Study Unit 3.

3: Formalities in the execution of wills

Formalities for executing a will
• Statutory requirements
○ The valid execution of a will means that all the statutory
requirements for drawing up a will have been complied with
○ Formalities for the valid execution of a will are set out in section
2(1)(a) of the Wills Act
○ The Wills Act as amended by the Law of Succession Amendment
Act that came into operation on 1 October 1992 is applicable to
the execution of all wills, codicils and any other testamentary
writing
○ The Act abolished all common law forms of wills and only
ordinary - so- called underhand (statutory) will was retained
○ Underhand will presumes a written, signed and attested document
• Chapter 3 - Capacity in respect of 2 sets of people
• Chapter 4 - Statutory requirements of will

Formalities in the execution of will - pg. 54

• Why do we need formalities? - 3 reasons
○ Protective function - prevent fraud
○ Cautionary function - warns T about the significance of the act of testation
○ Evidentiary function - reliable evidence of T's last wishes,
certainty and avoid disputes

Terminology - underhand will pg. 53-54

• Underhand will = ordinary will/statutory will
○ Before Wills Act - could make common law will
○ Thus underhand will is a will made ITO the Wills Act
• No definition in the Wills Act of what a will is

Prescribed formalities in the execution of a will - pg. 54-55

• Section 2(1)(a) of the Wills Act provides for the requirements for formalities
• Two requirements/formalities:
○ Wills must be signed at the end by either the testator or the person
 under his instruction
○ If there is more than one page - the testator or person under his
instruction must sign every page except the last one
• Page 253 - Wills Act
○ Section 2(1)(a) of Wills Act
○ Requirements
1. Will must be signed by T or a person under his direction at the
end thereof - section 2(1)(a)(i)
2. This signature must be made in the presence of at least 2 competent

witnesses at the same time - section 2(1)(a)(ii)

□ If testator signs = 3 people present - testator and 2 witnesses
□ If appointed person signs = 4 people present - testator, AP
and 2 witnesses
3. Witness 1 and witness 2 attest and sign will presence of T and
AP (if AP applicable) - section 2(1)(a)(iii)
4. If will has more than 1 page, T and AP (if applicable) must sign
anywhere on each other page except the last page - section
2(1)(a) (iv)
5. If T signs by making a mark, or if another person signed on
behalf of T, a Commissioner of Oaths must certify that he is
satisfied as to the ID of T and that the will before him is the will
of T and the Commissioner must sign each page of the Will
EXCEPT the page on which his certificate appears
• Textbook gives attention only to wills that were executed on or after 1
January 1954, and in respect of testators who died on or after 1
October 1992

Terminology
• Legislator doesn’t define the concept 'will'
• Definition of a will:
○ Unilateral
○ Voluntary expression
○ Of the wishes of a person i.e. testator
○ In legally prescribed ways
○ That determines what must happen to this person's property
 ○ At their death/after their death

Definition of will pg. 55-56

• Verbal/informally executed will
○ No
○ A signature is required - thus must be in writing
○ Typed/printed/PC generated document
▪ Writing includes a typed or printed or computer-generated will
▪ Concerning a computer-generated document, see the
MacDonald v The Master case
• For all practical purposes, no distinction is made between a will and a
codicil, although a codicil is usually an addendum to a will
• If will is invalid, does this automatically invalidate the codicil, and why?
○ No, just because the will doesn’t meet the requirements doesn’t
mean that the accompanying codicil is also not valid
○ The codicil must thus also meet the formality requirements
○ A codicil that has been properly executed is valid as such and
doesn’t depend for its validity on the existence of a prior will
• The Wills Act doesn’t specify what is meant by will
○ However, Ex parte Estate and Oosthuizen v Die Weesheer
determine which elements are required for an effective
testamentary disposition
○ There must be an indication of:
▪ The bequeathed assets
▪ The extent of the interest bequeathed in the assets; and
▪ The identity of the beneficiaries
• Any document expressing the intention of T with relation to any
of the 3 elements must comply with the prescribed formalities -
will, codicil and supplements to will, etc.
○ The consequence of this that all wills, codicils and supplements to wills

must be properly executed in accordance with the formalities

• Any document that is incorporated into a will by way of reference,
e.g. list of assets to be distributed, must itself also satisfy the formality
requirements
 • Doctrine of incorporation is not applicable in SA law
○ Doctrine of incorporation - can incorporate another external
document in the will
○ All the documents have to be included in the will
○ This is due to the wording of section 1 and section 2(1)(a) of the Wills Act
○ In the Wessels v Die Meester case the SCA confirmed that the
doctrine of incorporation of a document by reference doesn’t
form part of the SA law
○ A testator thus has to guard against trying to incorporate, for e.g.
any supplement or separate document or letter into the will
without it having been properly executed
• ANC are not governed by the Wills Act
○ The Deeds Registries Act is dealt with, which requires notarial execution
• For the purposes of the application of section 2D(1) of the Wills Act a
'will' is defined as 'any writing by a person whereby he disposes of his
property or any part thereof after death'
○ This definition only relevant in connection with interpretation
regarding adopted children, children of unmarried parents and
class bequests regulated in the section concerned
• Certain documents that do not comply with the formality
requirements ITO section 2(3) may indeed be condoned by the
court
○ However, the document will not be accepted as a 'will' without
a court order

Class activity
• List the 3 elements for an effective testamentary disposition
○ Ex parte Estate Davies and Oosthuizen v Weesheer
▪ There must be an indication of:
□ The bequeathed assets e.g. My house
□ The extent of the interest bequeathed - e.g. in equal shares
□ The identity of the beneficiaries e.g. my children

Valid execution
• Valid execution = all statutory requirements have been met
• What happens if these requirements are not met?
 ○ Will = "formally defective"
• Do you think the court has the power to accept a formally defective will?
○ Yes, can accept formally defective will, don’t want to frustrate the
process of testation/succession
○ The court may thus ITO s 2(3) Wills Act accept defective will

Ways of making (executing) a valid will

• From provisions of section 2(1)(a) it appears that a will may validly
come into existence in one of the following ways:
○ Will is signed at the end by means of the testator's signature
in the presence of at least two competent witnesses
○ The will is signed by someone else OBO and as directed by the
testator in the presence of the testator, at least two competent
witnesses and a CoO, and the will is certified by the CoO
○ The testator acknowledges in the presence of at least two
competent witnesses his/her signature previously placed on
the will
○ Person who signs OBO testator and by his/her discretion
acknowledges his/her signature previously placed on the will in
the presence of the testator, at least two competent witnesses
and a CoO and the commissioner certifies that he/she is satisfied as
to the ID of the testator and that the will so signed is the will of the
testator - the witnesses can't simply acknowledge their signatures
○ The testator signs his/her will by placing his/her mark in the presence
of at least two competent witnesses and a CoO, and the will is then
certified by the CoO
• Only testator has the power to sign the will with a mark
• The person signing by his/her direction as well as the witnesses must sign
with their signatures or initials
• The date and place of execution and signing need not be stated
• A will that appears to have been signed by the T and W's in
accordance with the formalities is presumed to be valid
• Not always possible to judge on the basis of the appearance of the will
whether the formalities have in fact been complied with
○ In the Thaker v Naran case
▪ It was argued, for e.g. that the T and W's weren't in each
other's presence at the time of the execution of the will
▪ Seeing that the claim could not (on a BoP) be proved and
that it appeared that the will had been validly executed, it
was found that the will was in fact valid
STUDY UNIT 3.4: THE COURT'S POWER TO DECLARE A
WILL VALID
The court's power to condone a formally
defective will
Introduction
• In order to obviate the problems which arose in interpreting section
2(1), the court was a given a power of condonation
• This enabled the court to condone ('excuse') a will that doesn’t comply
with the formality requirements
• In section 2(3) the legislator created a framework within which the
court could consider condonation
• In practice, it quickly became clear that the wording of the section
was not without problems
○ The legislature has, however, stated requirements within the
framework of which this purpose is to be served and has not stated
a general principle which the courts can apply at will
• The framework within which section 2(3) can be applied is clearly specified:
○ The court has the power to condone non-compliance with the
formality requirements in section 2(1)
○ In other words, only if the stated formality requirements for (a) the
execution or for (b) the amendment of a will have not been
satisfied, can section 2(3) be applied
• The incorporation of section 2(3) was generally welcomed as
previously wills had been declared invalid even if only the slightest
formality requirement had not been complied with
• for s 2(3) application - balance of probability
• Clear from wording of this this section that, if the provisions of the section have
 been satisfied and the court is convinced that the testator intended the
document to be a will, the court must order the Master to accept the
document as a will or as an amendment of the will
• It was found that the wording of section 2(3) is mandatory rather than precatory
• All the cases reported on section 2(3) may be placed into one of the
following categories:
○ The T writes a document in his/her own handwriting and
signs the document o drafts a document, but doesn’t sign
the document or;
○ The T requests someone in a letter or in some other way to draft a
will for him/her. This person then drafts a will OBO the testator. Two
possibilities then follow:
▪ No further formalities are complied with; or
▪ Execution of the document commences, but the result is
formally defective

