Signing a Will

How to Sign a Last Will and Testament

At LegalWills.co.za, we have removed the barriers to preparing a Will. Most adults in South Africa do not have a Last Will and Testament in place because, traditionall,y the process has been expensive and inconvenient. But now, for just R499 and a half an hour of your time, you can have your Last Will and Testament in place, with no phone calls or appointments necessary.

But there is one step in this process that has strict rules: the signing of the Will. This is the one action, that if you get it wrong, your Will can be invalidated. However, although the rules are strict, they are really not very complicated.

"Very easy to create a legal Will following the steps on this site. Used the service for both my husband and myself. Unfortunately, my husband passed away this past November. I had no problems settling the estate (it was quite simple) using the Will we had prepared online. I will continue to use the service to update my Will and to keep it updated. Thank you for making this service affordable and keeping it simple." --- Esther Sielsky   Read more testimonials

How can I make my document a legal Last Will and Testament?

You can write your own legal Last Will and Testament by stepping through our online Will service. The whole process takes about 20 minutes, and we guide you through the selection of your Executor, and, if applicable, guardians for children, and even somebody to take care of any pets. We then guide you through the process of describing the distribution of your estate including any charitable bequests, if applicable.

At the end of this, you will have a four to six page document which you can download as a PDF or Word file, and print.

Then to make this document a legal Last Will and Testament you need to get together with two adult witnesses who are not beneficiaries in the Will. These two people can be any two adults who have nothing to gain from the contents of the Will.

The three of you should be in each other's presence. You should declare that you are signing your Last Will and Testament. You should then sign and initial each page. Pass the document to one of your witnesses who will then sign the last page, and initial each page. Then your second witness should sign the last page, and initial each page.

When the three of you have signed the document, you have created a legal Last Will and Testament.

Do I need a lawyer to sign my document?

No. There is absolutely no legal requirement to have a lawyer sign your Last Will and Testament. There is no requirement to have it stamped or registered, or even stored with a lawyer.

Does every Will have to be signed?

Yes and No. In practical terms, yes, every Will needs to be signed in the presence of two witnesses. There are however two unusual exceptions.

A holographic Will is a document written entirely in your own handwriting. It is a special Last Will and Testament, because it does not need to be signed in the presence of two witnesses.

Everybody has a right to prepare their own Will, no matter what their circumstances. The law makes allowances for people in desperate situations who may need a Will right at that moment (because they have unfortunately left it right up until the last possible point in their life to prepare their Will). They may not have access to two witnesses, and so the law allows people in this situation to write a Will entirely by hand, and not need two witnesses to be present. It is generally not a recommend approach to Will writing unless you are absolutely desperate.

Another unusual Will is a "Nuncupative" or "Oral" Will. Under very specific circumstances, a spoken Will can be accepted. The specific circumstances may include being mortally wounded on a battlefield whilst on active military service. It's not really an option available to most of us.

Who can witness the signature on a will?

In essence, any two adults who have nothing to gain from the contents of the Will can serve as your witnesses. They must be over the age of 18, and mentally competent. This means that friends, neighbours or work colleagues can all serve as witnesses to the signing of your Will.

But the purpose of witnessing is making sure that nobody is pressuring you into signing something that you don't want to sign. So, a beneficiary cannot witness the signing, nor can the spouse of a beneficiary.

If a witness is a beneficiary in the Will, the document is not entirely cancelled. It simply means that any bequest going to that beneficiary will be invalid. The witness cannot receive anything from the Will.

How many witnesses do I need on my Will?

The law requires that there are two witnesses to the signing of the Will. There is no harm in having more, but two witnesses is the legal requirement, and most people stick with two.

Can a husband and wife witness a Will?

Yes. The two witnesses can be related to each other. There is no issue with a couple both serving as witnesses. As long as they are mentally competent adults who have nothing to gain from the contents of the Will.

Can my Executor still be a witness?

Yes. This is actually very common when somebody uses a Will writer or lawyer to prepare a Will. In this case we believe there is a legal loophole because although the Executor is not a beneficiary, they can benefit quite substantially from the fees collected as an Executor.

If you use our service, you can legally have the same person serve as an Executor and as a witness. But often people who use services like ours appoint family members as Executors, and these people are also beneficiaries in the Will. So just check that the Executor is not receiving a bequest from the Will. If this is the case, they can serve as a witness.

Can a family member witness my signature?

Legally a family member is not disqualified from serving as a witness, but oftentimes a family member also has something to gain from the contents of the Will. So generally, we would advise against a family member acting as a witness, although technically there is no restriction on this.

Does the witness have to be a South African citizen or resident?

Absolutely not. Using the service at LegalWills.co.za you can actually prepare your South Africa Will from anywhere in the world. If you have retired to Spain and want to prepare your Will to cover your South Africa assets, you can do this. You can have two neighbours in Spain serve as witnesses and your document would be a perfectly legal Will. There is no requirement for your witnesses to be South African citizens or residents of South Africa.

Does the witness have to read or check my Will?

No. Your witnesses are not checking your Will. This is a perceived barrier to the signing process because people naturally want to protect their privacy. You may not feel comfortable with your next-door neighbour reading your Will.

There is also a general feeling that we don't like to sign any document that we haven't read. But witnessing a Will is not the same as signing a contract.

It is very common practice to use a blank sheet of paper to cover the contents of the document. You should sign the last page of your Will and have your witnesses sign the last page. But we also recommend that you initial each page. When you do this, it is entirely reasonable to cover the contents of the pages with a blank piece of paper for the initialling.

