Jean questions 3-6 Flashcards
What are the basic prerequisites for the validity of any testamentary document?
Testator must have the “free and serious intention to execute a will”. (animus testandi).
Testator “must have made the declaration voluntarily.
What is a codicil?
Although the term “codicil” is often used to refer to an addendum to an existing Will, a Codicil is a separate Will and must comply with the same formalities as a Will.
The only difference between a Will and a codicil is that the codicil modifies the Will in some way; hence the codicil incorporates the Will. Because the codicil modifies the Will, the codicil does not usually dispose of all of the testator’s property. It usually deals with something specific.
What is testamentary capacity
age 16 or older
mentally capable of appreciating the nature and effect of the will
When must it be established that the testator has testamentary capacity?
Testamentary capacity is established at the time of execution of the will not when the will is made.
List the 4 methods of revocation recognised in the South African common law.
- Destruction of the whole will.
- Destruction of part of a will.
- Express revocation.
- implied revocation.
Peter and Karen were divorced on 1 April 2014. In his Will, Peter left his entire estate to Karen and his two children.
(a) Had Peter died on 1 June 2014, without changing his Will, how would his estate have devolved?
(b) Had Peter died on 1 September 2014 without changing his Will, how would his estate have devolved?
a) Dies within 3 months of the dissolution of the marriage.
Therefore, in terms of section 2B, his estate will devolve as if Karen had predeceased him.
Therefore, only children will inherit.
(b) More than 3 months.
Estate will devolve in accordance with the will.
Karen and the children will inherit.
Why? - He had time to change his will and did not. Therefore he must have intended that Karen inherit.
Explain what a testamentary writing is with reference to authority.
The Court in Ex Parte Davies decided that testamentary writing means:
A document which describes any one of the thee necessary elements of a bequests, namely:
- The identity of the property bequeathed.
- The extent of the interest bequeathed – ownership, usufruct, fideicommissum.
- The identity of the beneficiary.
Which formalities must be complied with where an amendment is made after the execution of a will?
Post-execution amendments are governed by section 2(1)(b) of the Act.
Failure to comply with the requirements = amendment is ineffective.
The amendment must be identified by the testator’s signature and two witnesses.
Witnesses need not be the same witnesses as were present at the execution of the Will
If it can be shown that a will was in testator’s possession, but after a search following their death the will cannot be found, what is the presumption?
. Rebuttably presumed that the Will had been revoked by the testator.
b. Presumption is two-fold:
i. There an act of destruction.
ii. This was done with the intention to revoke the Will.
c. Rationale behind the presumption – Ex Parte Warren.
i. The rationale behind the presumption is the probability that a testator would usually take steps to preserve his Will and that if it was lost or accidentally destroyed, he would be aware of it and take steps to make a new one.
When does revival of a will occur?
Revival occurs when a previously revoked or lapsed Will is given legal force again.
In terms of section 2A of the Wills Act, what requirements must be met in order for a court to condone a defective attempt to revoke a will?
(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) drafted 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,
