STUDY UNIT 5

Question 1

What is REVOCATION?

Answer 1

Revocation is an act by which a testator cancels a will, or parts of a will, so that it no longer functions as a valid will.

Question 2

PARTIAL REVOCATION?

Answer 2

it is possible for a testator to revoke parts of his or her will, leaving the remainder of the will valid and effective.

Question 3

Any agreement….

Answer 3

Any agreement that attempts to restrict this freedom is unenforceable.

Question 4

Two exceptions:

Answer 4

1. where a mutual will establishes estate massing, the surviving who accepts the benefit of massing cannot subsequently alter the testamentary disposition of the massed assets as stipulated in the mutual will.
2. testamentary provisions contained in a duly registered antenuptial contract cannot be unilaterally departed from or altered.

Question 5

Two essential elements

Answer 5

1. animus revocandi
2. a legally recognized act by which this intention is manifested.

Question 6

Court can order?

Answer 6

if the intention to revoke a will is present but the intention to be manifested is not present, a court can order that the will be revoked in terms of section 2A.

Question 7

Methods of revoking a will

Answer 7

1. destruction of the whole will.
2. destruction of part of the will.
3. Express revocation
4. Implied revocation

Question 8

DESTRUCTION OF THE WHOLE WILL

Answer 8

there are no formalities required.
the destruction of the will can be physical or symbolic.
PHYSICAL: the will may be burnt or torn out.
SYMBOLIC: defacing by drawing lines across the will
- writing the words ‘cancelled’ or ‘revoked’ across the face of the will.
- destroying the signatures of witnesses in the will.
case: Senekal v Meyer

Question 9

DESTRUCTION OF PART OF THE WILL

Answer 9

A will can be partially revoked by the destruction of the relevant part.
BY: drawing a line across the paragraph of the will.
- cutting out the paragraph with scissors.
- drawing a line across the names of the heirs appointed in the will.

Question 10

EXPRESS REVOCATION

Answer 10

a testator can revoke a previous will or wills by including an appropriate revocation clause in a duly executed will, or in a document that is executed as a will and contains a revocation clause.

Question 11

IMPLIED REVOCATION

Answer 11

a. EXECUTION OF A LATER CONFLICTING WILL: the execution of a new will does not automatically revoke the testator’s will, the wills in force at the time of the testator’s death must be read together.
b. ADEMPTION: is a form of a tacit revocation of a legacy when the testator voluntarily alienates the object of the legacy during his lifetime causing the legacy to fail.

Question 12

PRESUMPTION CONCERNING THE REVOCATION OF WILLS

Answer 12

-if a will was in the possession of the testator and was found in a damaged stated following his death, it is sufficient that the testator had revoked his or her will.
-if the will was in the testator’s possession, following his death and after a diligent search the will cannot be found, it is presumed that the testator has revoked the will.

Question 13

The presumption is actually two-fold:

Answer 13

1. there was an act of destruction.
2. this was done with the intention to revoke.

Question 14

DOCTRINE OF THE DEPENDENT RELATIVE

Answer 14

also known as the PRINCIPLE OF CONDITIONAL REVOCATION.
-this is where the testator revokes a will, believing that the new executed will applies with the formalities of a will but does not.
case: Le Roux v Le Roux

Question 15

REVIVAL OF WILLS

Answer 15

occurs when a previously revoked or lapsed will is given legal force again.

Question 16

REQUIREMENTS:

Answer 16

1. the original will was validly executed when first established.
2. the document incorporating the will is a validly executed will itself.
3. testator’s intention to restore the revoked or lapsed will