WILLS AND TESTAMENTS
What is said hereunder is not meant to be a comprehensive guide on wills.
A will is a specialised document, which should preferably be drawn up by an expert like an attorney, trust company etc. The information herein is merely to inform the reader about some basic aspects of wills.
WHO IS COMPETENT TO MAKE A WIL?
All persons of 16 years and over, unless at the time of making the will he/she is mentally incapable of appreciating the consequence of his/her actions may draw up a will.
The person who draws up a will is called the testator/ testatrix.
All persons of 14 years and over and who at the time he/she witnesses a will, are not incompetent to give evidence in a court of law.
WHAT ARE THE REQUIREMENTS FOR A VALID
1. Since 1 January 1954 all wills must be in writing. It can be written by hand, typed or printed.
2. The testator/testatrix must sign the will at the end thereof.
3. The signature of the testator/testatrix must be made in the presence of two or more competent witnesses.
4. The witnesses must attest and sign the will in the presence of the testator/testatrix and of each other.
5. If the will consists of more than one page, each page other than the page on which it ends must be signed by the testator/testatrix anywhere on the page.
(Although the testator/testatrix must sign all the pages of the will, it is only the page on which the will ends, that needs to be signed by them at the end of the will).
WHAT ARE THE REQUIREMENTS FOR A VALID WIL
You may then ask someone to sign the will on your behalf or you can sign the will by the making of a mark (a thumbprint or the making of a cross).
When the will is signed by someone on your behalf or by the making of a mark, the additional requirements for a valid will are as follows:
1. A commissioner of oaths must certify that he/she has satisfied himself/herself as to the identity of the testator and that the will so signed is the will of the testator.
2. The commissioner of oaths must sign his/her certificate and he/she must also sign every other page of the will, anywhere on the page.
3. The commissioner of oaths must be present when the will is signed and must append his/her certificate as soon as possible after the will is signed even if the testator/testatrix dies soon after signing the will.
WHAT IS A CODICIL?
A codicil is a schedule or annexure to an existing will, which is made to supplement or to amend an existing will.
A codicil must comply with the same requirements for a valid will. A codicil need not be signed by the same witnesses who signed the original will.
WHAT IF I WANT TO AMEND MY WIL?
Amendments to a will can only be made while executing a will or after the date of execution of the will.
Amendments to a will must comply with the same requirements for a valid will and if you cannot sign, with the same requirements listed under that heading. When amending a will, the same witnesses who signed the original will need not sign it.
MUST I AMEND MY WIL AFTER DIVORCE?
A bequest to your divorced spouse in your will, which was made prior to your divorce, will not necessarily fall away after divorce.
The Wills Act stipulates that, except where you expressly provide otherwise, a bequest to your divorced spouse will be deemed revoked if you die within three months of the divorce.
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