Is your will valid?

Pre­scribed requirements

It is impor­tant that your will is writ­ten and exe­cut­ed to com­ply with the require­ments as pre­scribed under the Suc­ces­sion Act 2006 (the Act) .

Essen­tial­ly the require­ments of a valid will are set out in Sec­tion 6 of the Act. A will is gen­er­al­ly invalid unless:

• it is in writ­ing, either typed or hand­writ­ten; and
• it is signed by the testator/​tes­ta­trix (Will-Mak­er) or by some oth­er per­son in the pres­ence of and at the direc­tion of the Will-Mak­er; and
• the Will-Mak­er’s sig­na­ture is made or acknowl­edged in the pres­ence of two or more wit­ness­es, present at the same time; and
• at least 2 of those wit­ness­es attest (wit­ness) and sign the will in the pres­ence of the Will-Mak­er (but not nec­es­sar­i­ly in the pres­ence of each oth­er); and
• the sig­na­ture of the Will-Mak­er or of the oth­er per­son sign­ing at the direc­tion of, and in the pres­ence of the Will-Mak­er must be made with the inten­tion of exe­cut­ing the will.

Wit­ness­ing a will

Com­mon mis­con­cep­tions con­cern the cor­rect pro­ce­dure for wit­ness­ing a will. Some mis­con­cep­tions are list­ed and explained below:

• A will is invalid if it is not signed at the bot­tom of each page.

No, it is not essen­tial that a will is signed at the bot­tom of each page. How­ev­er, it is pru­dent prac­tice for the Will-Mak­er and the 2 wit­ness­es to sign the bot­tom of each page. This pre­vents unau­tho­rised tam­per­ing with the will by removal or inser­tion of pages.

• A will must have an attes­ta­tion clause, oth­er­wise it is invalid.

Again this is not true, an attes­ta­tion clause is not essen­tial per se, how­ev­er, it is again con­sid­ered pru­dent prac­tice for a will to con­tain an attes­ta­tion clause. This assists with prov­ing the Will-Mak­ers capac­i­ty and inten­tion if the will is ever chal­lenged in court.

• A blind per­son can wit­ness a will.

No, a per­son who is unable to see and attest that a Will-Mak­er has signed a doc­u­ment may not act as a wit­ness to a will.

• A ben­e­fi­cia­ry to a will can also wit­ness the will.

As a gen­er­al rule this is not true. In cer­tain rare cir­cum­stances, an inter­est­ed wit­ness, that is, a wit­ness who is also a ben­e­fi­cia­ry to the will, may act as wit­ness and main­tain his or her sta­tus as ben­e­fi­cia­ry under the will. How­ev­er, this is very risky prac­tice. A ben­e­fi­cia­ry to a will should nev­er act as a wit­ness to the same will.

• Must wit­ness­es know that they are sign­ing a will?

No, a will that is exe­cut­ed in accor­dance with the Act is valid­ly exe­cut­ed even if one or more wit­ness­es to the will did not know that the doc­u­ment he or she attest­ed and signed was a will.

Get it right

The dan­gers of hav­ing a poten­tial­ly invalid will are twofold:

1. Your will is greater exposed to legal pro­ceed­ings brought by peo­ple wish­ing to chal­lenge the valid­i­ty of the will.
2. If found to be invalid, the rules of intes­ta­cy will like­ly apply to deter­mine how your estate will be dis­trib­uted. This means your estate will be dealt with as if you died with­out a will.

Togeth­er, these dan­gers increase the like­li­hood that your assets will be dis­trib­uted against your wishes.