class notes:

?who can be a competent witness

S1 of the wills Act defines a competent witness as follows:-

Any person who is 14years or more and who is at the time of signing a will is  incompetent to give evidence in court.

Let us discuss competent witness

Looking at the definition can a blind person or a sleeping person be a competent witness?

The authors are of the view that a blind person and a sleeping person cannot qualify as a competent witness since they wouldn’t have seen the testator sign.

CAN A WITNESS QUALIFY TO INHERIT IN A WILL HE HAS WITNESSED

S4A “As witness to a will and his spouse at the time of attestation cannot take a benefit(including being nominated as an executor, guardian, trustee, or administrator of an estate)under a will that he has signed as a witness.

Please note this does not affect the validity of a will, but simply means that such person may not take a benefit in terms of a will under which he has signed as a witness.

Theron v the Master of the high court, it was held that although the testators son had signed had signed a will as a witness, he qualifies to inherit since he never duly influenced the testator at the time of execution.

What constitutes a signature?

It doesn’t have to be any form, it can be anything from ones usual signature, initials and surname or just initials only even an mark e.g. X, qualifies as a signature

Please note the Act provides that a witness must sign and attest, the attestation clause is not a requirement. Its up to the testator to include it.
 Next lecture on formalities of a will!!!

For a will to be validly execute(made) all the formalities regarding  its drawing must have been complied with. The formalities to be complied with are set out in S2(1)(a) of the wills Act of 1953. the law of succession amendment Act of1992 is also applicable. Currently only the ordinary will also known as the underhand or statutory will is recognised in south African law of succession.

UNDERHAND OR STATUTORY WILL

It is provided for in the wills Act of 1953, and is applicable to wills executed on or after the first day of January 1954.

S2(1)(a) of the wills Act sets out the formalities to be complied with for a will be validly executed.

From the provisions of S2(1) (a) the will can be validly made or executed in one of the following ways:

When;

üThe will is signed at the end by means of the testator’s signature in the presence of at least 2 competent witnesses;

ü the will is signed by someone else on behalf of and as directed by the testator in the presence of the testator, at least 2 competent witnesses, and a commissioner of oaths, and the will is certified by the commissioner of oaths;

üThe testator acknowledges in the presence of at least 2 witnesses his signature previously placed on the will;

üThe person who signs on behalf of the testator and by his direction acknowledges his signature previously placed on the will in the presence of the testator, at least 2competent witnesses, a commissioner of oaths, and the commissioner oaths certifies the will; and or

üThe testator signs his will by placing a mark in the presence of at least 2 competent witnesses and a commissioner of oaths and the will to be certified by the commissioner;

üThe two competent witnesses and where applicable the commissioner must in return also sign the will.