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In the next edition, we will elaborate on some of the terminology used in Wills.
Read more in the upcoming edition!
SIGNING OF A WILL
It sounds quite straightforward and like a simple task to sign a document. After all, one only needs a pen and must be able to make a signature. That is mostly true, but when it comes to certain legal documents, there are specific legal technicalities to adhere to in order to validate the document. The correct signing of the document validates the Will and the incorrect signing thereof renders it invalid in part or as a whole. It is your task as an advisor, to ensure that you know the requirements and that a Will is correctly signed.
The following needs to be kept in mind with the physical signing of a Will:
Use a pen that is easily identifiable as being originally signed. For that reason, ink and felt tipped pens are not advisable. Ballpoint pens leave a clear indentation in the paper. Black ink is still preferable to other colours.
A proper signature has to be made, not just a name printed in full.
Do not let the client sign over a signature if, for instance, the pen did not sign properly the first time.
The same goes for a signature where the pen ran dry and the last part of the signature is only an imprint without ink.
If a mistake is made with the signature when a Will is signed, rather re-print the page and sign properly.
Ensure that each page of the Will is signed by the testator and the last page must contain the signatures of both the testator(s) and witnesses.
Also ensure that there are no unusually big open spaces on any of the pages between the last paragraph and the signatures of the parties involved in the signing of the Will.
To get this right the first time, rules out any inconvenience of having to contact a client to arrange for re-signing. There are no short cuts in the proper signing of a Will as the incorrect signing thereof can render the will invalid as a whole or partially, as stated before. Rather spend a little more time on this aspect of the Will to prevent complications and delays later.
A WITNESS is a person who sees the event of signature taking place. The witness does not have to have knowledge of the content of the Will. His/her only function is to be able to testify that the Will was signed by the testators.
The following are legal requirements in respect of the signing of a Will which must be adhered to in accordance with the Wills Act 7 of 1953, as amended:
All Wills must be signed in front of two competent, impartial witnesses, who should both be present at the same time while the Testator/Testatrix signs the Will. “Competent” meaning they should be older than 14 years, sober, not using drugs, be of sound mind and be able to testify in a court of law. “Impartial” meaning uninvolved, detached, unbias, neutral, etc. That implies that beneficiaries or their spouses cannot act as witnesses. Neither can spouses or persons nominated to hold a position in the Will, for instance a Trustee or Executor, act as witnesses. It is advisable not to ask close relatives to sign as witnesses.
If a person has to sign a Will by the making of a mark, it has to be done in front of a Commissioner of Oaths who has to co-sign each page. He has to provide a certificate to the fact that he witnessed the person signing the Will. The Commissioner of Oaths cannot act as a witness as well. Two other impartial and competent persons still have to sign as witnesses.
Each page of the Will has to be signed in full by the Testator/Testatrix and the witnesses have to co-sign the last page of the Will with full signatures. Printing of a name does not constitute a signature.
Should the last page of the will not contain the signatures of both the testator(s)/testatrix(s) and the witnesses, the Will will be invalid.
Any changes (alternations, deletions, interlineation, etc.) must be validated by full signatures of the testator/testatrix and two witnesses, though it does not have to be the same witnesses that originally signed the Will, should changes be effected afterwards.
Full instructions on the signing of Wills are available on our website at www.efboe.co.za
Don’t worry about failures. Worry about the chances you miss if you don’t even try. If plan “A” didn’t work, stay cool. There are still 25 letters in the alphabet.
How many unsuccessful attempts did Thomas Edison have before he invented the light bulb? He said: “I didn’t fail 1,000 times. The light bulb was an invention with 1,000 steps”.
Until next time!
The “Let’s Talk EFBOE” Team