ERF 222: Law of Succession (Chapter 6) PDF

ERF 222 : LAW OF SUCCESSION CHAPTER SIX : REVOCATION AND REVIVAL OF WILLS Revocation : The act by which a testator cancels a will, or part of a will, so that it no longer functions as a valid will, and serves as the only manner in which a will may be undone by a test...

ERF 222 : LAW OF SUCCESSION CHAPTER SIX : REVOCATION AND REVIVAL OF WILLS Revocation : The act by which a testator cancels a will, or part of a will, so that it no longer functions as a valid will, and serves as the only manner in which a will may be undone by a testator. Partial Revocation : The act by which a testator revokes only part of a will, leaving the remainder of the will valid and effective. A testator is free to revoke his or her will at any time during his or her lifetime and any agreement that attempts to restrict such a freedom is unenforceable. Exceptions to Restrictive Agreements 1. Where a mutual will establishes the massing of estates, the surviving testator who accepts the benefit of the massing cannot subsequently alter the testamentary disposition of the massed assets in the will. 2. Testamentary provisions contained in a duly registered antenuptial contract cannot be unilaterally departed from or altered. Essential elements of Revocation 1. Animus revocandi : An intention to revoke. 2. Legally recognised act : Act by which intention becomes manifest. If there is animus revocandi but no manifestation the court may order a revocation in terms of Section 2A of the Wills Act, however, an oral revocation will not suffice. Revocation of will that explicitly or impliedly revokes an earlier will will not revive the earlier will. Methods of Revocation a. Destruction of the whole will. b. Destruction of part of a will. c. Express revocation, including informal revocation. d. Implied revocation. e. Revocation by court order in terms of Section 2A. Destruction of the whole Will Destruction with animo revocandi revokes the will with no need for formalities, however, accidental destruction does not revoke the will. Destruction : Occurs physically or symbolically through defacing the writing of the will by drawing a line across it, writing the words, “cancelled” or “revoked” across the face of the will, destroying the testator’s signature, or destroying the signature of a witness. 1. Hofmeyr and Paleker : Destruction of a witness’s signature on the last page of a will, will revoke the will, so long as it reduces the number of witnesses to less than two and occurs only on the last page of a multi or single page will. 2. Senekal v Meyer : Acts of destruction carried out on the duplicate in the testator’s possession of an inaccessible original copy revokes the will. 3. Marais v The Master : Will was revoked by acts of destruction carried out on the copy of a will in the testator’s possession, and the testator’s conduct was sufficient to presume the same action would have been carried out on the original document. Destruction of Part of a Will Partial destruction constitutes an amendment to the will, and must therefore comply with the formalities of amendment. 1. Destruction of the part with animo revocandi. 2. Physically removing the revoked parts from the will with scissors. 3. Drawing a line through the name of an heir or heirs in that specific section. 4. Revocation by court order in terms of Section 2A. Express Revocation Occurs through use of a Revocation Clause in a duly executed will or a testamentary document, and the execution of a new will does not revoke the previous will, unless the will includes a revocation clause or any other indication of revocatory intention. Revocation Clause Example : ‘I hereby revoke all wills and other testamentary writings previously made by me’. Sonnekus : An express revocation in an informal document is valid and effective if the intention to revoke is clearly apparent from the writing and if it is sufficiently clear from the document that it is the testator who has done the act of revocation. Sonnekus’ argument, however, has limited judicial authority and does not carry much weight, and there is also authority that states the contrary applies, and such informal revocation would most likely be disallowed. Where a revocation clause is inserted in a signed will without the knowledge of the testator, evidence is admissible to establish the true intentions of the testator and the court will order that the revocation clause be treated as pro non scripto. Pro Non Scripto : As if it had not been written. Implied Revocation The execution of a new will does not automatically revoke a previous will, and as far as possible, all wills in force at the time of death must be read together. Where the new provisions conflict irreconcilably with previous provisions in an earlier will, those provisions will be impliedly revoked in so far as they are inconsistent with the later will or cannot stand together with any provision in the later will. 1. Vimpany v Attridge : Later will ruled to have revoked the earlier will although it contained no express revocation as it was not possible to reconcile the appointment of the children as heirs if Attridge was to be the sole heir in the new will. 2. Pienaar v Master of Free State High Court, Bloemfontein : Whether or not the two wills are read together and the later will merely alters some aspects of the estate’s devolution then the dispositive provisions of the two wills must be read together, however, where the later will alters the entire scheme to dispose of the whole estate by appointing an heir or heirs, with or without legatees, the dispositive provisions of the earlier will will fall away. Ademption Ademption : Form of tacit revocation of a legacy when a testator voluntarily alienates the object of the legacy during his or her lifetime causing the legacy to fail. Where ademption is used the testator is rebuttably presumed to have revoked the bequest of the asset, and the bequest is said to have lapsed by ademption. Presumptions concerning Revocation 1. If found in a damaged state and sufficiently revoked with animus revocandi, rebuttably presumed that the damage was done by the testator with intent to revoke, the will is accordingly revoked. 2. If shown the will was in the testator’s possession, but after diligent search the will cannot be found, rebuttably presumed to have been revoked by the testator through both destruction and with animus revocandi. 