Requirements of a Valid Will

Learn about the requirements of a valid will, how to amend an existing will or how to cancel one.

General

A Will is a document that contains the wishes of a testator about how they wish their property to be divided or distributed on their death. A Will needs to have certain requirements and formalities in order to be legally valid.
 
Important definitions:
 
  1. Testator: A person who makes a Will;
  2. Competent witnesses: Any person over the age of 14 that understand the difference between telling the truth and lying;
  3. Commissioner of Oaths: A person that is legally allowed to certify certain documents saying that they are real or that the document represents a truthful statement from the person signing, for example police officers, attorneys, judges and advocates; and
  4. Beneficiaries: The people who will inherit property in accordance the testator's Will.

Creating a Valid Will

A Will can be written on any piece of paper or any other material, such as wood. It can be computer generated too or downloaded from the internet. However, in order for a Will to be legally valid, the following requirements must be met:
 
  1. The testator must intend for the specific document to be their Will. For example, if the testator writes a document that looks like a Will, but they do not intend that document to be their Will but rather an example of what they want their Will to be, then it won't be a legally valid Will;
  2. The testator needs to make the Will voluntarily. A Will will only be legally valid if it expresses the testator’s free wishes;
  3. The testator must be older than 16 years old; and
  4. The testator must be capable of understanding the nature and effect of the Will when they are making, specifically how their property will be divided or distributed on their death in terms of the Will.
 
Moreover, the following formalities are needed too:
 
  1. The testator must sign and date the Will at the end of the last page and on each page if there are more than one pages; and
  2. Two competent witnesses must be present and watch the testator signing their Will. Then, these two witnesses must sign and date the Will at its end too, specifically underneath the testator's signature. 
 
Signing with a mark or thumbprint:
 
A testator is allowed to sign a Will by using a mark (for example, a unique signature or their initials) or a thumbprint. However, a Commissioner of Oaths must be present to certify that this mark or the thumbprint is indeed the testator’s. Note: Only the testator may use a mark or thumbprint as a signature, witnesses cannot.
 
Disabled or Elderly Testators and Signing:
 
A testator can ask someone else to sign their Will on their behalf, however, the following formalities must then be met: 
 
  1. The person who signs and dates the Will on the testator's behalf must do so in front of the testator and on the testator's request;
  2. Two competent witnesses must be present and watch the chosen person sign the testator’s will. The witnesses must then sign and date the Will at its end too, underneath the place where the chosen person has signed the Will on the testator's behalf; and 
  3.  A Commissioner of Oaths must certify that the Will was signed at the request of the testator and on their behalf.
 

Incomplete Formalities or Requirements

If any of the conditions or formalities for a Will are note met, a Court may still accept a Will if:
 
  1. The document was personally made or signed by a testator before they died; or
  2. A testator intended for the document to be their Will before they died and signed it, but it was not witnessed.
 
In order to determine this, the Court will look into the circumstances surrounding the making and/or signing of the document or Will, including, but not limited to, who had access to this document or Will, what were the motives of the people who had access to this document or Will, what were the motives of the testator in making this document or Will amongst many other things.
 

Amendment of an Existing Will

  • A testator can change their Will once it is signed by adding clauses and changing the way they intended their property to be divided or by deleting clauses or cancelling their Will all together. In order for a change to be legally valid, the new document must follow the same processes that was used when creating a legally valid Will. Therefore, the following requirements must be met:
     
    1. The testator must intend for this new document to change their Will;
    2. The testator needs to make these changes voluntarily;
    3. The testator must be older than 16 years old; and
    4. The changes will only be legally valid if the testator was capable of understanding the nature and effect that these changes would have on their Will when making them.
     
     Moreover, the following formalities are needed too:
     
    1. The testator must sign and date the document changing their Will at the end of the last page and on each page if there are more than one pages; and
    2. Two competent witnesses must be present and watch the testator signing these changes. Then, these witnesses must sign and date the document at its end too, specifically underneath the testator's signature. 
     
    Signing with a mark or thumbprint:
     
    A testator is allowed to sign a Will by using a mark (for example, a unique signature or their initials) or a thumbprint. However, a Commissioner of Oaths must be present to certify that this mark or the thumbprint is indeed the testator’s. Note: Only the testator may use a mark or thumbprint as a signature, witnesses cannot.

Cancelling an Existing Will

A testator may cancel their Will or any part thereof at any time if they are able to understand the effect that it will have on the distribution of their property on their death. Note: A Will cannot be simply cancelled by creating a new Will. There needs to be a clause in the new Will saying that the old Will is cancelled by the new Will. If this does not happen, the two Wills will be read together on the death of the testator with the new Will taking preference is there are any contradictions between the old and new Wills.
 
A testator can cancel their Will in the following ways:
 
    1. The testator may destroy the whole Will or any part thereof physically, for example by tearing the Will apart; or 
    2. The testator may draw lines across parts or the whole of the Will and then sign and date next to these lines. If so, two competent witnesses must be present and watch the testator signing next to these deletions and then sign and date the document too, next to where the testator's signature is.