class notes: 27.02.2017

What should be the form of a will?

•Since it must be signed the will must be in writing;

•It cannot be executed verbally or informally;

•Writing includes ink writing, typing, printing or computer generated writing

Previously you were asked to read on factors influencing free testamentary expression…

Some factors were discussed in class e.g. undue influence and duress, you were suppose to do a self reading on mistake.

Further to that you were to also do a self study on delegation of testamentary power.

LETS DISCUSS ON WHAT YOU READ

Important things that must indicate that a document is a will or not.

The Act does not provide for the elements of a will, however in Ex parte Davies and Oosthuizen v Die Wesheer, the court identified the following as the elements of the will: these must be a clear indication of:

a)The bequeathed assets( clearly which assets are bequeathed, they must be identifiable);

b)The extent of the interest bequeathed in the asset(i.e. is the beneficiary given the ownership of the house or only the right to use the house without being the owner thereof); and

c)The identity of beneficiaries( beneficiaries must either be specifically named or be provided for in a determinable manner)

Can a testator attach any letter or document to add or supplement a will?

Yes, such additional documents are normally known as a codicil.

Self study please read on the commissioner of oaths; focus on the following:

ü where the commissioner of oaths must sign

üWhat should he certify

üWhere must the certificate be appended(attached)

üWhen must it be attached to the will

üLastly who is the commissioner of oaths.

THE COURTS POWER TO CONDONE A FORMALLY DEFECTIVE WILL

Therefore the will that does not comply with the formalities (e.g. signed by one competent witness instead of two) remains invalid, unless the court deems it fit to condone.

The requirements for the application of S2(3) are the following

• that there must be a document(this means that writing is required).  Remember if there is no written document, there can be no condonation

•That has been drafted by a person who died

•With the intention that the document must be the persons will

In Section 2(3) the legislature created a framework within which the court could consider condonation.  Lets look at the aim or the intention of the legislature regarding S2(3)

The aim is to ensure that the wishes of the testator are given expression or are respected, although the will has not been properly drafted or executed.

Its also important to note that the courts power to condone is not meant to undermine the formalities of the will to be invalid in terms of S2(1)(a)

Case law

in Ex parte Williams, the court held that it is not necessary that the execution processes(i.e. signing of the will must have started) as long as the testator has reconciled herself with the contents of the document she intended to be her will.

This decision meant that mere written document intended by the testator to be her will can be condoned by the court even without the attempt to comply with any formality.

Please make your own effort to read case law supporting the basic requirements for the application of S2(3) pages 71 to 79

FORMALITIES IN AMENDING A WILL

LETS LOOK AT THE DIFFERENCE BETWEEN AMENDING OF A WILL AND REVOCATION THEREOF

Amending is when the testator deletes some of the provisions in his will or adds some provisions on it or both.

However when the testator deletes the whole will and draft entirely new provision it is no longer an amendment, its known as revocation or cancelling of the will. Therefore if it is revocation it cannot be condoned but will be dealt with in terms of common law.

The consequence of non-compliance with the formalities in the amendment of a will are that:

oThe amendments are ignored and the effect is given to the original words of the will, unless the court has condoned such a defect in the amendment in terms of S2(3)

NB! PLEASE IGNORE AMENDMENT OF PRINTED FORMS AND THE DOCTRINE OF DEPENDENT RELATIVE AMENDMENT ON PG 85-86

class notes:

?who can be a competent witness

S1 of the wills Act defines a competent witness as follows:-

Any person who is 14years or more and who is at the time of signing a will is  incompetent to give evidence in court.

Let us discuss competent witness

Looking at the definition can a blind person or a sleeping person be a competent witness?

The authors are of the view that a blind person and a sleeping person cannot qualify as a competent witness since they wouldn’t have seen the testator sign.

CAN A WITNESS QUALIFY TO INHERIT IN A WILL HE HAS WITNESSED

S4A “As witness to a will and his spouse at the time of attestation cannot take a benefit(including being nominated as an executor, guardian, trustee, or administrator of an estate)under a will that he has signed as a witness.

Please note this does not affect the validity of a will, but simply means that such person may not take a benefit in terms of a will under which he has signed as a witness.

Theron v the Master of the high court, it was held that although the testators son had signed had signed a will as a witness, he qualifies to inherit since he never duly influenced the testator at the time of execution.

What constitutes a signature?

It doesn’t have to be any form, it can be anything from ones usual signature, initials and surname or just initials only even an mark e.g. X, qualifies as a signature

Please note the Act provides that a witness must sign and attest, the attestation clause is not a requirement. Its up to the testator to include it.
 Next lecture on formalities of a will!!!

For a will to be validly execute(made) all the formalities regarding  its drawing must have been complied with. The formalities to be complied with are set out in S2(1)(a) of the wills Act of 1953. the law of succession amendment Act of1992 is also applicable. Currently only the ordinary will also known as the underhand or statutory will is recognised in south African law of succession.

UNDERHAND OR STATUTORY WILL

It is provided for in the wills Act of 1953, and is applicable to wills executed on or after the first day of January 1954.

S2(1)(a) of the wills Act sets out the formalities to be complied with for a will be validly executed.

