Avoiding Common Mistakes When Drafting a Will

How to Draft a Will That Meets South African Legal Requirements

I don’t know who first coined the adage that the only certainties in life are death and taxes; however, I agree that it aptly captures a universal truth. Even the biblical Methuselah, who is believed to have lived for 969 years, eventually passed away. Unless you are Jesus himself, or one of those He resurrected, death will inevitably come for you. Despite this certainty, statistics from the Master of the High Court of South Africa, based on 2022 data, reveal that fewer than 15% of South Africans have a will at the time of their death.

There are several reasons for this phenomenon. For a start, many people tend to avoid discussions about family matters, least of all life after death. Others are unaware of the consequences of dying without a will.¹ In some cases, disagreements between spouses or partners over how their property should be distributed lead them to abandon the idea of drafting a will altogether. Discomfort with disclosing personal details to strangers, along with misconceptions about the necessity of wills, particularly among younger people or those with modest assets, also contributes to the low prevalence of wills.

A will serves as a legal instrument through which a person (the testator) specifies the distribution of their assets and property upon death. It allows the testator to designate beneficiaries for specific assets or monetary bequests, appoint guardians for minor children, or provide instructions for funeral arrangements and personal matters.

The validity of a will hinges upon strict adherence to formalities prescribed in the Wills Act (“the Act”).² Section 2(1)(a) of the Act stipulates fundamental requirements for executing a valid will. It emphasises formal rather than substantive validity. The testator must sign the will at its conclusion, or an amanuensis may sign on their behalf. In the case of multi-page wills, each page must be signed except the last, which requires the testator’s signature positioned as close as reasonably possible to the concluding words.³ This precaution prevents unauthorised alterations being done after the will has been executed.

Accepted forms of signature include initials, marks (such as thumbprints or crosses), customary signatures, or pseudonyms, provided they accurately represent the testator’s intended signature. When a mark or an amanuensis is used, additional formalities involving a commissioner of oaths apply.

The testator’s signature must be made or acknowledged in the presence of two or more competent witnesses, each of whom must attest and sign the will in the presence of the testator, each other, and any amanuensis. Competent witnesses are individuals over 14 years of age capable of providing court testimony. The Act does not require witnesses to comprehend the document’s contents. Their presence where they could potentially observe the signing satisfies the “presence” requirement.

When a mark or an amanuensis is used, a commissioner of oaths must be present to verify the testator’s identity and confirm that the document represents the testator’s will. The commissioner provides a certificate stating these facts and their capacity as commissioner, signing all pages of the will. Although the certificate should ideally be completed immediately after the testator’s signature, certification is permissible after execution of the will.⁴

The Act’s references to signatures and pagination suggest that it implicitly requires wills to be written documents. Acceptable formats include handwriting, typing, or printing, though pencil is discouraged due to potential risks of fraud. Oral wills, video recordings, or electronic files generally fail to meet the requirements of a physical signature. While the Electronic Communications and Transactions Act⁵ equates computer files with traditional paper documents, this does not extend to wills. Although dating and attestation clauses are not obligatory, their inclusion enhances evidential value and is strongly recommended.

Wills may be amended by means of codicils or through direct alterations to the text of the document.⁶ Codicils must comply fully with section 2(1) of the Act, while direct amendments are also governed by specific formalities. These amendments may take the form of additions, alterations, interlineations, deletions, cancellations, or obliterations. Amendments made before execution do not require formalities, provided the altered wording is present at the time the will is executed. Nonetheless, it is advisable to sign or initial such changes, as alterations without signatures are presumed to have been made after execution.

Amendments made after execution, in accordance with section 2(1)(b) of the Act, must be identified by the testator’s signature and the signatures of two competent witnesses, placed in close proximity to the amendment. Where the testator signs by mark or through an amanuensis, a commissioner of oaths must certify the testator’s identity, the execution of the amendment, and the commissioner’s own authority.