Section 2(3) of the Wills Act

• Condonation of a formally defective will

What is the meaning of condonation? - pg. 67

• Excuse/accept a defect/overlook a defect
• Section 2(3) of the Wills Act (pg. 254-255)
○ Mandatory provision - thus if the requirements have been met,
the court has to comply
• Why was section 2(3) of the Wills Act enacted? - pg. 69-70
○ We want to give effect to T's will (i.e. his wishes) - link to FoT
▪ Ensure that the intention of the testator is given effect to as
far as possible, even though the will (document) has not
been properly executed
○ Thus, we don’t want to frustrate the intention of T
○ As this may lead to unjust and inequitable results
○ MacDonald case
▪ Court confirmed that the purpose of s 2(3) is thus to: ensure
that the intention of T is given effect to as far as possible
▪ Quote on page 70
□ "By introducing section 2(3) of the Act, the Legislature
 intended to eliminate the injustice and inequity which
frequently resulted from non-compliance with the
formalities required of a valid will as envisaged in section
2(1) of the Act"

Does this mean that s 2(1) formality requirements are now redundant? - pg. 70
• No
• Requirements ITO s 2(1)(a) still remain; still important, creates legal certainty
• Also note: s 2(3) application - additional cost; delays in the
Administration of the Estate process; and it may fail
• Thus section 2(3) must only be used in exceptional circumstances

Scope of application of s 2(3) - NB pg. 68

• Can a section 2(3) application be brought to condone non-
compliance with section 4 of the Wills Act (i.e. testamentary
capacity)?
○ No
• Section 2(3) can only be applied in 2 instances:
○ Formally defective execution of a will - section 2(1)(a)
○ Formally defective amendment of a will - section 2(1)(b)

Practical examples of application - pg. 69

T HANDWRITES DOCUMENT T REQUIRES SOMEONE ELSE TO MAKE
HIMSELF DOCUMENT ON HIS BEHALF

• T writes document in • T requests someone to draft will on his

own handwriting and behalf:
signs; or • By way of letter, etc.

• T drafts document but does • Friend, attorney, bank official or

not sign financial advisor
• No further formalities complied with; or
• Execution process commences but the
result is defective

• T writes document in own handwriting and signs

○ Logue, Horn, Van Wetten
▪ Horn v Horn
□ Court found that there had to be substantial
compliance with some of the formality requirements
• T writes document in own handwriting - doesn’t sign
○ MacDonald
• T requests someone else in a letter to draft will for T
○ Ex parte Maurice
○ De Reszke v Maras
• T requests someone in another way to draft will for T. Draft prepared by
other person, but no formalities complied with thereafter
○ Webster, Back, Bekker (SCA), Ramlal
▪ Webster v The Master
□ The court expressed the view orbiter that, if there had not
been compliance with any of the formal requirements
(there is thus only writing), there can be no condonation
▪ Ramlal v Ramdhani Estate
□ Court found that the fact that the testator had not himself
drafted the document, didn’t necessarily mean that
section 2(3) had no application
• T requests bank to prepare will, T completes "instructions"/application
form. No draft, no formalities
○ Mabika v Mabika (criticism)
 ▪ In this case, the document was in the form of a bank
application form, filled in and signed by the testator, in which
she requested the bank to draft a will for her on the basis of the
information provided on the application form
▪ But the testator died before the bank could draft the will
▪ Here too the court looked at the document and the
surrounding circumstances (especially also the fact that
the testator had been abused by her husband over a long
period of time)
▪ Court's conclusion was that it would be greatly unjust not to
condone the document and the testator's husband
consequently benefiting from her estate
▪ Although the court's sympathy with the testator in the case is
understandable, it is doubtful whether the case was correctly
decided
▪ The decision cannot be reconciled with the Ex parte Maurice or the
De Reszke v Maras cases
▪ It is especially difficult to see how, during the drafting or
execution of the document concerned, the testator could
have had the intention that it should be her will - seeing that it
was simply an application form for the drafting of a will
• Someone is requested to prepare draft. Draft prepared. Process of
execution embarked upon
 ○ Partial compliance
▪ In cases where there was more than writing (hence partial
compliance with some of the formality requirements), the
courts were prepared to condone
▪ The intention of the testator was deduced from the
document and surrounding circumstance
○ Ex parte De Swardt
▪ The testator had given instructions to her attorney who
drafted the will
▪ The testator approved the contents of the document and,
after an amendment had been made, signed it
▪ One of the pages she approved, however, was not
included in the document that she signed
▪ The court condoned the document, including the unsigned paper

Section 2(3) of the Wills Act - pg. 254-255

• "If a court is satisfied that a document or the amendment of a
document drafted or executed by a person who has died since the
drafting or execution thereof, was intended to be his will or an
amendment of his will, the court shall order the Master to accept that
document, or that document as amended, for the purposes of the
Administration of Estates Act, 1965 (Act 55 of 1965), as a will, although it
doesn’t comply with all the formalities for the execution or amendment
of wills referred to in subsection (1)"
• Thus mandatory provision!

3 requirements of section 2(3) - pg. 70

1. Document
○ There must be a document (writing is thus required)
2. Drafted or executed by a person who has since died
○ The document has been drafted or executed (by a person who
has died since the drafting or execution thereof)
3. Intended to be will
○ The intention was that the document must be the person's will
• All three requirements must be proven on a BoP
Interpretation of the basic requirements for the application of section 2(3)
• The application of section 2(3) led to extensive problems of interpretation
• All three of the requirements were interpreted by the courts in different ways

Requirement 1: 'Document' - pg. 70-72

• 2 issues in this regard:
○ Issue 1: meaning of 'document'
▪ No definition - uncertainty about its meaning
▪ Case law = broad interpretation
□ Examples:
⬥ A note
⬥ Instructions to the bank
⬥ A letter to another person
⬥ Application form
⬥ An email
○ Issue 2: Must the document be 'written?'
▪ Broad interpretation - some form of writing on paper/any
other material
□ Examples:
⬥ Words written with a writing implement (pen, pencil, etc.)
⬥ A typewriter (typing)

⬥ Or computer script (in e.g. a computer file or

email)
□ But if there is not a form of writing, there can be no condonation
• Stemming from the two issues, a further question arose as to whether a
written document is sufficient for there to be a document that can be
condoned - or does there also need to be compliance with some of
the other formality requirements in s 2(1)
○ Some court decisions required only writing, while others required at
least a signature or signing
• What Act do you thing might be applicable with relation to
electronic documents/communication?
○ ECTA (Electronic Communications and Transactions Act)
▪ 'Data message' - Act doesn’t apply to Wills
○ Problem: what happens if electronic document cannot be
 converted into a hardcopy?

MacDonald case
• Facts
○ T committed suicide
○ T left a note stating where will can be found
○ "I, Malcom Scott MacDonald, ID 5609065240106, do hereby
declare that my last will and testament can be found on my PC at
IBM under directory C:/windows/mystuff/mywill/personal"
○ Will was stored on T's personal computer
○ Will printed by manager
○ Not signed, not witnessed
• Legal question
○ Will a section 2(3) application for condonation of the printed
document succeed?
• Court held
○ Yes
• Ratio
○ Sufficient safety measures in place - password-protected (see headnote)
○ At least drafted by T
• Court also confirmed the view that it was not necessary for formal
execution to have commenced, but that the testator in question must
have reconciled herself with the contents of the document

Requirement 2: Drafted or executed (pg. 73-75)

