THE PREREQUISITES OF A VALID WILL; A CRITICAL ANALYSIS

THE PREREQUISITES OF A VALID WILL; A CRITICAL ANALYSIS

Abstract

Sections 2(3) and 2A of the Wills Act of 1953 were incorporated into the Wills Act in 1992. The purpose of the two sections was to give the court power to condone a document that did not comply with the formalities for making a will and to empower a court to condone a legally ineffective attempt by a testator to revoke his or her will. By introducing section 2(3) and 2A of the Wills Act, the Legislature intended to eliminate the injustice and inequities which frequently resulted from non-compliance with legal requirements. However, after the implementation of the two sections, problems arose with regard to the interpretation and application thereof. This dissertation identifies and analyses the sections to show the current issues which have been discussed in case law and writings by scholars. They are as follows:

(a)        Meaning of the word “document” in section 2(3).

(b)        Meaning of “drafted” by a person who has died since the……drafting thereof.

(c)        Meaning of “executed” by a person who has died since the….. execution thereof.

(d)        Should there already be partial compliance with some of the formalities?

(e)        How does the court conclude that the deceased intended the document to be his will?

(f)        When must the intention be present?

(g)        Is a subsequent change in intention (even though it was present at time of making a document) relevant?

(h)        Interpretation of section 2A.

(i)         Interaction between section 2(3) and 2A.

Comparing and analysing section 2(3) with a similar provision in Canada and Australia, gives an insight into the problems they encounter and measures that are implemented to achieve the purpose of the provision. Finally, this dissertation will make recommendations regarding the possible alternative wording of the relevant section(s).

CHAPTER 1: Introduction

South African Law of Succession prescribes formalities¹ for the execution of a valid will through section 2(1) of the Wills Act.² The existence of formalities offer protection against fraud and also serve an evidentiary function in respect of an important juristic act affecting the rights of the beneficiaries named in the will and other contenders in relation to the testator’s estate.³ However, even though section 2(1) might appear to be without problems as to the formalities to be followed, some confusion and uncertainties existed which made complying with the formalities a challenge as it was not clear what the legislature meant. For instance, the formalities require both the testator and two competent witnesses to sign the will.⁴ However, in practice, questions arose as to whether a person’s initials constituted a signature or not, since the Act did not define what a sign or signature was.⁵ Further it remains uncertain whether the writing of a person’s name in printed⁶ or capital letters would constitute a signature.⁷ Another point of uncertainty has been the placing of the signature in the will. Section 2(1) stipulates that the testator must sign at the “end” of the will without stating where the end of the will is. In Kidwell v The Master,⁸ the court held that the will was invalid because there was too large a gap between the end of the writing and the testator’s signature.⁹ The court stated that such a gap meant that the signature was not as close as reasonably possible to the concluding words of the will. Furthermore these formalities are often not complied with for various other reasons, such as ignorance of the formalities by the testator, poor advice, unexpected death while a draft will is with the attorney. Experience has shown that an insistence on compliance with formalities may result in the frustration of the testator’s wishes notwithstanding that it is clear that the testator intended the document in question to be his or her will.¹⁰ In 1991, the South African Law Commission,¹¹ while not recommending that the statutory formalities be dispensed with, recommended that the court be vested with the power to order the Master to accept a document notwithstanding non-compliance with such formalities as a person’s last will.

THE PREREQUISITES OF A VALID WILL; A CRITICAL ANALYSIS

Chapters: 1 - 5
Delivery: Email

Number of Pages: 85

Price: 3000 NGN

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