UNIT FOUR: FORMALITIES FOR A VALID WILL & CAPACITY TO INHERIT (pg 65 – 84)
Formalities
s2(1) of Wills Act = formalities for execution of a will
o Signed at the end of the will by the testator or an amanuensis (person who signs on their behalf)
o Will longer than 1 page = signed ANYWHERE on every page by the testator or amanuensis, except
the last page which must be signed at the end (see below)
o Signature of testator / amanuensis must be made in presence of 2 or more competent witnesses
o Such witnesses must attest and sign the will in the presence of the testator / amanuensis and each
other
o If testator signs with a mark or the amanuensis signs on behalf of the testator, a commissioner of
oaths must be present and certification formalities apply
Written document
o Wills Act = not specific requirement for will to be reduced to writing, however, it is implied through
reference to ‘pages’ and the need for a signature
o Any combination of handwriting (pencil not advisable but still valid), typing & printing is acceptable
o Oral wills / wills recorded on DVD / wills in text messages = NOT possible on account of signature
requirements (electronic signatures not likely to be acceptable)
Capacity to Sign as a Witness???
Testator’s Signature
‘Sign’, ‘Signature’ and ‘Mark’
o ‘Sign’ = not explained comprehensively in the Wills Act which creates uncertainty
Doesn’t include marks e.g. thumb print, rubber stamp, seal ring impression or written mark
other than a signed name (e.g. X)
Initials constitute a form of mark, therefore, a witness who attempts to sign using their
initials will invalidate the will (Harpur)
Current position as a result of the Law of Succession Amendment Act 1992 = testator,
witnesses, amanuensis and commissioner of oaths may sign by means of initials but only a
testator may sign using a mark and this may only be done in the presence of commissioner
of oaths
o Signature does not have to be your usual signature or identical on every page
o Witnesses = only need to sign last page and this can also be done anywhere on the page even
though it is not specified in the Wills Act (Liebenberg v the Master)
Where must the Testator Sign?
o Wills Act = testator or amanuensis must mark or sign ANYWHERE on every page, except the last
which must be signed at the end BUT where is the end?
o Will consists of writing so the end is at the end of the last paragraph and must be signed as close as
reasonably possible thereafter, otherwise the will is invalid (Kidwell) + prevents insertion of extra
words
o Double-sided page = sign both sides
Signature by amanuensis
o Applicable circumstances = testator does not have use of their hands or is illiterate i.e. acts a
vehicle for the testator
, o They must sign the testator’s name and not their own to avoid confusion
o Must have commissioner of oaths present who will then certify the will
Witnesses
o 2 competent witnesses required + must be over 14 years of age and be able to give evidence in a
court of law
Example: blind people = not competent
s4A of Wills Act = the witness and the witness’s current spouse lack the capacity to inherit
under such will
However, a beneficiary still has capacity to witness i.e. the will remains valid but that
witness will no longer be able to inherit
Witnessing (2 aspects)
o Physical presence during signing by the testator or amanuensis
Both competent witnesses must be present when all other pages are signed by the relevant
parties
If 1 or both witnesses are not present, the testator may still sign but must then call upon
both witnesses to acknowledge his signature simultaneously (same rules do not apply to a
commissioner of oaths)
Presence in the room is sufficient and you do not have to actually see every stroke of the
testator’s pen
Witnesses do not need to know the contents of the will or even that the document is a will
o Actual signing of the will by the witness
Witnesses are also advised (although it is not compulsory) to sign all other pages as well
Witnesses may not sign the will before the testator otherwise they have not, technically,
attested to the testator’s signature
Dating of a will and Attestation Clauses
o Attestation clause = final paragraph of a will which records and provides evidence of the date and
place of signature and that the testator and witnesses signed in each others’ presence
o Absence of such a clause or a date = DOES NOT invalidate a will BUT it does hold evidential value
Certificate by Commissioner of Oaths
o Certifies that (1) satisfied as to the identity of the testator AND (2) document is the will of the
testator
o Requirements:
Commissioner must sign every page except the page where the certificate appears; here,
he must simply sign the certificate which may appear on any page (doesn’t have to be at
the end)
Will must be signed in the presence of the commissioner of oaths
Certificate must be attached as soon as possible (refers to time) after the signing of the will
(may be written, typed, printed or impressed with a rubber stamp)
Testator dies after signing by a mark or through amanuensis but before the commissioner
makes the certificate, the commissioner should attach certificate as soon as possible
thereafter
Commissioner may not adopt the dual role of witness as well
Commissioner must indicate (in the certificate) his capacity as such, not as an attorney or
provincial administrator etc (Jeffrey v The Master)
Formalities
s2(1) of Wills Act = formalities for execution of a will
o Signed at the end of the will by the testator or an amanuensis (person who signs on their behalf)
o Will longer than 1 page = signed ANYWHERE on every page by the testator or amanuensis, except
the last page which must be signed at the end (see below)
o Signature of testator / amanuensis must be made in presence of 2 or more competent witnesses
o Such witnesses must attest and sign the will in the presence of the testator / amanuensis and each
other
o If testator signs with a mark or the amanuensis signs on behalf of the testator, a commissioner of
oaths must be present and certification formalities apply
Written document
o Wills Act = not specific requirement for will to be reduced to writing, however, it is implied through
reference to ‘pages’ and the need for a signature
o Any combination of handwriting (pencil not advisable but still valid), typing & printing is acceptable
o Oral wills / wills recorded on DVD / wills in text messages = NOT possible on account of signature
requirements (electronic signatures not likely to be acceptable)
Capacity to Sign as a Witness???
