Study Set Content:
Formalities of the Wills Act
Section 2(1)(a) + s2(3)
In order to execute a valid will the testator must comply with the necessary formality requirements set out in..
Section 2(1)(a) of the Wills ACT
Section 2(1)(a) of the Wills Act
Formal Validity Requirements
Non-complience with formal validity requirements s2(1)(a) of WA will result in...
Invalid will and the testator will die intestate.
Beneficiaries who were going to inherit from testate will now inherit...
Intestate
If Will does not conform to the formal validity requirements in s2(1)(a), beneficiaries can..
Apply for the condonation of the will ito S2(3)
Execution is the process through which...
The testator and other required parties comply with the required formalities in order to bring a valid will into existence.
If formality requirements in s2(1)(a) are complied with the testator will bring forth a...
Statutory Will (only type of will recognised in SA law)
What are the three purposes of the formal validity requirements S2(1)(a)
- Protective function
- Cautionary Function
- Evidentiary Function
Protective Function of FVR
Formalities guard/protect against fraud and secures authenticity as they make sure the will is the testator's wishes only.
Cautionairy Function of FVR
Warns prospective testator about the signifigance of their actions and the consequences there of.
Evidentiary Function of FVR
Ensures that there is sufficient evidence regarding testator's last wishes as this contributes to legal certainty and avoids disputes after the death of the testator.
Section 2(1)(a) i-v No will shall be valid unless...
i. The Will is signed at the end by the Testator or by someone else in T's presence and by their direction.
ii. Such signature is made by T or is acknowledged by T or such other person (amanuensis) in the presence of at least 2 competent witnesses who are present at the same.
iii. Such witnesses attest and signs will in the presence of T and each other and if signed by someone else acting on behalf of T, also in their presence.
iv. If Will consists of more than 1 page, T or amanuensis must sign on every page of will, anywhere.
v. If T signs the Will by using a mark or if someone else signs the will on behalf of T, a Commissioner of Oaths must be present, and they must make a certificate which states that they are satisfied with the identity of T and that the will signed is the will of T. The certificate must then be attached to the will ASAP. If the will consists of more than one page the Commisioner of Oaths must sign every page excluding the page where the certificate appears, and they may sign anywhere on the page.
Section 2(1)(a)(i)
- The will must be signed at the end by the testator or by someone else acting on behalf of T, in T's presence at T's direction.
- T does not have to sign the will himself in order for it to be valid.
Amanuensis
Person who signs will on behalf of the Testator.
Section 2(1)(a)(ii)
- T signs or acknowledges person acting on behalf of T's signature in the presence of two competent witnesses, who are present at the same time.
- Signature must be made by T or amanuensis
- T does not need to acknowledge the signature at the same time that the signature is made, can do this later
Section 2(1)(a)(iii)
- The 2 competent witnesses must sign and attest the will in the presence of T and each other at the same time, and if amansuensis signed, also in presence of them.
Section 2(1)(iv)
- If the will is longer than one page the T or amansuensis must sign anywhere on every page of will.
- Last page must always be signed by T, regardless of number of pages.
Section 2(1)(v)
- If T signs by way of mark or amansuensis signs for T it must be in the presence of a Commissioner of Oaths. They must then issue a certificate acknowledging that they regard the signed will as the valid will for T and they are satisfied of the identity of T. The Certificate must be attached ASAP after will is signed. If will is longer thsn one page COO must sign the will on every page excl the page where certificate is. May also sign anywhere.
- If T dies before certificate is attached, it is still fine it must just be attached asap. The certificate can be attached to any page of the will.
Can T make his signature in advance and acknowledge it in the presence of the two witnesses...
Yess still valid