Section 2(3) of the Act, often referred to as “the rescue provision,” empowers the High Court to validate defectively executed wills, provided it is satisfied that a document “drafted or executed by a person who has died” was intended by that person to be their will, despite non-compliance with formal requirements.

Early judicial interpretations questioned whether section 2(3) applied only to technical non-compliance or whether it extended to completely unsigned documents. In Webster v The Master,⁷ the court adopted a strict interpretation and limited the provision’s application to documents that were personally drafted by the testator. By contrast, in Van der Merwe v Master of the High Court,⁸ the court took a more flexible approach, and validated an entirely unexecuted will that had been emailed by the deceased. The court did this on the basis that the will had been personally drafted and reflected testamentary intention.

The phrase “drafted… by a person who has died” has been the subject of extensive litigation. The court in Webster endorsed a stringent approach which differentiated personal drafting from section 2A’s allowance of documents “caused to be drafted.” In contrast, Back v Master of the Supreme Court⁹ favoured flexibility and argued that the approval of the testator sufficed for personal drafting. The Supreme Court of Appeal (SCA) in Bekker v Naudé¹⁰ conclusively adopted the strict interpretation and stipulated that approving attorney-drafted documents does not constitute personal drafting. This interpretation restricts section 2(3)’s application to unsigned wills that the testator personally drafted, while affirming coverage of documents “executed by a person who has died,” even if defectively executed.

Despite general prohibition, section 2(3) has validated electronic wills. Macdonald v The Master¹¹ upheld a computer-saved will, and Van der Merwe endorsed an emailed will. These cases underscored intention over format. Section 2(3) mandates proof that the deceased intended the document as their final will at its creation.

Instructions written to an attorney or bank for the drafting of a will typically do not suffice, as the testator anticipates a subsequent document. Ex parte Maurice¹² dismissed a draft will sent for “shaping” by a friend as inconclusive. Similarly, the court in Letsekga v The Master¹³ rejected the argument that notes outlining potential future changes constituted a valid codicil.

Intention is pivotal irrespective of the format of the document. The courts on Van Wetten v Bosch¹⁴ and Smith v Parsons¹⁵ upheld letters of instruction or informal farewell notes as wills or amendments when circumstances indicated the testator’s final intentions.

Importantly, the testator’s intention at the time of the document’s creation takes precedence, and any later changes are disregarded unless formally documented. The testator’s belief in the will’s validity is not relevant; the court may still infer the necessary intention, even if the testator was aware of any non-compliance. Section 2(3) focuses on testamentary intention, not capacity, meaning that incomplete documents cannot be considered valid final wills.

The application of section 2(3) to lost wills remains ambiguous. Common law permits acceptance of duly executed copies or reconstructions. Section 2(3)’s language excludes properly executed wills, questioning applicability to lost informal wills. Courts are divided on the issue. Some have applied section 2(3), while others, in error, have reverted to common law, which is traditionally averse to non-compliance. In any case, if a court has authority to accept a lost informal will copy, it does so under section 2(3).

When executing wills, strict adherence to the Act’s formalities is crucial, despite the rescue powers under section 2(3). Obtaining a court order under section 2(3) is both difficult and costly, with potential legal hurdles and the risk of failing to meet the necessary requirements. Proper compliance ensures that the testator’s intentions are upheld, provides a lasting record, and helps protect against fraudulent claims.

Lastly, following the Constitutional Court’s decision in Bhe v Magistrate Khayelitsha,¹⁶ and subsequent legislative developments, individuals governed by customary law may now execute wills concerning customary property. The formalities discussed herein apply to those cases too.

Drafting a will requires careful adherence to the formalities set out in the Wills Act. While Section 2(3) offers a crucial mechanism to validate improperly executed wills, it cannot replace the need for proper execution. Ultimately, the most challenging step is to actually make the firm decision to draft a will. As Nike always puts it, ‘Just Do It!‘