• The second requirement for the application of section 2(3) provides
that the document had to be 'drafted' or 'executed' by a person who
has died since its drafting or execution
• This requirement also led to several problems of interpretation
○ Firstly - clear that person whose 'will' is being referred to here,
must already be deceased before an application for
condonation can serve before the court
○ Secondly - words 'drafted or executed' normally have different
meanings and the legislator uses the words in the alternative
• What is the difference between drafting and executing?
○ Drafting
 ▪ No definition
▪ Document formulated by T or written down by the T him-/herself
or by someone on his/her behalf
▪ Even though a person often drafts a will themselves, an
attorney or bank official can often be asked to do the
drafting for the T
▪ In Bekker v Naude
□ A further distinction is made in this regard between
'drafted' and 'cause to be drafted'
□ In this context 'cause to be drafted' means, that the
testator doesn’t draft the document him-/herself, but that
someone else does it for him/her
▪ 'Bare' document
▪ i.e. no formalities have been complied with yet
○ Executed
▪ Process of compliance with the formalities as per section 2(1)(a)
▪ But have not yet been finalised
▪ i.e. partial execution
□ Consequently the will is invalid
▪ If the will has been properly executed, it means that there has
already been compliance with the formal requirements
▪ If a will has been properly executed, but cannot be traced
after the testator's death, condonation is thus not possible
▪ A will that has been properly executed is valid and falls
outside the scope of section 2(3)
• The question further arose whether the deceased had to be personally
involved in the 'drafting' of the document
○ If the testator had drafted and signed the document him-
/herself (the testator thus drafted and executed the
document), the courts were in general prepared to condone
the document
○ The only other requirement is that the court must be convinced
that the testator intended the document to be his/her will
○ Courts have already in this respect often been confronted with
suicide notes or suicide letters
○ However, probably the most serious problem of interpretation with
respect to section 2(3) arose in cases where the testator didn’t
draft the document him-/herself, but 'caused it to be drafted' by
someone else
○ In this regard the courts adopted diametrically opposite positions in:
▪ Back v Master of the Supreme Court
□ Court found that, where an attorney has drafted the
document according to the instructions of the testator and
the testator had approved the document before his death
(emphasis was placed on the fact that the testator had
actually seen the document), but had not executed
(signed) it, the testator had in fact intended the document
to be his will
□ The court thus adopted a 'liberal' interpretation of
section 2(3) and condoned the document
○ A problem arises if someone has drafted a document on the
instruction of the testator, but the testator never saw or executed
(signed) the document after that
▪ It will then not be possible to find that the testator
intended that document to be his/her will
▪ Webster v The Master case
□ Was decided that a 'strict' interpretation of section 2(3)
had to be adopted and that the document couldn’t be
condoned as a will since it was drafted by someone else
□ The testator had given his attorney an instruction to draft
a will and, after seeing the document, gave instructions
for amendments
□ But he died before he could see or sign the final will
and the court refused to condone the document
▪ Bekker v Naude case
□ This strict interpretation found in the Webster case was
upheld by the SCA in the Bekker case
□ The court found that the testator had to have a
personal relationship with the document and that
someone else could thus not draft the document OBO
T
 □ By this personal relationship between the testator
and the document the court evidently understands
the following possibilities:
⬥ "… personally drafted, written, typed or created, for
e.g. through dictation…"
□ In this case, where the unsigned document had not been
drafted by the testator himself, the court thus refused to
grant the condonation
□ The view of the court in the Bekker case that the testator
had to be personally involved in the drafting of the
document thus in fact amounts to an additional
requirement for the application of section 2(3)

Webster case
• Facts
○ Joint will 1986
○ Divorced
○ New instructions to attorney (on copy)
▪ Minor children
▪ Trust
○ Draft will prepared by attorney
○ T disappears
○ T came back several months later

○ T approves draft (above) but now wants to bequeath immovable

property to new fiancee
○ T will furnish attorney with her details. Attorney will prepare new draft
○ T dies 3 days later without providing details. No new draft prepared
○ T's children want court to condone the original draft
• Legal question
○ Will a section 2(3) application for condonation of the 1st/original
draft will succeed?
• Court held
○ No
• Ratio
○ Concept (draft) not intended to be last will (wanted fiancee
to inherit immovable property)
 • Further (orbiter)
○ Wording of section 2(3) peremptory:
▪ "… drafted by a person…"
▪ Thus should be drafted by T personally
▪ If drafted by attorney - not sufficient
○ Section 2(3)
▪ Not necessary to comply with all formalities
▪ But in casu
▪ Strict approach - 36E: "… no compliance with ANY of formalities"

Back
case
 • Facts
○ Draft will by attorney on instruction of T
○ T 'this is how I want it' - but still needs to furnish some information
○ T does before providing info and before thus signing
• Legal question
○ Will a section 2(3) application for condonation of the draft will succeed?
• Court held
○ Yes
• Ratio
○ Disagree with Webster case
○ Disagree with strict interpretation of '… drafted by person…' in
section 2(3) - more lenient approach
○ Strict interpretation inconsistent with purpose of section 2(3) and
doesn’t take cognisance of technological world…
○ Thus includes document drafted by attorney
○ If draft is perused and approved in every detail, T associates himself
with it and adopts it as his own
○ On flexible interpretation of section 2(3) - ma be regarded as
having been drafted by T personally
○ Word "all" in section 2(3) - unnecessary and superfluous
○ Partial or attempted compliance with formalities not required for
section 2(3)

Bekker case (SCA)

• Authority
• Facts

○ T's request bank official to draft joint will

○ Notes sent to head office
○ Draft sent to T
○ Never signed
• Legal question
○ Will a section 2(3) application succeed for condonation of this request?
• Court held
○ No
• Ratio
○ Emphasis on difference in wording in section 2(3) and 2A
 "drafted/caused to be drafted"
○ "Drafted" has strict meaning of personal act
○ Words are explicit - requires personal relationship between
deceased and document
○ Requirement of personal drafting provides some credibility -
chances of fraud = less
○ Thus T must associate himself with document in liberal sense i.e.
'personal drafting' (this is now law on this point)

Requirement 3: Intention to be will - pg. 75-79

• May be seen as the key requirement in the application of section 2(3)
• T must intend that his/her assets will be distributed upon T's to
persons appointed by T, as per his/her will
• The question that arises about the intention of the testator need to
be seen within the broader context of the law of succession
• The testator can only dispose of his/her assets by means of a
document - the will
• When there is condonation of non-compliance with the formalities, it is
evident that the 'will' is formally defective
• Before condonation can take place, the court thus needs to be
convinced that the testator did want to deal with his/her assets in a
particular way
• Yet this approach has not been adopted consistently and courts
have approached the requirement to establish intention from
different angles
• Consider the following 3 questions:
1. Must T intend that a specific document = will?
▪ With regard to this question, the court initially focused on the
specific document before the court to determine the intention
▪ In Ex parte Maurice the court thus refused to condone a
draft will (with a covering letter requesting the drafting of a
will) as a will
▪ In contrast, in Ramlal v Ramdhani and Ex parte Williams
□ The emphasis fell on the intention of the testator that the
content of a document was a version of the way that the
testator wanted to bequeath his/her assets
 ▪ In the De Reszke case the court was not convinced that the
testator intended the specific document to be his will, since
he insisted that his attorney should draft a will for him on the
basis of the content of the document
▪ In Smith v Parsons the SCA condoned a suicide letter, which
was certainly not intended to be will as such, but in which the
testator did in fact intend to dispose of some of his assets
2. At what stage must this intention exist?
▪ In Harlow v Becker
□ Court found that testator must have had the intention
that the document must be his/her will at the time of
the drafting or execution of the document concerned
▪ In Kotze v Die Meester

□ The court found that the required intention need not

necessarily be present at the time of drafting the
document, but that a 'provisional' intention was not
sufficient
□ Court came to the conclusion that the testator probably
wanted to adopt the document concerned as a will only
after he and his prospective spouse were married
□ Court thus refused to condone the document
▪ In Van Wetten v Bosch
□ Court found that the intention must have been present
when the letter was written (drafted)
▪ In Smith v Parsons
□ Court found that intention must have been present
when the suicide letter was written
▪ In De Reszke v Maras
□ Court stated: "For the grant of relief under section 2(3) a
court must be satisfied that the deceased person who
drafted or executed the document intended it to be his
will. That intention, in my view, must have existed
concurrently with the execution or drafting of the
document."
□ The required intention must thus exist at the time of the
drafting or execution of the document and the testator
 cannot form it only at a later stage
3. How do courts determine the intention of T? Is it necessary to look
only at the document, or must surrounding circumstances also be
taken into account
▪ Section 2(3) requires that the court must be convinced
of the intention of the testator
▪ Initially the emphasis was on the format of the document;
thus, did the document as such indicate that the testator
intended to draft a will?
▪ Over the course of time the focus shifted to the actual
intention of the testator, regardless of whether the person
intended that particular document to be his/her will
▪ The question now was rather whether there was a document
from which the intention could be deduced in the light of the
surrounding circumstances that led to the drafting or
execution of the document
▪ In Van Wetten v Bosch
□ The court looked first at the document itself (which was in
the form of a letter), but secondly also at the surrounding
circumstances and the actions of the testator during his
lifetime
□ The court stated: "… the real question to be addressed
at this stage is not what the document means, but
whether the deceased intended it to be his will at all
□ That enquiry of necessity entails an examination of the
document itself and also of the document in the
context of the surrounding circumstances
▪ The testator must thus have reconciled him-/herself with the
wording, the content and the effect of the document
□ This approach was confirmed in both Smith v Parsons and
Van der Merwe v The Master
□ In both these cases the testator's intention was
deduced from the document as well as the surrounding
circumstances
▪ Since the mentioned cases, the requirement with respect to
the testator's intention again became relevant in the
 Mabika v Mabika case
▪ The focus was always on whether the intention of the testator, that

the document concerned should be his/her will, was clear

General assessment
• Survey of case law since the coming into effect of section 2(3) shows
that the section has in fact been successfully implemented in several
instances
• Documents that would otherwise have been invalid were thus
condoned and accepted as wills
• Unfortunately case law also indicates that in the process a number
of interpretation problems related to the section emerge - often
unexpectedly
• Also evident that the courts didn’t always apply the section consistently
• Yet in general one can say that the legislator's aim with section 2(3)
has been achieved