From the provisions of S2(1) (a) the will can be validly made or executed in one of the following ways:

When;

üThe will is signed at the end by means of the testator’s signature in the presence of at least 2 competent witnesses;

ü the will is signed by someone else on behalf of and as directed by the testator in the presence of the testator, at least 2 competent witnesses, and a commissioner of oaths, and the will is certified by the commissioner of oaths;

üThe testator acknowledges in the presence of at least 2 witnesses his signature previously placed on the will;

üThe person who signs on behalf of the testator and by his direction acknowledges his signature previously placed on the will in the presence of the testator, at least 2competent witnesses, a commissioner of oaths, and the commissioner oaths certifies the will; and or

üThe testator signs his will by placing a mark in the presence of at least 2 competent witnesses and a commissioner of oaths and the will to be certified by the commissioner;

üThe two competent witnesses and where applicable the commissioner must in return also sign the will.

please note that on the 16.02.2017 we didn't have class due to lexis nexis training.

class notes: 20.02.2017

TESTAMENTRY CAPACITY; CAPACITY TO SIGN AS A WITNESS

INTRO

Should a person at a certain stage in his life decide to dispose of and divide his assets after his death, he has to make his wishes known in a document compiled or written in a certain prescribed way. This document is known as a Will.

The Wills Act 7 of 1953 regulates the formalities of drawing up a will and also who may make a will, who may sign a will as a witness, which formalities have to be met or complied with in executing a valid will or in amending an existing Will.

•Wills Act came into operation 1 January 1954

•Before that various provinces had different laws and ordinances regulating the execution of  wills.

TESTAMENTARY CAPACITY

The testator must have the necessary testamentary capacity at the time of making(executing) the will. Should this capacity be absent then the will is invalid ab initio.

The fact that the testator had the formal capacity to make a will does not guarantee the validity of the will. Any impairment to the free expression of the testators wishes at the time the will is made may also result in the will being invalid. Factors that may play a role are such as:

•Undue influence

•Duress and mistake (error)

Must be dealt within the context of testamentary capacity.

FORMAL TESTAMENTRY CAPACITY

REQUIREMENTS

S4 of the wills Act reads: “every person of the age of sixteen years or more may make a will unless at the time of making the will he is mentally incapable of appreciating the nature and the effect of his act, and the burden of proof that he was mentally incapable at the time shall rest on the person alleging the same”

Under common law a minor under the age of puberty (12yrs girls and 14 boys) could not make a will. Minors above these ages could make a will without parental or guardian assistance.

In the wills act the age limit has been moved to 16yrs and no distinction made between the sexes.

Please note persons below the age of 16 are disabled from making a will, and this incapacity can not be supplemented by the assistance of the parent or guardian.

A minor at 16yrs making a will can do so without the assistance of the parent.

ü now apart from the age, he must also be mentally capable of understanding the nature and effect of his act at the time of making the will.

Meaning and the cause of mental incapacity

Most obvious examples are:

üMental illness (footnote 20)

üDrunkenness(footnote 21)

üIncapacity due to effects of drugs

the question is always whether the person in mentally incapable of understanding the nature and the effect of his act as a consequence of the disturbance or impairment.

Please note principle on the case of : Essop v Mustapha and Essop 1988 (4) SA 213 (D) pg 41

The courts have identified the following factors that need to be considered when determining if a testator had testamentary capacity at the time of executing a will:

1.General mental and physical

2.General intelligence, memory and capacity to understand the legal implication of their acts.

3.General conduct.

•Spies v Smith

•Kirsten v Bailey

•Kartz v Kartz

FACTORS INFLUENCING FREE TESTAMENTRY EXPRESSION

•Undue influence:  as per Spies v Smith the Appellate Division took the opportunity to give this concept its meaning in the testamentary context. In this case the question arose as to whether a person who was “mentally retarded was unduly influenced by his uncle, who was his curator bonis, in making a will in which the uncle’s children benefited…. The court illustrated on page 44 as to what constituted undue influence…

From what the court had to say, it is clear that the will does not contain the wishes of the testator but those of someone else.

In order to establish whether there has in fact been undue influence, the circumstances of each case need to be considered.

üMental state of the testator

üHis ability to resist being influenced

üRelationship between testator and person exercising the alleged influence

üPeriod between the execution of the will and the death of the testator.

These are all factors that the court takes into account.

DURESS

A will can also be declared invalid if it was made under duress or coercion, as in the case of undue influence. It is not the wishes of the testator that such a will contains but that of another person. Here also the burden of proof rests with the person who alleges that the will was made under duress.

Please read from p.g 46-49. THIS IS ON mistake, delegation of power…

CAPACITY TO SIGN AS WITNESSES

In terms of S2(1)(a) of the wills act, the testator must sign a will in the presence of at least 2 competent witnesses who must in turn also sign a will. What this means is the following:-

•The testator must sign in the presence of witnesses or confirm his already made signature in the presence of witness

•The witnesses, by signing attest or confirm the testators signature, not the knowledge of the contents of the will. This means that the witnesses need not to know the contents of the will, but must have seen the testator signing.

•If the witnesses sign a will before the testator signs, that will is invalid (guess why)

•The witnesses may sign anywhere in the last page of the will. In practice a witness will initial every page and then sign last page

to be continued