Study Set Content:
Back v The Master
Draft will prepared by attorney then approved by T, but more info still to be given later .T dies before info can be given and before signing anything
What is the supreme clarified case law position.
Bekker v Naude
Bekker v Naude
Where no formalities have been complied with and we are dealing with a mere draft/document, document must be PERSONALLY drafted by T.
Dictating of will?
Form of personal drafting.
What about where will is partially executed.
Raubenheimer v Raubenheimer
Raubenheimer v Raubenheimer
Here there was partial compliance. Document drafted by financial advisor and signed by T but no witnesses had signed.
Document can then be condoned
Third requirement for condonation of will?
Document must have been intended to be T’s will.
If document reflect mere instructions...
cannot be condoned
Intention must exist at
time of drafting or personal execution; cannot be formed at a later stage
How is intention determined..
Looking at document and surrounding circumstances.
Case law for intention:
Ex Parte Maurice; Van Wetten; De Rescke; Dryden
Ex Parte Maurice
Document written in T’s own handwriting but not signed by T or witnesses.
T sent the document (containing his wishes ito his estate upon death) under covering letter to his business colleague and asked colleague to send to his attorney to “knock document into shape, put into legal jargon and send back for my approval.
Court held
In this case: document intended to convey instructions for drafting of final will
Not intended to be final will
Cannot be condoned
Van Wetten v Bosch (SCA)
Also involved a letter sent to attorney but letter included “… as of today the 5th of September this is my will to be followed”...T later died of illness
Court held:
Words do not indicate instructions but rather final will.
This enquiry entails an examination of the document itself and also of the document in the context of the surrounding circumstances
Dryden v Harrison
Case involved an email sent to Ms Dryden . Nature of document not important to establish intention.
Court held
No intention found
How? Looked at document and surrounding circumstances; found deceased to be a careful and meticulous person making it unlikely that he would have intended email to be last will
Another will (formalities complied with) had also already been drafted
Final Decision
If there is intention for letter to be final will and not just instructions. Will can be condoned.
