Will validity checker

Wills fail on paperwork far more often than on what they say, and the failure is only ever discovered once the person who signed it is dead and can no longer fix it. The requirements are mechanical, none of them depends on the contents, and almost all of them are missed in the same handful of ways: one witness instead of two, witnesses who signed at different times, only the last page signed, or a beneficiary who cheerfully acted as a witness and destroyed their own inheritance.

This checker runs a will against the formalities in section 2(1)(a) of the Wills Act and tells you which ones, if any, it fails.

What this tool works out and who it is for

You answer nine questions about how the will was signed. Not what it says, not who gets what, only the mechanics: whether it is in writing, how old the testator was, how the signature was made, whether it was signed at the end, whether every page was signed, how many people witnessed it, whether they were present at the same time, whether any witness or their spouse benefits, and whether a commissioner of oaths certified it.

The result lists every formality the will meets, every one it fails, and what can be done about the failures. It is for anyone who has just signed a will and wants to know whether they did it right, anyone who has found a parent's will in a drawer and is wondering whether it will be accepted, and anyone about to sign one who would rather get it right now than have their family litigate about it later.

The best time to use it is before someone dies. After that, the only cure is a court application.

How the check works

The tool applies each requirement in the order the Act sets them out, and reports every failure rather than stopping at the first, because a will that fails on two grounds needs both fixed.

Writing. A will must be in writing. South Africa recognises no oral will at all, regardless of how many people heard it, how clear the intention was, or how ill the person was at the time.

Age. The testator must be at least sixteen. This is the one failure no court can cure, because the Act simply does not permit a person under sixteen to make a will.

Signed at the end. The signature must be at the end of the will. A signature part way down leaves whatever follows it outside the protection of the formality, and puts the whole document in doubt.

Every page. Where the will runs to more than one page, each page other than the one it ends on must also be signed, anywhere on the page. Initials are used in practice, and a will initialled on every page and signed properly at the end satisfies this.

Two witnesses, present together. The signature must be made in the presence of at least two competent witnesses who are present at the same time. A witness must be fourteen or older and not incompetent to give evidence in a court of law. The witnesses must then sign in the presence of the testator and of each other. Signing them one after the other on separate occasions, which is how it usually goes wrong, does not comply, however genuine every signature is.

The commissioner's certificate. Where the testator signs by making a mark, such as a thumbprint or a cross, or where somebody else signs on the testator's behalf at their direction and in their presence, a commissioner of oaths must certify that they have satisfied themselves as to the identity of the testator and that the document is the testator's will, and must sign every page. Without that certificate the will fails. This matters most in exactly the cases where it is most often skipped: a person too ill or too weak to hold a pen.

Finally, the tool flags the witness-beneficiary problem separately, because it is not a validity question at all.

The law behind it

The governing provision is section 2(1)(a) of the Wills Act 7 of 1953, which sets out the formalities in five subparagraphs covering signature at the end, signature in the presence of two or more competent witnesses present at the same time, attestation and signature by those witnesses in the presence of the testator and each other, signature of every page, and the commissioner of oaths certificate where the will is signed by mark or by proxy.

"Competent witness" is defined in section 1 as a person of fourteen years or older who at the time of witnessing is not incompetent to give evidence in a court of law. Section 4 provides that every person of sixteen years or more may make a will unless, at the time of making it, they are mentally incapable of appreciating the nature and effect of their act.

Section 4A is the trap. A person who signs a will as a witness, a person who writes out the will or any part of it in their own handwriting, and the spouse of either, are disqualified from receiving any benefit under that will. This does not invalidate the will. The will stands, and the gift to the disqualified person simply falls away, which usually sends it somewhere the testator never intended. Section 4A(2) contains exceptions, including where a court is satisfied the person did not defraud or unduly influence the testator, where the person would have inherited anyway on intestacy, in which case they are limited to that intestate share, and where the will was also signed by at least two other competent witnesses who take no benefit under it. None of these is worth relying on when the alternative is to pick two witnesses who are not in the will.

Section 2(3) is the safety net, added by the Law of Succession Amendment Act 43 of 1992. If a document was drafted or executed by a person who has since died, and the court is satisfied that the person intended it to be their will, the court must order the Master to accept it even though it does not comply with the formalities. Courts have condoned unsigned drafts, letters and documents found on a computer. But it takes a High Court application, it costs money, it takes months, and it can be opposed by anyone who would inherit more without the will. It is a rescue, not a plan.

