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April 13, 2016

Who may make a will and what are the requirements?

Formalities in terms of the Wills Act (7 of 1953)
Every person of the age of sixteen years or more may make a will unless at the time of making the will he is mentally incapable of appreciating the nature and effect of his act, and the burden of proof that he was mentally incapable at that time shall rest on the person alleging this.
Who may be disqualified from inheriting?
Subject to certain exceptions, the following persons shall be disqualified from receiving any benefit from that will:
·         Any person who signs a will as a witness, or who signs a will in the presence and by direction of the testator, or who writes out the will or any part thereof in his own handwriting, and the person who is the spouse of such person at the time of the execution of the will.

·         There are people who are unworthy to benefit, the most obvious being a person who murders the testator. He or she is precluded from deriving any benefit from the testator’s will.  Also, people who use fraud or duress to prevent a testator from changing a will, or force him to make a will, are disqualified from benefiting.
Signature of will:
In this article, I deal only with the normal signature of a will and not with the instances where someone is illiterate and makes a mark (such as an ‘X”) or where the testator is incompetent and cannot sign (e.g. he has had a stroke).
In terms of the Wills Act, for a will to be valid it must be signed at the end thereof by the testator and in the presence of two or more competent witnesses present at the same time and such witnesses attest and sign the will in the presence of the testator and of each other.
If the will consists of more than one page, each page other than the page on which it ends, is also so signed by the testator.
No amendment made in a will shall be valid unless the amendment is identified by the signature of the testator in the presence of two or more competent witnesses present at the same time and the amendment is further identified by the signatures of such witnesses made in the presence of the testator and of each other.
‘competent witness’ means a person of the age of fourteen years or over who at the time he witnesses a will is not incompetent to give evidence in a court of law;
‘will’ includes a codicil and any other testamentary writing.

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