Requirements for a valid Will

The person who has made the Will has "capacity"

The person who has made the Will must have:

(a) Soundness of mind, memory and understanding ; and

(b) Be over 18 years of age.

Capacity is presumed to be satisfied if the person who has made the Will understands:

1. The nature of the act.

2. The general extent of his/her property.

3. The moral claims on the estate and if:

4. The Will appears to be rational.

5. The Testator generally has capacity.

When making a Will capacity can be safeguarded by:

• Obtaining a written medical opinion on the person's capacity, and asking the person giving this opinion to witness the Will.
• Making a detailed note of the circumstances in which the Will was made.

The person who has made the Will has general and specific "intention" to make the Will.

This consists of general and specific intention:

General: Intention to make a Will

Specific: Intention to make this particular Will

Intention is presumed if the person who has made the Will has capacity when he executes the Will. However this presumption does not arise if:

• The person is blind or illiterate; or
• Suspicious circumstances exist: the person did not give free approval due to force, fear, undue influence of because he or she mistook the Will's contents.

Intention can be safeguarded by Explaining the meaning of all the clauses Ensuring the person reads the Will and that it is as he or she wishes.

A Will may be hand-written, typed or printed.

The Will is valid if:

• A person or another at his direction signs anywhere on the Will; and
• The signature is intended to validate the Will; and
• Two people witness the signature by signing the Will or acknowledging the person's mark in his presence.

Please also note that:

• A witness must be physically and mentally present at execution and able to give evidence of this.
• A witness does not have to see the person sign, or know the document is a Will.
• Both witnesses must be present at the same time.
• The person need not see the witnesses sign.

Formalities can be safeguarded by

• An attestation clause
• Choosing witnesses carefully.

Witnesses should not benefit under the terms of the Will.