Ex parte Maurice case

• Facts
○ Document in T's own handwriting
○ Not signed by T or witness (716D)
○ Sends document to business colleague with covering letter
○ Covering letter (717C-E)
▪ 'knock it into shape'
▪ 'ask X… legal jargon'
▪ 'for my approval'
• Legal question
○ Will a section 2(3) application for condonation of this
covering letter succeed?
• Court held
○ No
• Ratio (716E-717F)
○ Specific document must have been intended to be will (section 2(3))
○ If intended to only convey information about T's wishes - not sufficient
○ Purpose of 2(3) - to save will otherwise invalid due to formal
defect in attestation
 ○ If not - legislation would have focused upon 'distribution intention'
rather than 'status as will'
• In casu
○ Intended to constitute instructions for drafting
▪ Thus, still wanted to approve it (717F)
▪ Thus, not intended to be will

Van Wetten case

• Facts
○ T placed 3 letters in envelopes and placed them in one big
sealed envelope with the following message on top: "Only
open if something happens to me."
• Legal question
○ Will a section 2(3) application for condonation of these letters succeed?
• Court held
○ Yes
• Ratio
○ This was not a person intending to give instructions with these
letters, but rather a person who had made a final decision

De Reszke case
• Facts
○ T gave a letter to his attorney containing instructions for a will

• Legal question
○ Will a section 2(3) application for condonation of this letter succeed?
• Court held
○ No
• Ratio
○ Court was not convinced that the letter constituted more than
instructions to attorney
○ Intention for the letter to be a will must exist at the
time of drafting/execution
○ T cannot formulate this intention at a later stage
○ This is determined in the context of the document itself
and the surrounding circumstances
STUDY UNIT 3.5: FORMALITIES IN AMENDMENT
OF A WILL AMENDMENTS
BEFORE AND AFTER THE EXECUTION OF A WILL
Source references
• Textbook pg. 79-84

Formalities for amend a will

Introduction to amendments - pg. 79
• True or false: T is free to amend his will at any time before his death, but
needs TC to do so
• Do you think a clause in terms of with T undertakes not to amend his will is
valid and enforceable
• What is the legal position if someone amends T's will without his consent?
• What principle is the above based on?

Introduction
• Testator is free to amend his/her will at any time before his/her death
provided that the testator has testamentary capacity
• A clause in which the testator undertakes not to amend
his/her will is unenforceable and is not binding on the testator
• If someone amends the will without the consent of the testator, the
amendment is invalid

Amendments prior to execution - pg. 79-80

• Theoretically, no statutory requirements - while drafting
○ If the testator decides before the will is executed to amend
some of the provisions of the will, he/she is entirely free to make
such amendments
○ No statutory requirements have to be met, but after the
execution of the will it must be valid in its entirety
• Although there is a distinction in principle between amendments
whereby existing provisions are deleted and amendments whereby
new or alternative provisions are inserted, the common law rules are
applicable in both cases
• Provisions which are deleted or erased with the intention that they
 should no longer form part of the will, will simply be ignored
• If new provisions are inserted, they will be regarded as part of the will
unless it can be proved that this was done without the testator's
knowledge
• Practice - amendments must be initialled by T and Ws - section 2(2) of
the Wills Act
○ If the testator makes any amendment before the execution of
the will, it should be borne in mind that section 2(2) of the Wills
Act creates a rebuttable presumption that:
▪ Any amendments to a will ae regarded as having been
made after execution
○ Thus preferable that amendments that are made before execution
should also comply with the formality requirements
○ There is thus a rule in practice that amendments made
before the execution of the will must be initialled by the
testator and witnesses

Amendments after execution - pg. 79-80

• Which section of the Wills Act deals with the amendment of wills after

execution?
○ Section 2(1)(b)
• After execution of will the testator is free to amend will as he/she wishes
at any time
• A clause in a will to the effect that the testator reserves the right to
amend the will is redundant as he/she has this power in any event
• Amendments to a will are regulated by section 2(1)(b) of the Wills Act
and the section is only applicable to amendments made to a will that
was executed on or after 1 January 1954
• Section 2(2) of the Act creates a rebuttable presumption that any
amendments to a will are regarded as having been made after the
execution of the will
• See the provisions of section 2(1)(b) of Wills Act

Rebuttable presumption (NB)

• Section 2(2) of the Wills Act
○ Any amendment to a will is regarded as having been
 made after execution!
▪ Thus after signature

What is an 'amendment' section 1 of Wills Act - pg. 81

• "amendment" means deletion, addition, alteration or interlineation
made by the testator
• Deletion - take out/remove
• Addition - put in/insert
• Alteration - change/modify
• Interlineation - between lines/margins
• Amendment must be made by the testator (or someone in the testator's
presence and by his/her direction) as well as two or more competent
witnesses
• Precisely what is meant by 'identity' is not clear, but it probably means
that by making his/her signature the testator acknowledges that the
amendment has been made in accordance with his/her wishes and
that the witnesses in turn acknowledge ('attest') by means of their
signatures that it is the signature of the testator
• The signature of the testator and the witnesses must be placed as close
as possible to the amendment or else it must appear ex facie the
identification that the signatures are relevant to a specific amendment

Deletion (take out/remove)

• Section 1 of the Wills Act and pg. 82
• Intention of T: amend; or revoke?
• Section 2(1)(b) is not applicable where T deletes the whole will
• Deletion of whole will = revocation by cancellation (chapter 5) - see Senekal
case
○ Senekal v Meyer case
▪ It was decided that a deletion of the whole will
amounts to a revocation of the will
▪ This approach is confirmed in s 1 of the Wills Act, which
stipulates "deletion" means a deletion, cancellation or
obliteration that contemplates the revocation of the entire
will
• In this respect the testator's intention will be decisive in determining
 whether he/she wished to amend or revoke the will
• If the testator intended to revoke the will, the common law rules are applicable
• If however, the testator intended to amend the will, he/she has to
comply with the statutory requirements laid down in section 2(1)(b)
• Partial revocation?

○ If the testator feels the provision must no longer be part of the

will, this could possibly amount to partial revocation
○ ITO common law, partial revocation takes place without any formalities
○ But it would in any event be safer in such a case if there were also
compliance with the formal requirements in section 2(1)(b) with
regard to any amendment to a will
• Pg. 253
○ 'deletion' means a deletion, cancellation or obliteration in whatever
manner effected, excluding a deletion, cancellation or obliteration
that contemplates the revocation of the entire will
• The test should thus be whether the testator wants to change an
already executed will, in which case section 2(1)(b) of the Act will
be applicable

Section 2(1)(b) of Wills Act - pg. 254

• No amendment made in a will executed on or after the said date and
made after the said date and made after the execution thereof shall
be valid unless -
○ The amendment is identified by the signature of the testator or by
the signature of some other person made in his presence and by his
direction; and
○ Such signature is made by the testator or by such other person or
is acknowledged by the testator and, if made by such other
person, also by such other person, in the presence of two or more
competent witnesses present at the same time; and
○ The amendment is further identified by the signatures of such
witnesses made in the presence of the testator and of each other
and, if the amendment has been identified by the signature of
such other person, in the presence also of such other person; and
○ If the amendment is identified by the mark of the testator or the
signature of some other person made in his presence and by his
 direction, a commissioner of oaths certifies on the will that he has
satisfied himself as to the identity of the testator and that the
amendment has been made by or at the request of the testator:
provided that -
▪ The amendment is identified in the presence of the
commission of oaths ITO subparagraph (i) and (iii) and the
certificate concerned is made as soon as possible after the
amendment has been so identified; and
▪ If the testator dies after the amendment has been identified
ITO subparagraphs (i) and (iii) but before the commissioner of
oaths has made the certificate concerned, the commissioner
of oaths shall as soon as possible thereafter make or
complete his certificate

Requirement 1 - Section 2(1)(b)(i) of Wills Act

• Amendment
• Identified/acknowledged
• By T's signature/signature of person under T's direction
• Where must this signature appear?
○ As close as possible to the amendment; or
○ It must appear ex facie (on the face of) the identification
that the signatures are relevant to a specific amendment

Practical example

Requirement 2 - section 2(1)(b)(ii) of Wills Act

• This signature must be made in the presence of at least 2 competent witnesses
• Same two witnesses who signed in the execution process ITO section 2(1)(a)?
○ No

Requirement 3 - section 2(1)(b)(iii) of Wills Act

• Amendment identified by signatures of 2CWs in presence of T and AP (if
AP is applicable)
Requirement 4 - section 2(1)(b)(iv) of Wills Act
• Amendment may also be confirmed by a mark made by the testator
or by a signature made by someone else in the testator's presence
and by his or her direction
• In any such case a CoO must be present and must append a
certificate as prescribed in section 2(1)(b)(iv)
• If the amendment is identified by T by way of a mark or someone else
signs OBO T (in his presence): a CoO must certify that he is satisfied as to
the ID of T and that the amendment was made by T or at T's request
• CoO must append his/her certificate ASAP after the amendment
has been identified by the testator or the other person and the
witnesses
• On the certificate the commissioner must certify that:
○ He/she has convinced him-/herself as to the identity of the testator, and
○ The amendment has been made by or at the request of the testator
• If the testator dies after the amendment has been identified, but before
the required certificate has been appended, the CoO must append or
complete his or her certificate ASAP afterwards
• The certificate may be in the form set out in Schedule 2 to the Act

Section 2(1)(a) vs section 2(1)(b)

• Which requirement appears in section 2(1)(a) but not in section 2(1)(b) - why?

