By Heike Hecht
Freedom of testation is at the very heart of testate succession, in Namibian Law and elsewhere. This implies that a testator should have the freedom to decide how his estate should devolve and how to dispose of his assets after his death. Since 1990, such freedom of testation is solidly entrenched in the Constitution of Namibia, more specifically in Article 16.
In order for the Testator’s wishes to be adhered to, he would need to have a valid Last Will and Testament, complying with the stipulations in Section 2 of the Wills Act 7 of 1953. This rather outdated piece of legislation regulates the validity of a Will in the following tenor:
“2. Formalities required in the execution of a Will:
(1) Subject to the provisions of section three and three bis –
(a) no will executed on or after the first day of January 1954, shall be valid unless –
(i) the will is signed at the end thereof by the testator or by some other person in his presence and by his direction; and
(ii) such signature is made by the testator or by such other person or is acknowledged by the testator and, if made by such other person, also by such other person, in the presence of two or more competent witnesses present at the same time; and
(iii) such witnesses attest and sign the will in the presence of the testator and of each other and, if the will is signed by such other person, in the presence also of such other person; and
(iv) if the will consists of more than one page, each page other than the page on which it ends, is also so signed by the testator or by such other person and by such witnesses anywhere on the page; and
(v) 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 magistrate, justice of the peace, commissioner of oaths or notary public, certifies at the end thereof 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 if the will consists of more than one page, each page other than the page on which it ends, is also signed, anywhere on the page, by the magistrate, justice of the peace, commissioner of oaths or notary public who so certifies;
(b) no deletion, addition, alteration or interlineation made in a will executed on or after the said date and made after the execution thereof shall be valid unless –
(i) the deletion, addition, alteration or interlineation is identified by the signature of the testator or by the signature of some other person made in his presence and by his direction; and
(ii) such signature is made by the testator or by such other person or is acknowledged by the testator and, if made by such other person, also by such other person, in the presence of two or more competent witnesses present at the same time; and
(iii) the deletion, addition, alteration or interlineation is further identified by the signatures of such witnesses made in the presence of the testator and of each other and, if the deletion, addition, alteration or interlineation has been identified by the signature of such other person, in the presence also of such other person; and
(iv) if the deletion, addition, alteration or interlineation is identified by the mark of the testator or the signature of some other person made in his presence and by his direction, a magistrate, justice of the peace, commissioner of oaths or notary public certifies on the will that he has satisfied himself as to the identity of the testator and that the deletion, addition, alteration or interlineation has been made by or at the request of the testator.“
The above provisions are in peremptory language. Moreover, the provisions are cumulative and not in the alternative. Accordingly, where any one of the formal requirements is not complied with, the validity of the Will is imperilled. The dangers of non-compliance with the formal requirements imposed by the Act was illustrated in the recent judgment of Campbell v Master of the High Court[1].
While the Act provides that the Testator may “sign” the Will by making a mark, granted this mark is affirmed by a magistrate to have been made by the Testator; witnesses must, however, sign in full. In the Campbell case the Master declared material parts of the last Will and Testament of the Testator invalid due to one of the witnesses’ signatures not appearing at the bottom of the page, but rather on the next page. The court, however, held that there was substantial compliance with the Act (and as such with the requirements of a valid Will), and that the intent of the Testator and his freedom of testation were paramount. The Master of the High Court was consequently ordered to accept the Last Will and Testament in its entirety.
Even though the court order was favourable in these circumstances, it comes at the expense of unnecessary legal fees, and delays and interruptions of the estate administration process. It is thus advisable to have a valid Will drafted by legal experts. Should you need assistance in this regard, you are welcome to contact Heike Hecht at heike@cronjelaw.com.
GENERAL DISCLAIMER
The contents of this document shall not be construed as legal advice. The reader hereof takes note that the contents of the Act are subject to interpretation and such interpretation includes inherent risks as opinions might differ. Should legal advice on any specific matter pertaining to the act be required, instructions are to be given to provide a legal opinion on the relevant subject matter.
[1] 2020/00289 [2021] NAHCMD 25.
