S 2(1)(a)(i) - Five Issues:
1) Testator must sign Will in one of the four aforementioned ways.
2) Amanuensis can sign on behalf of testator should they be incapacitated
- Can sign the testators signature of any of the aforementioned ways besides making a mark
- If they sign their name in block letters (Jhajbhai) they should follow it with p.p. (per procurationem)
3) Amanuensis must sign the will infront of the testator. The testator needs to be able to see the will or if they are blind they need to be in a position where they could if they werent blind.
4) If amanuensis signs will, the will needs to be certified by a commissioner of oaths
5) The will must be signed at the end thereof
- Kidwell v The Master: signature must appear as close as reasonably possible to the concluding words of the will
Examples on page 5 of notes
S 2(1)(a)(ii): Four issues
1) Signature must be made in the presence of at least 2) two witnesses
- They can acknowledge a signature made without witnesses in the presence of witnesses
- Acknowledgement looks like the testator/animus declaring that the signature is indeed theirs
3) "In the presence of" = witnesses must have seen the will being signed by amanuensis/testator or if blind.. etc.
4) Witness must be competent. Means they must be above 14 and competent enough to give evidence in a court of law.
S 2(1)(a)(iii): 5 issues:
Witnesses must attest & sign will in presence of the testator, each other and amanuensis (if applicable)
1) Witnesses who sign will must be the same in whose presense testator/amanuensis signed the will
2) To attest means to act in the capacity of a witness
3) The witness's signatures serves to verify the authenticity of the testator/amanuensis's signature only.
- They do not need to know the content of the will
4) In the presence of = meaning in S 2(1)(a)(ii)
5) It is not expressly indicated where witnesses should sign.
- Generally accepted that they should sign the last page of the will - not indicated where on the last page
- They must sign after testator/amanuensis sign in terms of time, so it makes sense that they sign after their signatures.
Liebenberg v The Master : Testator signed one-paged will at the end thereof but two witnesses signed at the top of the page above the wording of the will.
Found: It is sufficient guard against fraud if testator signed at the end of the will. Not justified to interpret the Wills Act so as to make it obligatory for the witnesses to also sign at the end of the will.
S 2(1)(a)(iv): Four Issues
1) Each page other than the page on which the will ends, must be so signed by the testator/amanuensis 2) anywhere on the page - customary to sign at the end.
3) Witnesses do not need to sign all pages - last page sufficient
4) So signed’ means that witnesses, when signing the will, must act in the presence of the parties stipulated in s 2(1)(a)(iii)
S 2(1)(a)(v): Deals with the certification of a will
1) Which instances require certification of a will? If (i) the testator signed it by the making of a mark & (ii) testator directed an amanuensis to sign the will on their behalf
2) Who must conduct the certification? A comissioner of oaths.
- Radley v Stopforth: The certificate must express the commissioner of oaths’ capacity as such explicitly - even if they are an attorney.
3) What must the certificate indicate? That the COO has satisfied themselves w (i) the identity of the testator and (ii) that the will concerned is indeed that will of that testator
Example on page 9
4) Where must the certificate be placed on the will? Any page, however, the COO must sign each page other than the page on which the certificate appears. Can sign anywhere
5) When in the execution process must the certificate be placed on the will? At the same time compliance with the other formalities is effected.
- S 2(1)(a)(v)(aa): if certification is required, it must be signed in the presence of the COO by the testator/amanuensis & witnesses. It must be made asap after it was so signed by the testator/amanuensis & witnesses.
- Exception s 2(1)(a)(v)(bb): if certification required but testator dies after will signed by testator/amanuensis & witnesses, but before the COO has made certificate, the commissioner shall asap after the death complete certificate & sign will on all pages other than certificate page