INVALID WILLS AND REVOCATION OF WILLS

a)When the formalities in terms of S2(1)(a) of the wills act has not been compiled with(unless the court condones the defective formality in terms of S2(3) of the wills act;

b)If the elements of the will are not met(assets to be distributed not clearly identified, beneficiaries not identified with certainty or the interest bequeathed in the assets not clearly indicated) the court may not condone this.

c)When the testator lacks capacity (under the age of 16yrs at the time of signing) the court may not condone this.

d)When the witness lacks capacity to sign as a witness (under 14yrs at the time of signing) the court may not condone this.

e) When the element of freedom of exercising the testamentary power is lacking due to undue influence, duress, and mistake. The court may not condone this.

f) If certain provisions in a will are unclear, nonsensical, impossible or contra bonos mores(against good public morals) court may not condone this

The rebuttable presumption is that the will that on the face of it appears valid is valid and the burden of proving that it is not valid is on the person challenging its validity.

Revocation of a will is when a testator anytime before his death substitutes his will with a new will. Now this amounts to a revocation of  his previous will. A revoked will loses its legal force and is replaced by the new one.

The testamentary capacity of the testator includes the power to revoke his will. The revocation takes legal effect with immediate effect as soon as revocation has been implemented.

NB! The testator may note deprive him self of the capacity to revoke his will. Therefore a clause in a will stating that the testator may not revoke his will is not enforceable against the testator .

Forms of revocation

Its divided into express and tacit revocation

1.Express revocation

a) by the execution of a subsequent valid will, codicil or antenuptial contract

b) By the destruction of a will with the intention of revoking it.

e.g. physical destruction (tearing and burning of the will) and symbolic destruction (indicating intention to revoke by cancelling his signature on the will or witnesses signatures or crossing all pages which indicates cancelling the document)

2. Tacit revocation

This is when it is deduced from the conduct (things that the testator is doing) of the testator that he intends revoking his will.

a)Testator will sell or give away the bequeathed assets.

b)The testator executes the new will without including the clause indicating that the previous one is being revoked

Conditional revocation

e.g. “am revoking my will if my daughter does not complete her LLB at the end of 2010” if the daughter does not pass LLB in 2010 then the will is revoked, while if she passes the will is not revoked. See more examples on page 106 para 5.2.4

Automatic lapsing of the will

e.g. when the testator divorces or has his marriage annulled and then dies within 3 months of such divorce or annulment.