Basic Legal Principles of Testate-Succession

Law for Land Managers 1B
Basic Legal Principles of Testate Succession
Unit 1 Basic Legal Principles of Testate Succession

Objectives
After studying this unit you should be able to: Define Testate Succession Discuss the requirements for a valid will Discuss the requirements in order to be competent to attest a will Discuss the rebuttable presumption in respect of lost wills Name the requirements for amending a will Discuss Revocation of Wills Name the ommon !aw "resumptions in respect of Revocation of Wills Discuss #$press Revocation of Wills Name the requirements for the revival of a revo%ed will Discuss the capacity to ma%e a will Name the people who are incapable of ma%ing wills Name the people who may benefit under a will &ention who may not benefit under a will &ention who may inherit neither testate nor intestate
Sections:
'( )ntroduction *( The requirements for a valid will +( !ost Will ,( Amendment to wills -( Revocation of wills .( Revival of a Revolved will /( The capacity to ma%e a will 0( The capacity to benefit under a will
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Section 1
ntroduction
Testate Succession occurs where a testator1testatri$ draw up a valid will which sets out how his1her estate should be divided amongst the beneficiaries( A will is of utmost importance2 one can say the focal point of testate succession and its legal requirements are set out in the Wills Act2 Act / of '3-+( )n terms of section *4'5 4a5 of the Wills Act a will has certain formalities to comply with( )n !" Parte #avies 1$%& '() S* +& ',) the court decided that a testamentary writing is a document which defines any one of the three essential elements of a bequest: 4a5 The property bequeathed 4b5 The e$tent of the interest bequeathed 4c5 The beneficiaries )n Moses v *binader 1$%1 '+) S* %(&'*) it was stated that any document in the nature of a testamentary writing incorporated into a will by reference6 must itself satisfy the formal requirements for a valid will(
Section 2
T-e .e/uire0ents for a valid will 'Section 2 of t-e 1ills *ct)
1)
T-e will 0ust be in writing The words sign and writing in section * of the Wills Act clearly indicates that a will cannot be oral( T-e will 0ust be signed b2 or on be-alf of t-e testator3
2)
The will may be signed in one of the following ways:
a5 A Testator can sign with his own signature on every page of the will and especially at the end of the wording on the last page b5 The testator may also sign the will by ma%ing a mar%( There are certain formalities that need to be complied with where the testator signs the will by ma%ing a mar%( The same formality with regards to witnesses where the testator signs his own signature applies to where the testator signs by the ma%ing of a mar%( )n addition2 a ommissioner of 7aths should be present when the testator ma%es his or her mar%( The ommissioner of oaths must append a certificate to the will in terms of section *4'54a54v5(
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A certificate need only be attached in two instances: i5 Where the testator signs by the ma%ing of a mar%( ii5 When another person signs the will on behalf of the testator n .adle2 v Stopfort- 1$&& '2) S* %14 '*) %25 6 it was stated that the certifying officer must indicate his office as that of ommissioner of 7aths on the will failure to do so will render the will invalid( See also 7effre2 v T-e Master 1$$8'+) S* &%$ ',) The testators8 mar% should be made in the presence of the ommissioner of 7aths( The ommissioner of 7aths is required to place the certificate at the end of the will and sign anywhere on all the other pages( See Volschenk v Die Meester 1958 (2) SA 363 (C). The ommissioner of 7aths must append the certificate as soon as possible after the testator and the witnesses have signed the will in the ommissioner8s presence( The certificate should be made in one continuous operation( )f the certificate is made after a long period of time has elapsed after the testator8s death2 it will be invalid( )t should be noted that the certifying officer can act as both witness and certifying officer2 meaning only three persons are required to be present at the e$ecution of the will namely the testator2 one witness and the certifying officer( See !" Parte Su9nanan 1$%$ '2) S* 15$ '#)3 c5 Where some other person signs the will on behalf of the testator(
There are certain formalities that have to be complied with when the testator directs some other person to sign his will on his behalf The other person must sign the will or ac%nowledge the testator8s signature at the end of the will in the presence of the testator
i5
ii5 and two competent witnesses iii5 These same witnesses must in the presence of the testator2 the person signing the will2 and each others presence2 sign and attest the will(
The person signing on the direction of the testator may not sign by the ma%ing of a mar%( () T-e testator:testatri" 0ust sign t-e will or ac9nowledge -is:-er signature in t-e presence of two or 0ore co0petent witnesses w-o are present at t-e sa0e ti0e( Bosc- v ,el 1$$2 '() S* 488 'T)
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+)