Worked example

This example is illustrative. Thabo types a will at home. It runs to three pages. He signs the last page at the end. His neighbour comes over and signs as a witness in the kitchen. An hour later his sister arrives, and she signs as the second witness. The sister is left the house in the will. Nobody initials the first two pages.

The tool reports three problems. The witnesses were not present at the same time, which section 2(1)(a)(ii) requires. Pages one and two are unsigned, which section 2(1)(a)(iv) requires. And it flags separately that the sister, as a witness who inherits, is disqualified by section 4A.

The practical result if Thabo dies tonight is bad in a way most people would not predict. The will fails the formalities, so the Master will not accept it as it stands and somebody will have to bring a section 2(3) application to have it condoned. If that application succeeds and the will is accepted, the sister is still disqualified from taking the house under section 4A, unless she persuades the court to exercise the section 4A(2) discretion or she would have inherited it on intestacy anyway. If the application fails, Thabo dies intestate and the Intestate Succession Act decides who gets what, which may or may not resemble what he wanted.

The fix, while Thabo is alive, takes ten minutes. Sign every page. Get two witnesses who are not in the will and who are not married to anyone in the will, into the same room at the same time, and have all three of them sign in front of each other. That is the whole procedure, and it is the difference between a will that works and a court case.

What the tool does not cover

It checks formalities and nothing else. It cannot tell you whether the testator had the mental capacity to appreciate the nature and effect of what they were doing, or whether they were unduly influenced, and those are the two grounds on which formally perfect wills are most often attacked. Both are questions of evidence, usually medical evidence and the testimony of the people who were there.

It does not interpret the will, and interpretation is its own field of litigation. It does not deal with joint or mutual wills, massing, usufructs, trusts created in a will, or the rules about accrual between beneficiaries. It does not deal with foreign wills or assets in another country, where that country's formalities may apply to immovable property there. And it does not consider the claims that survive a will regardless of what it says: a surviving spouse's claim for maintenance under the Maintenance of Surviving Spouses Act, and the duty to maintain dependent children, both of which are debts of the estate and are paid before the heirs see anything.

When to get advice

Get advice if the will fails a formality and the person who made it has died, because that is a section 2(3) application and it is not a do-it-yourself matter. Get advice if the estate includes a business, a farm, assets in another country, a trust, or a child with a disability who will need lifelong support. Get advice if anyone is likely to attack the will on capacity grounds, and get it early, because contemporaneous medical evidence taken at the time of signing is worth more than anything obtained afterwards.

For a straightforward estate the will itself does not have to be expensive. Many banks and life offices draft wills at no charge in exchange for being nominated executor, which is not free at all: the executor's fee is up to 3.5% of the gross value of the assets and you can work out what that costs with our executor fees and estate duty calculator. See also our guide to what happens if you die without a will and our free legal help page.

Frequently asked questions

Does my will have to be drawn by an attorney?

No. There is no requirement that a will be professionally drafted, and a handwritten will that meets the formalities is perfectly valid. What an attorney gives you is a document that says what you actually mean and does not contradict itself, which is a separate problem from validity.

Can my spouse witness my will?

They can, and the will remains valid, but section 4A then disqualifies them from inheriting under it. Since a spouse is usually the main beneficiary, this is close to the worst possible choice of witness. Use two people who take nothing.

Do the witnesses have to read the will?

No. A witness attests the signature, not the contents. They need to see the testator sign, or acknowledge the signature, and they need to sign in the presence of the testator and of each other. They do not need to know what the will says.

Does getting married or divorced cancel my will?

Marriage does not revoke a will in South Africa, which surprises many people. Divorce does not revoke it either, but section 2B gives you a three-month grace period: if you die within three months of the divorce, the will is read as though your former spouse had died before you. Live past three months without changing your will and your ex-spouse inherits exactly as written.

What happens if the original cannot be found?

The Master needs the signed original. A copy can be accepted only on application supported by evidence about what happened to the original. Where a will was last known to be in the testator's own possession and cannot be found after death, the law presumes they destroyed it intending to revoke it, and that presumption has to be rebutted with evidence.

Can I write my own changes on the will afterwards?

Not safely. An alteration to a will has to be executed with the same formalities as the will itself, signed and witnessed by two competent witnesses present at the same time, and identified as an alteration. Crossing something out and initialling it is not enough. If you want to change a will, sign a new one or a properly executed codicil.