ERF Semester Test 2 Notes - Wills Act PDF

1 Pass and Prosper ERF SEMESTER TEST 2 NOTES Chapter 5 Introduction Execution of a Will ❖ The process where the testator and relevant parties comply with the formalities required to create a valid wi...

1 Pass and Prosper ERF SEMESTER TEST 2 NOTES Chapter 5 Introduction Execution of a Will ❖ The process where the testator and relevant parties comply with the formalities required to create a valid will. Invalid Wills ❖ A will not executed according to the formalities of the Wills Act is invalid and has no legal effect. ❖ The contents of an invalid will are ignored unless a court order under section 2(3) of the Act allows it to be accepted as valid. ❖ Section 2(3) provides a legal mechanism to accept defectively executed wills but can be challenging, time-consuming, and costly. Importance of Compliance ❖ To ensure the will is valid, testators must strictly adhere to the formalities of the Wills Act. ❖ Complying with these formalities is essential to avoid the lengthy and expensive process of seeking a court order under section 2(3). Substantive vs Formal Validity ❖ A formally valid will means it complies with the execution formalities. ❖ Substantive validity refers to the content's legality, i.e., whether the will's provisions comply with the law (e.g., not bequeathing an estate to an illegal organization). Formalities of Formalities in terms of section 2(1)(a) of the Wills Act a Will ❖ The will must be signed at the end by the testator or an authorized amanuensis (a person signing on behalf of the testator). ❖ If the will has multiple pages, all pages except the last must be signed anywhere on the page by the testator or amanuensis. The last page must be signed at the end. ❖ The signature of the testator or amanuensis must be made or acknowledged in the presence of two or more competent witnesses. ❖ The witnesses must sign the will in the presence of the testator, the amanuensis (if applicable), and each other. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  2 Pass and Prosper ❖ If the testator signs with a mark or an amanuensis signs, a commissioner of oaths must be present, and certification formalities apply. Persons Required at the Execution of a Will ❖ Testator signs with own signature: Testator and two witnesses. ❖ Testator signs with a mark: Testator, two witnesses, and a commissioner of oaths. ❖ Amanuensis signs for testator: Testator, amanuensis, two witnesses, and a commissioner of oaths. Requirement of a Written Document ❖ In the past, written documents were regarded as essential, but with word processing, this view has shifted. ❖ The Wills Act does not explicitly require a will to be in writing, but it is implied because of the requirement for the testator’s signature in certain places and references to the will’s pages. ❖ Handwriting, typing, printing, or a combination are acceptable formats for a will. Writing in pencil is allowed but not recommended due to potential fraud. ❖ Oral wills, video or DVD recordings, or electronic formats like computer files are not accepted because they do not meet signature requirements. ❖ Even if an electronic signature were valid, it would not meet the requirements for the placement of the testator’s and witnesses’ signatures. ❖ A will composed as an SMS on a cellphone would not comply with the formal execution requirements. Meaning of ‘Sign’ and “Signature and the concept of a ‘mark’ ❖ Initials are the first letters of one or more of a person’s names without the surname. ❖ When initialing a document, a person uses the first letters of their name, and typically only signs the last page of multi-page documents. ❖ Initials used as a signature were once considered marks, which created issues under earlier legal definitions of a “signature.” ❖ Harpur v Govindamall Ruled that initials constituted a mark, which led to confusion in will signing. ❖ Parliament later revised the definition of “signature” to include initials as valid, distinguishing them from marks. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  3 Pass and Prosper ❖ Initials now qualify as a signature, and do not require certification by a commissioner of oaths, unlike marks. ❖ Marks, such as a cross or thumbprint, are still used by testators but require certification. ❖ The use of non-standard writing (e.g., “Your loving mother”) at the end of a will can be considered a mark, though it is not recommended. Where must the Testator Sign? ❖ The Act requires the testator to sign the will as close to the end as possible. ❖ A will that ends halfway down a page, or at the bottom, must have the testator’s signature near the last words. ❖ The purpose of this requirement is to prevent fraudulent insertions after the will ends. ❖ If the testator does not sign close to the last words, the will may be invalid. ❖ Kidwell v The Master In this case, a nine-centimeter gap between the end of the will and the signature was deemed too large, making the will invalid. If the will consists of more than one page, the testator must sign both sides of the paper. The signature on the second side of the page can be placed anywhere, but the will must end with a signature close to the final words on the first side. Signature by an Amanuensis ❖ What is an Amanuensis? An amanuensis is a person authorized by the testator to sign a will on their behalf. ❖ Section 2(1)(a)(i) Section 2(1)(a)(i) of the Wills Act requires that the will be signed either by the testator or by someone else (the amanuensis) in the testator’s presence and at their direction. The amanuensis is needed when the testator is unable to sign due to physical limitations or illiteracy. The amanuensis should sign using the testator’s name, to avoid confusion regarding the testator’s identity. ❖ Case Law Oosthuizen v Sharn, Ex parte Fourie Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  4 Pass and Prosper ▪Case law has confirmed that wills signed by an amanuensis with the testator’s name were correctly executed. ❖ Details Some authorities suggest that the amanuensis can sign with their own name, followed by “p.p.” (per procurationem), to indicate signing on behalf of the testator. It is generally considered safer for the amanuensis to use the testator’s name. When using an amanuensis, the will must be signed in the presence of the testator, witnesses, and a commissioner of oaths, who must certify the will. Who is Required to Witness a Will? ❖ A will must be witnessed by two competent witnesses. ❖ A competent witness is any person over the age of 14 who can give evidence in court. ❖ Section 4A Section 4A of the Wills Act states that a witness or their spouse cannot inherit under a will they witness. ❖ A will witnessed by a beneficiary remains valid, but the beneficiary loses the right to inherit under that will. The Meaning of Witnessing ❖ Witnessing a will involves the 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 of the will. ❖ If the amanuensis signs, the testator and a commissioner of oaths must also be present. ❖ Witnesses must sign the last page of the will; whether they need to sign all pages is debated. ❖ Since 1 October 1992, witnesses are generally not required to sign every page, but some court rulings suggest otherwise. ❖ Liebenberg v The Master The court held that since s2(1)(a)(iii) makes a specific requirement for the location of T’s signature, but not for that of witnesses, *witnesses can sign anywhere on the last page* (provided that they do not sign where T’s signature should appear, because then the will would be invalid due to T signing in the wrong place.) Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  5 Pass and Prosper Court further held that witnesses ONLY need to sign on the last page of the will. This was contested in Karani v Karani, which held that witnesses can indeed sign anywhere on the page, but must sign on every page. These conflicting judgements are High Court decisions, and there is no CC/SCA confirmation as of yet – Liebenberg is the preferred interpretation. ❖ Karani v Karani In Karani v Karani, the Court ruled that all pages should be signed to prevent fraud, though this interpretation is contested. ❖ Where should witnesses sign? Witnesses can sign anywhere on the page, but not where the testator’s signature should be. Witnesses must sign after the testator to attest to the signature. Witnesses don’t need to know the contents of the will but should be aware that they are witnessing its execution. If an amanuensis signs, the testator and a commissioner of oaths must be present. Acknowledging a Signature ❖ The Act allows the testator to sign the will in advance and later acknowledge the signature to witnesses, as long as both witnesses are present simultaneously. ❖ There is no provision for a testator’s mark or an amanuensis’ signature to be acknowledged in the absence of a commissioner of oaths. ❖ A commissioner of oaths is only required if a mark or an amanuensis is used; if the testator signs personally, the commissioner of oaths is not necessary. Must a will be dated or have an attestation clause? ❖ The attestation clause confirms the date and place of the will’s signing. ❖ It states that the testator and witnesses signed in each other’s presence. ❖ Example of an attestation clause: “Signed at Johannesburg on 10 April 2022 in the presence of the undersigned.” ❖ An attestation clause does not invalidate the will if absent. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  6 Pass and Prosper ❖ Evidence can be provided to contradict the information in the clause. ❖ A date is not required for the validity of a will. ❖ Thaker v Naran The authority for the fact that wills do not require an attestation clause is found in this It also provides that if a will appears at face value to be signed by T and 2 witnesses, there is a presumption of validity. He who alleges the will’s invalidity must prove so on a balance of probabilities. ❖ Sterban v Dixon it was held that an attestation clause is at most a record of how T and the witnesses intended to sign. It is NOT proof that parties in fact executed the will in accordance with this intention. Additional Formalities associated with a mark or an amanuensis ❖ Generally When a testator signs with a mark or an amanuensis signs for the testator, the will must be signed in the presence of a commissioner of oaths and two witnesses. Designated commissioners include magistrates, advocates, attorneys, and police officers. ❖ Commissioner of Oath The commissioner of oaths must: ▪ Verify the testator’s identity. ▪ Ensure the signed will is indeed the testator’s. ▪ Certify this on the will. ▪ Record that they acted as a commissioner of oaths. ▪ Handwrite, type, print, or rubber stamp the certificate on the will. Specimen certificates are provided to assist commissioners in compliance with the Act. Courts strictly enforce certification requirements, and failure to state the capacity as a commissioner can invalidate the will. ❖ Case Law Radley v Stopforth ▪ In Radley v Stopforth, a certificate was invalidated because the commissioner did not specify his capacity. Jeffrey v The Master Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  7 Pass and Prosper ▪ In Jeffrey v The Master, a will was invalid due to the certifying officer not indicating he was acting as a commissioner of oaths. ❖ Additional Details The Act allows courts to accept defectively executed wills as valid under certain conditions. The certificate must be made ‘as soon as possible’ after the testator’s signing, and although previously required before death, it can now be completed afterward as long as it’s timely. The certificate should be on a page of the will, but appending it elsewhere may not comply with requirements. Amendments Formalities for Amendments of Wills of Wills ❖ Generally A will can be altered by the testator at any time. Changes can be made through a codicil or by directly amending the will. An amendment made by executing a codicil must comply with section 2(1)(a) of the Wills Act. It is tempting to simply say that any amendment must comply with s2(1)(b) formalities, but this is incorrect - codicils must comply with 2(1)(a), not (b). It is only amendments made by interfering with or changing the writing of a will that need to comply with section 2(1)(b). ❖ Types of amendments include: Additions Alterations Interlineations (inserting new words) Deletions, cancellations, and obliterations, unless revoking the entire will. ❖ Methods for amending a will: Inserting additional paragraphs Altering existing words or numbers Drawing lines through text to delete it ❖ Additional Considerations Amendment rules depend on the execution date of the original will. Pre-execution amendments need no formalities but should be signed by the testator and witnesses. Post-execution amendments must comply with the Wills Act, requiring signatures from the testator and witnesses. The Act does not specify how signatures should be placed, but clarity is essential. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  8 Pass and Prosper A commissioner of oaths may be required to certify amendments made by mark or amanuensis. The certificate should clearly identify which amendment it refers to, though not explicitly required by the Act. S2(1)(b) of the Overview wills Act ❖ No amendment made in a will is valid unless: The amendment is identified by the signature of the testator (T) or their amanuensis. The signature is made in the presence of 2 or more competent witnesses present at the same time. The amendment is further identified by the signatures of the witnesses, in the presence of T and each other (and the amanuensis, if applicable). If the amendment is identified by a mark made by T or if the amanuensis signed on behalf of T, a certificate from a commissioner of oaths is required. The commissioner must verify T's identity and confirm the amendment was made by or at the request of T. ❖ The signatures confirm that the amendment reflects T’s wishes. ❖ The law does not specify where T and the witnesses should sign, but it should be as close to the amendment as possible, or the signatures should clearly relate to the specific amendment. ❖ The two witnesses for the amendment do not need to be the same as those who signed the original will. ❖ The commissioner’s certificate, if required, must be appended as soon as possible after the identification of the amendment, similar to the process for s2(1)(a). ❖ Revocation does NOT have to comply with the same formalities as amendment. If some part of will is deleted/crossed out WITHOUT changing anything else/adding anything, such action can be valid as a revocation without having to comply with s2(1)(b) formalities. If the intention was to amend, however, then the formalities must be complied with. Section 2(3) of Overview the Wills Act ❖ Section 2(3) of the Wills Act Section 2(3) of the Act allows the High Court to direct the Master to accept a document as a valid will or amendment, despite non-compliance with formalities, if the testator intended it as such. This authority is known as the power of condonation, with section 2(3) often referred to as the rescue provision. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  9 Pass and Prosper If section 2(3) requirements are met, the Court must order acceptance of the document as valid; if not met, the Court has no discretion to grant relief, even for fairness. Extensive litigation and differing judicial interpretations have arisen regarding section 2(3). The provision states that if a court is satisfied a document drafted or executed by a deceased was intended to be a will, it must be accepted despite lacking formal execution or amendment compliance. Interpretation issues include whether the rescue provision applies to completely unsigned documents and the required degree of compliance. The strict approach maintains that substantial compliance is necessary, while the flexible approach allows for acceptance of unsigned documents if intention is clear. Judicial precedent indicates that an unsigned document can be validated if it was personally drafted by the deceased or approved by them. Courts have ruled in favor of flexible interpretations in cases where documents were prepared by attorneys but approved by the testator. Recent rulings suggest that completely unsigned wills cannot be validated unless the deceased personally drafted them. Section 2(3) allows for documents stored digitally, like computer files, to be accepted as valid wills if the deceased intended them as such. S2(3) can ONLY be used to condone a will/amendment where it is invalid due to non-compliance with either s2(1)(a) or (b) formalities. Section 2(3) CANNOT be used to condone a will that is invalid due to lack of testamentary capacity etc. ❖ Case Law Macdonald v The Master and Van der Merwe v Master of the High Court ▪ Illustrate the application of section 2(3) to digital documents, emphasizing intention over traditional formalities. Webster v The Master ▪ Established the view that some degree of compliance is required for the rescue provision; the section is intended to remedy technical non-compliance, not validate completely unsigned documents. Van der Merwe v Master of the High Court Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  10 Pass and Prosper ▪Applied section 2(3) to an unexecuted will emailed to a friend, finding that the testator intended it to be his will. Back v Master of the Supreme Court ▪ Allowed a document drafted by an attorney but approved by the testator to be accepted under section 2(3), emphasizing a flexible interpretation. Grobler v Master of the High Court ▪ Reinforced the requirement of personal drafting, refusing to accept a will that was heavily discussed with an advisor but not personally drafted by the testator. Opperman v Opperman ▪ Held that a deceased’s addition to an unsigned attorney- drafted will did not convert it into one personally drafted by him. Macdonald v The Master ▪ Accepted a computer file as a valid will under section 2(3) due to clear intention from the deceased. Ex parte Laxton ▪ Illustrates acceptance of documents under section 2(3) even when lacking traditional formalities. The Requirement of Execution in Section 2(3) ❖ Bekker v Naude The Bekker v Naudé decision likely shifts focus to applications for relief under section 2(3) related to defectively executed documents not drafted by the testator. The term "execute" in this context refers to the formalities required for validity under section 2(3). ❖ Ex parte De Swardt In Ex parte De Swardt, a testatrix’s draft will was approved but had a page accidentally omitted during printing. The court granted relief under section 2(3) based on the testatrix’s approval of the draft, allowing for inclusion of the missing page. ❖ After Bekker v Naude Following Bekker v Naudé, the use of similar arguments for relief is uncertain. Questions arise about whether the testatrix can be said to have executed the missing page since it was not part of the signed document. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  11 Pass and Prosper The situation is problematic and its outcome unpredictable, though rectification rules may address the testatrix’s testamentary intentions. Intention Requirement of Section 2(3) ❖ Generally Section 2(3) requires a document that shows the testator’s intention to create a final will. The testator’s intent must be clear at the time the document is made; mere instructions to draft a will are not sufficient. ❖ Ex Parte Maurice In Ex parte Maurice, a draft will was deemed not valid as the testator did not intend it to be final. ❖ Letsekga v The Master Letsekga v The Master involved notes for potential changes to a will, interpreted as not intended to be a codicil. ❖ Osman v Nana In Osman v Nana, unsigned documents found were considered merely instructions, lacking finality. ❖ Van Wetten v Bosch Van Wetten v Bosch granted a section 2(3) order for a letter intended to be a final expression of wishes, unlike previous cases. ❖ Smith v Parsons Smith v Parsons recognized a letter as an amendment to a will despite its informal nature. Evidence of a changed intention after the document was made is generally irrelevant. ❖ Mabika v Mabika Mabika v Mabika controversially treated a bank request form as a will, while Williams v Hendricks rejected this view, emphasizing the need for clear testamentary intent. Establishing testamentary intention is required, not testamentary capacity. ❖ Webster v The Master In Webster v The Master, a draft will was refused recognition as the testator died before it could be finalized. Aim of the Overview s2(3) 1. To avoid frustration of T's intention & inequitable results condonation 2. To obviate (remove/prevent) problems which arose in procedure interpreting s2(1) 3. To eliminate injustice and inequity resulting from invalidity Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  12 Pass and Prosper Customary Overview Law of ❖ The Constitutional Court’s decision in Bhe v Magistrate, Succession Khayelitsha allowed individuals under customary law to execute wills. ❖ Section 23 of the Black Administration Act was repealed. ❖ The commencement of the Reform of Customary Law of Succession Act (RCLSA) supports this change. ❖ The requirements for wills discussed in this chapter now apply to all wills made by individuals under customary law. Purpose of Overview formalities in 1. Protective function: aims at guarding against fraud & execution secures authenticity. 2. Cautionary function: warns a prospective testator about the significance of the action about to be undertaken 3. Evidentiary function: contributes towards legal certainty & avoids disputes after death. