THE drawing up of a will is an important act through which the testator gives and bequeaths his estate, defining the bequest of each legatee, provided he does so without exceeding the disposable part of his estate. The proper execution of the will relates to its validity and may be contested when the testator is no longer alive.
A will appears, if properly executed, on the face of it, the signatures on it are examined, whether they belong to the testator and the attesting witnesses, if they all signed on every page and from the proper clause attesting the signature of the testator.
Such examination verifies the existence of the presumption of due execution and validity of the will. Any shortfall will make the will invalid and the testator’s last wish will not be followed. It is also important the testator, at the time of the execution of his will, to be a capable person, to act freely without any undue influence, pressure or fraud having been exercised upon him.
The disposable part of the estate depends on whether the testator has a spouse and children or descendants, so he can dispose up to one quarter of the net value of his estate, if he has a spouse and parents but no children or descendants, he can dispose half of the net value of his estate and if he does not have a spouse or children or descendants or parents, he can dispose the whole of his estate.
The Wills and Succession Law provides that no will is valid unless it is written and executed in the following manner:
- it is signed at the bottom or at the end by the testator or by another person acting for the testator in the presence of the testator and under his instructions
- the said signature is placed or recognised by the testator in the presence of two or more witnesses present at the same time
- the said witnesses attest and sign the will in the presence of the testator and in the presence of each other
- if the will consists of more than one page, each page to be signed or initialled by or on behalf of the testator and the witnesses.
The issue of the validity of a will was recently examined by the Supreme Court in a judgment issued in agreement with the findings of the court of first instance that the testator was a capable person and that the presumption of due execution was applied. The will, on the face of it, appeared to have been executed properly, there was a proper clause attesting the signature of the testator by the witnesses and the will was signed as provided in the law.
The testator at the material time was found to be mentally healthy and his illness was pathological not affecting him mentally. During the execution of the will, he was of sound mind, he acted freely with full understanding of the consequences of his actions. He signed the will by placing his fingerprint due to the fact that his hand was shaking, at the presence of the two attesting witnesses and a certifying officer with the proper attesting clause.
The persons who contested the will claimed that a specific attesting clause should have been included stating the will was read to the testator and that he fully understood its contents. They also claimed it was a “suspicious” will, since the testator had placed his fingerprint and not his signature.
The Supreme Court disagreed with these allegations, stating that according to the admissible evidence before the court of first instance it was clear that the testator’s mental condition was good at the time of the execution of his will and he fully understood the consequences of his actions. The fact that the second attesting witness was not called to testify before the court did not affect the judgment, since his presence was unnecessary. Therefore, the Supreme Court upheld the judgment of the court of first instance.