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Article by listed attorney: NICOLENE SCHOEMAN

The legal consequences of non-compliance with the formalities of wills as determined by the Wills Act 7/1953 (the “Wills Act” or the “Act”) as amended by the Law of Succession Act 43/1992

Formalities

In terms of section 2(1)(a) of the Wills Act, a will must be:

  • Reduced to writing
  • Signed at the end of each and every page by the testator (reference includes testatrix) in the presence of two or more competent witnesses
  • A testator can also sign by making a mark or he can ask somebody to sign on his behalf (in his presence and at his direction), but then a Commissioner of Oaths must be present who must complete the requisite Certificate (section 2(1)(a)(v) and Schedule 1) and sign each and every page thereof

However, Section 2(3) of the Act is known as the rescue provision. If a person drafts an amended document or executes a document and then subsequently dies, the Court must be satisfied that he intended the document to be his will or an amendment of his will. When it is satisfied, the Court shall order the Master to accept that document even though it does not comply with the formalities for the execution or amendment of wills.

In addition, section 2A of the Act empowers the Court to declare a will to be revoked. This means that the High Court is empowered to order the Master to accept or reject a will.

The consequences of non-compliance – case law

Tshabalala v.Tshabalala     1980 (1) SA  134 (OPD)

In this case the testator’s will comprised two pages. Page one ended halfway down the page, where the testator affixed his thumbprint. Two witnesses signed the will. Page two only contained a magistrate’s certificate. The Court found the will to be invalid.

Kidwell v. The master and Other   1983 (1) SA 509 (ECD)

The testator signed a two page document purporting to be his last will. On page one, he signed nine centimetres below the end of the typing on that page. On page two he signed 13 centimetres below the signature of the second witness.

The Master refused to accept the will as valid because it did not comply with the condition that a will is not valid unless “the will is signed at the end thereof by the testator”.

The whole purpose of the legislation is to preclude possible fraud by ensuring that no blank spaces exist in which fraudulent additions can be made. The Court held that the document did not comply with the formalities laid down in Section 2(10(a)(i) of the Wills Act 7/1953 and declared the will invalid.

Bowes v. Friedlander N.O. and Others   1982 (2)   SA 504 (CPD)

The Plaintiff alleged that the two people who purported to be witnesses were not present when the deceased signed the will, as they claimed. After hearing the evidence in the matter the Court found that to be the case and declared the will invalid.

Andersonv Wagner N.N.O and Another v The Master and Others 1996 (3) SA 779 (CPD)    

The deceased wrote and signed a letter asking the first applicant to alter his will according to an unsigned document enclosed with the request. The Court held that the unsigned document written in the deceased’s hand is not a legally valid amendment to his will and declared the document invalid.

Ex Parte Swart and Another 1998 (2) SA 204 (CPD)

The testatrix signed her will properly, but there was a page missing. The Master refused to register it as a validly executed will. The evidence showed that she had given instructions for the will and had been shown the rough draft. She had approved the draft and then signed all the pages except for one.

The Court had held that it would be over–technical and too extreme to say that one page should not form part of her will. The Court ordered the Master to accept the will and the missing page. 

Jeffrey v. The master and Others 1990 (4) SA 759 (NPD)

The testatrix was illiterate. On 5 December 1985, she placed her right thumb print on each page of her will to execute the document. Two witnesses were present who also signed the will in her presence.

 

On each page of the will one of the witnesses signed a certificate stating that he “…do hereby certify that I have satisfied myself as to the identity of the testatrix and that the will so signed is the will of the testatrix…” The statement was signed and stamped with his name, physical address and description “practising attorney”.

The Master refused to accept the will, ruling that it did not comply with the formalities. The attorney did not sign the will in his capacity as a commissioner of oaths. The Court held that the commissioner’s certificate did not comply with the requirements set and declared the will invalid.

Conclusion

If a will does not comply with the stated formalities, a testator/testatrix may die intestate as a result. This means that people end up inheriting from the estate contrary to the deceased person’s actual wishes. 

It is therefore crucially important that a will embodies the testator’s wishes, based on a sound estate planning strategy. It is also essential that you use a suitably qualified attorney used when you draft and execute your will.

 

Nicolene Schoeman, Schoeman Attorneys (Cape Town)

Tel: 0214255604

Email: enquiries@schoemanlaw.co.za

Website: www.schoemanlaw.co.za