A will is a document which complies with formalities required by law, and in which the testator gives instructions pertaining to distribution of his or her estate after his or her death. It is an expression of a testator’s wishes regarding how his/her estate must be distributed upon his/her death. A WILL only takes effect upon the death of the testator. It is thus the deceased “speaking from the grave”. This requires that it be as clear as possible in its provisions. Getting a lawyer to draft your WILL for you is advisable.
For a WILL to be valid, the testator (the person who makes the WILL) must be at least 16 years old, and must be mentally capable of appreciating the nature and effect of his act. Generally, the will must be in writing. It must be signed by the testator on each page. The signature must appear as close to the end of the writing on the page as possible. Where the testator is not able to write, he can sign the will by putting a mark which is certified by a magistrate or commissioner of oaths who then signs on each page. Every signature must be made in the presence of two competent witnesses. A competent witness is one who is at least 16 years old, is competent to give evidence in a court of law, and is physically capable of seeing the testator signing his will. The witnesses must be present together when the testator signs. Each witness must also sign on each page in the presence of the testator and the other witness.
Note that the witnesses need not know the contents of the WILL. They do not even need to know that it is a WILL. They witness the signing by the testator, not the contents of the WILL. (Miriam Dikinya vs Precious Chakasikwa N.O and Ors HH 242-18). This allows the testator to keep the contents of the WILL secret.
Contents of the WILL
At the minimum, a WILL must nominate/appoint an executor, and maybe waive security for the executor. It must fully and clearly identify the assets it disposes and the relevant beneficiaries to whom the assets are bequeathed. If beneficiaries are to share a particular asset, then the WILL must clearly spell out how the sharing is to be done.
People excluded from benefiting from a WILL
The law prohibits certain people from benefiting from a WILL. These include; any person who witnesses the making of the will; any person who personally drafts the will on behalf of the testator; any magistrate/commissioner of oaths who certifies the testator’s mark; a guardian (other than a parent), curator or other legal representative of the testator at the time the will was made; a spouse or child of any of the above.
Amendments to a WILL
A WILL can be amended by the testator at anytime. If an amendment is made before the will is signed and witnessed, then the amendment must be signed for by the testator and the two witnesses who sign the will. If the amendment is made after the will is signed and witnessed, then the amendment must be signed for by the testator in the presence of two competent witnesses who must be present together and who must also sign for the amendment. If the amendment appears on more than one page, it must be signed for on each page where it appears as aforesaid.
Revocation of a WILL
Just as a WILL can be amended, it can also be revoked, either in part or as a whole. Generally, a Will starts by spelling out that it is the last will and testament of the testator. This statement would entail that any other will that the testator authored previously is revoked. If a testator tears his WILL apart, he has revoked it. If he deals in the property mentioned in the WILL in a way inconsistent with the WILL, for example selling or donating the property, he has revoked the WILL in respect of the sections dealing with that property.
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