Two or 0ore co0petent witnesses 0ust sign and attest t-e will in t-e presence of one anot-er and t-e testator:testatri" (Oost-ui;en v #ie 1ees-eer 1$&+ '2) S* +(+ 'O)
A witness may not sign by the ma%ing of a mar% and they need not %now the contents of the will( They only need to %now that they are witnessing the testator8s signature2 mar% or initials2 which the testator has signed or ac%nowledged in their presence( Sterban v #i"on 1$45 '1) S* (2% '<)3 The witnesses only attest to the signature of the testator2 not the content of the will( The two witnesses must be present at the same time and they must sign every page of the will( <o0petence to attest a will A competent witness is any person over the age of ', years who is competent to give evidence in a court of law( There are + requirements a witness must comply with: a5 &ust be ', years or older b) &ust be competent to give evidence in a court of !aw( 9:e of sound mind; c5 &ust be able to write( An attestation clause is a clause that appears at the end of a will in which it is declared that all the parties were present and signed the will in each others presence( An attestation clause is not required by law and as such only has evidential value in that the required formalities have been complied with 'Brin9 v Brin9 1$2& <P# 21+). )t is however not of great significance( 'Bosc- v ,el 1$$2 '() S* 488 'T)3 With regards the difference between a mar% and a signature See !" Parte =old0an and >al0er 1$4% '1) S* +4+'1) where the court held that a narrow meaning should be attributed to the word mar% and a broad meaning to the word signature( )n this case the court held that the sign made by the testator was a signature and not a mar%2 although it was no more than a feeble attempt to write the initial letter of the testator8s hristian name on the ground that the testator had probably intended to write a signature and not ma%e a mar%( See #e0pers v T-e Master 1$&& '+) S* ++ 'S1*)? 7-ajb-ai v Master 1$&1 '2) S* (&8 '#) )n terms of section * of the Wills Act2 the testator is required to sign at the end of the will( The end of the will is the end of the body of the will meaning directly below the last writing of the will( See P-ilip v t-e Master 1$58 '2) S* &(+ '#)? >idwell v T-e Master 1$5( '1) S* %8$ '!)6 here the testator signed the second page of his will '/cm below the attestation clause( )t was held that the will was invalid because of the possibility of fraud(
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Section (
Lost 1ills
A lost will does not affect the fact that the testator left a will6 its contents may be proved by means of documentary or oral evidence( ,ell v Talbot 1$&1 '() S* 28& '#) <owever if the will was last in the possession of the testator and cannot be found after his death there is a rebuttable presumption raised that he had it revo%ed( Le .ou" v Le .ou" 1$4( '+) S* 2&( '<) A person2 who steals2 deliberately destroys2 conceals2 forges or damages a document purporting to be a will commits an offence punishable by a fine or imprisonment of / years( This is in terms of Section '=*4'54a54i5 of the Administration of #states Act .. of '3.-(
Section +
*0end0ents to 1ills @ Section 2'1) 'b)
Amendments effected to a will before or during the completion of the will are governed by common law( All amendments must be signed or initialed by the testator and attested by the same witnesses( There is a rebuttable presumption that the amendments were made after the e$ecution of the will( Thus the formalities for amending a will are the same as those for e$ecuting a will( >nauthori?ed alterations or amendments to a will are invalid( Aan ,ie9er9 v Aan ,ie9er9 '15$5) 1% S< 22$3 )n >un; v Swart 1$2+ *# 415, it was held that a will which is complete and regular on the face of it is presumed to be valid until the contrary is proved( )t is imperative to note that the onus rests on the party who maintains that the will is invalid( Sterban v #i"on 1$45 '1) S* (22 '<)(
Section %
.evocation of wills
A will is revocable at any stage before the death of the testator since it is a unilateral legal act which consists only of the testator8s declaration of intention( A will is regarded as being revo%ed if the testator revo%ed it animus revocandi2 i(e( with the intention to revo%e a will( A will may be revo%ed e$pressly or tacitly( A testator cannot revo%e his will orally2 not even in front of witnesses( *) <-ange of Status
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A change in the status of a person does not necessarily revo%e a person8s will( #(g( &arriage would not necessarily mean the revocation of a person8s will( Roman Dutch !aw provided that when an unmarried person gets married and has children then his will was considered to be tacitly revo%ed( This was however changed in our law by the case of S-earer v S-earerBs !"ecutors 1$11 <P# 51(, where it was stated that a testator8s marriage has no effect on his will( B) !"press .evocation A will may be e$pressly revo%ed in the following ways: a) Where a testator ma%es a new will with a revocatory clause2 i(e( a clause in which he revo%es e$pressly all previous wills( C.e !state 1-iting 1$18 TP# %2& at %(1@%(2D The revocation of a will ta%es effect when the revocation