3. If the will was damaged while in a 3rd party’s possession the presumption of revocation does not apply and it is presumed that the destruction was not done with revocatory intention. Fram v Fram’s Executrix : Will presumed to have been revoked by destruction by the testator as the will was found among the testator’s possessions with his signature cut out. Le Roux v Le Roux : Will was seen on the testator's desk at home later in the year 1960 but at his death in 1961 it could not be found, with no evidence of what happened to the will, thus the will was presumed to have been revoked. Ex parte Warren : Rationale behind presumption is that the probability that a testator would usually take steps to preserve his or her will, and if it is lost or accidentally destroyed, then he or she would be aware of it and take steps to make a new will. Doctrine of Dependent Relative Revocation Doctrine of Dependent Relative Revocation : Where a testator destroys a will or revokes a will, but believes that his or her new will has been executed successfully, but it does not comply with formalities and lacks legal efficacy, the testator’s animus revocandi is based on a supposition that proves to be wrong. Thus, the intention is defective and the destroyed will is not revoked.  1. Le Roux v Le Roux : Testator mistakenly of the opinion that earlier will would be revived by his actions, thus the destroyed second will was held to not have been revoked. 2. Prinsloo v Master of the Supreme Court (OFS) : Destroyed will without executing a replacement will, thus destroyed will remained in force in spite of the destruction of the previous will. 3. Raabe v The Master : Court held testator would have destroyed later will regardless of whether he believed the previous will would revive or not, as the intention of the later will was to operate in the event that he or his wife died during their overseas journey. Revival of Wills Revival : Occurs when a previously revoked or lapsed will is given legal force again by re-execution in terms of the formalities and requirements of executing a valid will. 1. Moses v Abinader : Judges disputed around the viability of revival by referencing it in a subsequent document executed as a will. Judge Van den Heever argued that such a reference is incorporation by reference and is aimed to circumvent the formal execution requirements. Judge Schreiner argued that there is a distinction between revival and incorporation by reference and that if the requisite intent is present, revival by reference in a subsequent valid will would be allowed. 2. Wessels v Die Meester : Court held that it is acceptable to restore a lapsed or revoked will by citing it in a subsequent, properly executed will, and does not constitute improper incorporation by reference, as the lapse or revocation of a will does not negate its initial valid execution. Requirements in terms of Wessels v Die Meester 1. The original will was validly executed when first established. 2. The document incorporating the will is a validly executed will itself. 3. The testator intended to restore the lapsed or revoked will. Thus, revival may occur through a codicil if both the revived will and codicil adhere to the required legal formalities of executing a valid will or testamentary writing and there is clear intention to revive a revoked or lapsed will. Intention to Revive 1. It must be shown that when the testator executed the new will, he or she knew that the will that was meant to revive was no longer in force. 2. If the testator believed that the original was still in force , it is impossible to establish that he or she intended revival of the will. Revocation by Court Order in terms of Section 2A Section 2A of the Wills Act : If a court is satisfied that a testator has- a. Made a written indication on his will or before his death caused such indication to be made; b. Performed any other act with regard to his will or before his death caused such act to be performed which is apparent from the face of the will, or  c. Drafting another document or before his death caused such document to be drafted, by which he intended to revoke his will or a part of his will, the court shall declare the will or the part concerned, as the case may be, to be revoked. Section 2(3) of the Wills Act : 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. Letsekga v The Master : Notes of changes that the testator proposed to make to his or her will in future do not justify an order revoking part of the will. The intention of the testator is that a further document will be made in due course that will bring about the revocation. Henwick v The Master : A court order was refused on the grounds of there being insufficient proof that a bank that had drafted a part-revoking codicil had done so on the instructions of the testator, rather than on those of his wife. Mdlulu v Dudley : A document relied on to establish animus revocandi for the purpose of an order of revocation must be produced to the Court so that the Court is able to inspect it and come to its own conclusion as to the testator’s animus revocandi. - Section 2A cannot be used to give legal effect to an oral revocation. Webster v The Master : Where a testator makes markings on a copy of a will to indicate deletions he wants to implement, the will cannot be declared to have been revoked by the Court in terms of Section 2A(a), but can in terms of Section 2A(b). Marais v The Master : Will was revoked by acts of destruction carried out on the copy of a will in the testator’s possession, and the testator’s conduct was sufficient to presume the same action would have been carried out on the original document. Olivier v Die Meester: In re Boedel Wyle Olivier : An unsigned codicil revoking provisions in a validly executed will cannot be rescued in terms of Section 2(3) of the Wills Act as the testator had neither drafted the codicil nor signed it, nor did the court grant an order in terms of Section 2A even though the section does not require personal drafting or execution. - Nortjé suggests that the judgement in Olivier v Die Meester is ambiguous and that it is possible that the Court was not laying down a general rule that limits Section 2A, but simply held that where provisions were intended by the testator to comprise one transaction, Section 2A cannot be used. Customary Law of Succession The Wills Act also applies to customary law of succession, thus a person with a customary will may make use of the common law as well as Sections 2A and 2(3) of the Wills Act.