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  13 Pass and Prosper Chapter 6 Introduction Overview ❖ Definition Revocation is the act of canceling a will or part of a will, rendering it invalid. ❖ Partial Revocation Partial revocation allows a testator to revoke only part of a will while keeping the rest valid. ❖ Details Revocation is governed by common law and the Wills Act. A testator can revoke their will anytime during their lifetime, and any agreement to restrict this is unenforceable. ❖ Exceptions Exceptions to this freedom include: ▪ Where a mutual will establishes estate massing, and the surviving testator adiates the benefit of the massing, that surviving T cannot subsequently alter the provisions of the mutual will. ▪ Testamentary provisions in a registered antenuptial contract cannot be unilaterally changed. ❖ Elements Two essential elements for revocation: ▪ Intention to revoke (animus revocandi). ▪ A legally recognized act to manifest this intention. Revocation is effective only when both elements are met. ❖ Section 2A of the Wills Act If intention is present but not manifested legally, a court may order revocation under section 2A of the Wills Act. An oral declaration to revoke a will is ineffective. Revocation of a will that revokes an earlier will does not automatically revive the earlier will. Methods of Overview Revocation ❖ South African common law recognizes four methods of revocation of a will: Destruction of the whole will Destruction of part of a will Express revocation (including informal revocation) Implied revocation ❖ Courts have statutory power to declare a will revoked under certain conditions, particularly in cases of divorce, if requirements of relevant sections are satisfied. ❖ Common law methods of revocation are further discussed. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  14 Pass and Prosper Destruction of Overview the whole will ❖ Important Aspects Destruction of a whole will can occur without formalities if there's no intention to revoke (animo revocandi). Accidental destruction does not revoke the will. Physical destruction can include burning, defacing, tearing up, or writing "cancelled" or "revoked" on the will. Destruction of a witness's signature can revoke the will if it reduces the number of witnesses below the legal requirement. Merely writing "cancelled" in the margins does not constitute destruction and may not revoke the will. Courts have some flexibility in determining if a will has been revoked based on symbolic acts of destruction. A copy of the will can be revoked by acts of destruction, even if the original remains intact, as long as the testator's intention is clear. If a properly executed original is left intact without explanation, it may indicate the testator's intention for the will to remain in force. Although merely writing in the margins “cancelled” or “revoked” or similar will not actually revoke the will (because it does not interfere with the actual wording of the will) it may open the way to declaration of revocation by the court in terms of s2A ❖ Case law Senekal v Meyer (1975) ▪ Discusses the effects of destruction on a will and the requirement of witness signatures. Marais v The Master (1984) Addresses revocation through destruction of a copy and the testator’s intent regarding the original will. Destruction of Overview Part of a Will ❖ A will can be partially revoked by destroying the relevant part with intent to revoke. ❖ Examples include crossing out a paragraph, cutting it out, or striking through an heir’s name. ❖ Partial destruction is considered an amendment of the will. ❖ Formal requirements for will amendments must be followed for the revocation to be effective. ❖ If the revocation is ineffective, consider the application of section 2A. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  15 Pass and Prosper Express and Express Revocation Implied ❖ Generally Revocation A testator can revoke previous wills by including a revocation clause in a new will or a separate document. A new will does not automatically revoke previous wills unless it includes a specific revocation clause. A typical revocation clause might state: “Thereby revoke all wills and other testamentary writings previously made by me.” Oral revocation of a will is not valid, and section 2A cannot be used for oral revocations. ❖ Informal Documents Sonnekus argues that an express revocation in an informal document can be valid if: ▪ The intention to revoke is clear. ▪ The testator is identifiable as the one revoking, often through a signature. Limited judicial authority exists on this argument, and it’s unlikely that such revocations would be accepted. If a revocation clause is included in a signed will without the testator’s knowledge, evidence can be presented to determine the true intentions, and the clause may be disregarded (pro non scripto). ❖ 4 different ways in which express revocation can take place A valid will complying with section 2(1)(a) formalities, containing a revocation clause. A valid codicil complying with section 2(1)(a) formalities, containing a revocation clause. A valid antenuptial contract complying with section 87 of the Deeds Registries Act, containing a revocation clause. A mere revocationary document, containing no testamentary provisions except the testator’s intention to revoke, which is validly executed according to section 2(1)(a). An invalid will, codicil, or amendment can be condoned by the courts under section 2(3). The Louw v Engelbrecht case is the authority confirming that oral revocation of a will is not valid. Implied Revocation ❖ Generally Execution of a new will does not automatically revoke a testator’s earlier will at death. Wills must be read together, especially if provisions conflict. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  16 Pass and Prosper Implied revocation occurs when a later will’s provisions are inconsistent with an earlier will. ❖ Case Law Vimpany v Attridge ▪ A later will that named one heir was held to revoke the earlier will despite no explicit revocation clause. Pienaar v Master ▪ Two wills were interpreted together, where the later will revoked legacies from the earlier will. ▪ The Supreme Court ruled that the complete scheme of the later will superseded the earlier one. ❖ Ademption Ademption refers to the revocation of a legacy when a testator voluntarily alienates an asset during their lifetime. This concept covers any form of disposing of an asset, like selling or donating. A presumption arises that the testator revoked the bequest when the specific asset is alienated. An item that lapsed due to ademption will not automatically revive if the testator later reacquires it; it must be re- bequeathed. If the testator did not voluntarily alienate an asset but was forced to do so (e.g., to pay debts), the legacy is not considered revoked. The executor has a duty to attempt to regain or repurchase the asset to implement the legacy. The cost of repurchasing the asset should be paid from the estate if possible. ❖ Series of steps to be followed in cases of implied revocation by execution of a subsequent confliccting will: If wills do not conflict, they must be read together. If wills are conflicting, the later will is regarded as operative, tacitly revoking earlier will. If there is uncertainty about which will is the latest, evidence is admissible If it is impossible to determine which will is the latest, then all wills regarded as inoperative since T’s intention is not clear/impossible to carry out. T’s estate then devolves intestate. ❖ An earlier will is only regarded as revoked insofar as it is irreconcilable with the later will. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  17 Pass and Prosper Presumptions Overview Concerning ❖ Generally the Revocation If a will is found damaged in the testator’s possession, it is of Wills rebuttably presumed to have been revoked with intent to revoke (animus revocandi). This presumption was illustrated in the case of Fram v Fram’s Executrix, where a will was found with the signature cut out, indicating destruction by the testator. If a will is in the testator’s possession but cannot be found after a diligent search post-death, it is rebuttably presumed to have been revoked. The presumption involves two aspects: ▪ An act of destruction occurred. ▪ The destruction was intended to revoke the will. ❖ Case Law Le Roux v Le Roux ▪ Supports the above presumption, where a will seen in January 1960 was missing after the testator’s death in 1961, leading to a presumption of revocation. Ex Parte Warren ▪ In Ex parte Warren, it was noted that a testator usually takes steps to preserve their will, supporting the presumption of revocation if a will is lost or destroyed. ▪ The presumption does not apply if a third party holds the will, as it would suggest that the testator did not intend to revoke it. Sansole v Ncube ▪ Facts: T married to X, with a will in her favour. Upon their divorce, T asked for the will back from his attorney. A copy was sent to him instead of the original. T destroyed this copy, then died. ▪ Finding: in these circumstances, the court found that T intended to revoke his will, despite only destroying a copy and not the original. Doctrine of Overview Dependent ❖ Generally Relative A testator must have a valid intention (animus revocandi) to Revocation revoke a previous will. Revocation can occur through executing a new will that destroys the previous one, either physically or symbolically. If the new will does not comply with legal formalities, it is invalid, and the previous will remains in effect. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  18 Pass and Prosper This principle is related to the doctrine of dependent relative revocation, where the intention to revoke is conditional on the validity of the new will. ❖ Example A testator creates a new will in 2016 but destroys a 1999 will. If the 2016 will is invalid, the 1999 will stands. ❖ Case Law Le Roux v Le Roux ▪ In Le Roux v. Le Roux, the testator mistakenly believed destroying the new will would revive an earlier will, which was ruled not revoked. Prinsloo v The Master ▪ In Prinsloo v. The Master, despite the testator destroying a will, the intention to replace it was not fulfilled, leaving the destroyed will effective. Raabe v The Master ▪ Raabe v. The Master, a testator believed destroying a later will would revive an earlier one, but the court found the intention to revoke was absolute, keeping the earlier will valid despite mistaken beliefs. Section 2B of Overview the Wills Act ❖ s2B states that if T dies within 3 months after the divorce/annulment of his marriage, and he executed a will before the dissolution that benefited his former spouse, then: The will must be implemented as if the former spouse predeceased T. This applies unless the will clearly indicates an intention to benefit the spouse despite the dissolution. ❖ Note: The will only lapses concerning the ex-spouse; it remains valid for all other beneficiaries. Conditional Overview revocation ❖ Conditional revocation refers to the revocation of a will based on the occurrence of an uncertain future event or suspensive condition. ❖ Revocation only takes effect if the specified condition is fulfilled or the event occurs. ❖ Example: “I revoke my will dated 10 January 1997 on the condition that my son passes his BCom degree. If he acquires this degree, I bequeath to him my financial advisory practice.” The Revival of Overview Wills ❖ Generally Revival of a will occurs when a previously revoked or lapsed will is reinstated. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  19 Pass and Prosper Destruction of a will does not automatically revive an earlier revoked will. Re-execution of a revoked will (signing it again in front of two witnesses) can revive it. Prerequisite for revival is that the revoked will must still exist. ❖ Case Law Moses v Abinader ▪ The case created uncertainty about the methods of revival. ▪ In Moses v Abinader, a testator created two wills, with the second revoking the first, and later made a codicil referencing the first will. ▪ The court concluded that the codicil did not revive the first will. ▪ Key points from the case: The original will was validly executed. The document incorporating the will must also be valid. The testator must clearly intend to revive the lapsed or revoked will. ❖ Automatic Revival Automatic revival through mere mention in a subsequent will or codicil is legally unattainable. Revival can occur through a codicil if both documents comply with legal formalities. The burden of proving the testator’s intent to revive lies with the person claiming revival. ❖ Wessels v Die Meester In Wessels v Die Meester, a will lapsed upon the testator’s wife’s death due to lack of provisions for his estate. The testator executed a codicil under the mistaken belief that the original will was still in force, indicating no intention to revive it. Revocation by Overview the Court ❖ Section 2A of the Wills Act Section 2A of the Wills Act allows a court to declare a will or part of it revoked if the testator shows intent to revoke through written indication or acts before death. A court can only grant an order if there’s proof, on a balance of probabilities, of the testator’s intent to revoke and that a relevant action was performed. Relevant actions include: ▪ Making a written indication on the will (e.g., marking it or writing “cancelled”). Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  20 Pass and Prosper ▪Performing an act apparent from the will’s face (e.g., cutting out a paragraph). ▪ Drafting another document intended to revoke the will. The testator’s intention must be clear in any document relied upon for revocation. ❖ In Writing Courts require that revocatory intentions be communicated in a written document, but other forms of proof (like video) may be considered. Revocation orders cannot be based solely on a copy of the will; it must relate to the original or duplicate original. A testator writing “cancelled” on a copy may not constitute effective revocation unless the action meets the requirements of section 2A. In cases like Henwick v The Master, revocation was denied due to lack of proof of the testator’s direct instructions. The court distinguishes between revocation and amendment, suggesting section 2A cannot be used when new material is introduced alongside revocation. Courts may adopt a cautious approach, ensuring that intentions to revoke are clearly expressed and evidenced. ❖ Case Law Letsekga v The Master ▪ Established that notes indicating future changes do not revoke a will unless intended as such. Henwick v The Master ▪ Order for revocation was refused due to insufficient proof that a codicil was drafted on the testator’s instructions. Mdlulu v Delarey ▪ Held that a document must be presented to establish revocatory intent, emphasizing the need for written communication of intention. Webster v The Master ▪ Clarified that marking changes on a copy of the will does not constitute revocation of the original. Marais v The Master ▪ Determined that acts symbolic of destruction can be sufficient for revocation if the testator intended it. Olivier v Die MeesterIn re Boedel Wyle Olivier ▪ Addressed the potential conflict between sections 2(3) and 2A, indicating that revocation should be clear and not combined with amendments. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  21 Pass and Prosper Customary Overview Law of ❖ A will of a person under customary law is governed by common Succession law and the Wills Act. ❖ The testator has the freedom to create and revoke a will. ❖ Sections 2A and 2(3) of the Wills Act apply. ❖ Principles regarding the revival of wills are relevant Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  22 Pass and Prosper Chapter 7 Introduction Overview ❖ Beneficiaries must be competent to inherit. ❖ Capacity to inherit differs from testamentary capacity. ❖ All juristic or natural persons, born or unborn, can inherit either testate or intestate. ❖ South African law defines categories of beneficiaries with capacity to inherit. ❖ There are specific circumstances where beneficiaries may be disqualified from inheriting. ❖ Capacity to inherit applies in both common and customary law. Persons Overview Capable of ❖ A natural person, regardless of age, mental condition, or legal Inheriting: status, has the capacity to inherit. Natural Persons ❖ Every natural person is capable of acquiring a vested right to an inheritance. ❖ The capacity to inherit is distinct from the right to enjoy the inheritance. ❖ A person may acquire a vested right to an inheritance without having the immediate right to enjoy it. ❖ This distinction is relevant in cases involving minors, individuals with mental disabilities, or beneficiaries whose legal status (e.g., insolvency) is impaired. Major Beneficiaries of Sound Mind with Legal Standing ❖ A person must be a major (18 years or older). ❖ The person must be of sound mind. ❖ The person must not be insolvent. ❖ The person must not repudiate the inheritance. ❖ Such a person will acquire a vested right to an unconditional inheritance. ❖ The person will have the ability to enjoy the inheritance without restrictions. Minor Beneficiary ❖ Generally A minor (under 18) can inherit, but their ability to enjoy the inheritance is restricted. The Court supervises the administration of a minor’s property through the minor’s guardian or a court-appointed curator if no guardian is available. ❖ Moveable and Immoveable Property Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  23 Pass and Prosper Movable and immovable property are treated differently when inherited by minors. If a minor inherits movable property (e.g., a car), they acquire a vested right upon the deceased’s death. If the minor dies after, the property is part of the minor’s estate unless the will indicates otherwise. Movable property is not physically delivered to the minor but managed by the guardian for the minor’s benefit. ❖ Inheriting Money If a minor inherits money, it is deposited into the Guardian’s Fund, administered by the Master of the High Court, and can be withdrawn by the guardian for the minor’s maintenance. The Master cannot disburse large sums (over R250,000) from the Guardian’s Fund without court approval. Immovable property inherited by a minor is registered in the minor’s name immediately, but the minor cannot sell, pledge, or mortgage the property. ❖ Immoveable Property The minor's guardian, tutor, or curator administers the immovable property until the minor reaches adulthood. A tutor is appointed in a will by a parent to act as guardian if the parent is unavailable. To alienate or mortgage immovable property, the guardian or tutor must get the Master’s consent if the value is below R250,000 or High Court approval if it exceeds this amount. The Master may approve mortgages for up to R250,000 if necessary for property preservation, maintenance, or education of the minor. For alienation, the Master or High Court must be satisfied that it is in the minor’s interest. Nasciturus (or Unborn) ❖ South African law, influenced by Roman and Roman-Dutch law, recognizes the right of an unborn child (nasciturus) to inherit. ❖ The nasciturus fiction applies under these conditions: The child must have been conceived at the time the inheritance is passed. The inheritance must benefit the unborn child. The child must be born alive, even if just for a moment. If stillborn, the child cannot inherit. ❖ In the case of intestate succession, if the child is conceived at the time of the deceased’s death and is born alive, they inherit like any other heir. ❖ Section 2D(1)(c) of the Wills Act – For Testate Succession Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  24 Pass and Prosper A benefit allocated to a person’s children or class members vests in those alive at the time of the inheritance or conceived and later born alive. The nasciturus fiction applies unless there is a clear contrary intention in the will. In testamentary succession, benefits may be conditional or unconditional, and the fiction applies to children conceived at the time of inheritance and later born alive. A nasciturus inheriting through either testate or intestate succession is treated similarly to a minor beneficiary. Extramarital Children ❖ Under common law, children born of incestuous, adulterous, or extramarital relationships could only inherit under specific circumstances. ❖ Section 2D(1)(b) of the Wills Act and Section 1(2) of the Intestate Succession Act now give extramarital children the same status as children born within wedlock in both testate and intestate succession. Persons of Unsound Mind ❖ Generally Persons of unsound mind include not only the insane or delusional but also those acting irrationally due to drugs, alcohol, or disease. In the law of succession, a person of unsound mind can inherit, but restrictions may apply to the enjoyment of the inheritance. If a beneficiary is declared of unsound mind, a court- appointed curator will administer the inheritance on their behalf, similar to how a minor’s property is managed. ❖ Importance of a Court Order Without a court order, the beneficiary is treated as a person of sound mind. The applicant must prove that the beneficiary cannot sensibly manage the property when applying to the court. A prodigal (spendthrift) is not considered of unsound mind, but their ability to handle their estate is restricted and requires a court-appointed curator. Insolvents ❖ General Rule An insolvent person retains the ability to inherit. ❖ Consequences Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  25 Pass and Prosper However, any property they own becomes part of the insolvent estate. The property must be administered by a trustee for the benefit of creditors. In most cases, the property will need to be sold, and proceeds will be distributed to creditors based on the Insolvency Act’s order of preference. As part of estate planning, a testator can include a clause in the will stating that if any heir is insolvent, the inheritance may be forfeited. The inheritance can then be directed to a substitute heir or placed in a trust. This type of clause is not considered against public policy. Persons Overview Capable of ❖ Generally Inheriting: Persons can inherit intestate under the Intestate Juristic Persons Succession Act. The act does not prevent a testator from nominating a company or close corporation as a beneficiary. A company or close corporation can inherit unless an authorized director or member repudiates the inheritance. ❖ Repudiation Repudiation must occur within a reasonable time after the company gains the capacity to inherit. If a company or close corporation is insolvent or under judicial management, it is unclear whether directors or members can repudiate the inheritance. Repudiating to the detriment of creditors may breach the fiduciary duties of directors or members. ❖ Other Entities Other entities like trusts, voluntary associations, syndicates, firms, and partnerships can be nominated as beneficiaries in a will. The handling of inherited property in cases of insolvency for these entities is complex and relates to insolvency law. These entities may repudiate an inheritance through their human agents, though the matter was not fully addressed in the case of Wessels v De Jager. Entities without corporate personalities may allow individuals behind them to repudiate an inheritance by majority vote or special resolution. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  26 Pass and Prosper ❖ Wessels v De Jager There is debate regarding the conflict between the Wessels case and previous law that suggests a beneficiary’s right to claim a bequest vests at delatio (dies cedit). The vesting of this right should not be postponed until the beneficiary formally accepts (adiates). Persons Overview Disqualified ❖ Common law prohibits a person from benefiting from their own from Inheriting wrongdoing. (Bloody hand rule) ❖ Several categories of individuals are precluded from inheriting due to their actions. Beneficiary who caused the death of the deceased or Coniunctissimi of the deceased ❖ Generally (The Bloody Hand Principle) Beneficiaries responsible for the death of the deceased or their close relatives (coniunctissimi) are disqualified from inheriting. Coniunctissimi includes the surviving spouse, parents, and children; coniunctissimus refers to one person, while coniunctissimi refers to multiple. According to common law, anyone assisting a killer is also disqualified from inheriting. The Roman-Dutch law maxim “de bloedige hand neemt geen erf” applies, meaning a person cannot inherit if they have caused the death of the deceased, whether intentionally or negligently. Courts are generally reluctant to relax this maxim without legislative intervention. A person responsible for the death does not automatically face disqualification; a court order is needed for disqualification. ❖ What the Courts have said In Casey v The Master, the court held that the onus of proof lies with the party alleging disqualification. A criminal conviction is not a prerequisite for disqualification; evidence must be presented in civil matters. Legal and factual causation issues arise when determining disqualification, as shown in various case scenarios. The case of Ex parte Steenkamp raised questions about causation and the status of grandparents or grandchildren as coniunctissimi, but the court was hesitant to expand the definition. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  27 Pass and Prosper Recent extensions of the bloedige hand maxim were noted in Makhanya v Minister of Finance, where a convicted spouse was denied pension benefits from the deceased’s estate. The recent case of Leeb v Leeb established that a spouse who kills their partner can be disqualified from matrimonial property benefits. Courts may preclude a spouse from inheriting benefits if they are found to have caused the death, upholding the principle of unworthiness. ❖ Cases Casey v The Master – 1992 (4) SA 505 (N) ▪ Principle: The act of murder disqualifies a beneficiary from receiving an inheritance. This case affirmed that a beneficiary who intentionally kills the deceased cannot inherit from the estate. Caldwell v Erasmus – 1952 (4) SA 43 (T) ▪ Principle: Disqualified a beneficiary who assisted in the murder of the deceased from inheriting. Ex parte Steenkamp and Steenkamp – 1952 (1) SA 744 (T) ▪ Principle: Clarified that a murderer cannot inherit from the estate of the deceased they killed, even if they were not the direct cause of death. Leeb v Leeb – 2 All SA 588 (N) ▪ Principle: Established that the will can specify disqualification for inheritance due to misconduct, which must be clearly stated. Danielz v De Wet – 2009 (6) SA 42 (C) ▪ Principle: Discussed the implications of criminal behavior on inheritance rights. Makhanya v Minister of Finance – 2001 (2) SA 1251 (D) ▪ Principle: Related to statutory disqualification for persons involved in the death of the deceased. Nell v Nell – 1976 (3) SA 700 (T) ▪ Principle: Explored the consequences of beneficiary misconduct on their right to inherit. Ex parte Vonzel – 1953 (1) SA 122 (C) ▪ Principle: Confirmed that a person convicted of murder cannot inherit from the estate of their victim. Smit v Master ▪ Principle: Discussed the legality and consequences of inheritance in cases where a beneficiary is implicated in the death of the deceased. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  28 Pass and Prosper Indignus (Unworthy Person) ❖ Indignus refers to a person who unlawfully causes the death of a deceased or their close relatives, rendering them unworthy of inheriting. ❖ The term applies to anyone lacking merit, not just those who kill, and is influenced by public policy. ❖ An indignus is a beneficiary barred from inheritance due to unworthy conduct. ❖ L Taylor v AE Pim In L Taylor v AE Pim, Rebecca Bingham’s will, which left her estate to Mr. Pim, was contested by her sister. The deceased was deemed to have lacked testamentary capacity due to excessive alcohol consumption and alleged coercion by Pim. ▪ The court found Insufficient evidence of undue influence or lack of sound mind at the will’s execution. ▪ However, it concluded that Pim was an indignus due to his role in Rebecca’s moral decline. ❖ Danielz v De Wet In Danielz v De Wet, the court expanded the indignus principle to include beneficiaries involved in the death of the deceased, emphasizing that no one should benefit from their wrongful actions. ▪ The case raised legal uncertainties regarding the application of the bloedige hand maxim and its extension beyond murder. ❖ Pillay v Nagan In Pillay v Nagan, a son forged his mother’s will, leading to his disqualification from inheriting due to fraudulent conduct. ❖ Key principles regarding indignus from these cases: The indignus principle is recognized in South African law and aligned with public policy. Courts can disqualify a beneficiary based on public policy even if common law is silent on specific acts. An indignus is disqualified from inheriting under both testate and intestate succession. Persons Involved in the Execution Process ❖ Section 4A of the Wills Act Section 4A of the Wills Act disqualifies beneficiaries involved in the execution of a will from benefiting. Disqualification applies to those who witness, write, or are spouses of witnesses at the will’s execution. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  29 Pass and Prosper A beneficiary who types a dictated will is not disqualified. Section 4A(2) outlines exceptions to disqualification based on inheritance amounts. If a disqualified beneficiary’s inheritance is less than what they would receive intestate, disqualification is lifted without court involvement. The presence of two competent witnesses who do not inherit allows for the disregard of disqualification. If neither exception applies, a court application is needed to prove the beneficiary did not unduly influence the testator. Section 4A(2) only applies to validly executed wills; invalid wills require court condonation. The Master can determine disqualification under certain conditions; otherwise, the High Court must be approached. Consequences of Disqualification ❖ Common Law Under common law, a disqualified beneficiary’s descendants were also disqualified from inheriting. ❖ Section 2C of the Wills Act and Section 1(7) of Intestate Succession Act The legislature amended this position to prevent unfair consequences for the children. Section 2C of the Wills Act and section 1(7) of the Intestate Succession Act provide for substitution ex lege. Customary Law Overview of Succession ❖ The Wills Act and the Intestate Succession Act apply to estates of individuals living under customary law. ❖ Principles regarding the capacity of beneficiaries to inherit are applicable. ❖ Unofficial customary law (living law) may still influence a beneficiary’s capacity to inherit. ❖ The constitutionality of those unofficial rules might be questioned. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  30 Pass and Prosper Chapter 8 Introduction Overview ❖ Generally Freedom of testation refers to an individual's right to make provisions in a valid will and decide how their estate is divided. A testator can appoint any beneficiary they choose. In South African law, testators have the autonomy to determine the succession of their estates and can disinherit family members if desired. The principle of voluntas testatoris servanda est mandates that the testator's wishes in their will must be honored. The High Court cannot alter a testator's will against their express intentions, even with beneficiary agreement. The court may only rectify a will under specific condition ❖ Schnetler v Die Meester Gives an example illustrates a testator's freedom of testation, highlighting their ability to exclude beneficiaries. ❖ Limitations and other Details There are limitations on freedom of testation, including illegal bequests, public policy restrictions, and vague provisions. The Immovable Property Act restricts a testator's power to prohibit the transfer of immovable property. The Constitution prohibits discriminatory clauses in wills. Claims for maintenance can indirectly restrict a testator's freedom, with disinherited children and surviving spouses eligible for maintenance claims. Generally, a testator must personally exercise their freedom of testation and cannot delegate this power, except in specific circumstances such as charitable bequests or allowing an interim rights holder to nominate beneficiaries. Limitations on Statutory limitations freedom of ❖ Statutory provisions limit a testator's freedom of testation, with testation the Immovable Property (Removal or Modification of Restrictions) Act being significant. ❖ The Act prohibits testators from preventing the alienation of land through long-term fideicommissa or similar provisions in their wills. ❖ Sections 6, 7, and 8 restrict long-term provisions to two fideicommissaries. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  31 Pass and Prosper ❖ Sections 2 and 3 allow courts to remove restrictions on immovable property if it benefits the person entitled to the property. ❖ Example: o In 1968, Xavier left property to Thembeka but restricted it to two hectares. The restrictions hindered property development, which was beneficial for Xavier. ❖ In 2020, the High Court allowed the removal of restrictions to enable property development for financial gain. ❖ Section 33(1) of the General Law Amendment Act empowers the court to authorize the alienation or mortgage of restricted immovable property for unborn beneficiaries, treating them as if they were living minors. Common law limitations ❖ Generally Courts do not enforce conditions in wills that are contrary to public policy. Public policy evolves over time; what was considered immoral may become acceptable. Public policy is now part of the Constitution, influencing court decisions. ❖ The Minister of Education sought to remove discriminatory provisions based on: 1. Trust Property Control Act’s authority to vary provisions conflicting with public interest. 2. Common law prohibiting illegal or immoral bequests. 3. Constitutional provisions against discrimination. ❖ The court noted that freedom of testation is not absolute; restrictions exist. ❖ Discriminatory provisions based on race, gender, or religion are deemed against public policy. ❖ The court recognized that provisions limiting eligibility based on race constituted unfair discrimination. ❖ The court balanced freedom of testation with the right to equality under the Constitution. ❖ Exceptions exist for conditions preventing remarriage for surviving spouses to protect children’s interests. ❖ The principle of freedom of testation is subject to limitations based on public policy. ❖ Conditions intended to dissolve existing marriages are contra bonos mores. ❖ Conditions in wills that interfere with marital relationships are typically void for being contra bonos mores. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  32 Pass and Prosper Cases ❖ Minister of Education v Syfrets Trust Ltd A testator’s will restricted bursaries to white, non-Jewish male students. ❖ De Wayer v SPCA Johannesburg A condition preventing marriage was ruled as contra bonos mores. ❖ King v De Jager A will specified that property only pass to male descendants, which was challenged for being discriminatory. ❖ Ex parte Gitelson A condition requiring security for an inheritance if the widow remarried was upheld. ❖ Levy v Schwartz A provision requiring marriage dissolution for inheritance was ruled against public policy. ❖ Ex parte Swanevelder The court found that conditions causing discord without intent to dissolve marriage were valid. ❖ Barclays Bank DC & O v Anderson Provisions requiring personal occupation of land were upheld despite potential marital strain. Constitutional limitations ❖ Changes in public policy and contra bonos mores are reflected in the Constitution. ❖ Certain conditions may be declared invalid based on the Constitution. ❖ Section 9(3) of the Constitution outlines factors that cannot be used for unfair discrimination. ❖ Section 9(4) prohibits unfair discrimination based on race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language, or birth. ❖ Section 9(4) applies horizontally between all natural and juristic persons. ❖ Sections 18 and 21 guarantee freedom of association, movement, and residence. ❖ Provisions that prohibit marrying based on race or faith or require a beneficiary to reside in a certain location may be deemed against public policy and invalid. ❖ Minister of Education, Syfrets Trust Ltd, Curators Ad Litem to Certain Potential Beneficiaries of Emma Smith Educational Fund v The University of KwaZulu-Natal, and King v De Jager Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  33 Pass and Prosper illustrate the Constitution’s impact on a testator’s freedom of testation. Indirect Maintenance of Children limitations ❖ Testators can disinherit their children, but the duty to maintain and educate minor children remains an obligation on the estate. ❖ This obligation does not cease upon the testator's death and is based on the needs of the children. ❖ Maintenance is determined by the child's standard of living and may continue until the child reaches adulthood. ❖ Major children who cannot support themselves are entitled to claim support from their deceased parent's estate. ❖ The primary obligation to provide maintenance falls on the living parent or relatives before the deceased parent's estate is liable. ❖ A child’s maintenance claim ranks after creditors but is prioritized over legatees and heirs. ❖ Ex parte Jacobs A major daughter’s claim for maintenance was first directed to her husband; the father’s estate was only liable if the husband could not fulfill this obligation. Maintenance of the Surviving Spouse ❖ Under the Maintenance of Surviving Spouses Act, a surviving spouse has a clai