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What is required for a will to be considered valid according to the Wills Act?
A witness can inherit from a will in which they served as a witness.
False
What is the minimum age for a witness according to the Wills Act?
14
A testator must sign their will in the presence of ______ witnesses.
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Match the following cases with their significance regarding wills:
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What happens if witnesses are not present when the testator signs?
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An amanuensis can sign on behalf of the testator without any communication.
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Who must be present alongside the testator when an amanuensis signs the will?
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What is required if the testator signs the will with a mark?
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A will can consist of typed documents under the Electronic Communications and Transactions Act.
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What must be done if a will consists of multiple pages?
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A person acting in the presence and under the direction of the testator is known as an __________.
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Which of the following is NOT a requirement for witnesses attesting a will?
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If a will is signed in a mark, it can be validated without the presence of a commissioner of oaths.
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What is the function of formalities in the creation of a will?
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Match the following requirements for executing a will:
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What must a commissioner of oaths certify when an amendment is made to a will?
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An amendment made using tippex is always considered valid without further verification.
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What is required for an amendment made by an amanuensis?
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The signatures of the testator and witnesses must be placed as close as possible to the _____ in the will.
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Match the following terms with their descriptions:
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Which of the following is NOT considered a valid method of amendment?
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Witnesses for an amendment must be the same as those who witnessed the original will.
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What happens if an amendment is identified by a mark of the testator?
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What is the main aim of the Court in allowing condonation under Section 2(3)?
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Condonation under Section 2(3) can be applied if the testator did not have testamentary capacity at the time of making a will.
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What must the applicant prove in order for the Court to grant condonation under Section 2(3)?
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Section 2(3) may be applied where there is non-compliance with sections 2(1)(a) and 2(1)(b) regarding formalities required for __________ and __________.
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Match the scenarios with their descriptions:
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What is a potential outcome of applying for condonation under Section 2(3)?
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The Court has discretion to accept a document under Section 2(3) even if all requirements are met.
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What must be demonstrated by the applicant in motion or application proceedings for Section 2(3)?
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Which of the following is NOT a requirement for a document to be considered a valid will?
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A will that is not signed or witnessed can still be considered valid under certain conditions.
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What does the term 'condonation' refer to in the context of wills?
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In the Macdonald v The Master case, the court found sufficient safety measures in place for the will stored in the directory _______ on the personal computer.
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According to Raubenheimer v Raubenheimer, what was the primary issue with the document's validity?
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Dictating a will does not qualify as drafting a will according to legal standards.
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Match the following cases with their legal outcomes regarding wills:
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What was the main conclusion from the Webster v The Master case regarding how wills should be prepared?
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Study Notes
Formalities for a Will
- Section 2(1)(a) of the Wills Act outlines the formalities for a valid will
- The testator must sign the will.
- The testator or their amanuensis (person acting under the testator's direction), must sign or acknowledge the will in the presence of two competent witnesses.
- If the will has multiple pages, every page except the last must be signed by the testator or amanuensis; the last page must always be signed at the end.
- Witnesses must attest and sign the will in the presence of the testator and, if applicable, the amanuensis.
- If the testator signs with a mark or an amanuensis signs for the testator, a Commissioner of Oaths must be present, and certification formalities apply.
- The Electronic Communications and Transactions Act does not cover wills, so electronic documents may be vulnerable to hacking, deletion, or unauthorized modifications.
- It is preferred that the whole document be signed with either signatures or marks, followed by a final signature on the last page.
- Signatures include a person’s valid signature or initials.
- Marks include non-name writings such as a simple cross or thumbprint.
- The testator must sign at the end of the will, as close as possible to the final words to avoid fraudulent additions.
- The testator must sign at the end of each page of a multi-page will.
- In Kidwell v The Master, a will was rendered invalid due to a gap between the closing words and the testator's signature.
- Section 2(1)(b) of the Wills Act requires the will to be signed by the testator or an amanuensis acting under the testator's direction.
- The amanuensis must sign the testator's name and not their own.
- If a weak testator cannot sign fully, the attorney signing on their behalf must do so with positive communication from the testator.
- Signatures must be in the presence of the testator, witnesses, and, if applicable, a commissioner of oaths.
- Witnesses must sign on the front page of the will and, according to case law, should sign all pages.
Witnessing a Will
- Two competent witnesses, over 14 years old and capable of giving evidence in court, are required.
- According to Section 4A of the Wills Act, a witness and their spouse cannot inherit under the will, but a beneficiary can still act as a witness, though they will be excluded from inheriting.
- For a valid witnessing, both witnesses must be physically present when the testator or amanuensis signs and when the witnesses themselves sign, on each page.
- If witnesses are not present during the signing, the testator must acknowledge the signature in their presence afterward.
- The testator and witnesses must be present simultaneously for the signing of the will.
- Witnesses should be aware they are witnessing the execution of the will.
- If an amanuensis is used, a commissioner of oaths must also be present with the testator.
- In Karani v Karani, it was ruled that all pages must be signed to avoid fraudulent insertion of pages.
- In Liebenberg v The Master, it was ruled that witnesses' signatures do not need to be near the testator's signature but must not appear where the testator's signature should be.
