The Validity of Wills – a Look at Formalities

In the case of Delport vs Le roux and Others, a decision was delivered by Acting Judge Mlaba.

The testator, prior to his death, instructed his accountant to prepare a Will for him. The accountant drafted the Will and the testator signed the Will in the presence of the accountant. The accountant then took the Will to the first witness, his business partner’s wife, to sign. She signed the Will even though she had not witnessed the deceased signing the Will. The Will was then signed by the second witness who also did not witness the testator signing the Will.

The testator, at the alleged time of signing the Will, had divorced the first respondent and had moved out of their marital home. He was living with the applicant who is also his cousin. The testator, during his tenure with the applicant, was sickly and the applicant took care of him. Allegedly the respondents, being his wife and two children, did not ever care or visit him.

The issue arose when the respondents disputed the validity of the Will and the Master of the High court refused to recognize the Will. The applicant then sought an order from the court directing the Masters of Gauteng and Kwa-Zulu Natal to accept the Will.

The respondents challenged the validity of the Will on grounds that it does not comply with formalities set out in the Wills Act. They disputed that the deceased made the Will and claimed that if he did, he would not have left a large portion of his estate to his cousin and not his children.

The applicant relied on Section 2(3) rescue provision of the Wills Act – that the court should direct the fifth and sixth respondents to accept the Will as valid.

The court, even with testimonies to prove that the Will was the testator’s, refused to condone the Will.

It appears from the judgement that courts will not be lenient or easy-going when it comes to condoning a Will that has irregularities. This seems to be especially the case when it has been drafted by a professional who is employed for their professional expertise. Such a person is expected to guide their clients and ensure that Wills are prepared in compliance with all the formalities.

Legal Lowdown

A Testament/Will is a document where a person states their last wishes and what must happen with their estate after their death. If a person dies without leaving a Will, his/her estate will be administered in terms of the “Intestate Succession Act”. This Act provides for rules by which assets are distributed to relatives.

The person writing a Will (also known as a testator), in many instances, will be the breadwinner of a household with dependents. It is important that the testator or the Professional appointed to draft and/or administer the Will must do so with a high degree of diligence and comply with all formal and substantive formalities for a valid Will¹ Where this is not clear the testator runs the risk of having the Will declared invalid and their estate dealt with ‘intestate’ in terms of the Intestate succession Act of 1987²

• The Wills Act of 1953³ (“the Wills Act”) Section 2(1)(a) stipulates formalities required for a valid will which, amongst other things, are:
• The Will must be in writing;
• The Will must be signed at the end by the testator or by some other person in his presence;
• Signature of the testator must be made in the presence of two or more competent witnesses;
• The above mentioned witnesses must attest and sign the Will in the presence of the testator and each other;
• Where a testator marks with a mark a commissioner of oath must be present;

The use of peremptory words, such as “must”, indicate that where there are signs of non-compliance with the formalities, courts have a duty to enforce the requirements imposed by statute⁴.
Project 22 of the South African Law Reform Commission⁵ investigated the aspects of formalities of a Will including the impact of Wills being declared invalid by courts for non-compliance.

As a recommendation of the South African Law Reform Commission, Section 2(3) and Section 2A were inserted in the Wills Act as a “rescue provision”. These grant the court the power to accept and validate a document that was intended to be the testator’s last Will. The Section, also drafted in peremptory wording, obliges the court and Master to condone a document as a Will if the assessing criteria as set out in Ex parte Maurice⁶ are met, namely;-

1. The document must have been drafted and executed by a person;
2. Who has since died;
3. Who intended that document to be his or her Will.

Due to style or unforeseen eventualities, the rescue provision has been generally accepted and widely relied upon to validate a Will which otherwise would be declared invalid. Be that as it may, practitioners are warned that courts are not obliged to condone a Will and they run the risk of the deceased’s estate being executed intestate, as seen in a recent judgement in the Durban High Court.

In the case of Delport vs Le Roux and Others⁷, a decision was delivered by Acting Judge Mlaba. The testator, prior to his death, instructed his accountant to prepare a Will for him. The accountant drafted the Will and the testator signed the Will in the presence of the accountant. The accountant then took the Will to the first witness, his business partner’s wife, to sign. She signed the Will even though she had not witnessed the deceased signing the Will. The Will was then signed by the second witness who also did not witness the testator signing the Will⁸.