Non-compliance with formalities

• A will still has to be a comprehensible whole after any amendments to it
• Amendments that have resulted in the will becoming
incomprehensible or inoperable can amount to the revocation of
the will
• If the will has been amended without compliance with the formality
requirements the amendments will be ineffective and effect will be
given to the original words
• If the original words are no longer legible then evidence on their
nature and contents is permissible
• Amendment is ineffective
• But remember
○ Court has the power to condone a formally defective
 amendment ITO section 2(3)
○ i.e. section 2(3) is also applicable to section 2(1)(b)
○ The same principles and rules discussed previously in respect of
the application of section 2(3) are also applicable in principle
to the amendment of wills
• To illustrate this a few relevant court decisions will be discussed
○ Webster v The Master
▪ Testator deleted certain references to his former wife on a copy
of his will
▪ The court was not prepared to order condonation ITO s 2(3),
but it found on the basis of s 2A of the Act that the action did
result in the

revocation of the original will

○ Letsekga v The Master
▪ Testator had valid will
▪ After death a document was found in his own
handwriting, but it wasn’t signed
▪ Was clear that the document didn’t satisfy the provisions of
section 2(1)(b) regarding the amendment of wills
▪ There was no reference to his will, but certain parts of the
document could be read together with his will and it also
contained references that corresponded with clauses in his
will
▪ Court found that the document to be condoned must
have been intended by the testator as the final
distribution of his assets
▪ According to the court, the testator wanted a further
document to be drafted that was to contain the
amendments
▪ Court thus found that the document that the testator had
written was not intended to be an amendment of his will
○ Smith v Parsons
▪ SCA condoned a suicide letter ITO section 2(3)
▪ This document was in fact a codicil to an existing valid will
of the testator in which the will was tacitly partially revoked
▪ It is thus confusing that the court referred in several places
 to the suicide letter as an 'amendment' to the will

Letsekga case
• Facts
○ T had a valid will
○ After his death, a document was found in his own handwriting
○ But this document was unsigned
○ This document made no reference to his will
○ But certain portions of the document could be read together with
the will, and it contained references that corresponded with
clauses in his will
• Legal question
○ Will a section 2(3) application for condonation of this document succeed?
• Court held
○ No
• Ratio
○ T wanted a further document to be drafted which would
contain the amendments
○ T didn’t intend that this document = amendment of his will
○ Above strengthened by fact:
▪ Not signed
▪ Original will typed + complied with formalities
▪ Deceased was astute businessman, broad knowledge of
law + meticulous
▪ Would have seen to it that amendment complied with Act
□ Thus court not convinced
□ Thus followed Ex parte Maurice (instructions insufficient)

Self-study pg. 84-85

• Amendment or printed forms
○ Commercially printed forms of wills available on which a will can be
drafted by filing in the appropriate information in the relevant
spaces
○ If the testator deletes certain parts of the will or fills in details during
the drafting of the will, these are obviously not amendments as
contemplated in section 2(1)(b)
 ○ If any amendments are made after the execution of the will, the formalities

must be complied with

○ If it is not possible to determine from the appearance of the will
whether an addition was made before or after execution, then the
presumption in section 2(2) should apply
○ A printed form on which certain blank spaces had been
filled in in handwriting came up for discussion in case law
▪ In case law - the court erroneously regarded the filling in of the
blank spaces as 'amendments' to a will that had to comply with
the formality requirements in section 2(1)(b) of the Act
• Doctrine of dependent relative amendment
○ Can also be applicable in the case of the partial
revocation or the amendment of a will
○ The implication will be that the testator amends his/her will because
his/her point of departure is a particular assumption or that he/she
amends the will conditionally
○ Application in case law
▪ Court found that it was the testator's clear intention that the
revocation of paragraph 8 of the will could only occur if it
were accompanied with the substitute provision contained
in the codicil (that is, the envisaged amendment)
▪ The revocation was thus made dependent on an
effective amendment and vice versa
○ If assumption appears to be incorrect or if the condition is not
met, the amendment will not be effective
○ The intention of the testator will be of decisive importance
○ The provisions of section 2(1)(b) will still have to be complied
with if provisional amendments are made
○ Furthermore, authors think that if the testator deletes the name of
one beneficiary and adds the name of another beneficiary, it can
be shown that the intention of the testator was that the amendment
should only be valid if the addition of the name is valid and
effective
Study Unit 3.6: Revocation and revival of wills

• Revocation = will loses legal force from moment of revocation

• Can a revoked will later be revived?
○ Yes, but in certain circumstances
○ Automatic revival
▪ No
▪ Thus destruction of subsequent will or oral revival is not possible
• Revival only possible if the revoked will still exists!
○ If the will has been physically destroyed with the intention of
revoking it, it cannot be revived
• How does revival occur?
○ Various views:
▪ Incorporation by reference
□ However this is not applicable in SA law
▪ Re-execution
▪ Execution of a reviving document
□ Moses v Abinader case
• Will can also be partially revived
○ When a revoked will or a part of it is revived, it is regarded as the
testator's new will from the moment of the revival of the will
○ If the will is revived, it doesn’t automatically revoke all previous wills,
but if there are several wills and no express revocatory clause, the
revived will has to be read together with the previous wills as far as
possible
• Not clear to what extent the provisions of s 2(3) of Wills Act will
have an influence on the revival of revoked wills
○ S 2(3) gives the court the power to condone a document as being a 'will'
○ Revoked will can revive if the court is convinced that the T
drafted or executed the document with the intention that it
should be his will
 ○ The fact that it is a revoked will naturally justifies the deduction
that the testator no longer wished it to be his will
○ There would thus at least have to be an attempt at re-execution
where the non-compliance with the formality requirements can be
condoned or there must be a later reviving document in which the
intention of the T to revive the will is clear
○ Reviving document can't be regarded as a will as such, but could
possibly be condoned as a reviving document
○ Could then lead indirectly to the revival of the original will

Moses v Abinader case

• Facts
○ T executed will 1 in 1948
○ 6 months later = revoked will
○ 1949 = executed a codicil amended provisions of will 1
• Legal question
○ Does this constitute a revival of the revoked will?
• Court held
○ (v.d. Heever): Re-execution only possibility
▪ Will has lost legal force
▪ Must be re-executed (to acquire legal force again)
▪ Cannot simply refer to it in reviving document
▪ “Incorporation by Reference” not part of SA law
○ (Schreiner):
□ Formalities need not be complied with again
□ Effect of revocation is not that revoked will is no longer
properly executed – it only lost legal force
□ Also set out the formality requirements for the possible
revival of a revoked will

Requirements for revival - pg. 108

• Original will (that has to be revived) must still exist
○ Original will must thus have been properly executed according to
the formality requirements that applied when the will was
originally executed
 • Can revive it through a valid reviving document
○ Which is properly executed
• Showing the intention to revive
○ Thus intention to revive must be clearly evident
• Case law
○ Wessels v The Master
▪ Confirmed/supported the view of Schreiner - that re-
execution is not necessary

Wessels case
• Facts
○ Husband and wife executed joint will
○ Clause 2 and 3: provided for the distribution of assets if husband died first
○ Clause 8: wife dies first
○ Wife died first and husband was the only heir
○ After wife’s death, husband executed 3 codicils in terms of
which he referred to the joint will as his will
○ Will lapsed
• Legal question
o Does this constitute revival of the lapsed will?
• Court held

o Accepted view of Schreiner – re-execution is not necessary

o Will lapsed upon death of wife – same status as revoked will
o Applied the 4 requirements:
• Intention requirement not met – unclear from the
document that T wanted to revive will

Case law
1. Le Rouw v Le Roux
2. Moses v Abinader
3. Webster v The Master
4. Pienaar v The Master
5. Uys v Uys
6. Sansole v Ncube
7. Wessels v Die Meester
Study Unit 3.7: Capacity to inherit
Introduction
• In principle all person who are alive at delatio (the falling open of the
estate), regardless of whether they have capacity to act or not, are
capable of being testate and/or intestate heirs
○ Natural persons can benefit regardless of whether they are
minors, insolvent or mentally ill
• If it is alleged that a person doesn’t have the capacity to inherit, the
burden of proof lies with person who makes the allegation
• Capacity to inherit must exist at the time of vesting of rights and at the
moment that the beneficiary accepts the benefit
• Beneficiaries who can inherit, are invested with testamenti factio passiva
• Question of whether an intestate heir has the capacity to inherit or not is
usually answered with reference to the moment of the deceased's
death if the deceased dies intestate
• If a testator leaves valid will
○ Beneficiaries with capacity to inherit are determined upon the
death of the testator unless the falling open of the estate and
vesting of rights are postponed
○ If circumstances arise where it is no longer possible to give effect to
the will, with the result that intestate succession must take place, the
heirs with the capacity to inherit are determined with reference to
the time when the will became inoperative
• A number of common law and statutory exceptions to the general
rule that all persons may inherit
○ Exceptions may mean that a person is not entitled to an
intestate inheritance or to take a testamentary benefit
• Capacity to inherit (a beneficiary's ability to inherit) must be
distinguished from testamentary capacity (ability of testator to engage
in act of testation)
• General rule
○ All juristic or natural persons, born or unborn, are competent to
inherit either testate or intestate regardless of their legal
capacity
 • SA law of succession clearly defines categories of beneficiaries who
have capacity to inherit as well as the circumstances under which
beneficiaries are disqualified from inheriting

