A will is an important legal document but it should not be viewed as another long, stuffy legal instrument. Rather, it should be considered as your master plan for setting out what you want to achieve after your death.
Technical validity of wills
A will must bear up to the scrutiny of interested parties. A will’s validity or the nomination of beneficiaries could be open to attack from the Master’s office, to heirs who feel they have been shortchanged or to those who feel they should have been nominated as heirs in your will.
Ensure that your master plan complies with the legislation specifically dealing with wills and with other legislation that could impact on the intentions of your will.
Only persons, who are 16 years or older and can mentally appreciate the consequences of their actions are competent to draft a will. The will must be in writing whether by hand, typed or printed.
Common but fatal error
An important requirement is for the testator to sign the end of the will in the presence of two or more competent witnesses who must attest and sign the will in the presence of each other and the testator. This means the testator and the witnesses cannot sign independently of each other. They must all sign the will while they are physically in each other’s presence.
If the will is more than one page, each page must be signed by the testator.
Contraventions of other laws
It is also important that the will does not have the effect of causing the contraventions of other laws that become relevant to the particular set of circumstances in your estate. An often quoted example is a farmer who leaves his farm to his children in equal shares. This is problematic as agricultural land cannot be subdivided willy-nilly without the permission of the Minister of Agriculture.
Disqualification of beneficiaries
A beneficiary is defined as an heir, an executor, a trustee or a guardian as nominated in a will. A witness to a will (or his/her spouse) or a person who writes out a will or part of a will (or his/her spouse) for a testator is disqualified from receiving a benefit under that will. These disqualifications are intended to protect a testator by avoiding fraud or the exerting of undue influence. However, a court may reverse the disqualification if it is satisfied that there was no fraud or undue influence.
Getting it right
It is clear that the elements relating to a will’s validity and the nominations of beneficiaries in a will are essential to your master plan. In this respect, take any action required to ensure that your master plan does not fall at the first hurdle.
Wills Act 1 of 1953.