Contents
- What is a Will?
- What are the Formalities of a Will?
- Who has the capacity to make a Will?
- Who has the capacity to benefit from a Will?
What is a Will?
A will is a legal document made by a testator or testatrix (a person that is bequeathing) on what they want to happen with their estate after they pass on. Wills are governed by the Wills Act (Chapter 6:06).
What are the Formalities of a Will?
A will must be consistent with the following formalities:
1. A will must be in writing.
2. The testator must sign every page of the will as closely as may be to the end of the writing on the page concerned.
3. Each signature of the testator made on every page of the will must be witnessed by two or more competent witnesses present at the same time. A competent witness is any person who is of or over the age of sixteen, who is competent to give evidence in a court of law and is physically capable of seeing a testator sign his or her will or acknowledge his or her signature on a will.
4. Each competent witness must either sign each page of the will or acknowledge his or her signature on each page of the will in the presence of the testator and the other witnesses.
5. The testator must have the capacity to make a will
Who has the Capacity to make a Will??
Any person who is 16 years and older can write a will unless, at the time of writing the will, they were mentally incapable of appreciating the nature and effect of their actions. If anyone disputes the validity of the will based on the testator being mentally incapable, they have the burden of proving this incapacity.
Who has the Capacity to benefit under a Will?
Any person whether born or unborn, natural or juristic and whatever their legal capacity may benefit in terms of a will.
Who lacks the capacity to benefit under a Will ?
Section 6 of the Wills Act provides a list of individuals who lack the capacity to benefit. These include:
1. Witnesses to the will
2. Any person who signs the will or any amendment in the will in the testator’s presence and at his direction.
3. Any person who, on behalf of the testator or at his direction, personally writes out the will or any part of it that confers a benefit upon him or her.
4. Any magistrate, presiding officer of a community court, justice of the peace, commissioner of oaths or designated official who has certified the will or any amendment in the will.
5. If the testator was a minor or under a legal disability at the time the will was made, any person who at that time was a guardian of the testator, other than a parent or a curator, trustee or administrator of the testator as the case may be.
6. A spouse or a child of a person who has no capacity to benefit under the will also lack capacity.
7. Any person who, through fraud, duress or undue influence, has caused the testator to make the will or to insert therein the provision conferring the benefit upon him or her; or prevented or attempted to prevent the testator from altering the will or making a new will.
8. Any person who unlawfully destroys or conceals a will made by the testator or a copy of such a will.
9. Any person who has unlawfully and intentionally killed the testator or any person who was closely related to the testator.
10. Any person who, in some way other than by causing the death of a person, has by his unlawful and intentional act or omission directly caused the benefit to be conferred upon him or her.