[Paper 3] Wills and Estates [Part 1] PDF

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WILLS AND ESTATESPART 1TESTATE AND INTESTATE SUCCESIONIn South African Law a person can die testate, intestate, or partially testate and intestate. The latter occurs where there is a will but it does not dispose of the entire estate, in which case the remaining assets are disposed of in terms of the...

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WILLS AND ESTATES PART 1 TESTATE AND INTESTATE SUCCESION In South African Law a person can die testate, intestate, or partially testate and intestate. The latter occurs where there is a will but it does not dispose of the entire estate, in which case the remaining assets are disposed of in terms of the law of succession. In South Africa the freedom of testation principle is paramount , although it can be limited by legislation such as the Maintenance of Surviving Spouses Act of 1990.

TESTATE SUCCESSION For testators whose will was executed after 1 Jan 1954 and who died after 1 October 1992, the Wills Act amended by the Law of Succession Act applies. FORMALITIES FOR THE EXECUTION OF A WILL: A will which is complete and regular on the face of it is presumed to be valid until the contrary has been proved. A soldiers will must now comply with all the formalities set out in the Act UNLESS a court directs otherwise. Section 2 of the Act sets out the formalities which must be complied with in order for the will to be valid. 1. The will must be writing. 2. The will must be signed at the end by the testator or by some other person in his presence and by his direction – s2(1)(a)(i). 3. The testator’s signature must be made by the testator or by such other person or be acknowledged by the testator, and if made by such other person, also by such other person in the presence of two or more competent witnesses (being a person over the age of 14 who is competent to give evidence in a court of law) - s2(1)(a)(ii). 4. The witnesses must attest and sign the will in the presence of the testator and of each other, and if signed by such other person, in the presence also of such other person. . s2(1)(a)(iii). The witness may sign anywhere on the last page of the will. The witness need not know that they are signing a will. 5. If the Will consists of more than one page, each page other than the page on which it ends must also be signed by the testator or by such other person anywhere on the page - section 2(1)(a)(iv). The last page must be signed by the Testator at the end. The witnesses are only required to sign the last page of the Will anywhere on that page. The definition of "sign" has been amended and now includes the making of initials and only in the case of a Testator, the making of a mark and signature has a corresponding meaning. The-Testator may now sign the will in anyone of the following ways:

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  

sign; initial; make a mark (X);

The last page of the will must be signed at the end (Kidwell v The Master) but the other pages can be signed anywhere. The witnesses only need sign anywhere on the last page of the will. Question

The will which is six pages is signed on every page by the testator and the two witnesses except the third page where the testator did not sign The Wills Act provides that if a will consists of more than one page, each page other than the page on which it ends must also be signed by the testator. (2) The Will is therefore invalid as it does not conform to the prescribed formalities in terms of the Act. (2) Application may however be made to the High Court for an order (1) directing the Master to accept the document for purposes of -Winding up the estate (1) on the basis that the document was intended by the testator to be his will. (1)

6. If the will is signed by the testator by the making of a mark or by some other person in the presence and by the direction of the testator, it must be certified by a commissioner of oaths. Formalities required in the execution of a Will are dealt with in Section 2 of the Wills Act No.7 of 1953. Section 2 (1)(a)(v) provides the procedure to validate a Will when a Testator signs by means of a mark, to be as follows:A Commissioner of Oaths must certify anywhere on the Will that he has satisfied himself as to the identity of the Testator and that the Will so signed is the Will of the Testator. Each page of the Will, excluding the page on which the Certificate appears, must also be signed anywhere on the page by the Commissioner of Oaths. The Will must be executed (signed and witnessed) in the presence of the Commissioner of Oaths (1) who must then attend to certify the Will as soon as possible after the Will has been so signed. If the Testator dies after the will has been signed in front of the Commissoner but before the Commissioner of Oaths has made his Certificate, the Commissioner of Oaths shall as soon as possible thereafter make or complete his Certificate and sign each page of the Will excluding the page on which the Certificate appears. It is therefore possible to certify the will even after the death of the testator provided that will was executed in the presence of the commissioner before his death. The commissioner cannot also act as witness. An example of a Certificate that may be used (s2 (4) is set out in Schedule 1 of the Act and states the following:

CERTIFICATE IN TERMS OF SECTION 2(1)(a)(v)

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I (full names) …………………………………. of (full address) ………………………………. in my capacity as Commissioner of oaths certify that I have satisfied myself as to the Identity of the testator (full name) and that the accompanying Will is the Will of the Testator. …………………. SIGNATURE COMMISSIONER OF OATHS CAPACITY PLACE.................................................................

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Summary A will may therefore validly come into existence in one of the following ways    

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The will is signed at the end by means of the testator’s signature in the presence of at least two competent witnesses. The will is signed by someone else on behalf of the testator in the presence of the testator, the commissioner of oaths and at least two witnesses and the will is certified by the commissioner of oaths. The testator acknowledges in the presence of at least two competent witnesses his signature previously placed on the will. The person who signs the Will on behalf of the Testator and by his direction, acknowledges in the presence of the testator and at least two competent witnesses his signature previously placed on the will, and the commissioner of oaths certifies that the satisfied himself as to the identity of the testator and that the will is in fact the will of the testator. The witnesses cannot acknowledge their signatures. The other person need not acknowledge in the presence of the commissioner. The testator signs his will by placing his mark in presence of at least two witnesses and a commissioner of oaths and the will is then certified by the commissioner. Only the testator has the power to sign the will with a mark; the person signing on his behalf as well as the witnesses must sign with signatures.

Question 1 An illiterate person instructs you to prepare a will and you are required to explain the procedure that must be followed to validate a will that is executed by the making of mark Take careful, detailed instructions. (1) Ensure testator fully understands the implications & content. (1) If testator is not fully conversant with the language used in the Will, have someone to interpret. (1) Ensure Will is signed on each page in the presence of two witnesses who should also sign each page (Wills Act does not require this, Section 2 (l)(a)(iii)). (2) Certificate by Commissioner of Oaths, who should also sign each page. (2) Commissioner’s certificate should state that he has identified the testator and the Will is the Will of the testator.(2)

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Question 2 What happens if only a signed copy of the will can be found? Can a copy of a will be declared a valid will, and, if so what steps must be taken and what must be proved to the court? Where the original or duplicate original of a will has been lost but a copy thereof is available, application can be made to the High Court (1) for an order that the copy must be accepted by the Master as the last will of the deceased. (1) The Court must be satisfied on a preponderance of probabilities (1) that there was in fact a properly executed will in existence (1) and evidence must be procured regarding the circumstances under which the will was lost. (1) The Court must also be satisfied that a proper search for the original document took place, (1) that the testator did not destroy the will with the intention to revoke it (1) and that the contents of the copy are the same as that of the lost document. (1)

THE COURT’S DISCRETION – S2(3) "If a court is satisfied that a document or amendment of a document drafted or executed by a person who has died since the drafting or execution thereof was intended to be his Will or an amendment of his Will, the court shall order the Master to accept that document or that document as amended for the purposes of the Administration of Estates Act as a will although it does not comply with all the formalities of for the execution or amendment of wills." This section therefore permits the Court on application to order the Master to accept a document which has been "drafted or executed", but which does not comply with the formalities for the execution or amendment of Wills, as the Will or amendment of the Will of such person, on condition that the Court is satisfied that the document as drafted or executed, was intended to be his Will or amendment of his Will. The greater the departure from the required formalities the more difficult it will be for the Court to be satisfied that the document executed by the deceased had the requisite intention. Instructions to draft/amend a will do not fall within the ambit of this section, it must be a document which the maker intends to be a final expression of his wishes not subject to change by a new will or codicil. The onus is on the person seeking validity under s2(3) to prove the intention of the testator. It is still advisable to comply with the formalities, because in terms of s2(3) the court will have to intervene and satisfy itself that the document reflects the true intention of the deceased. Example What if a testator dies with an unsigned document with a later date in Joe's handwriting appointing different beneficiaries? Lodge the Will and the unsigned document with the Master of the Supreme Court. He must refuse to accept the unsigned document. Any interested party can apply to Court in terms of sections 2 and 2A of the Wills Act to have the unsigned document declared to be the last Will and the earlier Will to be revoked.

