Study Set Content:
- For a will to be validly executed certain what must be complied with?
formality requirements
2 What if the formality requirements are not complied with?
- Will shall be invalid.
- T will die intestate unless the beneficiaries bring a claim for condonation in terms of s2(3)
What is execution?
The process through which the Testator and the other required parties comply with the required formalities to bring a valid will into existence.
Animus testandi
T must also have the necessary testamentary capacity and the will must be a free expression of the wishes of T
Formality requirements contained in s2(1)(a) of the Wills Act regards a will complying with these requirements as a ?
Statutory will – only recognised will in SA law
Purpose of the formalities in the execution of wills?
- Aims at guarding against fraud and secures authenticity (protective function)
- Warns a prospective Testator about the significance of their action to be undertaken (cautionary function)
- Contributes towards legal certainty and avoids disputes after death (evidentiary function)
What are the Formalities? S2(1)(a)(i)-(v) - No will executed… shall be valid unless-
i.The will is signed at the end by T, or by someone else in their presence and by their direction; and
ii.Such signature is made by T or is acknowledged by T or such other person in the presence of at least two competent witnesses, present at the same time; and
iii.Such witnesses attest and sign the will in the presence of T and each other (present at the same time) and if signed by someone else(other than T), then also in their presence; and
iv.If the will consists of more than one page, every other page other than the page the will ends is also signed by T or such other person anywhere on the page; and
v. If the will is signed by T by making a mark or, someone else signs on his behalf, a Commissioner of Oaths certifies that they are satisfied himself as to the identity of T and that the will so signed is the will of T and each page of the will excluding the page on which the certificate appears, is also signed anywhere on the page, by the commissioner of oaths
Provided
- The Commissioner of Oaths is present when the will is signed by T with a mark, or another person signs on T’s behalf; and
- The certificate concerned is made as soon as possible after the will has been signed
- If T dies before the certificate is made, it must be made as soon as possible thereafter
- The certificate can be attached to any page of the will
- If the will consists of more than one page, the Commissioner must also sign all the other pages, other than where the certificate appear, anywhere on the page
So how may a will be executed? – s2(1)(a)
- Signed by T with his own signature in the presence of two competent witnesses (s2(1)(a)(i)-(ii))
- Signed by someone else on his behalf and by his direction (amanuensis) in the presence of Two witnesses (s2(1)(a)(ii)); and The commissioner of oaths (s2(1)(a)(v)) – with necessary certification
- T makes his signature in advance and later acknowledges such signature placed on the will in the presence of two competent witnesses (s2(1)(a)(ii))
- Person who signed on behalf of T can also later acknowledge such signature in the presence of Two witnesses (s2(1)(a)(ii)), The testator (s2(1)(a)(ii)), Commissioner of oaths – with necessary certification (s2(1)(a)(v)).
- T signs by way of a mark in the presence of two witnesses, Commissioner of oaths – with necessary certification.
What is not required for the validity of a will
- An attestation clause
- Date and place of execution don’t need to be mentioned
Thaker v Naran
Court concluded that if the will appears at face value to have been signed by T and 2 witnesses – then there is a presumption of validity (i.e. the witnesses signed in each other presences).
He who alleges the wills invalidity must then prove so on a balance of probabilities
Does the will have to be a written document?
Implied requirement: although s2(1)(a) does not expressly require a will to be written or printed, the other requirements such as signing and the references to pages implies that the will needs to be written.
Therefore; oral wills, DVDs, videos, audios, wills saved in electronic format on a computer or Whatsapp or SMS’s will be considered as...
Invalid forms as they would be impossible to sign
Is ECTA therefore applicable to wills?
No.
S2(3) possible condonation by court
What is the definition of 'sign' according to s1 of the wills act. (signature corresponds)
Includes the making of initials and, only in the case of the Testator, the making of a mark.
Jhajbhai v The Master
Court held that a signature need not even be the full name of the signatory – it may even be a pseudonym. As long as the signatory intends the mode of writing to be their signature, it is effective as such
Ricketts v Byrne
The court regarded the signing in printed letters as invalid. It might constitute a “mark” but then other requirements must be met.
amanuensis
Person who signs on behalf of testator
How should an amanuensis sign?
May sign with T's name or if signed with their own name use the abbreviation p.p (per procurationem) to indicate that they sign in a representative capacity
The definition of “sign” in s1 of the Act only stipulates the T as the only one..
..who may sign by making a mark which can be a cross X, thumb print or rubber stamp.
