Chapter 5 - Formalities of a will

Question 1

Execution of a will

Answer 1

The execution of a will is the process through which the testator and other parties comply with all the formalities required to bring a valid will into exisance

Question 2

Formalities of a will i terms of section 2(1)(a) of the Wills Act

Answer 2

1. The will must be signed at the end thereof by the testator himself or herself or an amanuensis.
2. If the will comprises more than one page, every page other than the last must be signed anywhere on the page by the testator or the amanuensis.
3. The signature of the testator or the amanuensis must be made in the presence of two or more competent witnesses.
4. Such witnesses must attest and sign the will in the presence of the testator and each other and of the amanuensis.
5. Where the testator signs with a mark, or an amanuensis signs for the testator, the commissioner of oaths must be present when the testator signs and certification formalities apply.

Question 3

The testator signs with their own signature

Answer 3

The testator and two witnesses must with their own signatures

Question 4

The testator signs with a mark

Answer 4

The testator, two witnesses and commissioner of oaths

Question 5

Amanuensis signs for the testator

Answer 5

The testator, amanuensis, two witnesses and commissioner of oaths

Question 6

Amanuensis

Answer 6

is someone the testator has authorised to sign the will on his or her behalf

Question 7

Competent witness

Answer 7

with regard to a will, is any person above the get of 14 years who is competent to give evidence in the court of law.

Question 8

When the testator signs with a mark, or when an amanuensis signs for the testator.

Answer 8

The commissioner of oaths must:

1. Satisfy himself or herself as to the identity of the testator.
2. Satisfy himself or herself that the will so signed is the will of the testator
3. Make a certificate on the will itself in which he or she certifies that he or she has so satisfied himself or herself
4. Record in the certificate that he or she has done so in his or her capacity as a commissioner of oaths.
5. Write the certificate on the will by hand, or type or print it on the will, or impress it on the will with a rubber stamp.

Question 9

Rebuttable presumptions

Answer 9

it is a legal presumption that will stand as a fact unless proven otherwise.