Who is competent to make a will?
According to South African law, there are two main requirements to be deemed competent to draft a will:
Age: You must be 16 years or older.
Mental Capacity: You must be of sound mind at the exact time of signing. This means you must fully understand the nature and the legal effect of your actions.
Understanding the Burden of Proof
The law naturally assumes that a person is mentally capable when they sign their will. If family members or heirs wish to dispute the validity of a will based on mental capacity (such as claiming a loved one suffered from severe illness or cognitive decline), the burden of proof rests entirely on the person making that claim.
Don't Leave it to Chance
Creating a well-prepared and legally compliant will is essential for protecting your assets and ensuring the well-being of your loved ones. If you pass away without a valid will, your estate will be distributed according to the Intestate Succession Act, which means the law—not your wishes—will determine who inherits your assets.
Testator must sign his will in the presence of two witnesses
In a South Gauteng High Court case, Karani v Karani NO and Others, the will of the deceased did not comply with the specific legal formality that "a will must be signed by the person making the will in the presence of two or more competent witnesses."
These witnesses must also sign the will in the presence of the person making the will, and of each other.
In this case two witnesses did sign the contested will. However, the first witness did not sign the will in the presence of the deceased or the second witness.
In the end, the court found the will to be a forgery and declared it invalid. Furthermore, the court made the remark that witnesses to a will should also sign each page, although the Wills Act only requires that the testator / testatrix of a will sign each page of a multi-page will.
The reason for this is to mitigate any potential dispute between heirs and family members in the future.
What are the requirements for a valid will if one cannot sign?
If the testator/testatrix cannot sign his/her name, he/she may ask someone to sign the will on his/her behalf or he/she can sign the will by making a mark (a thumbprint or a cross).
When the will is signed by someone on behalf of the testator or testatrix or by making a mark, a Commissioner of Oaths must certify that he/she has satisfied him/herself as to the identity of the testator or testatrix and that the will so signed is the will of the testator or testatrix.
The Commissioner of Oaths must sign his/her certificate and he/she must also sign every other page of the will, anywhere on the page.
The Commissioner of Oaths must also be present when the will is signed and must append his/her certificate as soon as possible after the will is signed even if the testator or testatrix dies soon after signing the will.
A living will is a written document in which an individual outlines their wishes regarding medical treatment if they are unable to communicate or make decisions for themselves.
In South Africa, a living will is typically used to express a person's desire not to have artificial life support continued if they are terminally ill or in a permanent vegetative state.
Additionally, living wills often specify that if the person is experiencing severe pain, they wish to receive medication for pain relief, even if this may unintentionally shorten their life.
This approach reflects the principles of pain relief and dignity in end-of-life care, which are recognised in South African medical and ethical practice.
Although South African law does not provide detailed legislation specifically governing living wills, medical practitioners generally respect such documents as expressions of a patient's wishes, provided they are clear, lawful, and consistent with accepted medical ethics.