As many say, there are two things definite in life – Taxes and Death. We all deal with the first quite frequently, but we will all be confronted with the latter at some stage, so be prepared!
Many in their state of ignorance weigh the importance of a Will against the value of their estate and underestimate the seriousness and consequences of a Will not properly drafted and executed in terms of legislation. It is of utmost importance to ensure you have a valid Will at all times, no matter how big or how small your estate is.
Any person over the age of 16 years has the power to execute a valid Will, in terms of the Wills Act, 7 of 1953 (‘the Act’). In order for a Will to be valid the following must be adhered to in terms of the Wills Act:
- The Will must be in writing (since 1 January 1954), either written by hand or typed;
- The testator/testatrix must sign the Will on every page;
- The testator/testatrix and at least two witnesses must sign the Will in the presence of each other;
Since the Act is not comprehensive, we also need to study case law to establish how the Act should be interpreted. Where ever there is room for interpretation there is room for litigation. Ensure you narrow down this gap to avoid future litigation by a disgruntled relative.
I will refer to two recent judgments in South Gauteng High Court, Johannesburg, where the Judges had to establish the validity of the Last Wills and Testaments. In both matters I am referring to, the Plaintiffs are directly related to the deceased. Never underestimate the power of a disgruntled relative.
In Karani v Karani a family member in Canada drafted the deceased’s Will (‘the contested Will’). The first witness did not sign the Will in the presence of the deceased or the second witness. The Plaintiff, who is the brother of the deceased contended that the contested Will was invalid based on non-compliance with provisions of the Act and alleged that the deceased’s signature was forged. Based on the above, the Plaintiff requested the Court to declare the contested Will invalid.
Based on the evidence of a handwriting expert, the Court found in favour of the Plaintiff. The Court further suggested that Section 2(1)(a) of the Act ought to be interpreted to require the witnesses to sign each page of the Will.
The Court also referred to a remark made in the judgment of Van der Merwe v Master of the High Court & another, where the Court stressed that the execution of Section 2(a) and Section 2(2) of the Act is to ensure authenticity of Wills.
In Twine and Another v Naidoo and Another the deceased was in a long term relationship with the first Defendant, who was 38 years younger than the deceased. The Plaintiff, daughter of the deceased, contended that the deceased’s signature on the Will was forged and therefore invalid. In determining the authenticity of the deceased signature as well as the validity of the Will, the Court considered the evidence of handwriting experts and the circumstances under which the Will was executed. The two witnesses signed the Will before the deceased signed and not in the presence of each other, thus the Will was not executed as prescribed by the Act. The Court found the contested Will to be invalid. Once again the requirements of Section 2(1) was not adhered to.
To summarise, both judgments stress the importance of compliance with the Act and good practice to eliminate the notion of fraud. Even in light of freedom of testation, which is considered to be one of the founding principles of estate succession in South Africa, the Courts have the power to declare a Will invalid if non-compliance with the Act is proven, beyond reasonable doubt. The Court may then further order that a previous Will is valid or that intestate succession should apply to your estate, which bequests are prescribed by the Intestate Succession Act, 81 of 1987.
In order to avoid litigation regarding the validity of your Last Will and Testament, ensure your Will complies with all legal requirements, contains all legal contents and clear instructions as to your bequests, including your trust loan accounts. If you are uncertain about the validity of your Will, please do not hesitate to contact services@treoc.com for assistance from a Trust Advisor. This may be the single most important document you sign, after you have set up your trust structure, to ensure what you have built in your lifetime is kept save for your loved ones.
