Introduction
Section 2(1)(a) of the Wills Act 7 of 1953 outlines the formal requirements for the valid execution of a will in South African law. Despite its straightforward wording, this provision is one of the most litigated sections in estate disputes.
This article explores the essential formalities prescribed, highlights the most common mistakes legal practitioners encounter, and provides practical tips for ensuring compliance, especially when assisting clients in the drafting and execution of their wills.
Understanding Section 2(1)(a) of the Wills Act
Section 2(1)(a) of the Wills Act states that a will shall be valid if:
- The will is signed at the end thereof by the testator or by some other person in his presence and by his direction, and the testator or such other person makes such signature in the presence of two or more competent witnesses present at the same time.
In essence, the following formalities must be satisfied:
- The testator must sign at the end of the will.
- The testator must sign in the presence of at least two competent witnesses who are present simultaneously.
- The witnesses must sign the will in the presence of the testator and of each other.
Failure to comply with any one of these requirements may render the will invalid unless condonation is sought under Section 2(3).
Who May Be a Competent Witness?
According to the Act:
- A witness must be 14 years or older.
- A witness must be mentally competent.
- Importantly, beneficiaries (and their spouses) should never sign as witnesses, as this may result in disqualification from inheriting.
Common Mistakes Attorneys Should Guard Against
1. Witnesses Not Present at the Same Time
A staggered signing where one witness signs and leaves before the second arrives is a fatal flaw. Both witnesses must be physically present and observe the signing simultaneously.
2. Missing or Incomplete Signatures
Failing to sign on each page, including annexures, or signing outside of designated spaces often results in disputes. The will must be signed at the end and ideally initiated on every other page.
3. Incorrect Attestation Clause
The attestation clause should confirm that the will was signed in the presence of the witnesses and vice versa. A vague or missing attestation clause weakens the will’s evidentiary value.
4. Testator Not Signing in Ink
There is no legal requirement for black ink specifically, but wills must be signed (not typed or digitally signed), and signatures should be clearly visible and permanent.
5. Use of Electronic Means
Electronic signatures are not valid for wills under South African law, per the Electronic Communications and Transactions Act 25 of 2002, which excludes wills from its provisions.
The Role of the Legal Practitioner
As a legal practitioner, you are not merely a drafter. You are a facilitator of compliance. Ensure that:
- You supervise the execution when possible.
- You educate clients about not amending or writing on a signed will.
- You keep certified copies and a record of who signed, when, and where.
- You avoid pre-printed templates unless adapted and explained to the client.
- You advise on proper storage to prevent the will from being lost or damaged.
Condonation under Section 2(3): A Risky Safety Net
If a will fails to meet formalities but clearly sets out the testator’s intentions, the High Court may condone it. This is not guaranteed and requires the following:
- A court application (expensive and time-consuming),
- Sufficient evidence of the testator’s intent (e.g., affidavits, handwriting, etc.),
- Often, opposition from interested parties.
Conclusion
Section 2(1)(a) is deceptively simple yet fraught with potential for error. As attorneys, we must approach drafting with precision and vigilance. Ensuring proper execution is not just about compliance. It is about preserving the wishes of the deceased and protecting their heirs from unnecessary legal battles
For further assistance, consult an attorney at SchoemanLaw.
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