is made at the time of the death of the testator( C1ood v !state Eawcus 1$(% <P# (%8D b5 Where an unmarried testator e$pressly revo%es his or her will by means of a subsequent ante nuptial contract( c5 ommon !aw has made it possible for a testator to destroy his or her will2 wholly or in part i(e( by burning it2 tearing it up or deleting his1her signature from it 9Era0 v Era0Bs !"ecutri" 1$+& '1) S* &5& '1) D )n Sene9al v Me2er 1$&% '() S* (&2 (T), it was held that the introduction of the Wills Act of '3-+ did not mean that the legislature intended to do away with the common law rules regarding revocation of wills( )n this case the testator wrote the words @cancelledA on both pages of an original copy of his will and confirmed it with his signature( The ourt held that the will was revo%ed( )n the case of Marais v T-e Master 1$5+'+) S6 255'#)F a testator revo%ed a will on a copy of the will( )t should be noted that there is a difference between revo%ing part of one8s will as opposed to deleting parts of one8s will( Where it is considered that the testator only intended to delete a part of his will then it should comply with all the formalities of amending a will2 whilst this is not necessary in the case of a revocation( <) Tacit .evocation Where a testator dies leaving various wills but do not e$pressly revo%e the former2 it is possible that they will all prima facie 4at first glance5 be valid2 and they must all be read together and reconciled as far as possible in order to give effect to the testator8s actual intention(
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Where a provision in a later will is in conflict with a provision in an earlier will than the effect must be given to the provision in the later will( .e !state 1-iting 1$58 TP# %2&F 'Price v T-e Master 1$52 '() S* (81',)) <o00on Law Presu0ptions G T-e .evocation of 1ills The following are legal presumptions the court considers when deciding whether a will has been revo%ed: '5 )f a will was destroyed by the testator there is a rebuttable presumption that the testator revo%ed the will with the intention of revo%ing it( C12nne v3 !state 12nne '1$85) 2% S< $%1 at $48D Where a will which was in the testator8s possession cannot be found after his or her death2 there is a rebuttable presumption that the testator has destroyed the will with the intention of revo%ing it2 however there is no such rebuttable presumption if the will was in the safe%eeping of a third person( There is also a rebuttable presumption that a testator has destroyed his will with the animus revocandi 4 intention to revo%e5 if the will was drawn up in duplicate and the copy or the duplicate which was in the testator8s %eeping cannot be found after his or her death( This presumption falls away where it can be proved that the testator destroyed his will by mista%e2 in anger2 drun%enness or insanity( The rebuttability of the presumption depends on the particular circumstances of each specific case( !" Parte Lutc-0an 1$%1 '1) S* 12% 'T)
*5
+5
Section 4
.evival of a .evo9ed 1ill
A testator may revive a revo%ed will wholly or partially as long as the revo%ed will is still available( A will cannot be revo%ed orally or by a nonB testamentary act( CEra0 v Era0Bs !"ecutri" 1$+& '1) S* &5& '1) at &5$D 'Le .ou" v Le .ou" 1$4( '+) S* 2&('<)D )n the case of Aan .eenen v Board of !"ecutors 15&4 Buc- ++ it was held that a later will may indeed breathe life into an earlier will( See Moses v *binader 1$%1 '+) S* %(& '*)? Lourriero v T-e Master 1$51 '+) S* 2+5 '1)3 The revo%ed will which is wholly or partially revived by the reviving will is deemed to be revived by the reviving will from the moment at which the reviving will2 in which it is deemed to be incorporated2 is e$ecuted( The
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onus of proving that a revo%ed will has been wholly or partially revived by a reviving will rests with the person who alleges this(
T-e re/uire0ents for t-e revival of a revo9ed will a5 The will that must be revived should have been properly e$ecuted in accordance with the formalities applicable when it was made6 b5 This will should still be in e$istence c) )t should be revived by a new will( d5 The reviving will must be properly e$ecuted in accordance with the formalities prescribed(
Section &
T-e capacit2 to 0a9e a will
The Ceneral Rule is that: All persons of the age of '. and above have testamentary capacity2 i(e( are able to ma%e wills( There are e$ceptions to this general rule as the following people may not ma%e wills2 a5 )nsane persons b5 )nto$icated persons6 because they are not in possession of all their facilities when ma%ing a will( A person must be able to ma%e a will if he or she is mentally capable of appreciating the nature and effect of his1her testamentary act( To ma%e a will one must have the free and serous intention to dispose of his property by will2 he1she must have the animus testandi and must do so voluntary( 9Spies v S0it- 1$%& '1) S* %($ '*) %+4@%+&D
Section 5
T-e <apacit2 to benefit under a will
The Ceneral Rule is that any person whether natural or Duristic2 born or unborn may be a beneficiary under a will( <owever ommon !aw and the Wills Act / of '3-+ e$clude certain persons from succession(
