Study Unit 5: Formalities for the Execution and Amendment of Wills Flashcards
Where in Legislation are formalities for the execution of wills set out?
s2(1)(a) of the Wills Act 7 of 1953
- compliance with formalities is an absolute requirement for validity
- non-compliance with anything renders the will invalid
What does s2(3) of the Wills Act permit?
the condonation of formally irregular wills
What is the essence of execution formalities?
Signing of the will by:
- testator
- amanuensis
- witnesses
- commissioner of oaths
s1 of the Wills Act
‘sign’ includes making of initials/mark (in case of Testator)
- initials and signatures count.
Jhajbai v The Master 1971
Writing out initial and surname counts as a valid signature
Rickets v Byrne 2004
Can’t sign on first page and write full name on the second.
Smith v Parsons 2010
permitted ‘wally’ as a signature for condonation under s2(3) of the Wills Act
Who can sign a will by making a mark?
Only a testator, usually an X or a thumbprint
- requires the compliance of another formality, namely a certification by a Commissioner of Oaths
Where are execution formalities contained?
s2(1)(a) of the Wills Act
s2(1)(a)(i) of the Wills Act
Will must be signed at the end by a testator/amanuensis
- amanuensis can sign by either making the testator’s signature, or their own.
– if using their own, put ‘p.p.’ in front
Amanuensis must be in the presence of the Testator when signing, and within sight/presumable sight
Commissioner needs to sign the will
Kidwell v The Master 1983
Testator or Amanuensis must sign at the end of the will, as close as reasonably possible to the concluding words
s2(1)(a)(ii) of the Wills Act
The signature referred to in s2(1)(a)(i) must be made/acknowledges by the testator/amanuensis in the presence of 2+ competent witnesses present at the same time
- either make signature, or later on acknowledge (i.e., state previously made sig belongs to T/A) that signature in witnesses presences.
- minimum 2 witnesses, can be more
- ‘in the presence of’: witnesses must have seen/been in the position to see if they wanted to see T/A sign the will
- ‘competent witness’: defined in s2 of Wills Act, must be 14+ at the time of signing, and be able to give evidence in court
s2(1)(a)(iii) of the Wills Act
Witnesses must attest to sign will in the presence of the testator, amanuensis, and other witnesses.
- W’s must be same ones T/A acted in the presence of in s2(1)(a)(ii)
- attesting will = acting in the capacity of a witness
- only function W’s signature fulfils is to verify signature of the T/A
- only care about validity of the signature, don’t need to know its a will
- must sign on the last page, after T/A
Liebenberg v The Master 1992
It isn’t justified by the Wills Act to make witnesses sign as the end of a will too
s2(1)(a)(iv) of the Wills Act
If will is 1+ page, each page other than the last must be so signed by the T/A anywhere on the page
- customary to sign at end of page, but not expressly required to do this anywhere
- witnesses only need to sign the last page
needs to be in presence of witnesses
s2(1)(a)(v) of the Wills Act
Certification of a Will
required if:
- T signs with a mark/amanuensis signs on T’s behalf.
Who conducts the certification of a will?
Commissioner of oaths: certificate must express CoO’s capacity as such explicitly (if attorney, still needs to state that are a CoO)
Radley v Stopforth 1977
Commissioner of Oaths certificate
What must be certificate indicate?
stipulate that certifying officer is satisfied with ID of testator and that it is their will.
- doesn’t need specific format, as long as all aspects clear.
- is a standardised certificate in schedule 1 of Wills Act
Where must the certificate be placed?
can appear anywhere
- commissioner must sign every page certificate isn’t on.
- signature can be anywhere on these pages
When in the execution process can the certificate be placed on the will?
Certification must happen at the same time that other formalities are effected.
s2(1)(a)(v)(aa) of the Wills Act
if certification of a will is required, will must be signed in the presence of the Commissioner of oaths by the T/A and witnesses and the certificate must be made as soon as possible after the will was so signed by the T,A and W’s.
The exception in s2(1)(a)(v)(aa)
if certification of a will is required, but testator dies after the will was signed by themselves/A and witnesses, but before COO has made the required certificate:
- COO shall, as soon as possible after the T’s death make/complete the certificate and sign the will on all the pages other than that with the certificate.
Amendment formalities
Testator can change their mind about their will after having made it, can decide to make different dispositions to those in the current will
- must comply with the amendment formalities in s2(1)(b) of the Wills Act
Amendment
deletion, addition, alteration, interlineation
Addition
adding words/paragraphs
Alteration
changing words/numbers
Interlineation
inserting new words between lines
Deletion
deletion, cancellation, or obliteration in whatever manner effected, excluding a deletion, cancellation, or obliteration that contemplates the revocation of the entire will includes:
- cutting out, erasing, pasting over, tipexing out of words, numbers, provisions in a will
- if T effects a deletion that is intended to revoke the entire will, compliance with amendment formalities doesn’t need to happen. Revocation can happen formality free.
s2(1)(b)(i) of the Wills Act
amendment must be identified by a signature of testator/amanuensis
s2(1)(b)(ii) of the Wills Act
signature referred to in (i) must have requisite witnesses
s2(1)(b)(iii) of the Wills Act
amendment needs to be signed by witnesses in presence of testator/amanuensis and other witnesses
s2(1)(b)(iv) of the Wills Act
if amendment identified by the testator’s mark, it must be certified by a commissioner.
- same process as certifying original will re satisfaction of ID and will, and requirements for certificate. can use standard certificate from Schedule 2.
s2(2) of the Wills Act
amendment formalities only apply to amendments made after a will’s execution
- amendments made during execution don’t need to comply with formalities of s2(1)(b)
- presumption that any amendments are effected after execution. (rebuttable with factual evidence)
