ARTICLES - CURRENT

Author:  Olivia Meltzer
Candidate Attorney at STBB
7 September 2021

A Testator’s Intention: Is it enough for a valid Will?

The Wills Act sets out clear requirements for the drafting of a valid Will, including that it must have a signature or mark of the testator and must be witnessed. However, what happens if the wishes of the deceased are seemingly clear but the document does not otherwise meet the requirements of a valid Will?

This was the issue at the heart of the matter in the recent Western Cape High Court judgment in Late Elaine Ilsia Williams and Others v Hendricks. In this case, the deceased instructed her bank a day before her death to draft a Will on her behalf bequeathing her estate to her minor son. Unfortunately no such Will was drafted or signed before she died.

An instruction to draft a Will, no matter how detailed, does not itself constitute a valid Will. However, section 2(3) of the Wills Act could offer some relief to this rule. It states that if a court is satisfied that a document (or the amendment of a document) was intended to be a Will but does not satisfy the requirements of a valid Will, the Court may order the Master to accept the document as a Will.

The applicants in this instance tried to persuade the court to take a liberal approach and relied, amongst other things, on the judgment of the Supreme Court of Appeal in Van Wetten v Bosch.

In Van Wetten, although the instruction was addressed to his attorney, the deceased had entrusted a letter containing detailed instructions for the administration of his deceased estate to a friend for safekeeping as if it were in fact his Will. The deceased committed suicide days later. In deciding that the letter qualified to be recognised as having been intended by the deceased to be his Will, the Appeal Court was persuaded by particular surrounding circumstances. By contrast, in the current case, there was nothing to indicate that the deceased intended the instruction to be anything other than what it appeared to be – an instruction to the bank to prepare a (draft) Will.

Courts are wary to declare documents that do not comply with the requirements of the Wills Act as valid Wills, for fear of endorsing a draft document as a final embodiment of a person’s last wishes. Where a document is a clear embodiment of a testator’s last wishes, a court may exercise its discretion to declare it a valid Will. However, if such intention is not apparent, a Court will not cloak a document with validity, in the absence of compliance with the requirements for a valid Will, for fear of guessing the intention of a deceased person with regards to his or her estate. Many policy considerations support this reluctance.

It is best to avoid uncertainty and obtain professional assistance with the drafting of your Will.
Contact us at estates@stbb.co.za for assistance

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