The purpose of a will is to ensure that the assets of a deceased person are distributed amongst the heirs in terms of the wishes of the deceased person. The important effect of a legally acceptable will is twofold in that it regulates the relationship between the heirs and reduces the potential for conflict between them by honoring the wishes of the testator.
The legal requirements for a will are set out in the Succession Law of 1965 which makes provision for four different types of will that can be legally recognized which are:
- Handwritten Will – This is the simplest form of will in which the will is written by the testator setting out the division of assets among the heirs. The will must be in the handwriting of the testator and be dated on the date on which it was written. The final legal requirement is that the will must be signed by the testator.
- Will Made in the Presence of Witnesses – This is most common method used in the writing of a will and is usually done with the assistance of an attorney. A will of this nature can be printed or handwritten, not necessarily in the testator’s handwriting. The testator has to sign the will together with two witnesses who certify by their signatures on the will that they were present during the preparation of the document. They also have to confirm that the testator confirmed the authenticity and the intention of the contents of the document.
- Will Made in the Presence of an Authority – This type of will is not very common and is usually done under special circumstances. Section 33 of the Inheritance Law specifies the authorities empowered for this type of will such as a Judge, the Registrar of Inheritance, a Court Registrar or a member of the Religious Court. In this instance, the testator declares their wishes verbally in the presence of an acceptable authority and declares that it is indeed their will. The verbal will is then reduced to writing, authorized, signed and dated by the relevant authority.
- Oral Will – This type of will must be done orally in the presence of witnesses and is often referred to as the “Death Bed Will” signifying that it is the will of a dying person. A person on their deathbed is allowed to order an oral last will and testament. The procedure here is that the testator makes the will verbally in the presence of two witnesses who must write the wishes down immediately, both then date and sign the document. The document has to be deposited with the Inheritance Registrars Bureau as soon as possible thereafter. Should the testator still be living 30 days after the making of this will, it will be declared null and void.
The importance of following the correct procedure to ensure that a will is legally acceptable cannot be overstated. Before making your will, you should consult an attorney qualified and knowledgeable in the Inheritance Law and its provisions. The Zelcer Law Firm ensures that it provides a service that is discreet, sensitive and professional so that the testator has the peace of mind to know there will be clarity and understanding between the heirs with regard to the division of the inheritance. Disputes between heirs often arise as a result of a lack of clarity in the understanding in the wording of a will and we do our utmost to prevent such disputes.
The Zelcer Law Firm offers legal services covering all aspects of the Inheritance Law including preparation and witnessing of wills, applications for succession orders, probate orders and management of deceased estates.
For further information or to schedule an initial consultation, please call us on 077- 2200122
