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Article by listed attorney: Fawzia Khan

What happens if at the time of your death there are several documents, all declaring to be your last will and testament, (including emails to and from your attorney about certain amendments to be made into the will)? Just because a document says ‘last will and testament’, is no guarantee that upon your demise, that the document will be accepted as your last and final will.

The Master of the Court will not accept a will as being the last will of a testator, if that will does not comply with the strict requirements of the Wills Act. Amongst the requirements needed for a valid will to be executed, is the rule that a person who witnesses a will, shall be disqualified from receiving any benefit from that will. However if the court is satisfied that that person did not defraud or unduly influence the testator in the execution of the will, it can nevertheless allow such a witness to benefit.  In my opinion it makes good sense to get an attorney to advise you on your will and who will not only draft your will but will also ensure that it’s properly executed.

In the case of O v O and Others, Mr. O (the testator) died in May 2015.  At the time of his death, he had 3 adult children from a previous marriage and left behind his widow, to whom he married out of community of property. In 1989 and prior to his marriage to his surviving spouse, the testator executed a will, which was properly drawn and signed. In that will he appointed all three children as the sole and universal heirs of his entire estate.

In 2006 he then personally drafted and signed a document entitled “Last Will and Testament”. This document was signed and witnessed by widow and a close family friend and neighbour, Ms. V. Mr. O sealed the 2006 document in an envelope and gave it to Ms. V for safekeeping. He told Ms. V to send it to his bank, after his death. The terms of the 2006 document recorded that his widow would be entitled to have use of his house and motor vehicles. She would be entitled to the interest on all monies accruing to the estate, which were to be placed in trust.  He wanted the entire remainder of his estate to be liquidated and divided equally amongst his three children and his stepdaughter. The biological children of the testator disputed the 2006 document as being his last will and testament.

The man’s son told the court that in 2009 and shortly before the testator underwent surgery, the testator (his father) emailed an unsigned document to the son, in which he gave instructions to the son regarding the manner in which the son was to deal with his (the testator’s) assets. The 2009 document was drafted in layman’s terms and did not say that the testator revoked his previous wills. After his death, his widow found yet another unsigned document entitled “Testament” amongst her husband’s possessions. The 2015 document was drafted by an attorney and was clearly done on the instructions of the testator. There were emails sent and received by and between the testator and his attorney. This 2015 document was also emailed to the son but with no comment or instructions around it.

The widow asked the court to recognize the 2006 document as being the testator’s last will and testament. The man’s biological children asked for the 2015, alternatively the 1989 document, to be declared as the testator’s last will and testament.

On 3 March 2016, the court ruled that neither the 2009 nor the 2015 documents met the requirements of the formalities of the Wills Act. It then declared that the 2006 document was the testator’s last will and testament. In addition, notwithstanding the rule that a witness cannot benefit in a will, the court found no such evidence of undue influence and allowed the widow to be a beneficiary.

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