Testator’s Signature
‘Sign’, ‘Signature’ and ‘Mark’
o ‘Sign’ = not explained comprehensively in the Wills Act which creates uncertainty
Doesn’t include marks e.g. thumb print, rubber stamp, seal ring impression or written mark
other than a signed name (e.g. X)
Initials constitute a form of mark, therefore, a witness who attempts to sign using their
initials will invalidate the will (Harpur)
Current position as a result of the Law of Succession Amendment Act 1992 = testator,
witnesses, amanuensis and commissioner of oaths may sign by means of initials but only a
testator may sign using a mark and this may only be done in the presence of commissioner
of oaths
o Signature does not have to be your usual signature or identical on every page
o Witnesses = only need to sign last page and this can also be done anywhere on the page even
though it is not specified in the Wills Act (Liebenberg v the Master)
Where must the Testator Sign?
o Wills Act = testator or amanuensis must mark or sign ANYWHERE on every page, except the last
which must be signed at the end BUT where is the end?
o Will consists of writing so the end is at the end of the last paragraph and must be signed as close as
reasonably possible thereafter, otherwise the will is invalid (Kidwell) + prevents insertion of extra
words
o Double-sided page = sign both sides
Signature by amanuensis
o Applicable circumstances = testator does not have use of their hands or is illiterate i.e. acts a
vehicle for the testator
, o They must sign the testator’s name and not their own to avoid confusion
o Must have commissioner of oaths present who will then certify the will
Witnesses
o 2 competent witnesses required + must be over 14 years of age and be able to give evidence in a
court of law
Example: blind people = not competent
s4A of Wills Act = the witness and the witness’s current spouse lack the capacity to inherit
under such will
However, a beneficiary still has capacity to witness i.e. the will remains valid but that
witness will no longer be able to inherit
Witnessing (2 aspects)
o Physical presence during signing by the testator or amanuensis
Both competent witnesses must be present when all other pages are signed by the relevant
parties
If 1 or both witnesses are not present, the testator may still sign but must then call upon
both witnesses to acknowledge his signature simultaneously (same rules do not apply to a
commissioner of oaths)
Presence in the room is sufficient and you do not have to actually see every stroke of the
testator’s pen
Witnesses do not need to know the contents of the will or even that the document is a will
o Actual signing of the will by the witness
Witnesses are also advised (although it is not compulsory) to sign all other pages as well
Witnesses may not sign the will before the testator otherwise they have not, technically,
attested to the testator’s signature
Dating of a will and Attestation Clauses
o Attestation clause = final paragraph of a will which records and provides evidence of the date and
place of signature and that the testator and witnesses signed in each others’ presence
o Absence of such a clause or a date = DOES NOT invalidate a will BUT it does hold evidential value
Certificate by Commissioner of Oaths
o Certifies that (1) satisfied as to the identity of the testator AND (2) document is the will of the
testator
o Requirements:
Commissioner must sign every page except the page where the certificate appears; here,
he must simply sign the certificate which may appear on any page (doesn’t have to be at
the end)
Will must be signed in the presence of the commissioner of oaths
Certificate must be attached as soon as possible (refers to time) after the signing of the will
(may be written, typed, printed or impressed with a rubber stamp)
Testator dies after signing by a mark or through amanuensis but before the commissioner
makes the certificate, the commissioner should attach certificate as soon as possible
thereafter
Commissioner may not adopt the dual role of witness as well
Commissioner must indicate (in the certificate) his capacity as such, not as an attorney or
provincial administrator etc (Jeffrey v The Master)
