Study Unit 6: Condonation/Rescue of Formally Irregular Wills or Amendments

Question 1

What do S2(1)(a) and (b) of the Wills Act 7 of 1953 determine?

Answer 1

Non-compliance with execution formalities renders executed wills or amendments to wills invalid.

Question 2

What does s2(3) of the Wills Act provide for?

Answer 2

The condonation/rescue of formally irregular wills/amendments of wills, in order to preserve the testator’s wishes despite their non-compliance with execution/amendment formalities.

Question 3

How does the Master of the High Court treat wills after death?

Answer 3

1. original will lodged with Master in terms of Administration of Estates Act 66 of 1965.
2. Master checks will complies with execution formalities of s2(1)(a) of WA, and s2(1)(b) if there are any amendments
3. if will complies - accepted for administration - Administration of Estates Act, if doesn’t - rejected.
4. to challenge rejection: application goes to HC

Question 4

What does s2(3) of Wills Act allow the HC to do?

Answer 4

HC can order Master not to reject a will so can honour dead’s wishes, but only if it complies with the three requirements.

Question 5

What are the three requirements of s2(3)?

Answer 5

1. There must be a document before the court.
2. Document must have been drafted/executed by the dead
3. Deceased must have intended the document as their will/amendment

Question 6

What are the requirements of the first condition of s2(3) - there must be a document before the court?

Answer 6

• must be a written, paper document.
• doesn’t need to look like a will but must contain Testator’s wishes
• words spoke/electronic copy don’t count
• computer files printed out can count - MacDonald v The Master 2002

Question 7

What are the requirements of the second condition of s2(3) - the document must have been drafted/executed before the dead?

Answer 7

• ‘executed’: contains at least 1 signature of deceased, OR execution process began but wasn’t finished

Question 8

How does Webster v The Master 1996 relate to the second requirement of s2(3)?

Answer 8

• document before the court must constitute complete intended will of the deceased
• so for condonation to occur, document before the court must have been drafted by the dead personally if it hasn’t been executed.
• cannot have been drafted by someone else

Question 9

How does Back v Master of the Supreme Court relate to s2(3)?

Answer 9

• document can’t be drafted by 3rd party if deceased accepted the content prior to their death
• to insist on handwriting ignores the fact that people use computers nowadays, thus insisting on a handwritten document excludes people from the operational ambit of s2(3)
• so as long as dead intended the document to be their will, it is immaterial who drafted it.

Question 10

How does Bekker v Naude 2003 relate to s2(3)?

Answer 10

• for condonation to occur, document before the court, if not executed by the deceased, must have been personally drafted by them
• cannot be condoned if drafted by 3rd party (attorney etc.)
• personal document can be handwriting, typing, word processing, dictation etc.

Question 11

What are the requirements of 3rd condition of s2(3) - the deceased must have intended the document as their will/amendment?

Answer 11

• must have intended the specific documenting served before the court as their will/amendment to their will

Question 12

How does Van Wetten v Bosch 2004 (SCA) relate to the s2(3)?

Answer 12

“the real question to be addressed is not what the document means, but whether the deceased intended it to be his will at all”

• SO, document with a ‘disposition intention’ cannot be condoned, but a document with ‘testamentary intention’ can be.

Question 13

How does Ex Parte Maurice 1995 relate to s2(3)?

Answer 13

The deceased prepped a document re disposition of assets in their own handwriting and sent it to friend at financial institution to look over, then he would approve and execute document.

• court found that T didn’t intend for this to be a will, so can’t be condoned.
• SO, concept wills, preliminary drafts and instructions for preparation of wills cannot be condoned

Question 14

Can Testamentary directives contained in a suicide note be condoned as amendments to dead’s existing will?

Answer 14

Smith v Parsons 2010 (SCA)
YES - handwritten note, circumstances surrounding drafting of final note, dead’s personal circumstances and provisions of the will

Question 15

Can testamentary directives contained in an email be condoned as deceased’s last will?

Answer 15

Van Der Merwe v The Master 2010

- YES, look at circumstances surrounding drafting of the document, and provisions contained in the document

Question 16

Ex Parte Porter 2010 (WCHC)

Answer 16

Can a properly executed codicil lost after execution, but draft exists, be condoned as an amendment?

• NO, s2(3) is not designed to provide a remedy for this.
• remedy for this lies in the common law that allows a master to accept reconstruction of lost testamentary documents.

Question 17

Taylor v Taylor 2012 (ECHC)

Answer 17

Did deceased intend to amend his will through ‘wish list’ compiled prior to their death?
- NO, because no ‘testamentary intention’, only disposition intention.

Question 18

Mabika v Mabika 2011 (GPHC)

Answer 18

Can a bank application form for the drafting of a will be condoned as deceased’s last will?

• YES, this is on the basis that not condoning it would leave dead intestate, and abusive husband would inherit intestate. Court considered this greatly unjust.
• Criticisable judgement - application form couldn’t be intended as a will, at best it contained disposition intention.
• • also bc un/justness can’t be a ground on which to invoke s2(3) to serve desired outcome.
• – if requirements aren’t met, can’t be invoked to negate an unjust outcome.

Question 19

Marshall v Baker 2020 (WCHC)

Answer 19

Can a handwritten document setting out updates to will and sent as a photo to BIL condoned as amendments?

• NO, document didn’t contain fixed and final expression of dead’s intentions to dispose of property upon death
• p54: “document only contained deceased’s testamentary intentions, and not what he intended his will to be for s2(3).
• • this was basically disposition intention