Revising a Will
Key Takeaways:
Regularly revising your will is crucial for adapting to life changes and ensuring its relevance.
Consult legal advice to navigate complexities and maintain compliance with evolving laws.
A dynamic will aligns with your current wishes, providing clarity for loved ones in challenging times.
A will is a formal, signed, written document, in which the deceased (now referred to as the testator) voluntarily sets out their instructions in unambiguous terms as to how their assets are to be “passed down” or inherited following their demise.
What are the requirements for a valid will in South Africa?
Section 2(1)(a) of the Wills Act 7 of 1953 sets out the pretty straightforward requirements for a valid will. However, keep in mind that a small oversight can render your will invalid, so take note –
The testator must be older than 16 years of age;
The testator must be mentally capable of understanding the consequences of his or her actions at the time that the will was drafted. wills or provisions that are proven to be drafted under duress, undue influence or mistake will be invalid;
The will must be in writing. You can choose to type it out or handwrite it, but the words must be legible and in your own name;
The testator must sign at the end of the will. While the act is not clear in this regard, it is recommended that the signature be placed just below or as near as possible to the last line of the will;
The testator may request a person to sign on his or her behalf. In such event, the signature must be made in the presence of the testator, at least two competent witnesses, and a commissioner of oaths. The commissioner of oaths must certify the will and sign each of its pages;
The testator may sign their will by making a mark or a thumbprint in the presence of at least two competent witnesses and a commissioner of oaths. The commissioner of oaths must certify the will and sign each of its pages. Witnesses may not sign by making a mark or thumbprint;
If the will is longer than one page, the testator (or someone on his behalf) must also sign every other page of the will, anywhere on the page;
The testator’s signature on the last page must be made or acknowledged in the presence of 2 competent witnesses who are present at the same time. According to section 1 of the Wills Act, a competent witness is anyone over the age of 14 who is of sound mind and capable of understanding the consequences of his or her actions and can testify in court, and
The witnesses must sign the last page of the will. The signatures can be made anywhere on the last page, but it is recommended that they are made below or as near as possible to the last line of the will. The witnesses’ role is to witness the signature of the testator or the person signing on the testator’s behalf. It is therefore not necessary for the witnesses to read the will. Although it is not a legal requirement, it is recommended that the witnesses also sign every other page of the will.
This is not a legal requirement but you should date your last will and testament to avoid any confusion (in case more than one will is found)
Note: the beneficiary or executor of the will must not sign a will as a witness. If they do, they may be disqualified from inheriting under the will (the validity of the will however will not be affected).
A further note: the question as to when you should draft a will often arises. The simple answer – if you are over the age of 16 and are legally able to draft a will, then you can do so. Please see the above requirements for a valid will to guide you.
For further details on the drafting of a will, refer to our article Your Will is Yours to Make.
When should I revise my will?
One should review their will after any significant change in their life circumstances.
For example, marriage, the birth of a child and retirement. You will want to make amendments to provide for these circumstances and failure to do so could result in your wishes not being carried out when you pass on.
The most common example of a need to revise your will is upon divorce. A bequest to your divorced spouse in your will, made prior to your divorce, will not necessary fall away after divorce. The Wills Act 7of 1953 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. This provision allows a divorced person a period of three months to amend his/her will, after the trauma of a divorce. Should you, however, fail to amend your will within three months after your divorce, the deemed revocation will fall away, and your divorced spouse will benefit as indicated in the will. And an estranged spouse inheriting your estate does not sit well with any divorcee that has just gone through an acrimonious divorce. So be sure to amend ASAP.
However, changes in circumstances are the bare minimum that one should use as a yard stick for amending or revising their will. One should also review their will whenever there are changes to law that would have implications on their estate.
Notes:
A will should always be clear and unambiguous so that there is ease of administration. Too many amendments to one will could cause confusion and as a result hardship for beneficiaries trying to understand what is going on. In some cases, it is best to redraw your will in its entirety (which will take less time than making amendments), ensuring absolute clarity.
Whilst it is important to keep your will up to date, it is problematic having several subsequent wills in the custody of different people and organisations. Why? Well, an amended will does not necessarily revoke (or cancel) an earlier will. An amended or updated will must be properly signed in accordance with the provisions of the Wills Act and clearly state that it revokes all previous wills and codicils to effectively revoke (or cancel) all previous wills and give effect and validity to the amended will.
Should you pass leaving more than one unrevoked will, the rule of thumb in terms of common law is that the wills must be read together and reconciled, and the provisions of the earlier testimonies are deemed to be revoked in so far as they are inconsistent with the later ones. Where there is conflict between the two wills, the conflicting provisions of the earlier testament are deemed to have been revoked by implication.
For further information on revising your will, read our article Wills – the Do’s and Don’ts.
Why should you trust Benaters to draft your will?
Whilst the above outlines, at a very high level, some information pertaining to the revising of a valid will in South Africa, it is not all encompassing. There are various technical issues which have not been covered and which may be important to consider when revising your will.
You should always seek professional guidance for these important matters to ensure that your wishes are carried out how you envisioned them to be. More so, a professional with experience in wills and deceased estates (such as the attorneys at Benaters) will ensure that your family is taken care of in the way you want them to be. Even after your will has been revised.
We have assisted many individuals and families with both the drafting of their wills and revising of their wills. We have also supported and guided them through the process of administering a deceased estate.
We are here to help you. In any way we can!
So please, get in touch and let us assist you with the revising of your will (and administration of your deceased estate) – as always, with professionalism and the utmost due care.