Study Unit 13: The Interpretation and Rectification of Wills; The Variation of Wills by the Court Flashcards
What does the interpretation of a will by the courts involve?
Involves search for T’s intention
- Usually, a properly drafted will provides clear and unambiguous indicator of intention
- If unclear, vague or ambiguous in regard to intention/questions arise about T’s true intention:
Court has to be approached for determination of T’s intention
- Court will then interpret will
Wording of will usually principal source of intention, and court must determine intention of T from will itself
- Only when necessary, may admissible evidence outside of the will be used in determining testamentary intention
Robertson v Robertson’s Executors 1914
“The golden rule for the interpretation of testaments is to ascertain the wishes of the Testator from the language used. And when these wishes are ascertained, the Court is bound to give effect to them…”
What are the general rule that apply to the court’s interpretation of a will?
Will must be read in its entirety and all the will’s clauses and provisions must be read and interpretation in relation to one another.
Will’s dominant clause, if it has one, must be established and the will must be interpreted so that the dominant clause can be implemented
When attributing meaning to words in a will, court must be guided by ‘plain meaning rule’ according to which words must be given their ‘strict and primary’ meaning
Despite plain meaning rule, court must determine what T meant by using specific words, not what the words actually mean
- E.g., T may use words with a definite technical or legal meaning in a non-technical or non-legal sense to convey an intention different from the words’ technical or legal meaning
When written and printed words in a will conflict, precedence given to written words
The moment of delatio (moment of T’s death) is relevant moment for interpreting a will, but technical/grammatical meaning of words used in a will should be established in the sense they were used when the will was drafted.
When T made a class bequest, ID of the members of the class usually established at the time of delatio ( s2D(1)(c) of the Wills Act )
When may the court receive evidence about facts etc?
Always
When may the court receive external evidence?
Aliunde evidence can only be received in certain circumstances
e.g., when will is vague and ambiguous, or it if contains illegible/incomprehensible words.
When is armchair evidence admissible, and what it is?
Always admissible
- evidence about facts and circumstances T knew about/contemplated when will was drafted.
- Called this bc court places itself in the T’s ‘armchair’ and questions the T on facts and circumstances know to them at the time of making the will
- Evidence can pertain to age, state of health, family relationships, social position, and size of estate at the time of drafting.
When must parts of a will be regarded as ‘pro non scripto’ ?
If extrinsic evidence is not available to determine the meaning of vague, ambiguous, illegible or incomprehensible words
What are some of the principle Common Law prescriptions available to a court when interpreting a will?
- the presumption against the fideicommissum
- the presumption that dies cedit occurs as soon as an estate falls open
- the presumption against the massing of estates
- the presumption against conditional bequests
- the presumption that a testator did not intend to disinherit his/her children in favour of more distant relations
- the presumption against intestate succession
- the presumption that a testator intended to benefit nascituri
- the presumption that testamentary provisions are valid rather than invalid
When does Rectification of a will occur?
Occurs when court corrects mistakes in a will on presumption of evidence that the will indeed contains such mistakes evidence on the nature of the mistakes, and evidence on how mistakes can be corrected
Rectification necessitated bc mistakes, due to T or person who drafted will, cause the will not to represent T’s intention correctly.
What does the court require proof of before the rectification of a will?
- alleged discrepancy btw T’s intention and expression in the will was due to a mistake
- what T intended to form part of the will
What can the court do to rectify a will?
- correct ordinary mistakes that occur in will, e.g., typing errors/incorrect descriptions of assets/beneficiaries
- delete words from a will that have been included inadvertently in a will
- add words inadvertently omitted from the will
Why is deletion of words considered a valid form of rectification of a will?
Included based on the consideration that T didn’t possess animus testandi regarding such words.
It was not the testator’s intention that those words should form part of the will, therefore they can be deleted so as to ensure that the will provides a correct representation of the testator’s wishes
What is the courts stance on the insertion of words as a valid form of rectification?
Accept that if words inadvertently omitted will doesn’t currently reflect that T sought to achieve, and mistake can be corrected by adding these words
Van Zyl v Esterhuyse 1985
‘Take, for example, a case where, in typing a will, the words containing the bequest to a child or surviving spouse are left out inadvertently. It conflicts with the sense of justice not to give legal aid in such cases.’
Henriques v Giles 2010
SCA acknowledge that a ‘cross-signed will’ is capable of rectification
The legal question before the court: can so-called ‘cross-signed wills’ (where a husband inadvertently signed the will prepared for his wife and the wife inadvertently signed the will prepared for her husband) be rectified?
The court found: allowing rectification in these circumstances achieves a just result because it avoids sacrificing testamentary intention to excessive and needless formalism – it is difficult to imagine clearer evidence of a mistake regarding the true intention of a testator than what happened in this case
The court ordered: the words in the wife’s will (which will was signed by the husband) were rectified by the deletion of the provisions that were peculiar to the wife’s will therefrom and the substitution of those provisions with the corresponding provisions from the husband’s will (which will was signed by the wife)