Persons capable of inheriting: natural persons

• Natural person, irrespective of age, mental or legal standing (may be
affected by insolvency or prodigality) has the capacity to inherit
• Thus, every natural person is capable of acquiring a vested right
to an inheritance
• NB to note that a vested right to an inheritance should not be confused
with the right to enjoy inheritance
• Capacity to inherit is the ability to acquire a vested right whether or
not the beneficiary is able to enjoy the inheritance

• Distinction between a vested right and the ability to enjoy an

inheritance becomes relevant when considering the position of e.g. a
minor beneficiary, a beneficiary who suffers from a mental disability or a
beneficiary whose legal standing is impaired on account of, for e.g.
insolvency

Major beneficiary of sound mind with legal standing

• A person who is a major, who is of sound mind, is not insolvent and
who doesn’t repudiate an inheritance, will not only acquire a
vested right to an unconditional inheritance, but will also be able
to exercise unrestricted enjoyment of the inheritance

Minor beneficiary
• Minor has the capacity to inherit, but ability to enjoy the inheritance is restricted
• Inherited property will be administered for the benefit of the minor by the
minor's guardian with the office of the Master of the HC exercising a
supervisory function
○ Where no guardian is available, enjoyment of the property
will be regulated by a court-appointed guardian or curator
• Difference in the way in which the movable and immovable property of
minor is administered
○ Where minor is bequeathed movable property, e.g. car
▪ Acquires a vested right to the property when the deceased dies
 ▪ If minor dies after the deceased, the property will form part of
the minor's estate and will be transferrable to his heirs, unless
there is a contrary indication in the deceased's will
▪ Because minor's capacity to exercise all the rights of ownership
in respect of the property is limited, the movable property
concerned will not be delivered to the minor but to the minor's
guardian who will have to ensure that the property is used for
the minor's benefit or kept safely for the minor's future use
○ Where money (also part of movable property) is left to minor
▪ Minor acquires a vested right to the money, but it will not
be physically given to him in case he spends the money
carelessly
▪ Money will also not be deposited with the minor's guardian
▪ Administration of Estates Act requires that money to be
placed into what is known as the Guardian's Fund
□ Fund is administered by the office of the Master of the HC
□ Minor's guardian is permitted, from time to time, to
withdraw money from the fund to take care of the
minor's maintenance
□ Master may not disburse funds towards the maintenance
of a minor, 'without the sanction' of a court if the amount
required exceeds 'the amount determined by the Minister
in the Gazette'
○ Where immovable property is inherited by minor
▪ Not transferred to a minor's guardian, but is immediately
registered in the minor's name in the deeds registry
▪ This doesn’t mean that the minor can alienate, pledge,
cede or mortgage the property concerned
▪ ITO Administration of Estates Act, minor's guardian, tutor or
curator will administer the property of the minor until he
becomes a major
▪ If guardian tutor or curator wants to alienate or mortgage the property
□ Must either obtain authorisation from the Master of the HC
or the HC itself
□ If value of property doesn’t exceed the amount
 determined by the Minister, the Master's consent is
sufficient
⬥ If it exceeds the determined amount - an order of the
HC authorising the mortgage or alienation would be
necessary
□ In the case of alienation, the Master has to be satisfied
that the alienation is in 'the interest of the minor'

Persons of unsound mind

• Causes of mental infirmity are very broad - not only the insane or the delusional
• Those who act perpetually irrationally on account of drugs, alcohol or
disease may also be regarded as being of unsound mind
• ITO law of succession, a person of unsound mind has the capacity to inherit
○ However, doesn’t always mean that he will be able to enjoy the
inheritance free of any restrictions
• If beneficiary is declared of unsound mind, a court appointed curator
bonis will administer the inheritance on the beneficiary's behalf
• A prodigal is not regarded as being of unsound mind
○ However, the ability of such a person to deal with his estate is
limited and would require the appointment and assistance of a
court appointed curator

Insolvents
• When person is declared insolvent - retains the capacity to inherit, but
any property which he owns falls into the insolvent estate and must be
administered by a trustee for the benefit of the creditors
• In all likelihood, property received will have to be sold and the proceeds
paid to creditors according to the order of preference mentioned in
the Insolvency Act
• As a matter of estate planning, it is better for a testator to stipulate in a
will that if any of his heirs are insolvent or provisionally insolvent at the
time of the devolution of the inheritance, the heir concerned will forfeit
the inheritance in favour of a named substitute beneficiary or even a
trust - such clause not considered against public policy
Persons capable of inheriting: juristic persons
• ITO Intestate Succession Act, only natural persons can inherit intestate
• However, nothing in statute or common law precluding a
testator from nominating a company or closed corporation as
a beneficiary in a will
• Right to claim inheritance will vest in the company or closed
corporation unless an authorised company director or a member of a
close corporation repudiates the inheritance
• Repudiation would have to be exercised within a reasonable time
after the company acquires the capacity to inherit
• Also, it may be argued that to repudiate the inheritance to the
detriment of creditors would constitute a breach of the fiduciary
duties of directors and members

General statutory provisions

• The unborn child
• Children of unmarried parents and adopted children
• Class bequests
• Statutory representation (or accrual)

The unborn child

• Rule that person must be alive at the time of the falling open of the
estate is subject to a few exceptions
• At common law a child who is in ventris matris (conceived but not yet
born) may be presumed to be alive for the purposes of a benefit (testate
or intestate) if he/she is later born alive and the bequest is to his
advantage - nasciturus fiction
○ Nasciturus fiction has been interpreted as follows:
▪ The child must have been conceived at the time of the
devolution of the benefit
▪ Inheritance must be to the advantage of the unborn child
▪ The child has to be subsequently born alive
 • The position in the law of testate succession has now been
confirmed in legislation
• Section 2D(1)(c.)
○ Provides that, in the interpretation of a will, unless the context
indicates otherwise:
▪ "any benefit allocated to the children of a person, or to the
members of a class of persons, mentioned in the will shall vest in
the children of that person or those members of the class of
persons who are alive at the time of the devolution of the
benefit, or who have already been conceived at that time and
who are later born alive"
• Also possible to make provision by means of a testamentary
bequest for a person who has not been born or not even
conceived
○ A fideicommissary bequest that extends over several
generations is an example of this

Children of unmarried parents and adopted children

• Common law regarding children of unmarried parents:
○ Were not qualified to inherit from their father's intestate estate
○ Could inherit from their mother's intestate estate
○ Current position of these children as intestate heirs is regulated by
s 1(2) of the Intestate Succession Act
▪ According to this provision, the fact that a child's parents
were not married doesn’t affect the capacity of one's blood
relation to inherit from another blood relation
▪ Children of unmarried parents include:
□ Adulterine children; and
□ Incestuous children
• Children of unmarried parents can be their parents' or anyone else's
testate beneficiaries, if the child has been nominated as beneficiary
in the will
○ In principle, there is no longer any distinction made between the
law of intestate and testate succession as far as this matter is
concerned
• Law of intestate succession and adopted children:
 ○ Adopted child is regarded for all practical purposes as the natural
child of his adoptive parents
○ The adopted child and his adoptive parents as well as their blood
relations can thus be one another's intestate heirs
○ Adopted child can be the testate beneficiary of his adoptive
and natural parents or anyone else, if he/she is included in the
will of the concerned beneficiary
• In the law of testate succession problems of interpretation can
arise in benefitting the children of unmarried parents and
adopted children
○ e.g. testator sometimes refers in his will to his "children" or
"grandchildren" and the question then arises as to whether children
of unmarried parents and adopted children are included
○ The following rule of interpretation in s 2D of the Wills Act is
aimed at addressing these kinds of problems:
▪ S 2D(1)(a)
□ Adopted child = regarded as child of adoptive parents
▪ S 2D(1)(b)
□ The fact that any person was born out of wedlock shall be
ignored in determining his relationship to the testator or
another person for the purposes of a will
▪ These provisions will have the effect that, unless the contrary
should be evident from the contents of the will, children of
unmarried parents and adopted children are included when
the will refers, for e.g. to the 'child' or 'grandchild' of a person

▪ In the case of class bequest - adopted children and

children of unmarried parents are included
▪ The clear indication in the section that a testator can still
decide in his will on benefitting children in this category means
that this section should not be viewed as a restriction on the
principle of freedom of testation

