What to do when a will can't be signed

Trusts and Estates



What to do when a will can't be signed? 

What happens when someone wants to draw up a will or make amendments to an existing will, but isn’t physically able to undersign it? This could happen when someone has been paralysed or incapacitated due to accident or illness.

 

Answer

If the bequeather is unable to sign, someone can sign on his or her behalf. The person who is authorised or designated signatory, needs to be clearly indicated in the will as the authorised signatory. If the will is more than one page each page has to be signed.

The law stipulates a commissioner of oaths be present in the event of someone signing a will on a bequeather’s behalf. The commissioner must also sign each page, as well as any amendments, and the commissioner may not be a witness.

The commissioner must then attach a certificate to the will stating that the bequeather wasn’t mentally impaired in any way, is whom they say they are and that the signed document is their last will and testament.

 

Take as an example Joost van der Westhuizen's will:

A high court judge in Pretoria has lashed singer Amor Vittone’s denial that her late husband, rugby legend Joost van der Westhuizen, was no longer able to hold a pen when he drew up a new will as “scandalous” and her conduct towards him as “lacking respect and compassion”.

Judge Hans Fabricius granted an order on Monday 12 November 2018 confirming this principle to Joost’s brother Pieter and attorney Ferdinand Hartzenberg, declaring his 2015 will to be valid and reflecting his last wishes. The master of the high court was instructed to accept the will and appoint Pieter as the executor of his brother’s estate.

Amor was also ordered to pay the legal costs relating to the application.

In terms of the will, Amor inherits only a television set while the bulk of Joost’s estate is left in trust to his children, aged 13 and 11. The will also makes it clear that Amor may not get any direct benefit from the trust and that Joost wanted his children to maintain a good relationship with his parents and brothers.