Study Set Content:
Condonation of Wills
S2(3) Of the WA
Section 2(3) of WA
States that if the court is satisfied that a document or the amendment of a document is drafted or executed by a person who has since died after 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 such a document as will even though it does not comply with all the requirments set out in S2(1)(a)
Condonation process is done on..
Motion proceedings.
What is the aim of S2(3)
- Avoid frustrations and unequitable results
- Eliminate injustice an inequality resulting from invalidity
- To obviate problems that arose from interpretation
When can a will be condoned?
- Non compliance with S2(1)(a) formalities when will was executed.
- Non complience with S2(1)(b) formalities when will was amended.
No condonation for...
Testamentary capacity.
What are the three requirements that must be satisfied before a will can be condoned?
- It must be a written document.
- Document must have been drafted/executed by a person who has since the drafting/execution died.
- The document in question must have intended to be the will and nothing else.
Condonation of oral wills?
Not possible as the first requirement for condonation is that it must be a written will.
What can satisfy the written document requirement and be considered a document
email letter, computer file, whatsapp msg, diary entry
Two types of documents taht can be condoned.
- Doc drafted/ executed by T or someone else at the instructions of T and partially complies with formalities.
- Doc drafted/ executed personally by T but does not comply with any requirements.
What type of document cannot be condoned?
Document drafted/executed by someone else and does not comply with any formalities.
Macdonald v The Master
Computer file constitutes a document, will can be condoned.
Second requirement for condonation
- The person who has drafted/executed the document must have since the drafting/execution thereof died.
What can be condoned for the second requirement?
- Where T drafted the doc himself and it does not comply with any formalities
- Where T or someone else drafted the doc on behalf of T but it only partially complies with the formality
Bekker v Naude
If someone else drafted the will on behalf of T there must be partial complience with formalities otherwise it cannot be condoned.
When is a will partially executed?
- When it only complies with some of formality requirements and not all.
- When the will was executed and complied with the formalities but was defective in another way.
What is the third requirement for condonation
- The drafted document must be intended to be the final will of T
- Instructions on how to draft the will is not sufficient to prove that T intended this to be his will.
