Wills Q & A

In South Africa, Wills are strictly regulated by the Wills Act 7 of 1953, which dictates the formalities for a valid will to ensure testamentary wishes are honoured and fraud is prevented. This quiz aims to test your knowledge of the legalities applying to the execution of a valid Will.

QUESTION 1: Freddie, who is 16 years old, inherited a large estate from his father, who died some years previously. Freddie executes a Will leaving his estate to his mother.
True/False? The law does not permit Freddie to execute a valid Will as he is too young.
QUESTION 2: Elvis is a wealthy businessman, married to Priscilla in Community of property. Elvis executes a Will leaving everything to his mother.
True/false? – Because Elvis is married in Community of property, he requires his wife’s consent to execute a Will dealing with the joint estate.
QUESTION 3: Julio, married with three adult children, has a child out of wedlock with his girlfriend. He executes a Will leaving his estate to his illegitimate minor child, to the exclusion of his wife and other children.
True/false? The law does not permit a person to leave their estate to an illegitimate child, to the exclusion of their spouse and legitimate children.
QUESTION 4: Benni is a wealthy musician. He signs a 3-page Will in which he leaves his entire estate to his friend Bjorn. Benni signs his Will at the end on the last page but doesn’t sign or initial the other pages. (Assume all other legal formalities have been met).
True/false? Benni’s Will is invalid as the law requires him to sign or initial every page of his Will.
QUESTION 5: Whitney has a Will prepared for her, and when she signs her Will, she has a witness watch her sign. Whitney and the witness sign every page of the Will.
True/false? – Whitney’s Will is invalid as the law requires two people to witness her signing and for them to sign attesting that they have so witnessed.
QUESTION 6: Celine wishes to execute a Will. She signs in the presence of two witnesses, both of whom also sign the Will. One of the witnesses is a 20-year-old friend and the other is her 14-year-old daughter.
True/false? Celine’s Will is invalid as her 14-year-old daughter is too young to legally witness her Will.
QUESTION 7: Elton instructs his lawyer to draft and email him a Will. Elton prints and signs the Will before two competent wit-nesses. But he omits to insert the date and his ID number into the blank spaces left in the document to insert this information. (Assume all other formalities have been complied with). True/false? Elton’s Will is invalid as the date and his ID number have been omitted.
QUESTION 8: Aretha wants to sign her Will and asks two adult friends to witness and sign as required by the Wills Act. One of the witnesses is running late and so Aretha signs watched by one friend, who signs as a witness and leaves. Her second friend then arrives and Aretha signs again in front of him and he signs as witness.
True/false ? Aretha’s Will is invalid as the two witnesses were not present at the same time to see her sign.
QUESTION 9: Rod marries when he is in his twenties and he executes a Will leaving his estate to his young wife, Alana. Shortly thereafter Rod and Alana divorce. Rod remarries and has six children with his second wife Penny. Rod dies 30 years after exe-cuting the aforementioned Will, without having executed a further Will.
True/false? By law Rod’s Will has expired by the time he dies and his widow Penny and his children will inherit his estate in terms of the laws of intestate succession.
QUESTION 10: Lionel wishes to execute a Will, and signs it intending to have two friends sign as witnesses later. When he dies, his family discover that the Will is invalid as it was not witnessed.
True/false? The High Court has the power, on application by the family, to condone the lack of witnesses and declare Lionel’s Will to be valid.

Answers:

Q1: FALSE – The Wills Act of 1953 governs the execution of Wills in SA. It provides that any person who has attained the age of 16 years may make a Will (unassisted by their guardian). Children under the age of 16 cannot make a Will, and their estates would be distributed according to the laws of intestate succession.
Q2: FALSE – A married person is permitted to make a Will without their spouse’s consent, approval or knowledge. In the case of a couple married in COP, the surviving spouse is entitled to half the joint estate by virtue of marriage and the de-ceased spouse’s Will applies to his/her half share of the joint estate
Q3: FALSE – SA law recognises the principle of “freedom of testa-tion”: one may leave one’s assets to any person and may exclude or disinherit anyone including a spouse or child. A caveat is that an excluded spouse, minor child or any child needing support may institute a claim for maintenance from the deceased estate.
Q4: TRUE – The Wills Act requires the maker of a Will to “sign” at the end of the Will and on every other page. “Sign” includes mak-ing of a mark or an initial.
Q5: TRUE – The Wills Act requires two competent witnesses to witness and sign (or initial) the Will. Both witnesses and the maker of the Will must be present at the same time.
Q6: FALSE – Anyone person of sound mind aged 14 years or older may witness a Will. And family members are not barred from being witnesses. The Wills Act disqualifies a witness from inheriting from a Will (with certain exceptions) but the fact that a wit-ness is named as a beneficiary in the Will is not a flaw which invalidates the Will.
Q7: FALSE – The ID number of the maker of a Will is not a required formality even though is it recommended to be included. The same applies to the date: the lack of a date does not invalidate the Will (although it may lead to problems proving where it ranks chronologically with other Wills and whether it revokes other Wills).
Q8: TRUE – Both witnesses and the maker of the Will must be present at the same time.
Q9: FALSE – Wills have no expiry date and in this example Rod’s very old Will leaving everything to his ex-wife will be VALID and upheld (i.e. go to his ex-wife!). His widow may have a claim for maintenance from his estate but she and his children will not in-herit by intestate succession.
Q10: TRUE – The Wills Act gives the court an overriding discretion to condone non-compliance with formalities, provided it is apparent or can be proved that the Will represents the maker’s true intention.