DECEASED ESTATES
WILLS
(1) WILLS
A person who dies with a valid will – the Wills Act 7 of 1953 will apply.
A person who dies without a valid will – the Intestate Succession Act 81
of 1987 will apply.
The assets that have not been dealt with in a will, will devolve on his
intestate heirs determined by the Intestate Succession Act.
WHAT IS A WILL?
A will is a written document in which a person disposes of his property after his
death. In order for a while to be valid:
- It must have been executed in accordance with the formalities
prescribed by the Wills Act and other relevant laws; and
- It must have been made freely and voluntarily; with the clear
intention that it should constitute a testamentary document.
A will is a document which the maker intends to constitute the final expression
of his testamentary wishes and is not subject to change except by a new will
or codicil.
WHO CAN MAKE A WILL? S4
• Only a person of the age of 16 and older on condition that he has the
mental capacity to appreciate the nature and effect of his act.
• This right is not affected by emancipation, marriage, qualifications,
financial status, etc. IT IS DETERMINED BY AGE!
The Wills Act came into operation on the 1st of January 1954.
The Law of Succession Amendment Act 43 of 1992 came into operation on the 1st of October
1992.
,A will executed on or after the 01/01/1954 and the testator dies before the 01/10/1992 must
comply with the formalities prescribed in Section 2 of the Wills Act before the Amending Act.
A will executed on or after the 01/01/1954 and the testator dies after the 01/10/1992 must
comply with the formalities prescribed by Section 2 of the Wills Act, as amended by the
Amending Act.
*the formalities prescribed by S2 of the Act, as amended by the Amending Act apply to: wills,
codicils and other testamentary writing.
(1.1) FORMALITIES FOR EXECUTION OF A WILL: Section 2 of the Wills Act.
(S2(1) of the Wills Act as amended by the Law of Succession Amendment Act)
1. The will must be in writing; (S2(1)(a)(i))
2. The will must be signed at the end thereof1 by the testator or by some
other person in his presence and by his direction; (S2(1)(a)(ii))
3. The signature must be made by the testator or by such other person or
must be acknowledged by the testator and, and if made by such other
person, also by such other person, in the presence of two competent
witnesses; (S2(1)(a)(iii))
4. The witnesses must attest to and sign the will in the presence of the
testator2; and (S2(1)(a)(iv))
5. If the will is more than one page, the testator must sign anywhere on
each page other than the last page (his signature will be on the last
page). (S2(1)(a)(v))
6. If testator signs the will by making a mark3 or by some other person in the
presence and direction of the testator, a commissioner of oaths (COO)
certifies that he has satisfied himself as to the identity of the testator and
that the will so signed is the will of the testator, and each page of the
1
The will must be signed directly below the place where the written portion of the will ends (Kidwell v
The Master 1983 (1) SA 509 (E).
22
COURSE NOTE: ask witnesses to include identity numbers and contract information.
3
Only a testator can sign by making a mark.
, will, excluding the page on which his certificate appears, is also signed,
anywhere on the page, by the COO who so certifies: Provided that:-
a. The will is signed in the signed in the presence of the COO i.t.o sub-
paragraph (i), (ii) and (iv) and the certificate concerned is made
as soon as possible after the will have been so signed; and
b. If the testator dies after the will has been signed i.t.o sub-
paragraph (ii), (iii) and (iv) but before the COO has made the
certificate concerned, the COO shall as soon as possible
thereafter make or complete his certificate, and sign each page
of the will, excluding the page on which his certificate appears.
REQUIREMENTS FROM WHEN A TESTATOR OR TESTATRIX CANNOT SIGN:
➢ The definition of sign has been amended and now includes the making of
initials and, only in the case of a testator/testatrix, the making of a mark and
signature has corresponding meaning.
➢ The testator must sign the will at the end thereof by the making of a mark,
or the will must be signed by some other person in the presence and
direction of the testator.
➢ The mark or signature of the other person signing on behalf of testator must
be made in the presence of two witnesses and a COO.
WAYS A TESTATOR MAY SIGN A WILL:
• Sign.
• Initial.
• Make a mark.
• Another person sign by direction of testator.
NOTE: a will which purports to comply with the requirements of the Wills Act is prima facie
deemed to be valid.
, COMMISSIONER OF OATHS:
The COO shall attend to certify the will as soon as possible.
If the testator dies before the COO has certified the will, the COO shall
as soon as possible, certify the will.
The COO may not act as both the witness and certifying offices
(S2(1)(a)(v)(aa).
CASE LAW: Jeffrey v Master: the certificate was rejected because the
certificate was signed by a person identifying himself as a practising
attorney and not a COO.
CASE LAW: Ferrington v Key and the Master, North Gauteng High Court, Pretoria.
Here, it was held that consistency must prevail in a person’s signature either as a mark, initials
or writing in one’s name.
CASE LAW: Ricketts v Bryne and Another 2004 (6) SA 474 (C)
The testator didn’t sign the second page of the will (which contained no essential stipulation)
but only wrote out his name and surname in full. The court found that the will was invalid as a
whole but did find that the first page could be given effect to. The reason was that this page,
as seen on its own, was validly executed and contained all the essential provisions.
WORDING OF THE CERTIFICATE ITO S2(1)(a)(v): Schedule 1
I, [full name] of [full address] in my capacity as commissioner of oaths certify
that I have satisfied myself as to the identity of the testator [full name] and that
the companying will is the will of the testator.
SIGNED AT [place] on the day ____ of ___________ 2023.
________________________
SIGNATURE OF COO
(1.2) AMENDMENT OF A WILL: S2(1)(b)
AMENDMENT BEFORE THE EXECUTION OF A WILL:
WILLS
(1) WILLS
A person who dies with a valid will – the Wills Act 7 of 1953 will apply.