The testator, at the alleged time of signing the Will, had divorced the first respondent and moved out of their marital home. He was living with the applicant who is also his cousin. The testator, during his tenure with the applicant, was sickly and the applicant took care of him. Allegedly the respondents, being his wife and two children, did not ever care for or visit him.

The issue arose when the Master of the High Court refused to recognize the Will and the applicant sought an order from the court directing the Masters of Gauteng and Kwa-Zulu Natal to accept the Will.

The respondents challenged the validity of the Will on grounds that it does not comply with formalities set out in S 2(1) of the Wills Act. They disputed that the deceased made the Will and, if he did, they claimed that he would not have left a large portion of his estate to his cousin and not his children.

In the Will, the deceased’s main asset was his half-share ownership in a fixed property he owned with the 1st respondent, 80% of which he had left to the applicant and her spouse and only 10% to each of his children.

The applicant relied on Section 2(3) of the Wills Act and that the court should direct the fifth and sixth respondents to accept the Will as valid⁹.

Section 2(1) of the Act states that the signature of the testator must be made in the presence of two or more competent witnesses who must attest and sign the Will in the presence of the testator and each other. This, as the facts show, was not complied with and was the respondent’s contention.

Citing Webster v The Master¹⁰ the court observed that:

“s 2(3) of the Act was in most peremptory terms: when the Legislature provided that a document which was sought to be declared to be the Will of the deceased in terms of s 2(3) of the Act had to be “drafted or executed by a person who had died since the drafting or execution thereof’, it required that the document had to be drafted by such person personally.
Furthermore;
the Legislature had not intended to endow an unsigned document drafted by someone other than the testator, not even an attorney, with the status of a Will: if the section were given such an interpretation it would leave the door wide open to potential fraud, and it would certainly not have the effect of ensuring the authenticity of such a document. What the Legislature had in mind was that the intention of the testator as demonstrated in writing in his own hand should not be frustrated because the writing does not comply in all respects with the requirements of s 2(1) of the Act.’

The Accountant had also submitted an affidavit to testify that he had been instructed by the deceased to draft the Will.

The testimony should have been seen by the court as evidence proving that the document prepared was intended to be the Will of the deceased, however, the court refused to accept the testimony stating that the accountant does not qualify as a witness to the Will¹¹.

The court held that ‘S 2(3) is intended to cure noncompliance only when the document sought to be validated as the deceased’s Will was drafted or executed by the deceased personally thereby demonstrating that the document was intended to be the deceased’s Will’. The court was not satisfied because the Will was not drafted by the deceased personally and the accountant, as a professional, ought to have ensured compliance with the formalities¹². In this regard, the court declared the Will as invalid for noncompliance with S 2(3) formalities.

The decision of the court could be criticized for being too strict. Even though the document was drafted by the accountant and not the testator himself, the testament of the accountant should have been considered. The deceased had also signed the document thus proving the document was signed off by him. It could also be argued that the court failed to consider that the document was drafted with no sense of deliberation but as a final expression with clear instructions on how he wished his estate to be bequeathed.

Despite the above critics, the court’s decision serves as a caveat to practitioners and testators to act and prepare their Wills with a high standard of care. The rescue provision cannot always be relied upon as it too runs the risk of abuse and opens the floodgates to fraudulent Wills being declared valid.

¹ Michael Wood-Bodley ‘Formalities of a valid will’ in Rautenbach, M Paleker, M Wood- Bodley Law of Succession in South Africa 2ed (2012)
² Intestate Succession Act 81 of 1987(herein after refered to as intestate succession Act)
³ Wills Act 7 of 1953
⁴ Bellengere ‘The rescue provision of the wills Act’ in MJ De Waal& Schoeman-Malan Law of Succession 5ed (2015)
⁵ ‘Review of the law of Succession: Intestate succession’ Project 22 (1985) SALRC
⁶ Ex parte Maurice 1995 (2) SA 713 C
⁷ Delport v Le Roux and Others (D1703/2021) [2022] ZAKZDHC 51
⁸ Delport para 6 and 7
⁹ Para11
¹⁰ Webster v The Master and others 1996 (1) SA 34 (D)
¹¹ Ibid note 7 above Para 22
¹² Ibid para 23-24

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Written by Wessel de Kock