ERF 222: Law of Succession - Chapter Five (PDF)

ERF 222 : LAW OF SUCCESSION CHAPTER FIVE : FORMALITIES FOR A WILL Section 2(1)(a) of the Wills Act I. Section 2(1)(a)(i) : The testator must sign the will. II. Section 2(1)(a)(ii.) : The testator or their amanuensis must sign or acknowledge...

ERF 222 : LAW OF SUCCESSION CHAPTER FIVE : FORMALITIES FOR A WILL Section 2(1)(a) of the Wills Act I. Section 2(1)(a)(i) : The testator must sign the will. II. Section 2(1)(a)(ii.) : The testator or their amanuensis must sign or acknowledge the will in the presence of two competent witnesses. III. Section 2(1)(a)(iii.) : 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. IV. Section 2(1)(a)(iv.) : Witnesses must attest and sign the will in the presence of the testator and, if applicable, the amanuensis. V. Section 2(1)(a)(v.) : : 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. Required Persons at Execution Amanuensis : A person acting in the presence and under the direction of the testator or testatrix. a. Testator signs with own signature : Testator and two witnesses. b. Testator signs with a mark : Testator, two witnesses, and a commissioner of oaths. c. Amanuensis signs for the testator : Testator, amanuensis, two witnesses, and a commissioner of oaths. Formalities aim to guard against fraud and written documents are implied as necessary whether typed or handwritten as the Electronic Communications and Transactions Act does not cover wills, and electronic documents may be hacked, deleted or undergo unauthorised modifications as well as problems with witnesses, Signatures, Signs and Marks As a result of inconsistencies in court rulings, it is preferred that the whole document should either be wholly signed with signatures or wholly signed with marks followed by a final signature on the last page. - Signatures : Signatures include a person’s valid signature or initials. - Marks : Non-name writings that can consist of a simple cross or thumbprint. The testator must sign at the end of the will and should do so as close as possible to the final words of the will in order to avoid the will being rendered invalid so as to avoid fraudulent additions to the will, however, there is a discrepancy between whether the attestation clause or final substantive provision of a will constitutes the final words of the will. Multi-page Wills : The testator must sign at the end of each page with signatures on both sides of each folio. Kidwell v The Master A testator’s will was rendered invalid as a result of a 9 cm gap between the closing words and the testator’s signature. Section 2(1)(b) of the Wills Act : The will must be signed by the testator or by an amanuensis acting in the testator’s presence and by their direction and should sign the testator’s name and not their own. 1. In the case of a weak testator who cannot sign fully, if an attorney signs on their behalf, it must be done with positive and discernible communication from the testator, not just by observing passively. 2. The will must be signed in the presence of the testator, witnesses, and a commissioner of oaths, who must certify the will when done by an amanuensis. Witness Signatures : Witnesses must sign on the front page and in terms of case law should sign all pages of the will. Witnessing Wills The Act requires that a will be witnessed by two competent witnesses with a competent witness being any person over the age of 14 who can give evidence in a court of law. Section 4A of the Wills Act : A witness and their spouse cannot inherit under the will, however, a beneficiary can still act as a witness, but they will be excluded from inheriting under the will. Witnessing : The physical presence of witnesses when the testator or amanuensis signs and when the witnesses themselves sign whereby two competent witnesses must be present at the same time for each page signed by the testator or amanuensis and if an amanuensis signs, both the testator and a commissioner of oaths must be present. 1. If witnesses are not present during the signing, the testator must acknowledge the signature in their presence afterward. 2. The testator and witnesses must be present simultaneously for the signing of the will, and witnesses should be aware they are witnessing the execution of the will. 3. If an amanuensis is used, a commissioner of oaths must also be present along with the testator. Karani v Karani : It was ruled that all pages must be signed to avoid the fraudulent insertion of pages. Liebenberg v The Master : Witnesses' signatures do not need to be near the testator's signature but must not appear where the testator's signature should be. The approach from Liebenberg's case is preferred, though it’s recommended to have witnesses sign below the testator's signature on each page. The Act requires the testator to sign the will in the presence of witnesses or, if signed in advance, to acknowledge the signature in the simultaneous presence of both witnesses or in the case of an amanuensis the Commissioner of Oaths as well. Attestation Clauses Attestation Clause : The final paragraph of a will, recording the date and place of the signature and confirming that the testator and witnesses signed in each other’s presence that provides evidential value but does not render a will invalid. While a will does not need to be dated for formal validity, dating is important to determine the most recent will if multiple wills exist and to ensure compliance with formalities and legal capacity requirements. Additional Formalities associated with a mark or an amanuensis Commissioner of Oaths : Magistrates, Advocates, Attorneys, and Police Officers appointed by the Minister of Justice who must verify the testator’s identity, confirm the will is the testator’s, provide a verification certificate, record their capacity as commissioner of oaths on the certificate and write, type or stamp the certificate on the will. Specimen certificates have been provided for compliance, though not mandatory and certificates must include the commissioner’s capacity as such a failure could result in the will being rendered invalid. The commissioner of oaths should sign all pages and ensure their presence when the will is signed and evidence must show that the formalities were followed and that any defects can potentially be remedied through court application in terms of Section 2(3) of the Wills Act. 1. Radley v Stopforth : If the commissioner of oaths does not state his or her capacity the certificate of verification is rendered invalid. 2. Jeffroy v The Master : A will is valid despite the certifying officer’s stamp stating that that officer is a practising attorney as that attorney is performing their duties as commissioner of oaths. Amendment of Wills Amendment of Wills : A will can be altered at any time by the testator as changes can be made using a codicil or by amending the will directly. Amendments include additions, alterations, interlineations, deletions, cancellations, and obliterations, and deletions or cancellations that revoke the entire will do not require formalities. 1. Pre-execution Amendments : No formality requirements, but still require a signature from the testator and witnesses. 2. Amendments using marks or 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 and the certificate should clearly identify the amendment and be placed near it in the will. Formalities 1. Inserting additional words or paragraphs. 