29 March 2022

What makes a Will invalid?

Submitted by Joshua Maraney
What makes a Will invalid?

A Last Will and Testament is a document in which a person (called a testator or testatrix) expresses his or her wishes as to what should happen to their assets. This includes what their dependants should inherit when they die.

But, like all legal documents, there are some factors which could invalidate a Last Will and Testament.

There are some musts and may nots you should know about.

If the musts are not done, the Last Will and Testament will be invalid and if the may nots are done, it could also be declared null and void.

The musts

All Last Wills and Testaments must be in writing. This means that a Will may be typed or handwritten.

You may sign your Will personally or ask someone to sign on your behalf. When someone sign on your behalf that must be done in the presence of a Commissioner of Oaths or your Last Will and Testament will be invalid.

All competent persons are allowed to make a Last Will and Testament if they are 16 years and older. Competent means that the testator/testatrix must have the sufficient mental capacity to understand the nature and effect of the testamentary act.

The signature of the testator/testatrix must appear on every page of the Will as well as at the end of the Will. This signature must be made in the presence of two or more competent witnesses.

Last Wills and Testaments should be dated to avoid confusion in case another Will is found. It will also give more clarity if the pages of Last Wills and Testaments are numbered.

A relatively unknown and interesting fact is that any person of 14 years and above is competent to act as a witness to a Last Will and Testament.

May nots and do nots

If you sign as a witness, you may not benefit from the Will at all. You are also prohibited from being appointed as an executor, administrator, trustee or guardian. If you are, the nomination will be void.

Wills may not contain any illegal, unethical or immoral provisions.

Children’s well-being is always put first as far as Last Wills and Testaments are concerned. If there are enough assets and/or liquidity in the Last Will and Testament, it must provide adequately for the maintenance and education of the testator’s/testatrix’s children. If it does not, the Will could be declared invalid.

Even if a child was disinherited it does not deprive him/her of a claim against the deceased estate. The duty of a parent to support his/her child does not terminate upon the parent’s death. A child over the age of 18 will have to prove that he/she is unable to support himself/herself. A child’s maintenance claim ranks above all other claims against the estate except for debts owed to creditors of the estate.

It stands to reason that a Last Will and Testament may not be a forgery. A Last Will and Testament may also be declared null and void if the document is genuine, but the signature that should have been the testator’s, was forged.

The expression of a testator’s last wishes may not be coerced. If the Last Will and Testament is not a result of the testator’s/testatrix’s own free will, the Last Will and Testament will also be declared null and void.

A Beneficiary may not be an unworthy person. He/she will be excluded from a Last Will and Testament if he/she is an unworthy person. An extreme example is a Beneficiary who intentionally or recklessly caused the testator’s/testatrix’s death.

There are standard examples of Last Wills and Testaments all over the internet. However, the above shows that there are several legal snares one must be careful of.

It just makes common sense to make use of the experts at Capital Legacy to draw up your Last Will and Testament free of charge. It is so easy. Go to capitallegacy.co.za. Click the button and our experts will contact you.

This article was first published at https://www.capitallegacy.co.za/what-makes-a-will-invalid/

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