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Never underestimate the importance and value of a valid, legally compliant Will

26 August 2020 Chanel Kempff, Client Value Proposition Head at FNB Fiduciary Advice

Given the importance of a Will as a key component of any estate plan, it's worth the relatively minor investment of time and money to ensure that you get it 100% right.

After all, your Will plays a fundamental role in ensuring that the solid estate plan you've spent so many hours developing is put into action on your death, without undue delays, unexpected costs or negative impacts on those you care about.

Interestingly, very few people realise that their Will can in fact be declared invalid, or that their beneficiaries could face lengthy court battles and immense frustrations, if the document isn't compliant with various legal requirements.

At the very least, there are a few minimum considerations that, if not given the necessary attention when you're drawing up your Will, could see it being contested or declared invalid in court after you pass away.

The first such consideration is to try, if at all possible, to avoid having a handwritten Will in place. While it's understood that, sometimes due to unavoidable consequences, this type of 'do-it-yourself' Will is the only option available, it can also present significant risks that the wishes you express are not carried out. Whilst South African law accepts a handwritten Will, provided it is properly signed by the testator and at least two witnesses, a lack of professional guidance when setting out such a document could lead to confusion regarding what, exactly, your wishes are for your estate after your death. And even if those wishes would make perfect sense to you, there's a chance that effecting them may be made more difficult by legalities and practicalities of which you may not be aware.

The bottom line is that a handwritten Will, or any other Will, which fails to comply with the Wills Act for whatever reason, could mean that the beneficiaries have to apply to court to have it declared valid. Avoiding the considerable costs, delays and frustrations that this process might cause your heirs, should be more than enough reason to ensure the document is executed properly and professionally.

Another very important consideration when drawing up your Will is who should sign as witnesses. A legally valid Will has to be signed by the testator (the person drawing up the Will) and two competent witnesses. The law defines a 'competent' witness as a person who is at least 14 years old and able to give evidence in a court of law if required to do so. In addition to the above, the witnesses (or their spouses) should not be mentioned in the Will as an heir or beneficiary, nor should he or she be nominated as the executor of the Will. Having a witness who is also a heir may not automatically invalidate the Will, but it will mean that the person in question will never be able to inherit more than he or she would have inherited if the deceased had passed away intestate (without a Will). This makes the execution of the Will very complicated and could have a significant negative impact on the inheritance of the heir who signed as a witness.

A final aspect of drawing up a valid Will, that should be very carefully considered, is the fact that digital signatures of these documents are still not considered legally compliant. Wills are excluded from the provisions of the Electronic Communications and Transactions Act, which means that they cannot be digitally signed, but rather still require the testator to physically sign every page of the document.
As such, using a digital signature on your Will, effectively renders it invalid and, again, creates immense challenges and delays for your heirs and beneficiaries, who then need to apply to court to have it validated.

Ultimately, the best thing you can do for your loved ones is to ensure that the legacy you leave to them is accessible, uncomplicated and without frustrations, challenges and delays. While a Will doesn't automatically guarantee that the process of distributing your estate will be smooth sailing, having such a well-drafted, valid Will in place significantly increases the likelihood that will be the case.

With that in mind, it's worth enlisting the services of a fiduciary specialist to revisit your existing Will, or help you to draw up a new one, that is valid and ensures that your loved ones are certain to be cared for in the way you desire.

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