- It is recommended to have witnesses sign below the testator's signature on each page.
Amendments to a Will
- Amendments using marks or an amanuensis require certification by a commissioner of oaths who must confirm the testator's identity, that the amendment was made at the testator's request, and their own role in certifying.
- Formalities for valid amendments include:
- Inserting additional words or paragraphs
- Altering words, beneficiaries, amounts or numbers
- Drawing lines through words, names, or amounts
- Amendments using tippex, cutting out, or taping over.
- Section 2(1)(b)(i)-(iv) states that no amendment made in a will is valid unless:
- The amendment is identified by the signature of the testator or other person in his presence and direction (amanuensis)
- The signature acknowledges that the amendment is made according to the testator’s wishes.
- Signatures should be as close as possible to the amendment, or ex facie identification of signatures must be clearly relevant to the specific amendment.
- Such signature is made in the presence of the testator, or, in the case of an amanuensis, is acknowledged by the testator or amanuensis in the presence of two or more competent witnesses present at the same time.
- The amendment is further identified by the signature of the witnesses in the presence of the testator and each other (and amanuensis if applicable). These witnesses do not have to be the same as those who signed the original will.
- If the amendment is identified by a mark of the testator or by the signature of someone else (in the testator's presence and direction) then certification by a commissioner of oaths is necessary.
- The commissioner must confirm the testator’s identity and that the amendment has been made by or at the request of the testator.
- The certificate is inserted in Schedule 2 of the Wills Act and must clearly identify the amendment.
- The amendment is identified by the signature of the testator or other person in his presence and direction (amanuensis)
Condonation
- The Court has the power to condone non-compliance with the formalities under Section 2(3) of the Wills Act.
- If the Court is satisfied that a document or an amendment intended to be a will or amendment was drafted or executed by a person who has died since the drafting or execution thereof, the Court shall order the Master to accept it, even if it does not comply with all formalities.
- The aims of the Court are to avoid frustration of the testator's intention and inequitable results, to obviate problems in interpreting Section 2(1), and to eliminate injustice and inequity resulting from invalidity.
- The requirements in terms of Sections 2(1)(a) and 2(1)(b) regarding formalities for a valid amendment remain as they create legal certainty.
- Section 2(3) application may result in additional costs and delays, and there is no guarantee of success.
- Section 2(3) may be applied where there is non-compliance with Section 2(1)(a) formalities for valid execution and Section 2(1)(b) formalities for valid amendment.
- Condonation under Section 2(3) is not applicable if the testator did not have testamentary capacity at the time of making the will, or if the witness cannot inherit because of Section 4A.
- Application for condonation is done by motion or application proceedings supported by affidavits.
- The onus of proof of the provisions of Section 2(3) rests on the applicant on balance of probabilities.
- If all the requirements of Section 2(3) are met, the court has no discretion and "shall" order the Master of the High Court to accept the document as the testator's last will for the purpose of the Administration of Estates Act 66 of 1965.
Scenarios for Applying Section 2(3)
- The testator writes a document in own handwriting and signs it.
- The testator writes a document in own handwriting and doesn’t sign it.
- The testator requests someone else in a letter to draft a will for him/her, but they die before anything is drafted.
- The testator requests someone orally or in writing to draft a will:
- The draft was prepared by that person, even in situations where the testator shows their satisfaction with the result, but died before any formalities were complied with.
- The draft was prepared and some formalities complied with, but the end result was formally defective.
Requirements for Condonation
- There must be a written document.
- It must have been drafted or executed by a person who has died since drafting or execution.
- The document must have been intended to be a will.
Condonation Case Law
- Macdonald v The Master: The testator committed suicide with a note stating where the will can be found on their personal computer (C:/windows/mystuff/mywill/personal). As there were sufficient safety measures, a printed copy attached to the application was accepted, even though it was unsigned and unwitnessed. Section 2(3) was granted as it was clearly intended as a will.
- Van der Merwe v Master of the High Court: An email was forwarded to the recipient regarding last wishes, but was never executed. The printed and attached email print-out was accepted as the person's last will and testament.
- Bekker v Naude (A): A draft (no formalities) prepared by someone other than the testator cannot be condoned. However, if the will was partially executed by the testator and the document was not drafted by the testator, then it may be condoned. Dictating a will constitutes drafting a will.
- Webster v The Master: A document can be regarded as drafted by the testator only if they wrote it out in longhand.
- Back v The Master: Disagreed with Webster and the strict interpretation of "… drafted by person…" in Section 2(3), as it is inconsistent with the purpose of Section 2(3) and does not take cognisance of the technological world. Allows documents drafted by an attorney.
- Raubenheimer v Raubenheimer: Partial compliance, where the document was drafted by a financial advisor, but the testator signed without two witnesses. Condonation was considered.
- Ex parte Maurice: The specific document must have been intended to be a will and the court intervenes only when the formality requirements on the final document are defective.
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Description
Test your knowledge on the formalities required for a valid will as outlined in Section 2(1)(a) of the Wills Act. This quiz covers essential aspects such as signing requirements, witness involvement, and more. Understand the critical details that can make or break a will's validity.
