Succ 3-6

Question 1

what is a codicil?

Answer 1

An addendum or attachment to a will, it is a form of testamentary writing.
It is considered a separate will and must comply with the same formalities as a will.

Question 2

what is the definition of a will

Answer 2

• Section 1 of the Wills Act – the will includes a codicil and any other testamentary writing
• Read with Section 2D(2) of the Wills Act – in the application of this section ‘will’ means any writing by a person whereby he disposes of his property or any part thereof after his death
• A will may be described as a written, unilateral voluntary, deliberate, revocable expression in a legally prescribed way which disposes of a competent testator’s property on his death.

Question 3

Prerequisites for the validity of any testamentary document:

Answer 3

• Testator must have the free and serious intention to execute a will (animus testandi)
• Testator must have made the declaration voluntarily
• The testator must have testamentary capacity
• The will must comply with the formalities prescribed by section 2 of the Wills Act

Question 4

Animus Testandi:

Answer 4

• Core requirement for the validity of a will
• Must have intention of devolving of his estate in a will
• Without animus testanti a will is invalid ab initio

Question 5

Volition (choice):

Answer 5

• If a document does not express the testator’s own free will, the document does not comply with the definition of a will and cannot be valid
• In the case of coercion, fraud and undue influence, the will is invalid.

Question 6

Testamentary writing:

Answer 6

• Documents have to conform to the formalities required by section 2 of the Wills Act

Question 7

ex parte davies

Answer 7

− The court decided that testamentary writing is a document which described any one of the three necessary elements of a bequest, namely:
• The identity of the property bequeathed
• The extent of the interest bequeathed (ownership, usufruct)
• The identity of the beneficiary

Question 8

S4 testamentary capacity requirements

Answer 8

− Requirements:
• Age: 16 years or older
• Mentally capable of appreciating the nature and effect of making a will
• Onus – rests on the person making the allegation of incapacity
− The test is whether the testator had all his wits about him when the will was executed (Tregea v Godart)
− The common law test for mental capacity is a sound mind and memory (Tregea v Godart – adapted and applied in Essop v Mustapha & Essop)

Question 9

Katz v Katz

Answer 9

factors:
1. testamentary capacity
2. undue influence
− The court applied the two grounds found in Spies v Smith and held that there was no justification for the interference that the second wife had influenced him in any way. There was sufficient evidence that the testator’s mind was clear enough for him to dispose of his estate in a coherent way. The formalities had been complied with.

Question 10

Essop

Answer 10

The mere fact that the mental capabilities of a testator are reduced below that which they were, either because of disease or because of infirmity for some or other reason, does not mean that he is thereby incapable of appreciating the effect of the will he is executing.”

Question 11

mental capacity rebuttable presumption

Answer 11

− There is a rebuttable presumption that every person is mentally sane. The onus to prove the contrary is on the person alleging the lack of mental capacity

Question 12

insanity

Answer 12

− A person suffering from a mental disorder is incapable of making a will even if he has not been declared insane by a court
− The onus is on the person who wants to prove that the testator was mentally insane
− It is not necessary for the person to be declared insane
− It is necessary to show that he was insane or that he suffered an insane delusion
− It is easier to prove insanity where the person has been declared insane already
− A will made during a lucid interval is considered valid even if the testator is generally insane.

Question 13

sickness and disease

Answer 13

− Sickness that causes physical or psychological infirmity can affect mental capacity because it can affect the emotions of the testator causing the testator to act irrationally (Essop v Mustapha & Essop).

Question 14

intoxication

Answer 14

− A person who is so intoxicated or under the influence of drugs that he is not in possession of his faculties is, like an insane person, incapable of making a will.
− The onus of proof is on the person alleging intoxication or influence
− These affect the animus testandi or freedom of volition

Question 15

suicidal nature

Answer 15

court will look at surrounding factors

Question 16

will formalities

Answer 16

1. signed at the end thereof by the testator or an amanuensis
2. The signature with two or more competent witnesses (section 2(1)(a)(ii))
3. Such witnesses must attest and sign the will in the presence of the testator and each other and the amanuensis (section 2(1)(a)(iii))
4. If the will comprises of more than one page, every page other than the last must be signed anywhere on the page by the testator or the amanuensis (section 2(1)(a)(iv))
5. Where the testator signs with a mark, or an amanuensis signs for the testator, a Commissioner of Oaths must be present at the execution of the will (section 2(1)(a)(v))

Question 17

meaning of sign/signature

Answer 17

− The sign includes the making of initials and, only in the case of a testator, the making of a mark and signature has a corresponding meaning

Question 18

Kidwell

Answer 18

looked at the meaning of the end thereof− The court held that such a gap meant that the signature was not as close as reasonably possible to the concluding words of the will and the will was invalid
− The words ‘reasonably close’ is imprecise. It is not clear how great a gap is acceptable. The objective of the provision, the layout of the will on the page, the size of the typeface and the paragraph and line spacing used needs to be taken into account
− If the will comprises of more than one page, then in addition to signing at the end of the will, the testator or amanuensis is also required to sign each page and they can sign anywhere on these pages.

