CAPACITY TO MAKE A WILL

A Will or Testament is a legal document by which a person, the testator, expresses their wishes as to how their property is to be distributed after their demise.

CHAMAN LAW FIRM

6/2/2022 2 min read

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CAPACITY TO MAKE A WILL

WHAT IS A WILL?

A Will or Testament is a legal document by which a person, the testator, expresses their wishes as to how their property is to be distributed at death, and names one or more persons called the executor, to manage the estate until its final distribution. In a layman’s language, it is simply a legal document in which you, the testator, declare who will manage your estate after you die. It helps a person determine what happens to his properties/estate after his death; it also helps him to give any instructions he may wish to be carried out if he is no longer alive. Apart from deciding who gets your assets, a Will can also serve to declare who you wish to become the guardian for any minor children or dependents.

The most important things to provide for in your will are who will be your executors, who will be the beneficiaries of your assets, and in cases where there are minors – who the guardian(s) of the minors will be.

CAPACITY OF MAKE A WILL

In preparing a will, a testator (person making his will) must have capacity to do so, meaning he must be of legal age (above 18yrs) and have mental capacity (he must be of sound mind). Furthermore, for a will to be valid it must be;

  1. It must be made voluntarily

  2. It must be in writing (either typed or hand written)

  3. It must be signed by the testator

  4. The signature of the testator must be acknowledged by at least 2 witnesses (it is advised that a beneficiary to a will must not act as a witness to the will).

  5. The testator must be of sound mind

  6. It must name the beneficiary or beneficiaries

  7. It must identify the property.

In the probate courts today, there are many parties in legal battles contesting the provisions of a will and the court is likely to set aside a will if there is conclusive proof that the testator did not have the mental capacity to understand what he was doing at the time the will was made or if the testator was unduly influenced to dispose of his properties as he did in the will. A person who dies without making a will is described as a person who ‘died intestate’, and in such situations, certain members of the family shall apply to the probate registry of the High Court to be granted letters of administration of the deceased’s estate.

NB: This article is not a legal advice, and under no circumstance should you take it as such. All information provided are for general purpose only. For information, please contact chamanlawfirm@gmail.com

WRITTEN BY CHAMAN LAW FIRM TEAM

EMAIL: chamanlawfirm@gmail.com

TEL: 08065553671, 08024230080