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Wills

Drafting your Will

What are the requirements for a valid will if one cannot sign?

If the testator/testatrix cannot sign his/her name, he/she may ask someone to sign the will on his/her behalf or he/she can sign the will by making a mark (a thumbprint or a cross). 

When the will is signed by someone on behalf of the testator or testatrix or by making a mark, a Commissioner of Oaths must certify that he/she has satisfied him/herself as to the identity of the testator or testatrix and that the will so signed is the will of the testator or testatrix. 
The Commissioner of Oaths must sign his/her certificate and he/she must also sign every other page of the will, anywhere on the page. 
The Commissioner of Oaths must also be present when the will is signed and must append his/her certificate as soon as possible after the will is signed even if the testator or testatrix dies soon after signing the will.



Testator must sign his will in the presence of two witnesses

In a South Gauteng High Court case, Karani v Karani NO and Others, the will of the deceased did not comply with the specific legal formality that "a will must be signed by the person making the will in the presence of two or more competent witnesses."

These witnesses must also sign the will in the presence of the person making the will, and of each other. In this case two witnesses did sign the contested will.

However, the first witness did not sign the will in the presence of the deceased or the second witness.

In the end, the court found the will to be a forgery and declared it invalid.

Furthermore, the court made the remark that witnesses to a will should also sign each page, despite the fact that Wills Act only requires that the testator / testatrix of a will sign each page of a multi-page will. The reason for this is to mitigate any potential dispute between heirs and family members in the future.


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