Your Will: The Importance of Witnesses
Key Takeaways:
Witnessing your will is a crucial legal requirement for validity.
Select impartial witnesses, ensure their eligibility, and adhere to legal protocols to safeguard your testamentary intentions.
Signed witnesses, without which your will would be legally invalid.
In our previous post we established the importance of having a qualified estate planning attorney draft your will. The terms of your will should be specific, and stipulate who your beneficiaries are and what exactly they are to receive.
This 3-part series on your will outlines certain important points to ensure your will is valid and drafted in accordance with the law.
The first topic we’ll address is signed witnesses, without which your will would be legally invalid.
Signing the will
The testator (the person whose will it is) must sign their will, or confirm their signature, in the presence of two or more competent witnesses, who must be present at the same time. Only the testator need sign each page of the document, the witnesses only need to sign at the end of the will.
It’s also important to be aware that the witnesses must sign in the presence of each other and the testator.
Validity of Signatory
Your beneficiary, i.e. people who benefit from your will, may not be involved in preparing, writing on your behalf or signing witness on your will. The Wills Act 7 of 1953 states that while this is the case, there are exceptions, namely:
The court can decide that in the case where a beneficiary or spouse did assist in writing the will in their handwriting, or signed the will as a witness, they may benefit from the will if there was no undue influence or fraudulent activity that result in their benefiting from the will.
A spouse who would have inherited in terms of intestate succession laws will not be disqualified provided that the benefit they would have received in terms of the will is not greater than that which they would have received in terms of intestate succession laws.
Any person or spouse of the testator will not be disqualified if two other witnesses (who will not inherit from the testator) sign the will.
In the two subsequent posts in the series, we’ll discuss what happens in the case of divorce and the impact of divorce on your Will, and then we’ll go into the impact of a beneficiary who causes the death of the testator and the effects of such on the testator’s Will.
