What is the legal capacity to make a will in South Africa?

Lake Properties                    Lake Properties

Lake Properties                       Lake Properties

  Let's break it down thoroughly. In South Africa, for a will to be valid, it must comply with both substantive requirements (like legal and mental capacity, which we've already discussed) and formal requirements as set out in the Wills Act 7 of 1953.

---

Formal Requirements for a Valid Will in South Africa

1. The Will Must Be in Writing

• The will must be written—either typed or handwritten.
• Oral wills are not recognized, except in very limited military service cases0 (called a soldier’s will or oral will under exceptional circumstances).

---

2. Signature of the Testator

• The will must be signed at the end by the testator (or by someone else on the testator’s behalf, in their presence and at their direction).
• If the will consists of more than one page, each page must be signed by the testator (or by the person signing on their behalf).
• The signature must indicate the intention to give effect to the will (usually at the bottom of the document).

---

3. Witnessing the Will

• The testator must sign the will in the presence of two or more competent witnesses.
• These witnesses must:
  • Be at least 14 years old.
  • Not benefit from the will—if they are beneficiaries, their inheritance is likely to be declared invalid.
  • Sign the will in the presence of the testator and each other.
• Witnesses typically sign on the last page of the will.

---

4. Date of the Will

• It is strongly advised to include the date on which the will was executed.
• While not a strict requirement, dating the will helps in determining which will is the most recent if more than one exists.

---

5. Amendments (Codicils)

• Any changes or amendments to a will (called codicils) must also:
  • Be in writing.
  • Be signed by the testator and two witnesses.
• If changes are made without proper signing and witnessing, they will be invalid.

---

6. Safekeeping of the Will

• While not a legal requirement, a will should be safely stored, either:
  • With an attorney.
  • In a will safe.
  • At the Master of the High Court (optional).

---

Special Circumstances and Exceptions

• Soldiers and sailors on active duty may make oral wills under certain conditions, but these are rare and tightly regulated.
• A court may condone a will that does not comply with formalities if it's convinced the document was intended to be the deceased’s will (under Section 2(3) of the Wills Act).

Lake Properties                       Lake Properties