What happens if my witnesses die before me?

If your Will is challenged based on a claim that you were coerced or pressured into signing something that you did not understand, then the challenge will go to court.

A judge will ask the witnesses to testify that the signing process was conducted appropriately. They will then swear under oath that they were present, and there was nothing untoward with the signing.

However, if the witnesses are no longer living, then the judge will have to take into account other evidence. They will firstly look at the content of the Will. For example, have you left everything to your nurse or window cleaner, and disinherited your family? This may trigger some further investigation.

The judge will then look to something like medical records. Do you have a history of dementia? Were you taking any medication at the time of the signing? How was your general health at the time?

Other evidence can also be presented from friends, neighbours or even handwriting experts. Then the judge will decide whether to overturn all or parts of the Will.

However, if you are not doing anything unusual in your Will, it is unlikely to be challenged and it will not likely go this far.

Can I make copies of my Will?

There should only ever be one original Will. You can make copies, but they should be clearly marked as copies. A copy can be useful if it can be demonstrated that the original has been lost, for example, in a house fire. But normally, a copy of a Will is not a legally accepted document.

This also applies to scanned, faxed, or uploaded documents. Any electronic version of your Will is not a legal document. Even if it is a scanned copy of the signed document.

When would I need to update my Will?

There are many reasons why you would need to update your Will. The most obvious is when there is a significant change to your family situation, such as: the birth of a new child, you get married, you get divorced or separated, you have a new niece or nephew, or your children become adults. In all of these situations, it would be time to review your Will.

You may have had a change in your financial situation. For example, if you buy a house, receive a windfall, make significant investments, start a business. Any changes to your financial situation should prompt you to at least take another look at your Will to see if it still reflects your situation.

You may have had a change of perspective. You may have overlooked a friend and want to include them as a beneficiary in your Will. There may be a charitable cause that has become a part of your life and you want to recognise that charity in your Will. You may have had a falling out with a family member, or one of your children may have become independently wealthy whilst the other child is struggling.

Finally, there may be a change of circumstance for somebody named in your Will. For example, your Executor might have taken ill or has moved overseas, or the person that you have named as guardian for your children has had triplets of their own, or a beneficiary has predeceased you. If anybody named in your Will has had a significant change of circumstance, you may want to review their place in your Will.

How do I make an update to my Will? Can I use a codicil?

There are three ways to make a change to your Will.

You can annotate or handwrite an alteration on the Will itself. This is generally a bad idea, even though it is legally accepted. But if you do handwrite on your Will, you still need to initial that change, and most importantly, you need to have two witnesses also initial that change. Because of these signing demands, it is not really a shortcut and can lead to significant headaches for your family and loved ones. Ultimately, a handwritten change on a Will is quite likely to be challenged or contested. We would recommend that you never, ever do this.

The second approach is to use a "codicil". This is a document that is attached to the Will that makes reference to the Will with an amendment. It would say something like "referring to clause 3, Executors, replace the name John Smith, with my brother David Jones". Once again, the codicil must be signed in the presence of two witnesses, and so it does not offer much of a time saving. Codicils can become very confusing though, particularly when there is more than one. In general, we would recommend that you never use a codicil.

Codicils were very popular when Wills were typed with a typewriter. The Will writer did not want to have to re-type the whole document to make one small change. But today, there is absolutely no advantage to using a codicil and many disadvantages.

The final approach is the best way to update a Will - Write a new Will. If you use an online service like the one at LegalWills.co.za, you can very quickly and easily prepare a new Last Will and Testament. You simply login to your account, jump to the appropriate section (e.g. Executor appointment), change the name, and print off a new Will. The document then has to be signed and witnessed, but you have a new, clean Last Will and Testament in a matter of minutes.

Should my Will be registered?

There is no official registry of Wills in South Africa. Some independent enterprises have popped up, but they are not sanctioned or endorsed by any government or legal department.

Your Will is registered after you have died, when it goes through the probate process. But all the time you are alive, you simply store the document in a safe place that is known and accessible to your Executor. This is one of the most important steps in preparing your Will and is often overlooked. If your Executor cannot find your Will, or if your Executor does not know that they have been appointed to the role, then you may as well not have a Will at all.

Where should I store my Will?

Never, ever pay to have your Will stored by a Will writer. This has become a burgeoning, lucrative industry where unscrupulous companies are offering to write a Will at a knockdown price in order to sell Will storage services on a subscription basis. We have heard from people who have prepared a Will for less than R200, only to pay out thousands of rands in storage fees.

You should store your Will somewhere safe in a place that your Executor knows about, and that they have access to it when they need it. Do not hide your Will, or lock it away.

The simplest solution is to give your Will in a sealed envelope to your Executor and ask them to look after it for you.

What happens after I die?

Your Executor has the responsibility to secure and gather up your assets and then distribute them according to the instructions in your Will. The gathering up of the assets includes going to your banks and collecting all of the assets within each account. However, they cannot do this by simply presenting a Will. A bank has no way of validating the Will, and would not know whether the document is being challenged, or if there was another document that was created subsequent to the one being presented to them.

Wills are validated by the probate courts. Your Executor should take your Will to the probate courts and present themselves as the Executor. Once validated, your Executor will be given a court issued document called a "Grant of Representation" (also referred to as a "grant of probate", "letters of administration" or "letters of administration with a Will"). It is this document that the Executor can present to the bank to gather up the contents of your accounts.