Class bequests
• It may not be clear which persons from the class may inherit and
when the class should be closed
• S 2D(1)(c.) also regulates the position in respect of class bequests
 ○ ITO this section, if a bequest to a class is at issue, only those persons
will inherit who are alive (or who have already been conceived
and are later born alive) at the time of the devolution of the
benefit
○ According to this provision the class will accordingly close at the
time of the falling open of the estate
○ The rule of interpretation in this section will apply only in a case of
doubt regarding when the class closes
○ Nothing thus prevents a testator from making express
provision for members of a class who will be conceived or
born at a later stage

Statutory representation (or accrual)

• Representation in the context of intestate succession - see chapter 2
• Representation can also occur in the context of the law of testate succession
• Rules regarding representation in the law of testate succession are
contained in s 2C(2) of the Wills Act
○ Section is applicable to all estates where the testator dies on or
after 1 Oct 1992
• Representation takes place in the law of testate succession if the
designated beneficiary:
○ Had predeceased the testator;
○ Is disqualified from inheriting; or
○ Repudiates
• Sometimes happens in practice that descendants repudiate in
favour of the surviving spouse, representation is qualified in the case
of repudiation
• If descendant and a spouse are together entitled to an intestate or
testamentary benefit, the effect of repudiation by the descendant
would be that the descendant's benefit vests in the surviving spouse
○ Such a case thus actually constitutes a form of statutory accrual
○ For the purposes of this provision, repudiation doesn’t include
repudiation by a minor or mentally ill person
○ If a descendant repudiates a benefit to which he and the spouse
were not jointly entitled, then this person's descendants will be
entitled to the benefit, just as if he were predeceased or
 disqualified from inheriting
• Representation of a descendant of the testator will thus be possible in
cases where a descendant is predeceased, but also if the deceased is
for any reason disqualified from inheriting or repudiates his benefit
• Not only can the children of the testator be represented, but
also the grandchildren and further descendants
• Representation when:
○ Predeceased
○ Disqualified (incapacity/unworthy)
○ Repudiates
• Bequest in will to spouse and children
○ Option 1: child is predeceased
▪ He will be represented by his descendants

▪ Section 2C(2)
○ Option 2: Child is unworthy
▪ He will be represented by his descendants
▪ Section 2C(2)
○ Option 3: Child repudiates
▪ He will not be represented
▪ His benefit will accrue to the surviving spouse
▪ Section 2C(1)
○ No provision for substitution
• Bequest in will to children only
○ Option 1: child is predeceased
▪ He will be represented by his descendants
▪ Section 2C(2)
○ Option 2: child is unworthy
▪ He will be represented by his descendants
▪ Section 2C(2)
○ Option 3: child repudiates
▪ He will be represented by his descendants
▪ Section 2C(2)
Study Unit 4.2: The content of wills
4.2.1: Absolute bequests; conditions, time clauses(dies); modus; massing of
estates

Explain the terms "inheritance", "heir", “residue”, “pre-legacy”,

“legatee” and briefly indicate what the importance is of
distinguishing between them
▪ Inheritance
o Inheritance is the practice of receiving private property, titles, debts,
entitlements, privileges, rights, and obligations upon the death of an
individual
▪ Heir
o A person legally entitled to the property or rank of another on that person's
death.
▪ Residue
o The residue of the estate refers to that part of the deceased's estate which
remains after funeral expenses, all debts, taxes, administrative fees and other
administration costs, maintenance claims and all legacies have been paid
out.
o The residue is what is left in the estate after everything has been paid out or
transferred and it includes all bequests that have failed or lapsed
▪ Pre-legacy
o A pre-legacy has precedence over all other legacies and inheritances
▪ Legatee
o The beneficiary of a legacy is called a legatee. A legatee always inherits a
specific asset or a specific sum of money
Explain what is meant by a “pure bequest”
▪ The bequeathable assets left by a deceased.
▪ It is called an inheritance when bequeathed to an heir and a legacy when
bequeathed to a legatee

Distinguish between a bequest made, conditionally or subject

to a time duration
▪ Absolute bequest
o a bequest that does not contain any conditions. It is the simplest way of
making a bequest and the effect of such a bequest is that vesting of rights
normally takes place on the testator's death
▪ Conditional bequest
o a bequest that depends on a future event which is uncertain in the sense
that it may or may not occur
▪ Suspensive condition
o if a bequest is made subject to a suspensive condition, the beneficiary does
not obtain a vested, finally established right to the benefit unless and until a
particular uncertain future event takes place

Suspensive and resolutive conditions

▪ Suspensive condition
o if a bequest is made subject to a suspensive condition, the beneficiary does
not obtain a vested, finally established right to the benefit unless and until a
particular uncertain future event takes place
▪ Resolutive time clause
o A bequest subject to a resolutive (terminative) time clause is one where the
beneficiary's rights are terminated when a certain time arrives. According to
a terminative time clause, a beneficiary's already established rights
terminate when a certain time arrives

Explain when the conditions will be invalid because they are

impossible, contra bonos mores (against “public policy”) or
vague and uncertain
▪ In terms of the common law a testator cannot leave a benefit to a beneficiary who
has never been married on the condition that the beneficiary never gets married.
Such a condition is void as being contra bonos mores since it encourages the
 beneficiary to continue in the unmarried state
▪ A condition is also considered to be contra bonos mores if the intention of the
testator is to destroy an existing marriage.

Describe and explain the term “modus”

▪ If a testator makes a bequest subject to a burden or obligation, this provision is
called a modus.
▪ A modus is a qualification added to a gift or testamentary disposition which
requires the beneficiary to devote the property he or she received (or the value
thereof) in whole or in part to a specific purpose.

Distinguish the modus from and compare it with condition

▪ The difference between a modus and a suspensive condition is that when a modus
is used, vesting of the beneficiary's rights is not postponed, but takes place
immediately on the testator's death.
▪ When a suspensive condition is used, however, vesting is postponed. The modus
also does not affect the beneficiary's rights if he or she does not comply with it
although the beneficiary does, in certain circumstances, render himself or herself
liable to a personal action if he or she does not comply with the modus.
Explain the concept of “Massing of estates”
▪ Estate massing is a popular concept used in joint or mutual wills in South Africa.
▪ The basic idea is that two or more testators (usually two spouses) mass the whole or
parts of their estates into one consolidated economic unit for the purpose of
testamentary disposal and the disposal becomes effective on the death of the first-
dying spouse.

Name, understand and apply the requirements set out by

section 37 of the Administration of Estates Act with regard to
statutory massing of estates

▪ Section 37 of the Administration of Estates Act regulates estate massing and its
effects. The requirements are the following:
o 1. There must be a mutual will. Section 37 will not apply to estate massing in
an antenuptial contract or in a will of a sole testator, although there is no
logical reason why the ultimate beneficiaries should be in a better position
merely because their benefits are contained in a mutual will.
o 2. There must be two or more persons who are parties to the mutual will; they
need not be married to each other.
o 3. Some or all of the property of each testator must be consolidated into a
single mass and this mass, or part of it, must be disposed of by the mutual will.
o 4. The mutual will must give the survivor ‘a limited interest in respect of any
property in the massed estate’. Such limited interest may be in the form of
various legal institutions, such as usufruct, fideicommissum or trust. An
outright bequest of the property of the first-dying which does not form part of
the massed estate will not be sufficient to bring section 37 into operation.
o 5. The survivor must adiate the bequest. In Rhode v Stubbs, it was made clear
that estate massing only takes effect once the survivor has accepted the
benefit.
o 6. The disposition must take place at some time on or after the death of the
 first-dying. Although section 37 specifically refers to ‘after’ the death of the
first-dying, it probably includes a disposition taking place on the death of the
first-dying.

Provide four (4) examples of estate massing using different legal

institutions
▪ 1. In the first example, the surviving spouse is the usufructuary (holder of the
usufruct) and the son, Charlie, becomes the remainderman.
▪ 2. In the second example, the survivor is the fiduciary and the children are the
fideicommissaries as in any fideicommissum.
▪ 3. In the third example, the survivor is simply the income beneficiary, the children
are capital beneficiaries and, on the death of the first-dying, their rights are
established accordingly.
▪ 4. In the fourth example, the survivor obtains an unlimited right in the house and
can leave it to whomever he or she pleases in his or her will.
Describe the consequences of the massing of estates in
general, with reference to Joubert v Ruddock, including the
rights of the ultimate beneficiaries to the assets of the first-dying
testator as well as to the assets of the survivor
▪ Estate massing will only occur once all the requirements have been met.
▪ A survivor may adiate or repudiate estate massing but each action has certain
consequences.