2. Altering words,beneficiaries,amounts or numbers. 3. Drawing lines through words,names or amounts. 4. Even includes amendments using tippex,cutting out or taping over. Section 2(1)(b)(i)-(iv) : No amendment made in a will executed, shall be valid unless; 1. Amendment is identified by signature of the testator or other person in his presence and direction (amanuensis) - Meaning of identified? - Signature acknowledges that amendment is made according to the testator’s wishes - Where should the testator and witnesses identify (place their signatures)?  - Not specifically dealt with in s2(1)(b) BUT must be as close as possible to the amendment - Otherwise ex facie identification of signatures must be clearly relevant to specific amendment 2. Such signature is made in the presence of T or by such other presence or is acknowledged by T or such other person in the presence of two or more competent witnesses present at the same time. 3. The amendment is further identified by the signature of such witnesses in the presence of the testator and each other (and amanuensis if applicable). - - These witnesses do not have to be the same witnesses who signed the original will. 4. If amendment is identified by a mark of the T or by the signature of some other person (in his presence and direction) then. - Certification by commissioner of oaths is necessary - Commissioner satisfies himself as to; - The identity of the testator and; that the amendment has been made by or at the request of the testator - Certificate inserted in Schedule 2 of Wills Act. Condonation Court’s power to condone in terms of Section 2(3) If the Court is satisfied that a document or an amendment of a document has been drafted or executed by a person who has died since the drafting or execution thereof, that was intended to be a will or amendment, the Court shall order the Master to accept, although it does not comply with all formalities (2(1)(a)(b)). Aims of the Court 1. To avoid the frustration of the testator's intention and inequitable results (Kidwell). 2. To obviate the problems which arose in interpreting s 2(1). 3. To eliminate injustice and inequity resulting from invalidity. BUT : Requirements in terms of sections 2(1)(a) and 2(1)(b) dealing with formalities required for a valid amendment still remain as they create legal certainty. Section 2(3) application may result in additional costs; delays; and there is no guarantee that it will succeed as it may fail if requirements are not met. 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. There is no condonation in terms of section 2(3) where the testator did not have testamentary capacity at time of making of a will, or where the witness can’t inherit because of section 4A. Application is done by way of motion or application proceedings supported by affidavits, where the onus of proof of 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”/must 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 where Section 2(3) may be applied A. The testator writes documents in own handwriting and signs. B. The testator writes documents in own handwriting and does not sign. C. The testator requests someone else in a letter to draft a will for him or her, but he or she dies before anything is drafted. D. The testator requests someone orally or in writing to draft a will for him, and: - The draft was prepared by such a person, and even in situations where the testator shows his satisfaction with the result, but died before any formalities were complied with (Bekker). - The draft was prepared and some formalities complied with, but the end result was formally defective (Raubenheimer). Requirements in the above scenarios 1. There must be a written document. 2. Drafted or executed by a person who has died since drafting or execution thereof. 3. The document must be 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 under directory C:/windows/mystuff/mywill/personal. The court found that there were sufficient safety measures in place and the will was printed by the manager with a hard copy attached to the application, however, it was not signed, nor witnessed, but as it was clearly intended as a will, Section 2(3) was granted. Van der Merwe v Master of the High Court : An email was forwarded to the recipient regarding last wishes, but was never executed, but it was printed and attached to application. The Court ordered the Master to accept the hard copy print-out of the email attached to the application, as the person's last will and testament. Bekker v Naude (A) : If there is only a draft (no formalities embarked upon) and the draft was prepared by someone who was not the testator, the document cannot be condoned, however, where the will was partially executed by the testator, and the document was not drafted by the testator, then that document may be condoned. Dictating a will constitutes drafting a Will as well. Webster v The Master : A document can be regarded as drafted by the testator for the purposes of section 2(3) only if the testator drafted (prepared) the document by writing it out in longhand. Back v The Master : Disagreed with Webster case, and disagreed with strict interpretation of ‘… drafted by person …’ in section 2(3), as a strict interpretation is inconsistent with the purpose of section 2(3) and does not take cognisance of the technological world, and allows documents drafted by an attorney. Raubenheimer v Raubenheimer : Partial compliance as the document was drafted by a financial advisor, but the testator signed without two witnesses being present, however, the court ruled that condonation in terms of section 2(3) could be considered. Ex parte Maurice : Specific document must have been intended to be a will and only when there is a defect in the formality requirements on the “final” document will the court intervene. If it was intended to only convey information about the testator’s wishes then it would be insufficient. If the document was intended to convey instructions for drafting, it could not be construed as being a will. Van Wetten v Bosch : Found words not to be that of a person giving instructions, but words of a person who made a final decision. Paragraph 16 showed that the real question is not what the document means (letter),but whether the deceased intended it to be his will, this inquiry of necessity entails an examination of the document itself and also of the document in the context of the surrounding circumstances. De Reszke v Maras : A letter was sent to an attorney, however, the court was not convinced that it constituted more than instructions, and in order for there to be an intention for it to be will, it must exist at time of drafting or execution, as the testator can’t form it at later stage. This is determined by the document itself plus the document in context of surrounding circumstances. Condonation and Amendments The effect of non-compliance with 2(1)(b) is that the amendment is rendered ineffective, however, this may be circumvented by section 2(3) and the Court’s power to condone. If a document or an amendment to 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 order a condonation. Smith v Parsons : The testator’s instructions were intended to be implemented by executor, and were not merely instructions for redrafting if he knew he was about to commit suicide and still intended residue to go to son in terms of his will.