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P!.SO,S 16O M*H ,OT ,6!. T T!ST*T! *) T-e writer of a will ommon law dictates that the person who wrote the will of another person is not able to receive a benefit therefrom unless the testator confirms the bequest to the writer immediately after the completion of the will !" Parte T-ole 1$45 '1) S* 1%% ',) This provision relates to the person who wrote the will in his own handwriting but not to a person who merely dictated the contents of the will or a person who is typing the will( S0it- v <lar9son 1$2% *# %81 Aan .ensburg v Aan .ensburg 1$4( '1) S* (8% '*) Section ,A 4'5 of the Wills Act confirms the ommon !aw Rule( B) T-e witnesses and t-e person w-o signed t-e will b2 direction of t-e testator Section , A 4'5 provides that a person who signs the will under the direction of the testator2 or who writes out the will or any part in his own handwriting6 or the person who is the spouse of such person at the time of time of the e$ecution of the will2 is disqualified from receiving any benefit under the will( )n terms of Section , A 4*5 the court may declare such person or his spouse competent to receive a benefit under a will if the court is satisfied that person or his spouse did not defraud or unduly influence the testator in the e$ecution of the will( A person or his spouse will not be disqualified from receiving a benefit under the will if he would have inherited intestate had the testator died intestate( <owever such person or spouse is not entitled to receive more than he would have received intestate( A witness or his spouse will not be disqualified from inheriting2 under the will if the will was signed by at least two other competent witnesses who will not receive any benefit under the will( )n terms of Section ,A 4+5 E the nomination in a will of person as e$ecutor2 trustee or guardian is regarded as a benefit to be received by such person under that will( Thus if such person signs as a witness2 writes out the will or signs by direction of the testator2 the nomination will not be valid( P!.SO,S 16O M*H ,6!. T ,! T6!. T!ST*T! ,O. ,T!ST*T! a) T-e person w-o 0urdered t-e testator3
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This comes from the principle in roman Dutch law which states that Die Bloedige hand Erft Niet, meaning the bloody hand does not inherit( !" Parte 1essels and Lubbe 1$%+ '2) S* 22% 'O) 2(83 The murderer can however inherit from someone other than his victim( #(g( A murders : 4the testator5 he cannot inherit from :( <owever if A murders : he can still inherit from ( !" Parte Steen9a0p and Steen9a0p 1$%2 '1) S* &++ 'T) b) T-e person w-o negligentl2 caused t-e deceasedBs deat-3 ommon law dictates that a person who has negligently caused the death of the testator is incompetent to inherit from him( 4 <ase2 v T-e Master 1$$2 '+) %8% ',) in this case a husband accidentally %illed his wife with a firearm whilst slightly under the influence of alcohol( The court held that he could not inherit from his wife as his conduct was morally reprehensible( c) T-e bla0eless 9iller of t-e Testator )nsane persons have the capacity to inherit as they cannot be held accountable for their wrongdoings3 '=avin v >avin 1$58 '() S* 118+ '1) d) * spouseF 0arried in co00unit2 of propert2F w-o 0urdered t-e ot-er spouse3 A husband who %ills his wife2 to whom he is married in community of property2 only receives half of the estate by virtue of the marriage in community of property and is not entitled to inherit from his spouse8s half share( ,ell v ,ell 1$&4'() S* &88 'T) e) !"tra0arital c-ildren ommon law dictates that incestuous children could not inherit testate from their parents since incest is a crime( Section * D 4'5 4b5 of the Wills Act now provides that children out of wedloc% can inherit testate( This also applies to incestuous children( )n Ta2lor v Ei0 '1$8() 2+ ,L. +5+, the beneficiary could not inherit from the testator under her will since he had made her lead an immoral life by having an adulterous relationship with her2 allowed her to become addicted to alcohol2 4which eventually caused her death5 and neglected to give her medical attention(
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ommon law dictates that a person who conceals a testator8s will cannot inherit from him( There are no numerous clauses 4closed list5 when it comes to persons who are not capable of inheriting(
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.!A S O, IU!ST O,S

'( What is testate successionF *( What are the requirements for a valid willF +( Who can attest to a willF ,( Name the rebuttable presumptions in respect of !ost wills -( What are the requirements for amending a willF .( When is a will considered to be revo%edF /( Discuss the common law presumptions concerning revocation of wills 0( <ow is a revo%ed will revivedF 3( Who can ma%e a willF '=( Who is incapable of ma%ing a willF ''( Who can benefit under a willF '*( Who cannot benefit under a willF '+( Who cannot inheritF
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Basic Legal Principles of Testate-Succession

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Law for Land Managers 1B