Is an Unsigned Will Invalid?

What constitutes a valid will? The Wills Act 7 of 1953 provides formalities for a valid will which in short is the will must be signed by the Testator/Testatrix in the presence of two competent witnesses.  

But what if the Testator/Testatrix dies before they can sign, or perhaps the will was not witnessed adequately, will that be rendered invalid? The law aims to be just and equitable, and in its pursuit of that it will evaluate the intentions of the deceased at time of drafting of the will.

This evaluation of the deceased’s intentions was solidified in the case Ungerer v Ungerer 2024, in which the Courts used precedent from other cases to establish the intentions of the deceased. In the case, the Applicant and the deceased (who unfortunately was diagnosed with cancer and facing their imminent death) were married, and decided to update their wills and make each other the beneficiary of their respective estates, thereafter, the last dying would make their only child the beneficiary of the residue of both estates. However, the deceased never signed the will.

In reviewing the facts of the matter, the Judge looked at all the extenuating circumstances, to ascertain what intention the deceased would have had with regards to their will. In several precedents consulted prior to their judgment by Govindjee J and Laing J, they looked to the level of participation by the deceased in drafting their wills. In majority of the cases consulted, the deceased had contributed by either making notes, reviewing and making changes to ensure their wishes were clear and precise.

In the above however, the company utilised in the drafting of the updated wills, was one that mainly provided this service and had options for a system generated will. This meant that the deceased did not have an active role in the drafting and had the duty to accept or reject the will. Considering that their death was imminent, if it was their intention to institute the new will, they would have acted in such a manner to confirm their affairs were in order.

Furthermore, the deceased prior to her death, was trying to mend the broken-down relationship between herself and her daughter who was listed as her sole beneficiary in the first will. When looking at all these factors, the Courts concluded that the deceased’s intention was clear and it was her wish to have her first will as her last will and testament, and not attending to the signatures of the new will was intentional and therefore that the unsigned will is not valid.

Written by: Deonalin Pongolani
Moderated and approved by: Glenda Nell

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