Determining the validity of your will
I gave instructions to my attorney to prepare a Will for me as my most recent Will no longer reflected my wishes. My attorney emailed the Will to me with clear instructions as to how I should go about signing the Will. I asked my neighbours to act and sign as witnesses. My neighbours signed the Will on all the pages and left before I signed the Will on all the pages. I am now worried about the validity of my Will as the email from my attorney states that I have to sign the Will in the presence of two witnesses. Is my Will valid? The formalities for the valid execution of a Will are set out in the Wills Act. Section 2 of the Wills Act, Act 7 of 1953, reads: “No will executed … shall be valid unless the will is signed at the end thereof by the testator… and such signature is made by the testator… in the presence of two or more competent witnesses present at the same time and such witnesses attest and sign the will in the presence of the testator and of each other…”. Therefore, for a Will to be valid, it must be signed in the presence of two witnesses, both witnesses being present when the Will is signed by the testator. The two witnesses signed your Will in the presence of each other, but not in your presence. A similar set of facts presented itself in a court case heard by the Gauteng Local Division of the High Court. In this matter, the two daughters of the deceased, who lost out on their inheritance in terms of the Will of their father, claimed that it was never their father’s intention for his much younger lover to inherit his total estate. The testator was 85 years old at the time of his death and he had been living with a woman 38 years his junior, for 8 years. The deceased executed two wills during his lifetime. One on 6 November 2011 (“the 2011 Will”) and another on 7 January 2014 (“the 2014 Will”). The 2014 Will was signed shortly before his death, leaving the bulk of his estate to his much younger lover. One of the witnesses called to testify in court was a witness to the 2014 Will. Her testimony focused on the circumstances surrounding the signing of the 2014 Will. She testified that she and her husband met the deceased in the street. As they were acquainted, they engaged in social conversation. She and her husband were informed that the deceased was on his way to the police station to sign a Will. She and her husband were asked if they would accompany the deceased to sign the Will as witnesses. They were assured that the process would not take long so they agreed to assist. She and her husband signed the Will and immediately left before witnessing the deceased signing the will. Hence, the 2014 Will was not signed by the deceased in their presence even though it reflects their respective signatures as witnesses. The evidence assessed collectively established that the deceased signed the 2011 Will and that he signed the 2014 Will. However, the 2014 Will was signed by the deceased after the two witnesses to the Will had already left and therefore was signed in their absence. The court referred to Section 2 of the Wills Act, in terms whereof no Will is valid unless the signature made by the testator is made “in the presence of two or more competent witnesses present at the same time”. The court confirmed that this requirement is mandatory and, if not met, the Will is not valid for want of compliance with a statutorily required formality. The court, therefore, found the 2014 Will to be invalid and, as there was no evidence that there was any irregularity in the execution of the 2011 Will, the 2011 Will was declared the Will of the deceased. This judgement of the High Court once again emphasizes the importance of complying with the Wills Act. Your Will is thus invalid and it is advisable for you to print the Will again and to sign it in the presence of two competent witnesses or, even better, for you to make an appointment with your attorney in order to sign the Will at his office. Reference List: Twine and Another v Naidoo and Another [2017] ZAGPJHC 288; [2018] 1 All SA 297 (GJ) Wills Act, Act 7 of 1953 This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
The validity of an e-will
In terms of South African law, for a will to be accepted as valid by the Master of the High Court (a statutory body to which deceased estates are reported), it must comply with the legal formalities as set out in section 1(a) of the Wills Act, 7 of 1953 (hereinafter referred to as the Wills Act). The main requirements in terms of the Wills Act are that the will must be signed by the testator and two competent witnesses, all in the presence of one another. Non-compliance with the formal requirements of the Wills Act will render the will invalid and void. Please note that a certified copy of a signed will is not valid as the Master of the High Court will only accept an original signed will. An electronic will is a will saved as a data message, email or word document on a hard disk or memory device. This type of will is usually typed on the computer/email/data message, but there is no actual signature which allows the law to recognise the document as authentic. The legislator saw a need for a court to be able to declare a will valid even though it does not comply with the formalities of the Wills Act and added section 2(3): “(3) If a court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 1955, as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1)” Therefore, a will that is drafted electronically can be regarded as a validly executed will if application is made to the High Court and the court is satisfied that (a) the document was drafted by the deceased (b) the deceased has died since the drafting of the document and (c) the document was intended by the deceased to be his last will. Currently, there is no legal certainty as to how and when electronic data can be used for the purpose of conveying your final will. Until the Wills Act is amended to include electronic wills, it would be best, if you wish to avoid complications, to draft your will the old-fashioned, hard-copy way and have it properly executed in terms of the Wills Act. If you have any questions please contact our Estate Advisor, Inge Heath, at inge@asl.co.za. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)