1)(a) of the Wills Act 7 of 1953. The court is given a power to condone a will that does not comply with all the formalities in order to try and avoid situations which may invalidate a will and frustrate the testator’s good intentions. Nevertheless, it is always advisable to abide by all the requirements in order to avoid any delays and complicated issues.
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