Written by: Ruth Simoné Gray
31 January 2025
What Is The Legal Process of Validating a Will?
A will is one of the most important documents that one can draw up. It governs how a person’s estate is dealt with after their death and who stands to inherit from their estate. In the absence of a valid will, the deceased’s estate will be wound up in terms of intestate succession.
It is possible to have concluded a will that is factually not valid without even knowing it. If a will does not meet all the requirements necessary for it to be considered a valid will, then, unfortunately, the deceased’s estate cannot be wound up in terms of the will they concluded, as it stands. There are, however, ways for beneficiaries to apply to have the will declared as the deceased’s last will and testament.
This article will discuss the requirements for a valid will and the circumstances in which such a will can be declared valid after the deceased has passed away.
What Are The Requirements For A Valid Will?
Section 2(1)(a) of the Wills Act 7 of 1953 requires the following conditions to be met for a testator/testatrix’s last will and testament to be valid:
● The last will and testament of the testator/testatrix must be signed at the end of the will or, alternatively, by an amanuensis if the testator/testatrix is being assisted in signing their will.
● Every page apart from the last page of the last will and testament has to be signed by the testator or, alternatively, by an amanuensis, if the testator/testatrix is being assisted in signing their will.
● Two competent witnesses must also sign the testator/testatrix’s last will and testament on their respective witness signature lines.
● The two witnesses who sign the testator/testatrix’s last will and testament as witnesses must do so in the presence of the testator/testatrix and in the presence of each other.
● Where the testator/testatrix is signing their last will and testament with a mark, that mark must be affixed to the testator/testatrix’s last will and testament in the presence of a Commissioner of Oaths who can attest to the testator/testatrix’s signature.
How Can You Determine If A Will Is Valid Or Not?
In order to determine whether a last will and testament is valid, it is important to compare such a last will and testament with the requirements as set out in Section 2 of the Wills Act 7 of 1953.
If one of the requirements has not been met, then the testator/testatrix’s last will and testament cannot be considered to be valid in respect of the Wills Act. However, should a testator/testatrix’s last will and testament not meet all the necessary requirements of Section 2 of the Wills Act 7 of 1953, that does not mean that said last will and testament cannot still be declared valid. If submissions can be made regarding the veracity of the information, that the information accurately reflects the wishes of the testator/testatrix and that there is a valid and reasonable reason for the non-compliance, that can be proven.
What Can You Do If You Discover An Invalid Will?
If the testator/testatrix’s will is not compliant with all the requirements as per the Wills Act and is thus invalid, the only option one has is to bring an application to the High Court.
In such an application, you would have to set out the following:
● The requirements that have to be met with regard to a valid will as per the Wills Act 7 of 1953.
● How the last will and testament of the testatrix has not complied with the relevant requirements as per the Wills Act.
● An explanation for the non-compliance and any supporting documentation to support such an explanation. An example would be if a testator/testatrix’s will was only signed by one witness.
In this instance, a confirmatory affidavit would need to be submitted as support of the evidence that the will was, in fact, meant to be the last will and testament of the testator/testatrix.
How Long Does It Take To Bring An Application To The High Court And What Are The Cost Implications?
It is very difficult to provide an estimate as to how long the process may take, as an unopposed High Court application can progress far quicker than an opposed High Court application.
Concomitantly, it is equally difficult to provide a cost estimate for the process, as indicated; it will largely be dependent on whether the matter is opposed or unopposed. If the matter is unopposed, the application is far more likely to obtain a date sooner than if the matter is opposed.
Can These Costs Be Recovered?
Yes. The legal costs incurred in having the testator/testatrix’s last will and testament declared valid may be claimed back as a claim against the testator/testatrix’s late estate if the individual bringing such an application would have been an executor/executrix or is a beneficiary of the testator/testatrix’s late estate.
What Happens After The Court Declares The Will Valid?
Once the High Court issues an order declaring the will valid:
● The court order must be submitted to the Master of the High Court.
● The estate administration process can begin per the deceased’s wishes as outlined in the will.
Are There Circumstances Where An Invalid Will Cannot Be Declared Valid?
Yes. A will cannot be declared valid if:
● If there is no reasonable justification and/or explanation and/or suitable evidence to support that the invalid will is a true reflection of the testator/testatrix’s last wishes.
In the event that a last will cannot be declared valid by the High Court, unfortunately, the testator/testatrix’s last will and testament will not be considered valid. In such circumstances, the testator/testatrix’s estate will be wound up in terms of the laws of intestate succession.
Ensuring that your loved one’s final wishes are honoured is crucial, and legal expertise is often needed to rectify an invalid will. If you require comprehensive support and assistance with having an invalid will declared valid or would like to know more about the process, contact Burger Huyser Attorneys for assistance. Our expertise and knowledge of the requirements and process to have an invalid will declared valid will be invaluable in answering any questions you may have.
At Burger Huyser Attorneys, we specialise in assisting executors and beneficiaries with High Court applications to declare wills valid. Providing expert legal advice on estate administration and guiding families through complex estate disputes. Contact us today for professional assistance in safeguarding your family’s future!
Contact Burger Huyser Attorneys, and book a consultation.
To speak to one of our experienced attorneys in South Africa for immediate assistance, contact us on the numbers below:
Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358; Pretoria call 064 548 4838;
Centurion call 061 516 7117; Alberton call 061 515 4699; Bedfordview call 061 536 3223