A person who dies without a valid will – the Intestate Succession Act 81
of 1987 will apply.
The assets that have not been dealt with in a will, will devolve on his
intestate heirs determined by the Intestate Succession Act.
WHAT IS A WILL?
A will is a written document in which a person disposes of his property after his
death. In order for a while to be valid:
- It must have been executed in accordance with the formalities
prescribed by the Wills Act and other relevant laws; and
- It must have been made freely and voluntarily; with the clear
intention that it should constitute a testamentary document.
A will is a document which the maker intends to constitute the final expression
of his testamentary wishes and is not subject to change except by a new will
or codicil.
WHO CAN MAKE A WILL? S4
• Only a person of the age of 16 and older on condition that he has the
mental capacity to appreciate the nature and effect of his act.
• This right is not affected by emancipation, marriage, qualifications,
financial status, etc. IT IS DETERMINED BY AGE!
The Wills Act came into operation on the 1st of January 1954.
The Law of Succession Amendment Act 43 of 1992 came into operation on the 1st of October
1992.
,A will executed on or after the 01/01/1954 and the testator dies before the 01/10/1992 must
comply with the formalities prescribed in Section 2 of the Wills Act before the Amending Act.
A will executed on or after the 01/01/1954 and the testator dies after the 01/10/1992 must
comply with the formalities prescribed by Section 2 of the Wills Act, as amended by the
Amending Act.
*the formalities prescribed by S2 of the Act, as amended by the Amending Act apply to: wills,
codicils and other testamentary writing.
(1.1) FORMALITIES FOR EXECUTION OF A WILL: Section 2 of the Wills Act.
(S2(1) of the Wills Act as amended by the Law of Succession Amendment Act)
1. The will must be in writing; (S2(1)(a)(i))
2. The will must be signed at the end thereof1 by the testator or by some
other person in his presence and by his direction; (S2(1)(a)(ii))
3. The signature must be made by the testator or by such other person or
must be acknowledged by the testator and, and if made by such other
person, also by such other person, in the presence of two competent
witnesses; (S2(1)(a)(iii))
4. The witnesses must attest to and sign the will in the presence of the
testator2; and (S2(1)(a)(iv))
5. If the will is more than one page, the testator must sign anywhere on
each page other than the last page (his signature will be on the last
page). (S2(1)(a)(v))
6. If testator signs the will by making a mark3 or by some other person in the
presence and direction of the testator, a commissioner of oaths (COO)
certifies that he has satisfied himself as to the identity of the testator and
that the will so signed is the will of the testator, and each page of the
1
The will must be signed directly below the place where the written portion of the will ends (Kidwell v
The Master 1983 (1) SA 509 (E).
22
COURSE NOTE: ask witnesses to include identity numbers and contract information.
3
Only a testator can sign by making a mark.
, will, excluding the page on which his certificate appears, is also signed,
anywhere on the page, by the COO who so certifies: Provided that:-
a. The will is signed in the signed in the presence of the COO i.t.o sub-
paragraph (i), (ii) and (iv) and the certificate concerned is made
as soon as possible after the will have been so signed; and
b. If the testator dies after the will has been signed i.t.o sub-
paragraph (ii), (iii) and (iv) but before the COO has made the
certificate concerned, the COO shall as soon as possible
thereafter make or complete his certificate, and sign each page
of the will, excluding the page on which his certificate appears.
REQUIREMENTS FROM WHEN A TESTATOR OR TESTATRIX CANNOT SIGN:
➢ The definition of sign has been amended and now includes the making of
initials and, only in the case of a testator/testatrix, the making of a mark and
signature has corresponding meaning.
➢ The testator must sign the will at the end thereof by the making of a mark,
or the will must be signed by some other person in the presence and
direction of the testator.
➢ The mark or signature of the other person signing on behalf of testator must
be made in the presence of two witnesses and a COO.
WAYS A TESTATOR MAY SIGN A WILL:
• Sign.
• Initial.
• Make a mark.
• Another person sign by direction of testator.
NOTE: a will which purports to comply with the requirements of the Wills Act is prima facie
deemed to be valid.
, COMMISSIONER OF OATHS:
The COO shall attend to certify the will as soon as possible.
If the testator dies before the COO has certified the will, the COO shall
as soon as possible, certify the will.
The COO may not act as both the witness and certifying offices
(S2(1)(a)(v)(aa).
CASE LAW: Jeffrey v Master: the certificate was rejected because the
certificate was signed by a person identifying himself as a practising
attorney and not a COO.
CASE LAW: Ferrington v Key and the Master, North Gauteng High Court, Pretoria.
Here, it was held that consistency must prevail in a person’s signature either as a mark, initials
or writing in one’s name.
CASE LAW: Ricketts v Bryne and Another 2004 (6) SA 474 (C)
The testator didn’t sign the second page of the will (which contained no essential stipulation)
but only wrote out his name and surname in full. The court found that the will was invalid as a
whole but did find that the first page could be given effect to. The reason was that this page,
as seen on its own, was validly executed and contained all the essential provisions.
WORDING OF THE CERTIFICATE ITO S2(1)(a)(v): Schedule 1
I, [full name] of [full address] in my capacity as commissioner of oaths certify
that I have satisfied myself as to the identity of the testator [full name] and that
the companying will is the will of the testator.
SIGNED AT [place] on the day ____ of ___________ 2023.
________________________
SIGNATURE OF COO
(1.2) AMENDMENT OF A WILL: S2(1)(b)
AMENDMENT BEFORE THE EXECUTION OF A WILL:
