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Questions and Answers
What is required for a will to be considered formally valid?
What is required for a will to be considered formally valid?
An invalid will has no legal effect unless a court order allows it to be accepted as valid.
An invalid will has no legal effect unless a court order allows it to be accepted as valid.
True
What are the consequences of not complying with the formalities of the Wills Act when creating a will?
What are the consequences of not complying with the formalities of the Wills Act when creating a will?
The will may be considered invalid, leading to costly and time-consuming court procedures.
A will must be signed at the end by the __________ or an authorized amanuensis.
A will must be signed at the end by the __________ or an authorized amanuensis.
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What does substantive validity refer to in the context of a will?
What does substantive validity refer to in the context of a will?
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Match the aspect of a will with its description:
Match the aspect of a will with its description:
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All pages of a will, except the last, must be signed by the testator on the last page only.
All pages of a will, except the last, must be signed by the testator on the last page only.
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How many witnesses must be present for the signature of the testator or amanuensis to be valid?
How many witnesses must be present for the signature of the testator or amanuensis to be valid?
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Which of the following is NOT a requirement for a valid amendment to a will?
Which of the following is NOT a requirement for a valid amendment to a will?
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An amendment to a will can be made valid if it is signed solely by the testator's amanuensis.
An amendment to a will can be made valid if it is signed solely by the testator's amanuensis.
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What is required if an amendment is identified by a mark made by the testator?
What is required if an amendment is identified by a mark made by the testator?
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The process allowing the High Court to accept a document as a valid will or amendment, despite non-compliance with formalities, is known as the __________ provision.
The process allowing the High Court to accept a document as a valid will or amendment, despite non-compliance with formalities, is known as the __________ provision.
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Match the following terms with their definitions:
Match the following terms with their definitions:
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According to the Wills Act, how many witnesses are required for a valid amendment to a will?
According to the Wills Act, how many witnesses are required for a valid amendment to a will?
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Deleting or crossing out a part of a will without any other changes can be considered a valid revocation.
Deleting or crossing out a part of a will without any other changes can be considered a valid revocation.
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What is the role of the amanuensis in the signing of a will?
What is the role of the amanuensis in the signing of a will?
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What must be appended after the identification of an amendment if a commissioner's certificate is required?
What must be appended after the identification of an amendment if a commissioner's certificate is required?
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An amanuensis can sign a will using their own name followed by 'p.p.' (per procurationem).
An amanuensis can sign a will using their own name followed by 'p.p.' (per procurationem).
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How many competent witnesses are required to witness a will?
How many competent witnesses are required to witness a will?
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A competent witness must be over the age of _____ to be eligible.
A competent witness must be over the age of _____ to be eligible.
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Match the following terms with their definitions:
Match the following terms with their definitions:
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What happens if a beneficiary witnesses a will?
What happens if a beneficiary witnesses a will?
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Witnessing a will requires the witnesses to sign it after the testator or amanuensis.
Witnessing a will requires the witnesses to sign it after the testator or amanuensis.
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What must be present for a will to be signed by an amanuensis?
What must be present for a will to be signed by an amanuensis?
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What happens if the requirements of section 2(3) are not met?
What happens if the requirements of section 2(3) are not met?
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What is the legal term for the intent to revoke a will?
What is the legal term for the intent to revoke a will?
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The strict approach to section 2(3) allows for the acceptance of unsigned documents regardless of the deceased's intention.
The strict approach to section 2(3) allows for the acceptance of unsigned documents regardless of the deceased's intention.
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A lost will cannot be presumed revoked if it is held by a third party.
A lost will cannot be presumed revoked if it is held by a third party.
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What does section 2(3) state regarding documents drafted by a deceased individual?
What does section 2(3) state regarding documents drafted by a deceased individual?
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What must a testator demonstrate to revoke a previous will?
What must a testator demonstrate to revoke a previous will?
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Section 2(3) cannot be used to condone a will that is invalid due to lack of __________.
Section 2(3) cannot be used to condone a will that is invalid due to lack of __________.
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Match the following approaches with their characteristics regarding section 2(3):
Match the following approaches with their characteristics regarding section 2(3):
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If a will is found damaged in the testator's possession, it is presumed to be revoked with intent to __________.
If a will is found damaged in the testator's possession, it is presumed to be revoked with intent to __________.
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Match the following cases with their relevant presumption or finding:
Match the following cases with their relevant presumption or finding:
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What recent judicial rulings suggest about completely unsigned wills?
What recent judicial rulings suggest about completely unsigned wills?
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What indicates that a will was revoked according to the presumption overview?
What indicates that a will was revoked according to the presumption overview?
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A document prepared by an attorney can be validated if it was approved by the testator.
A document prepared by an attorney can be validated if it was approved by the testator.
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A new will must destroy the previous will to effectively revoke it.
A new will must destroy the previous will to effectively revoke it.
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The __________ requirement indicates whether a document is valid as a will under section 2(3).
The __________ requirement indicates whether a document is valid as a will under section 2(3).
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In the case of Sansole v Ncube, what did the court conclude about the destruction of a copy of a will?
In the case of Sansole v Ncube, what did the court conclude about the destruction of a copy of a will?
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Study Notes
Execution of a Will
- The process involves adhering to the formalities stipulated by the Wills Act.
- An invalid will, not complying with these formalities, has no legal effect.
- A court can accept an invalid will as valid under section 2(3).
- This process can be difficult, time-consuming, and expensive.
Formalities of a Will
- The testator (person making the will) must sign it at the end or an authorized amanuensis (person signing on behalf) can sign.
- For a multi-page will, all pages except the last must be signed anywhere on the page, the last page must be signed at the end.
- The signature must be made or acknowledged in the presence of two competent witnesses.
- Witnesses need to sign the will in the presence of the testator, amanuensis (if applicable), and each other.
Using an Amanuensis
- An amanuensis is used if the testator cannot physically sign due to limitations or illiteracy.
- The amanuensis signs using the testator's name for clear identification.
- The will must be signed in the presence of the testator, witnesses, and a commissioner of oaths.
Who can Witness a Will
- Two competent witnesses, over 14 years old, who can testify in court are required.
- Section 4A of the Wills Act prohibits a witness or their spouse from inheriting under the will they witnessed.
- A beneficiary witnessing a will does not invalidate it, but they lose their inheritance right.
Witnessing a Will
- Witnessing includes physical presence of witnesses during the testator's or amanuensis' signing and the signing of the will by the witnesses.
- Two competent witnesses must be present at the same time when the testator or amanuensis signs each page.
- If the amanuensis signs, the testator and a commissioner of oaths must also be present.
Amendments to a Will
- Amendments require specific formalities according to Section 2(1)(b) of the Wills Act.
- The amendment must be identified by the testator's signature or the amanuensis' signature.
- It must be done in the presence of two competent witnesses.
- Witnesses must also sign in the presence of the testator and each other (and the amanuensis, if applicable).
- A commissioner of oaths' certificate is needed if a mark is used instead of the testator's signature or the amanuensis signed.
- The commissioner will verify the testator's identity and confirm the amendment was made by or for the testator.
- The signatures confirm that the amendment reflects the testator's wishes.
- The law does not specify where the testator and witnesses sign but recommends it to be near the amendment.
- The witnesses to the amendment do not need to be the same as those who signed the original will.
Revocation of a Will
- Revocation does not require the precise formalities of amendment.
- Deleting or crossing out a portion of a will without adding or changing anything can be a valid revocation.
- However, if the intention is to amend, the formalities of Section 2(1)(b) must be followed.
Section 2(3) of the Wills Act
- This section empowers the High Court to accept documents as valid wills or amendments, even if formal execution or amendment compliance is missing.
- The court must be convinced that the document was intended as a will by the testator.
- It is often referred to as the "rescue provision" and grants the court the power of condonation.
- The court must order the acceptance of the document if the requirements are met; otherwise, the court has no discretion to grant relief.
- There have been various court rulings regarding section 2(3).
- It addresses the issue of unsigned documents and the degree of compliance needed for acceptance.
- This provision can be applied to documents stored digitally, like computer files.
- It only applies to wills or amendments invalid due to Section 2(1)(a) or (b) formalities, not to wills invalid due to lack of testamentary capacity, etc.
Presumptions Concerning the Revocation of Wills
- If a will is found damaged in the testator's possession, it is presumed to have been revoked intentionally (animus revocandi).
- The presumption applies if the will cannot be found despite diligent search after the testator's death.
- The presumption is based on two aspects: the act of destruction and the intent to revoke.
- The presumption does not apply if the will is with a third party.
- This suggests that the testator did not intend to revoke the will.
Doctrine of Dependent Relative Revocation
- The testator must have a clear intention to revoke a previous will.
- Revocation can be achieved by executing a new will that effectively replaces the previous one, either physically or symbolically.
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Description
This quiz covers the essential elements of executing a will, including the formalities mandated by the Wills Act. Learn about the role of the testator and amanuensis, as well as the importance of signatures and witnesses. Test your understanding of the legal requirements and potential complications involved in this process.
