Whatshot
Legal Talk
Legal Talk
Date: 2018-09-07
What makes a will invalid
Conventional wisdom dictates that if we own any asset of value, whether it be of economic or sentimental value, that we have a will drawn up detailing who gets our assets on our demise. However if a will is not properly drawn up or properly signed and witnessed, there's a risk that the Master of the High Court could reject the will.
Off course at that stage it would be too late to correct any errors, as the testator wont be alive to do so. What makes a will invalid Can a person's instructions to an attorney or a bank to draw up a will, setting out how the assets are to be distributed, but who dies before signing the will, be considered as having made his last will and testament.
To answer that question, we need to look at the Wills Act, which contains stringent requirements for compliance for a valid will. Briefly the Wills Act says that:
A will must be in writing; it must be signed by the testator; two competent witnesses must witness the testator's signature; if the will consists of more than one page then all the pages with the exception of the last page, must be signed by both the testator and the witnesses anywhere on page and the last page of the will must be signed by the testator and witnesses at the end of the will.
If any of these requirements are not met, the will is not valid. However there is a provision in the Wills Act, section 2 (3) which is commonly referred to as "the rescue provision" which allows the High Court to order the Master accept a will even where the document does not meet the strict compliance as stated above.
The court will only be allowed to do so if the deceased himself drafted or executed the will. In the case of Bennett v The Master 1995 (19) the Court rejected a document, which was headed "Request to Draft a Will", even though the document contained detailed instructions from the deceased to a financial institution.
The man died before the will could be drafted. The court said that the man's instruction to draft a will did not constitute his last will. In the case of Logue v The Master 1995 (1), the deceased made a will disinheriting his son.
About 2 years later he made another will in his handwriting in which he stated that he revoked all wills previously made by him and made all his children, including the son he disinherited, as equal heirs.
He did not properly sign the will nor was the will witnessed and was found among his papers after he died. The court accepted this document and said it was satisfied that the document was drafted by the deceased and ordered the Master to accept it.
Call us to draft your will so that it fully accords with your wishes on who will inherit your assets and in this way avoid any family feuds and disputes around your estate and assets.
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