In our previous two posts, we considered who may play a role in your will, and what the roles involve. In this post, we explain the correct way to sign your last will and testament.
Our law has simple but strict requirements for the signing of a will. If you sign your will incorrectly, it can be rejected after you die. This can lead to strife amongst your potential heirs (those in the will and outside of it), and the prospect of expensive High Court litigation to have the will accepted despite its shortcomings.
You, as the TESTATOR (the person making the will), must sign it with your signature. You must sign each and every page. Too large a gap between the text and the signature on any page could invalidate the will. It is important to sign close to the end of the text and not simply at the bottom of each page.
You should sign the will in the presence of two WITNESSES. The witnesses should be aged at least 14 years old and not mentally impaired. They should not be anyone who is named in the will as executor, trustee, heir or any other roleplayer, or the spouse of such a person. If such a person signs the will, they could be disqualified from being appointed or inheriting, as the case may be. The witnesses must sign the will in your presence and each other’s. Witnesses are required to sign the last page of the will. As a check on fraud it is good practice for them to sign each and every page. They should sign the will after you do, as by their signature they are confirming that you signed the will in their presence.
You must make your will in writing. As yet no provision has been made for wills to be signed digitally. As a result, your will must be written out or printed on paper and signed with ink. The ORIGINAL signed document is very important and must be kept safely. Many people will lodge the document with their attorney or other advisor for safekeeping. The Master will not accept a photocopy of a will, or an unsigned version, unless the High Court orders them to. This requires an interested party such as an heir to apply to the court and place before it persuasive evidence as to the testator’s intentions.
Special procedures apply when a person making a will is unable personally to sign the document despite understanding its contents and wishing to make the will. This situation arises when a testator is illiterate or has physical difficulties affecting their ability to write. In these cases, the person may sign the will by making a mark (such as an X or thumbprint), or another person may sign at his or her direction. A commissioner of oaths must assist in confirming that the person making the will has been identified and that the will is indeed their will. Special advice should be sought in such a case, as the procedures are more complex than detailed here.
For advice on any matter concerning a last will and testament, you can contact us at camilla@roseattorneys.co.za.
