Requirements of a Will if one cannot sign his/her name

A will is a specialized document, which should reflect one’s wishes as to the distribution of his/her assets after their death. A will should be drawn up by an expert like an attorney in accordance with the Wills Act, 7 of 1953.

A person who is 16 years and over and mentally capable of appreciating the consequences of his/her actions, is competent to make a will (Section 4 of the Wills Act, 7 of 1953). If you own a vehicle (no matter the value) or have a registered bank account in your name (no matter the balance) you need a will, more so if you own a fixed property.

The Wills Act prescribes several necessary formalities in Section 2(1) for a will to be valid when it is executed (signed and witnessed). Should a person be unable to sign their will due to a physical impairment, the South African Law stipulates that you may ask someone to sign the will on your behalf or you can sign the will by the making of a mark. A mark could be a thumbprint or perhaps the making of a cross.

When the Will is signed by someone on your behalf or by the making of a mark the requirements for a valid Will are as follows:

• Since 1 January 1954 all wills must be in writing. It can be written by hand, typed, or printed. Remember that if your will is handwritten, the person who wrote the will is not allowed to be mentioned as a beneficiary in your will or receive any other benefits from your will (for example be the executor).

• You 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 your presence and by the direction of yourself.

• The mark or the signature of the other person signing on your behalf must be made in the presence of two or more competent witnesses (14 years and over and who at the time of witnessing the will are competent to give evidence in a court of law) and a commissioner of oaths.

• If the Will consists of more than one page, each page other than the page on which it ends must be signed by the testator or by such other person anywhere on the page. (Although the testator must sign all the pages of the Will it is only the page on which the Will ends, that needs to be signed at the end of the Will).

• A commissioner of oaths must certify that he/she satisfied himself/herself as to your identity and that the will so signed is indeed your will.

• The commissioner of oaths furthermore must sign and attach his/her certificate and he/she must also sign each page of the will, anywhere on the page.

• A beneficiary to your will should not sign as a witness, because he/she will then be disqualified from receiving any benefit from your will. There are however some exceptions to this rule. The same applies to the spouse of such beneficiary.

Amendments to a will must comply with the same requirements for a valid will and if you cannot write, with the same requirements as listed above. If you die without leaving a will, your estate will devolve according to the Intestate Succession Act 81 of 1987.

The following points and best practices, although not affecting the validity of will per se should be remembered when it is executed:

• Wills should be dated to avoid confusion in case another will is found.

• Witnesses cannot benefit under a will.

• Witnesses cannot be nominated as an executor, administrator, trustee, or guardian and if they are, the nomination will be void.

• Witnesses should sign/initial every page.

• The will should be clear and readable, whether printed or handwritten.

• Signatures should be as close to the last line of every page.

• Pages should be numbered.