Creating a will is a critical step in ensuring that your wishes are respected and your loved ones are protected after your passing. A valid will allows you to dictate how your assets, including personal possessions, will be distributed among those you choose to inherit. Without a will, your estate may be divided according to default laws, which might not align with your personal wishes. Therefore, having a will is essential for making sure your intentions are carried out accurately, reducing potential conflicts among your beneficiaries and providing peace of mind for both you and your family.

However, for a will to serve its purpose effectively, it must be a legally valid document. If a will is not executed according to the law, it can be challenged or even declared null and void, leading to complications and disputes during an already difficult time.

What makes a Will valid?

In South Africa, the Wills Act 7 of 1953 sets out the requirements for the creation, execution, and interpretation of wills. One of the fundamental requirements is that the individual, known as the testator, must be at least 16 years old. Additionally, the testator must have the capacity to understand the implications of making a will and intend for the document to be their final testament.

The will must be in writing, whether typed or handwritten. However, if it is handwritten, the person writing the will cannot be named as a beneficiary to avoid any conflict of interest. This requirement ensures that there is no suspicion of undue influence or fraud. For a will to be valid, the testator must sign each page of the document and it must also be signed by two witnesses who are at least 14 years old. The witnesses confirm that they have seen the testator sign the will and that it is a genuine expression of the testator’s wishes.

Furthermore, any previous wills are automatically revoked when a new will is created, unless the new will specifically states otherwise. This provision helps to prevent confusion and ensures that only the most recent will is considered valid. It is essential to follow these formalities to avoid any challenges that could render the will invalid.

When is a Will considered null and void?

A will can be declared null and void for several reasons. One of the most common reasons is the lack of testamentary capacity. The testator must be of sound mind when making the will, fully understanding the consequences of their decisions. If it can be proven that the testator was under undue influence, coercion or that the will was created through fraud or forgery, the will may also be invalidated.

A will must also comply with all formalities set out by the Wills Act. Any failure to meet these requirements can render the document null and void. Additionally, a will that does not provide for dependents, such as surviving spouses or children, as required by the Maintenance of Surviving Spouses Act or the Maintenance Act, may be challenged in court.

Lastly, a will cannot contain provisions that are against public policy or unlawful. Any clause that attempts to contravene public policy requirements will not be enforceable.

A final word

Having a valid will is crucial for ensuring your wishes are respected and your loved ones are taken care of. By adhering to the legal requirements and avoiding potential pitfalls, you can create a document that stands up to scrutiny and provides clarity for those you leave behind.

You are most welcome to reach out to us for any guidance or assistance you may require.