To ensure that your family receives its rightful due, a will is the most important document you will ever sign. Ann Nel, National Manager: Wills at Sanlam Trust offers some guidelines on drawing up this vital document correctly.
The purpose of a will is to implement your last wishes; but in order to do so, it must comply with certain minimum requirements stipulated by the Wills Act:
• It must be in writing.
• The testator must be at least 16-years old and be capable of contracting.
• The testator must sign or initial every page in the presence of two competent witnesses, who are at least 14-years old and are capable of contracting and giving evidence in court.
• The witnesses must sign the last page.
Only one copy needs to be signed originally, but it is recommended that at least two copies be signed originally and stored separately.
When corrections, additions and deletions are made to a will, the testator and two competent witnesses must sign next to such amendments in each other’s presence. The initial witnesses need not resign an already signed will.
A DATED DOCUMENT
The Act does not stipulate that a will has to be dated but it is very important to do so as, at the time of death, more than one valid will could exist that would need to be considered. There might also be conflicting bequests and provisions, so it is important to state in your will that it revokes all previous wills and codicils (a document that amends a will).
The testator or another person may draw up the will but, if the other person is nominated as an heir or executor, there are risks involved. Such a person will then be able to inherit only what they would have inherited intestate had there been no will.
MAKING YOUR MARK
If the testator is not able to sign their name and can only make a cross, mark or fingerprint, this does not make a will invalid. In such a case, the witnesses must be able to sign and the following additional requirements must be met:
• The cross, mark or fingerprint must be made before a Commissioner of Oaths.
• The Commissioner of Oaths must sign every page, as well as next to amendments, and affix the prescribed certificate and sign at the end of the will.
• The Commissioner of Oaths may not be a witness.
DRAWING UP THE WILL
You may draw up your own will, but it’s advisable to have it drawn up by your bank or other financial specialist familiar with the latest estate-planning techniques and products in the financial and fiduciary industries. Such a person or institution should also be in a financially secure position to settle any possible claim for damages against an incorrect or invalid will. The Attorneys Act stipulates who may charge a fee to draft a will.