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Witnessing a will

If you sign as a witness to a will, make sure you know these facts

 

These are sad times. Almost every day we hear of the passing of someone well known from COVID-19. And there are many more people who have lost loved ones who don’t make the news. Although the vaccination programme is slowly – too slowly, in our opinion – beginning to offer some protection from the scourge of the virus, the proportion of the population fully protected is still minute. One unintended consequence of the global pandemic is that more people are taking stock of their lives. For some, this may mean a change of career or a new relationship. For many, it means making a will. The circumstances we find ourselves in are sobering, but we are all mortal and making a will makes good sense. It ensures that your assets are left to the beneficiaries of your choosing, in the manner of your choosing. When you make a will, it must be witnessed. If you are needing a witness to your will, or if you have been asked to witness a will, be aware of these facts.

Wills - general witness

Requirements to witness a will

By law a person needs to be at least 14 years old to witness a will. Two witnesses are actually required to sign a will. Their signatures indicate that they have witnessed the testator sign the will in their presence and in the presence of each other. Any failure to comply with these requirements may, if reported after the death of the testator, result in the will being rejected by the Master of the High Court as invalid.

Do you benefit?

If the will you have been asked to witness names you as a beneficiary or executor, be careful. Signing as witness to the will may prejudice your entitlement to inheritance from the testator. A client of ours assisted his aged mother with the drafting of her will through a trust company. He was meant to inherit the family home. He arranged for the will to be signed and he subsequently witnessed it, despite our legal advice to the contrary. 

Years later, his mother passed away. When our client submitted the will to the Master of the High Court, he was surprised to learn that he was not eligible to inherit from his mother as a result of having been a witness to the will. The Master endorsed the will to that effect and the will was rendered invalid. With no valid will the son could only inherit in terms of the Intestate Succession Act.

Is there any recourse?

In this case, had the client accepted the Master’s decision, he would have lost the benefit of his rightful inheritance. Fortunately, the client took legal advice. After assessment he discovered grounds to approach the High Court for an order setting aside the endorsement made by the Master to the will, declaring him competent to inherit in terms of his late mother’s will and directing the Master to accept and administer the will previously rejected.

The moral of the story…

Firstly, be very careful when witnessing a will. You may want to help out your elderly parents and protect them from the stress of dealing with outsiders. They may insist on your involvement. But be aware of the consequences of being both poacher and gamekeeper. 

If you have already witnessed a will to which you are a beneficiary, and are subsequently barred from inheriting, don’t blindly accept the decision of the Master of the High Court without knowing your rights. You can take action. We can help.

For further information

Call us to today to see how we can assist you with any aspect of a will or trust. Cape Town law firm Simon Dippenaar and Associates Inc. is a specialist in family law and estate planning, and can help you draw up your will to ensure your estate is distributed exactly the way you would like after your death. Contact Cape Town attorney Simon Dippenaar on 086 099 5146 or email him at sdippenaar@sdlaw.co.za to discuss your needs.  

Further reading:

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Simon Dippenaar | SD Law Cape Town

http://www.sdlaw.co.za

Cape Town attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

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Disclaimer

The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.