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