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The date of death is important in this question. Assume that Joe has died on or after 01 October 1992 then the Will's Act as amended by the Law of Succession Amendment act 43 of 1992 applies. Section 2(3) provides that: "If a court is satisfied that a document or amendment of a document drafted or executed by a person who has died since the drafting or execution thereof was intended to be his Will or an amendment of his Will, the court shall order the Master to accept that document or that document as amended for the purposes of the Administration of Estates Act as a will although it does not comply with all the formalities of for the execution or amendment of wills." In Ex parte Maurice the court stated before it can make an Order in terms of s2(3) it must be satisfied that it has before it a document (i) which was drafted or executed by a person (ii) who has since died (iii) who intended that document to be his will. In Letsekga v The Minister and Others the court approved the dictum in Maurice that the testator must have intended the particular document to constitute his final instruction with regard to the disposal of his estate. Application may accordingly be made to Court in terms of the provisions of this section for an order directing the Master to accept the document as drafted as the Will alternatively the amended Will of the deceased. As the document is unsigned one will have to enquire as to whether the document constitutes the decease's intended amendment to his will or simple instructions to amend his Will. In the latter event the application will not be successful and will be that much more difficult to prove as a result of Joe not having signed the document.

AMENDMENT OF A WILL It is generally preferable to redraft a will then amend it. An amendment has been redefined in Section 1 to mean a deletion, addition, alteration or inter lineation. Section 2(2) provides that any amendment is presumed, unless the contrary is proved, to have been made after the Will was executed. The formalities of amending a Will are contained in Section 2(b) of the Act and provide that: 1. The amendment must be identified by the signature of the testator or some other person in the testator’s presence and by his direction. 2. The signature must be made by the testator or by such other person or be acknowledged by the testator and, if made by such other person, also by such other person in the presence of two or more competent witnesses present at the same time. 3. The amendment must further be identified by the signatures of such witnesses in the presence of the testator and of each other, and if identified by signature of such other person, in the presence also of such other person. 4. If the amendment is identified by the mark of the testator or the signature of some other person made in his presence and by his direction, a Commissioner of Oaths must certify on the Will that he has satisfied himself as to the identity of the testator and that the amendment has been made by or at the request of the testator. He must then certify the will asap or after death.

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It is not necessary to for the testator, witnesses or commissioner to sign all the pages of the will, and the signature must be sufficiently close to the alteration to acknowledge the amendment. Section 2(3) is also applicable and the court may if it is satisfied that an amendment of a document drafted or executed by a person who has since died was intended as an amendment of his Will, order the Master to accept that document, as amended, for the purposes of the Administration of Estates Act, as the amended Will of the deceased although it does not comply with the formalities of amending of Wills as is prescribed in the Act. POWER OF A COURT TO ORDER A WILL REVOKED (s2A) There are less formalities for the revocation of a will than the execution of one. If the Court is satisfied that a Testator has: 1. made a written (ie not oral) indication on his Will or before his death caused such indication to be made or 2. performed any other act with regard to his Will or before his death caused an act to be performed which is apparent from the face of the Will or 3. drafted another document or before his death caused such document to be drafted, by which he intended to revoke his Will, or part of his Will, the Court shall declare the Will or the part concerned, as the case may be to be revoked. The indication need not be a signature as long as it is clear that the written revocation was performed by him. The Wills Act and the CL do not accept an oral revocation. Where the revocation was performed on the instruction of the testator, there must be a written indication that it was in fact caused by the testator. There must also be a link between the testator and the other revoking document, for example, an identifying mark made by the testator showing that he approved of the other document. EFFECT OF DIVORCE OR ANNULMENT OF MARRIAGE ON WILL (SECTION 2(B)) The general principle is that a change of status has no effect on the validity of a will. Section 2 B of the Wills Act provides that if any person dies within three months after his marriage was dissolved by divorce or annulment and that person executed a Will before the date of such dissolution, that Will shall be implemented in the same manner as it would have been implemented if his previous spouse had died before the date of dissolution, unless it appears from the Will that the Testator has intended to benefit his previous spouse notwithstanding the dissolution of his marriage. The exclusion does not apply if the will was prepared after dissolution, or if the testator dies after three months after dissolution. It is advisable to recommend to your client to review his Will in divorce proceedings or any other matter where there is change of status, i.e. marriage, death, pregnancy. If a Will is not amended, subsequent spouses and children and the deceased will be disinherited. Although disinherited they may still have a right to claim in terms of the proprietary rights of their marriage (in community of property or accrual) or for maintenance but if not they will receive nothing. Question 1