Explain the legal consequences of (a) adiation and (b)

repudiation by surviving testator
▪ Adiation
o Firstly, one of the most important consequences of adiation is that the
surviving testator loses the power to alter or revoke the joint (mutual) will after
adiation.
o Once the survivor accepts a benefit under the mutual will, he or she loses the
ability to revoke the will or to make a will which is in conflict with the
provisions of the mutual will.
o Thus, by accepting a benefit under such a will, the surviving testator
renounces the power to dispose of his or her own estate in a manner
different from that in which the first-dying testator has already disposed of it
in the will.
o This is because the survivor's estate becomes part of the massed estate
which has already been disposed of.
o This is a serious infringement on the survivor's freedom of testation, and there
exists a presumption against estate massing resulting from the common law
rule that no one can deprive himself or herself of the power to make a last
will freely.
o If there is any reasonable doubt that the testators had intended to achieve
estate massing, the will is interpreted in a manner that allows the greatest
possible measure of freedom of testation. In addition, it will be seen as if the
first-dying testator has disposed of his or her estate only. 51 In Rhode v Stubbs,
52 the Court also makes it clear that the fact that testators who were married
in community of property made a mutual will does not mean that they
intended to effect estate massing.
 o According to the common law rules of interpretation, when interpreting a
joint or mutual will of parties married in community of property, one must start
off with the premise that one is dealing with two separate wills of the parties
until the contrary becomes clear.
▪ Repudiation
o If, on the death of the first-dying testator, the survivor elects not to take any
benefit under the will, the effects are as follows:
➢ 1. The surviving testator may not receive any benefit whatsoever under
the will from the estate of the first-dying testator.
➢ 2. The surviving testator retains his or her own estate and may dispose
of it in any way he or she wishes.
➢ 3. The mutual will, as the will of the first-dying testator, relates to the
estate of the first-dying testator only, subject to the provision that the
surviving testator may not receive any benefit from the estate of the
first-dying testator.
o From Rhode v Stubbs, it is clear that the principles of estate massing are
difficult to apply and that if there is any reasonable doubt as to the testators'
intention, the Court would rather steer clear of estate massing.
Indicate why massing of estates is regarded as a form of
election
▪ Couples married in community of property often use estate massing as a tool to
ensure that the survivor will continue to be in control of the massed estates during
his or her lifetime and thus continue to enjoy the same standard of living.
▪ It is, however, not a prerequisite for the operation of estate massing that the
testators be married in community of property, nor that they be married at all.
▪ The requirements for estate massing to take place are:
o 1. the intention of the parties to consolidate their estates
o 2. the first-dying testator must have disposed of the survivor's share of the joint
estate as well as of his or her own. (Where a testator has disposed of his or
her own estate only in a will, there can never be any question of estate
massing)
o 3. the surviving testator must adiate the massing.
▪ For this reason, estate massing is traditionally seen as a manifestation of the
doctrine of election or choice.

4.2.2: Direct substitution

Explain direct substitution

▪ Direct substitution occurs where a testator names a substitute or a series of
substitutes who are to inherit if the heir or legatee named to benefit in a will does
not inherit. Direct substitution is substitution in the alternative.

Explain the purpose of direct substitution

▪ Testators use direct substitution to:
o avoid the benefit devolving in terms of the rules of intestate succession under
the circumstances mentioned above (in the case of heirs)
o prevent certain assets from falling into the residue of the estate (in the case
of legatees)
o exclude the right of accrual (see the discussion of accrual below).

Explain direct substitution by operation of law (ex lege) in view

of sections 2C(1) and (2) of the Wills Act 7 of 1953 and be able
to apply these principles to a set of facts
▪ Direct substitution may be implied by law in certain circumstances.
▪ This is regulated by section 2C of the Wills Act.
 ▪ Unfortunately, there are some problems and uncertainties with regard to the
interpretation of section 2C, but in brief, the section provides as follows:
o So-called ‘Statutory accrual’: Section 2C(1) provides that if a descendant of
a deceased person (excluding a minor or mentally ill descendant) who,
together with the surviving spouse, is entitled to a benefit in terms of a will,
renounces his or her right to receive such a benefit, it will vest in the surviving
spouse.
o So-called ‘Statutory representation or substitution’: Section 2C(2) provides
that if a descendant, whether as a member of a class or otherwise, would
have been entitled to a benefit if he or she had not predeceased the
testator, or had not been disqualified from inheriting, or had not after the
testator's death renounced his or her right to receive such benefit, the
descendants of that descendant shall, subject to the provision of section
2C(1), per stirpes be entitled to the benefit, unless otherwise indicated by the
context of the will.
▪ Section 2C(2) can possibly be seen as the general rule or point of departure in
deciding what must happen with a benefit should a descendant of the testator be
the beneficiary but: predeceases the testator renounces his or her benefit be
disqualified from benefiting. Section 2C (2) is, however, qualified by section 2C(1).

4.2.3 Fideicommissary substitution (the Fideicommissum)

Define fideicommissary substitution

▪ A fideicommissum occurs where a testator directs that a series of beneficiaries are
to own his or her whole estate or part of it, or specific assets one after the other.
▪ The first heir is known as the fiduciary and the succeeding beneficiary as the
fideicommissary.

Explain the purpose of fideicommissary substitution

▪ In its simplest form, a testamentary fideicommissum is an arrangement in which a
testator leaves property to one person (fiduciary) but provides that the property
shall go to another beneficiary (fideicommissary).
▪ The bequest to the fiduciary is usually subject to a provision that transfers ownership
to the fideicommissary on the death of the fiduciary, at a definite time, or on the
fulfilment of a condition.
▪ The different successors therefore inherit the same property from the testator, one
after the other. The following is a typical clause creating a fideicommissum or
fideicommissary substitution:
Legal position of the parties to a fideicommissum
4.2.4: Usufruct

Define a usufruct
▪ A usufruct occurs when ownership is bequeathed to one person, but the right to
use, enjoy and take the fruits of the property is bequeathed to another.
▪ The latter is called the usufructuary and the owner is called the dominus,
remainderman or nude owner.

Distinguish between a usufruct and a fideicommissum

▪ On the surface, usufruct and fideicommissum are similar – in both cases one person
holds the right to use and enjoy the property (usufructuary and fiduciary
respectively) while another person obtains full ownership at some or other time
(dominus and ultimate fideicommissary respectively).
▪ However, the two concepts differ in important respects.
▪ In the case of a fideicommissum:
o the fiduciary obtains a real right in the fiduciary property, which passes to a
fideicommissary when the time comes (resolutive term) or on the occurrence
of an uncertain future event (resolutive condition).
▪ In the case of a usufruct:
o the usufructuary never obtains ownership but only a limited real right (ius in re
aliena) which ultimately falls away while the dominus obtains full ownership.
4.2.5: Testamentary trust

Define the (testamentary) trust

▪ A testamentary trust (a trust mortis causa) is a trust created within the context of
the law of testate succession. It must be differentiated from a trust that is created
by agreement during the lifetime of the founder.
▪ This is known as an inter vivos trust and forms part of the law of contract. As such,
the inter vivos trust will not be dealt with in this chapter.

Discuss the essentialia for the creation of a valid trust

▪ The following requirements are necessary for the creation of a valid trust:
o 1. The creator must have the intention to create a trust.
o 2. The intention must be expressed in such a way that a binding obligation for
establishing the trust is created.
o 3. The trust document must comply with the formalities of a will.
o 4. The trust property must be determined or determinable.
o 5. The trust object must be clear.
o 6. The trust object must be lawful.

Appraise the so-called “core elements” of the trust

▪ In essence, the core elements of a trust are the following:
o 1. The fiduciary position of the trustee: A breach of his or her fiduciary position
will amount to a breach of trust which can result in a trustee being held
personally liable.
o 2. Separate estates: The trustee (in the event of the ownership trust) holds
separate personal and trust estates. The trustee's private creditors and the
trust beneficiaries therefore have claims against different estates.
o 3. The principle of real subrogation: This means that the proceeds of trust
assets (if sold) or substitute assets (if something else is bought with the
proceeds) will also be subject to the trust. Since South African law restricts this
principle to lawful replacement of assets, the unlawful replacement of assets
has to be dealt with in accordance with other private law remedies such as
the doctrine of notice or principles of enrichment.
o 4. Trusteeship as an office: The trust possesses a public element in the sense
that the Master of the High Court supervises the administration of trusts

Name a few duties of a trustee

▪ 1. The trustee must see to the lodgment of the will, payment of Master's fees 53 and
 notice of address.
▪ 2. A trustee must as soon as possible acquaint himself or herself with the trust
instructions and determine the nature and extent of his or her powers and duties.
▪ 3. As soon as possible after the issue of the letters of authority, a trustee must obtain
effective control over the trust property.
▪ 4. The trustee must administer the trust in accordance with the law and the provisions
contained in the trust instrument.

4.2.6 Common law accrual

Define accrual and provide examples thereof

▪ Accrual is the right of a testator's beneficiaries, under specific circumstances, to
inherit a share which another beneficiary might not want to inherit or is not
capable of inheriting.
▪ The right of accrual is the right which co-heirs or co-legatees have of inheriting the
share that their co-heir or co-legatee cannot or does not wish to receive.
▪ The right applies where a co-heir or co-legatee who is not a descendant of the
testator: is predeceased (died before the testator) is disqualified to inherit
repudiates the benefit was a beneficiary subject to a suspensive condition which
was not fulfilled.
▪ This is also known as common law accrual.
▪ Accrual can only operate if there is no provision made for substitution either by the
testator himself or herself, or ex lege through the operation of section 2C(2) of the
Wills Act.