Topic Four: Formalities for a Valid Will and Revocation/Revival of Wills
Formalities for a Valid Will:
The execution of a will is the process through which the testator and other parties comply
with all the formalities required to bring a valid will into existence.
A will that is not executed in accordance with the formalities required by the Wills Act is
invalid. In other words, it is of no force or effect, and its contents are ignored unless there is a
court order that, in terms of section 2(3) of the Act, the will be accepted as if it had been
validly executed. In this way, the law attempts to ensure that there is reliable and permanent
evidence of the testator's testamentary intentions.
Formalities i.t.o Section 2(1)(a) of the Wills Act: The formalities required by this section can
be summarised as follows:
1. The will must be signed at the end thereof by the testator himself or herself, or an
amanuensis (this is a person who signs on behalf of the testator);
2. If the will is more than 1 page, every page other than the last must be signed
anywhere on the page by the testator or the amanuensis;
3. The signature of the testator or the amanuensis must be made in the presence of 2 or
more competent witnesses;
4. Such witnesses must attest and sign the will in the presence of the testator and each
other, and where applicable of the amanuensis;
5. Where the testator signs with a mark, or an amanuensis signs for the testator, a
commissioner of oaths must be present and certification formalities apply.
The formalities for a valid will and their strict enforcement is a guard against fraud.
Requirement of a Written Document: The Wills Act does not expressly require that a will
should be a written document, but the requirement is implied from the requirement that the
will must be signed by the testator in certain specified places and from the reference to pages
of the will.
Handwriting, typing and printing (or a combination of these) are all acceptable. Even
writing in pencil is acceptable although not advisable due to the possibility of fraud.
It is not possible to make an oral will nor would a will in the form of a video or DVD
recording, or saved in electronic format as a computer file on a hard drive be accepted
because none of these can comply with the signature requirements.
Even if an electronic signature constituted a signature for the purposes of the Wills
Act, which is unlikely, it is not possible to comply with the requirements regarding
where the signatures of the testator and witnesses must be placed. For the same
reason, a will composed as an SMS on a cell phone would not comply with the
execution formalities.
Meaning of ‘Sign’ and ‘Signature’ and the Concept of a ‘Mark’: The Wills Act requires a will
to be signed by various persons in various places. The definition of 'sign' in the Act does not
attempt to be comprehensive.
Prior to 1 October 1992, this definition stated merely that, in the case of a testator,
'sign' includes the making of a mark, but it does not include the making of a mark in
, the case of a witness. (The word 'signature' was given a corresponding meaning.) The
Act accordingly drew a distinction between a signature in the ordinary sense of the
word and other devices or characters on the page, referred to as marks, that a person
might use to function as a signature (for example, a thumb-print on the page). The use
of a mark was, therefore, reserved for the testator alone and when the testator used a
mark, the Act required certification of the will by a commissioner of oaths.
o A difficult issue that arose was whether or not initials qualify as a form of
mark. If initials were recognised as a form of mark, they would not qualify as
signatures when used by a witness, and when used by the testator, the will
would have to be certified by a commissioner of oaths.
Harpur v Govindamall: In this case the Court ruled that initials constitute a form of
mark. Consequently, the Court held that a witness's signature using initials invalidated
the will. However, before the delivery of the judgment in in this case, parliament
stepped in and revised the definition of 'sign' to state that it includes `the making of
initials and, only in the case of the testator, the making of a mark'. The term
'signature' has a corresponding meaning. Thus, although the use of a mark is reserved
for the testator alone, the testator, witnesses, amanuensis and a commissioner of oaths
may sign by means of initials whenever they are required to sign a will. However,
when the testator signs by means of a mark, a commissioner of oaths must certify the
will.
The Act does not require that a person must sign with his or her ordinary or customary
signature, nor does it require a person to sign in the same way on every page. It does
not even require the person to sign his or her full name. Note, however, that the use of
any writing other than the person's name does not qualify as a signature in the
ordinary sense and constitutes a mark.
Where Must the Testator Sign? The Wills Act requires the testator to sign at the 'end' of the
will which raises the issue of where the will ends.
Suppose that the last paragraph of the testator's two-page will ends half way down an A4
sheet of paper - where is the 'end' of the will? Is it at the end of the writing half way down the
page, or at the bottom of the sheet of paper?
It has been held that the will consists of the words, not the paper, and therefore the
will ends at the end of the last paragraph of the writing.' This means that the testator
must sign the will as close as reasonably possible to the concluding words of the will
and a failure to do so invalidates the will. The purpose of this strict approach is to
prevent the fraudulent insertion of words at the end of the will after the testator's
signature.
Kidwell v The Master: In this case, the court had to consider the effect of a 9cm gap between the end
of the writing and the testator’s signature. It held that such a gap meant that the signature was not as
close as reasonably possible to the concluding words of the will and that the will was invalid.
If the will comprises more than one page, then, in addition to signing the end of the will,
the testator or amanuensis is also required to sign each of the other pages of the will. They
can do so anywhere on these pages.
, Where a will is written on 2 sides of a single sheet of paper, both sides must be signed. The
side on which the will ends must be signed at the end of the will and the other side can be
signed anywhere on the other page.
Signature by an Amanuensis: [An amanuensis is someone who signs on behalf of the
testator].
Section 2(1)(a)(i) of the Act requires that the will be signed at the end by ‘the testator or by
some other person in his presence and by his direction’. In this way, the Act makes provision
for a testator who does not, for example, have the use of his or her hands, or who may be
illiterate, to execute a will through the medium of his amanuensis.
Since the amanuensis is simply the physical vehicle by which the testator executes the
will, he or she should sign the testator’s name, and not his or her own.
Oosthuizen v Sharp and Ex parte Fourie’s Estate: Wills that are signed with the testators’ name by an
amanuensis were held to have been correctly executed in terms of the formalities when applicable.
Where an amanuensis is used, the will must be signed in the presence of a commissioner of
oaths as well as in the presence of the usual witnesses, and the commissioner is required to
certify the will… Look below.
Who is Required to Witness a Will? The Act requires that a will be witness by 2 competent
witnesses.
Competent witness = Any person above the age of 14 years who is not incompetent to give
evidence in a court of law.
Section 4A of the Act stipulates that a witness to a will, and his or her spouse at the time of
witnessing, lacks capacity to inherit under that will. If a beneficiary witnesses the will he or
she is deprived of his or her inheritance (they do not lack the capacity to be a witness!!).
The Meaning of a Witness: There are 2 aspects to the witnessing of a will:
1. The physical presence while the testator, or amanuensis, signs; and
2. The actual signing of the will by the witnesses themselves.
Two competent witnesses, both present at the same time, must be present when the testator, or
amanuensis, signs each page of the will.
If an amanuensis signs, then the testator must be present too. Alternatively, if one or
both witnesses are not present when the testator signs, then the testator must
acknowledge his or her signature in the presence of both witnesses after such signing.
In addition to being present, the witnesses themselves must sign the will.
Where the testator has executed a will comprising two or more pages as a single
juristic act, the same two witnesses who attest and sign the last page of the will must
be present as witnesses to the testator's signature of the earlier pages.
Liebenberg v The Master: This was a case involving a one-page will which the witnesses had signed
near the top of the page, the Court held that witnesses need not sign near or below the testator's
signature, but may sign anywhere on the page. However, the witnesses' signatures must not appear
where the testator's signature ought to be at the end of the will because this would result in a failure by
the testator to sign in the correct place.
