Two court cases illustrate the requirements for a witness to consider a document as a valid executed Will in terms of South African law.

Introduction

In South African law, creating a valid Will requires complying with the formality requirements of the Wills Act. These requirements include having at least two witnesses, who were at least 14 years old when signing the Will. The signing of the Will should take place in the presence of the two witnesses, and the testator (the person creating the Will) must also sign the Will in the presence of the witnesses. It's also important to note that a witness who attests and signs a Will may not benefit from it. This means that such a person is disqualified from inheriting, and if nominated in the Will as an executor, trustee, or guardian, they cannot be appointed as such if they signed as a witness. If a disqualified person wishes to receive such a benefit, they can apply to the High Court for a declaration order that they are competent to benefit. However, the court will only grant such an order if they are satisfied that the disqualified person did not defraud or unduly influence the testator in the execution of the Will. The following two cases highlight the requirements that a witness must meet for a Will to be properly executed.

Karani v Karani

In the case of Karani v Karani [2017] ZAGPJHC 318, the testatrix had made several wills throughout the years, but the last will was the subject of a dispute among family members. The document was drafted by a family member in Canada and sent by e-mail to another family member in South Africa who allegedly gave it to the testatrix to sign. Two witnesses signed at the end of the document, but it was discovered that the first witness did not sign the will in the presence of either the testatrix or the second witness. As a result, the court did not consider the Will as valid. This case highlights the importance of ensuring that all witnesses sign the Will in the presence of the testator and each other to avoid any potential challenges to the Will's validity.

Twine v Naidoo

In the case of Twine v Naidoo [2017] ZAGPJHC 288, the court rejected a document as the valid Will of the deceased testatrix because it was not signed by her in the presence of the witnesses. The court heard testimony from one of the witnesses, who claimed that on the day the Will was allegedly signed, they encountered the testatrix and her spouse, N, in the street. The witness and her husband were asked if they would accompany the testatrix and her spouse to the police station to sign the Will and some other documents. The witness agreed, but they left before witnessing either N or the testatrix signing of their documents, including the testatrix's Will. As a result, the Will was not signed by the testatrix in the presence of the witnesses, even though it bore their signatures. The court ultimately refused to accept the document as a valid Will of the deceased testatrix.

Conclusion

These two cases illustrate the importance of complying with the formal requirements of the Wills Act to ensure the validity of a Will. It's crucial to have witnesses who sign the Will in the presence of the testator and each other, in order to avoid any challenges to the document's validity. Furthermore, witnesses who sign a Will may not benefit from it, which emphasises the need to select witnesses who have no personal interest in the Will's outcome. Ultimately, creating a valid Will is an essential part of estate planning, and it is important to seek legal advice to ensure that all legal requirements are met.