Answer to a question from a reader

My late father wrote an affidavit in 2011, leaving his house and everything in it to me. Is it still legally binding?

The short answer

You may be able to use the affidavit, but there are steps you have to take

The whole question

Around 2011, my father and I went to our local police station and he had an affidavit written out stating that he's leaving his house(and everything in it) to me. I was 17-years-old at the time and before we could change the title deed officially, he passed away and the affidavit was misplaced.  Now in 2020, I managed to find the affidavit. Can I still use it to change the name of ownership from his name to mine or is the affidavit no longer considered legally binding?

The long answer

Thank you for your email asking whether the affidavit your late father made in 2011 leaving his house and everything in it to you.

An affidavit is not a will, as it does not conform with the what's required by the Wills Act.  A Will can only be valid if it is signed by the person whose will it is, in the presence of two witnesses.  (The are exceptions when people cannot sign, which requires the mark or other person signing to be certified by a commissioner of oaths).  The Act enables a court (and only a court) to declare that a document is a valid Will if a document was intended to be a Will.  You would therefore have to approach the High Court with a formal application and notice must be given to all possible interested parties.  The court will determine whether the document should be submitted to the Master of the High Court as a Will.  If so, the Master will appoint an Executor who will wind up the estate.

You may want to consult Legal Aid on how to proceed:

Legal Aid Advice Line (toll-free): 0800 110 110

Please-Call-Me number: 079 835 7179

Email: communications2@legal-aid.co.za


 

Answered on March 27, 2020, 4:01 p.m.

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