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What happens if a testator nominates his ex-wife as the sole beneficiary of the dwelling house which remained his sole property in terms of the settlement agreement. He never changed his will and died two months after the final order of divorce was granted. He is survived by two minor children. Section 2B of the Wills Act, stipulates that should a person die within three months after the divorce order was issued, it would have the same effect as if the ex spouse who is nominated as the beneficiary in the Will, had died before the date of dissolution of the marriage. Accordingly the minor children will be the intestate heirs. However, should the Will clearly indicate that the ex spouse should nevertheless inherit, the stipulations of the Will should be carried out. Question 2 Facts: A & B married ICOP divorced on 1/05/1998, A & C married OCOP on 1 June 1998, A dies 1 July 1998. Will in 1997, C pregnant at time of death. Legacy to 10 year old child from marriage with B and residue to B. A died within 3 months of his divorce. In terms of s2B of the Wills Act, B is deemed to have died before A. The estate devolves as to the legacy upon the child and the residue in terms of the Intestate Succession Act. In this case residue will devolve as to a child's share to C or 125000 whichever is the greater. If unborn child is born alive it will inherit a child's share. B may have a claim for maintenance under a divorce settlement and possible, in her capacity as mother and natural guardian of the 10 year child if the legacy and a child's share of the residue is insufficient. If A had died in December ie after 3 months from the date of divorce, B regains her status as beneficiary, and therefore she and the 10 year old child inherit. C would then have a claim under the Maintenance of Surviving Spouses Act, and possibly a claim in her capacity as mother and natural guardian for maintenance of the unborn child, if subsequently born alive. Question 3 Will dated 17 May 1993, bequeathing estate to wife and two children, Marriage dissolved by divorce on 7 August 1998, Pieter marries Mary on 19 September 1998, Pieter dies on 28 October 1998 Section 2B of the Wills Act provides that if any person dies within three months after his marriage was dissolved by a divorce or annulment (1) and the deceased executed a will before the date of such dissolution, (1) that will shall be implemented in the same manner as it would have been if his previous spouse had died before the date of dissolution, (1) unless it appears from the will that the testator intended to benefit his previous spouse notwithstanding the dissolution. (1) Applying these provisions to the given set of facts, Sannie is regarded as having died before 19 September 1998. (1) In the absence of a clear indication that the testator intended to benefit Sannie notwithstanding the divorce, coupled with the fact that he did not alter his existing will before he died, the bequest to Sannie fails whilst his new wife cannot, upon the wording of the will, benefit thereunder as a testate heir. (1) If a bequest to a testate heir fails (as in this instance) the question arises as to what happens with the object of the bequest (one-half of Pieter’s estate in this instance). Neither the Wills Act nor the Intestate succession provide for a spouse pre-deceasing but only for predeceased descendant No provision is made for a (1) substitute, (1) and because the clause in Pieter’s will is a joinder of heirs re et verbis i.e no indication of a specific share to each beneficiary (not in defined shares), it ...