In a recent matter a Will, signed by the testatrix by means of affixing her fingerprint on the document, was not accepted by the Master of the High Court. The refusal was because the testator’s mark was not properly attested to by a Commissioner of Oaths. The Commissioner failed to follow the prescribed provisions of the Wills Act (Act 57 of 1953).
Where a testator cannot write or is otherwise incapacitated to the extent that he/she cannot sign a Will as testator, such a Will can be signed by the testator by making a mark on the Will. This can be done either by means of a cross or a fingerprint, as indication of that person’s signature to the Will. The Wills Act prescribes that such a mark should be attested to by a Commissioner of Oaths. The commissioner has to identify the Testator, get confirmation that the Will is the Testator’s last wishes, and ensure that the testator’s mark is made in his/her presence.
The mark should also be affixed to the document in the presence of two witnesses and the commissioner. all four persons in each other’s presence. All 3 persons should be witnessing the mark and then sign as witnesses and commissioner in front of the testator.
Having identified the Testator and having ensured that the Will contains the last wishes of the testator, the commissioner also has to affix a certificate to the Will and sign every page of the Will next to the testator’s mark.
In this regard Section2(1)(a)(v) reads as follows:
“If the will is signed by the testator by the making of a mark or by some other person in the presence and by the direction of the testator, a commissioner of oaths certifies that he has satisfied himself as to the identity of the testator and that the will so signed is the will of the testator, and each page of the will, excluding the page on which his certificate appears, is also signed, anywhere on the page, by the commissioner of oaths who so certifies:
- (a) the will is signed in the presence of the commissioner of oaths in terms of subparagraphs (i), (iii) and (iv) and the certificate concerned is made as soon as possible after the will has been so signed; and
- (b) if the testator dies after the will has been signed in terms of subparagraphs (i), (iii) and (iv) but before the commissioner of oaths has made the certificate concerned, the commissioner of oaths shall as soon as possible thereafter make or complete his certificate, and sign each page of the will, excluding the page on which his certificate appears”.
In the recent matter referred to above, the Will was brought to us as part of the reporting procedure of an estate of a deceased family member. The will was signed by means of a mark and was attested by two witnesses and a Commissioner of Oaths, but the commissioner neglected to complete the required certificate on the Will. The Commissioner later made an affidavit in terms of which he confirmed that he was present when the Will was executed by the Testator. The affidavit of the commissioner was therefore aimed at completing the attestation of the Will as prescribed by the law. The Will with the completed certificate and the affidavit by the Commissioner were submitted to the Master for consideration and acceptance.
However, the Master refused to accept the Will as the corrections were made more than three months after the death of the deceased. The Master regarded the period that elapsed after the death as too long for correction. The Master referred the client to the High Court in order to bring an application for the Will to be approved and accepted by the Court, if the court is satisfied.
The family lives in a township of Cape Town and hardly has money to pay the water bill of the house of the deceased – his only asset. A High Court application is beyond the means of the family and this fact is well-known to the Master. Should the Master assist such a family in this case, or should the commissioner who failed to attest to the mark on the Will be responsible for the costs of such a Court application?
Bottom line, be careful when attending to important documents and consult your lawyer if you are in doubt.
Chris Fick – February 2020
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