Question 19

what does signature by proxy/amanuensis require

Answer 19

− Section 2(1)(a)(i) of the Wills Act requires that the will be signed at the end by the testator or by some other person in his presence and by his direction
− An amanuensis/proxy is a physical vehicle by which the testator executes the will
− Therefore, he/she should sign the testator’s name and not his/her own name
− Where an amanuensis is used the will must be signed in the presence of a Commissioner of Oaths as well as in the presence of the usual witnesses
− The Commissioner is required to certify the will

Question 20

witnesses

Answer 20

• two competent witnesses
  − any person above the age of 14 years who is not incompetent to give evidence in a court of law
• beneficiaries and spouses cannot be witnesses

Question 21

aspects to witnessing

Answer 21

• The physical presence whilst the testator signs

* The actual signing of the will by the witness

Question 22

when must witnesses sign

Answer 22

− Witnesses must sign after the testator has signed because they cannot attest to a signature that has not yet taken place
− If a witness signs before then the will is invalid

Question 23

what does presence mean

Answer 23

Presence’ means when the witness is in the same room as the testator and either actually saw him sign or could or might have done so

Question 24

what is an attestation clause

Answer 24

proof of when and where will was signed by testator and witnesses

Question 25

Liebenberg

Answer 25

− The court held that witnesses need not sign near or below the testator’s signature but may sign anywhere on the page
− Since October 1991, the witnesses need not sign all the pages and it will be sufficient if they only sign the last page
− However, it is recommended that they sign all of the pages

Question 26

a commissioner of oath must

Answer 26

• Satisfy himself as to the identity of the testator
• Satisfy himself that the will so signed is the will of the testator
• Make a certificate on the will itself
• Record in the certificate that he has done so in his capacity as a Commissioner of Oaths
• Write the certificate on the will by hand, or type or print it on the will, or impress it on the will with a rubber stamp

Question 27

where must the commissioner of oath certificate appear

Answer 27

the certificate may now appear on any page of the will

Question 28

when can you amend a will

Answer 28

− The testator is free to alter his will at any stage

− Any provision in a will that restrains this right is invalid

Question 29

how can a will be amended

Answer 29

− Inserting additional paragraphs into the will
− Writing additional words between the existing lines of the will
− Altering words or numbers in the will
− Drawing lines through words, numbers, or whole paragraphs of the will so as to delete them, whether or not new material is inserted in their place

Question 30

S 2(3) condonation

Answer 30

court accepts it as a will even though it does not meet the requirements for a valid will, looks at intention

Question 31

condonation onus

Answer 31

− The onus is on the person seeking the order under section 2(3) – *Harlow v Becker 1998 (4) SA 639 (D)− The person only needs to prove the intention of the testator (that he intended the document to be his will).

Question 32

Van Wetton

Answer 32

• The testator writes a document in his own handwriting and signs it

Question 33

Letsekga

Answer 33

• The testator writes a document in his own handwriting but does not sign it

Question 34

Webster

Answer 34

• The testator requests someone in another way to draw up a will for him and the person then draws up a document on behalf of the testator but no further formalities are complied with

Question 35

Bekker

Answer 35

an unsigned document purporting to be a will must be drafted by the testator personally

Question 36

requirements for s 2(3)

Answer 36

1. A written document is required. If there is no writing, then there can be no condonation. For unsigned documents, there is substantial versus partial compliance. In *Webster v The Master it was held that the section was not intended to validate a document that does not comply with any formalities of the act.
2. It must be drafted or executed by the person who has died.
3. The testator intended it to be their will

Question 37

what is partial compliance with S2(3)

Answer 37

− Partial compliance is when only the testator has signed, when only one witness has signed and when the requirements for the Commissioner’s certificate have not been met

Question 38

Webster v the Master

Answer 38

− The judge held that the words of section 2(3) refer to a document drafted or executed by a person who has died
− The words mean that the legislature did not intend to endow an unsigned document, drafted by someone other than the testator, with the status of a will

Question 39

Back

Answer 39

− The court held that the requirement of a document “drafted” must be flexibly interpreted in view of the purpose of section 2(3) – prevent the testator’s wishes from being nullified by non-compliance with technical formalities.

Question 40

macdonald

Answer 40

condoned an electronic document because it was the intention of the testator for it to be his will

Question 41

when can a will be revoked

Answer 41

− The testator may revoke their will at any time prior to death provided that they can appreciate the nature and consequence of their act

Question 42

exceptions to revocation

Answer 42

1. estate massing

2. antenuptial contract

Question 43

methods of revocation

Answer 43

1. destruction of the whole
2. partial - amendment
3. express
4. implied

Question 44

Marais

Answer 44

− It was held that what the testator had done amounted to the destruction of his Will and therefore its revocation.
− The destruction of a copy of a Will did not necessarily symbolise the destruction of the original but that everything depended on the circumstances.

Question 45

dissolution by marriage

Answer 45

within 3 months- spouse treated as predeceased only children inherit
S2B

Question 46

conditional revocation

Answer 46

− An essential requirement for valid revocation is animus revocandi
− If the testator believes that he has successfully executed a new will and so destroys his previous will without realizing that the new will does not comply with the formalities for a will, the testator’s intention is defective and the destroyed will is not revoked.

Question 47

le roux

Answer 47

− It was held that where a testator revokes his second Will on the assumption that his first Will would automatically revive, testator lacks animus revocandi. Hence, held that the second will was not revoked and still in force.

Question 48

Raabe

Answer 48

− The court held that one cannot lay down hard and fast rules. Whether a revocation is conditional depends on the facts of a case
− The doctrine of dependant relative revocation is a convenient way of reasoning to determine the intention of the testator but not a magic formula

Question 49

Revival of wills

Answer 49

− Occurs when a previously revoked or lapsed will is given legal force again

Question 50

requirements for revival

Answer 50

• The lapsed or revoked will must have been validly executed when it was originally made
• It must be incorporated by reference into a newly validly executed will
• The testator must have intended to revive the will

Question 51

Moses

Answer 51

− Schreiner JA distinguished between revival and incorporation by reference and held that if the required intention to revive was present, it is permissible to revive a Will by referring to it in a later Will.

Question 52

S2a revival/condonation of revocation

Answer 52

If a court is satisfied that a testator has –

(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, the court shall declare the will or the part concerned, as the case may be, to be revoked.