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Interpretation and Rectification and Variation of wills
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Comprehensive notes on the law of succession - everything you need to prepare and pass your exam.
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TOPIC 12: THE INTERPRETATION AND THE RECTIFICATION OF WILLS; THE VARIATIONOF WILLS BY THE COURT
12.1 INTERPRETATION
- Rectification has to do with the correction of errors/mistakes
that had crept into the will during the drafting process.
- Variations of wills by the court – this concerns the variation
of the will by the court after the testator’s death (post-
mortem variations of wills by the court). Circumstances
might change after the death of the testator, that may
necessitate an application to court to ask the court to change
the provisions of the will of the testator.
- Variation here, refers to variation post-mortem – after the
testator’s death, because the will of a testator takes effect
only upon death. It is a legally relevant document prior to
death, but it only takes effect (it only comes into operation)
on the death of the testator, and it is afterwards, when
circumstances might have changed and now the need arises
to have provisions in the will amended, to have them varied.
Interpretation of a will involves the search for the testator’s
intention
- The will is the carrier of the intention of the testator – it
embodies the intention of the testator.
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Usually a will, if properly drafted, provides a clear and
unambiguous indication of the testator’s intention
- Aim to draft a will in such a way that it represents the
intention of the testator clearly and unambiguously.
If a will is unclear, vague or ambiguous in regard to the testator’s
intention, or questions arise as to the true intention of the testator,
a court has to be approached for a determination of the testator’s
intention
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, The court will then interpret the will
- It is only the court that can interpret the will – it is only the
court that can make an order regarding the interpretation of
a will.
- This includes expense, because you need to approach the
High Court for interpretation as the court of first instance, it
is a time consuming exercise that delays the administration
of the deceased estate.
The wording of a will is the principal source of the testator’s
intention and the court must determine the testator’s intention
from the will itself
- As a point of departure: you are dealing with a documented
version of the testator’s intention.
- As a general rule of the law of evidence, when a party reduced
their intention to document form then the document must
‘speak’ and you cannot as a general rule rely on evidence
outside of the document.
- The wording of the will as it is stated by the drafter of the will
– that is the primary source of the testator’s intention and
that is what the court will engage with when it interprets the
will.
Only when necessary, may admissible evidence outside of the will
be used in the determination of testamentary intention
- Outside evidence: evidence outside of the document is
admissible and permissible but only in exceptional
circumstances – the court will confine its enquiry to the
document itself.
In Robertson v Robertson’s Executors 1914 AD 503 the court stated:
‘[T]he golden rule for the interpretation of testaments is to
ascertain the wishes of the testator from the language used. And
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, when these wishes are ascertained, the Court is bound to give
effect to them…’
- This quote emphasises the very pertinent relationship
between the intention/wishes of the testator on the one
hand, and freedom of testation on the other hand.
- Ascertain the wishes of the testator from the language used.
- The testator has exercised his freedom of testation – the will
has been prepared and reflects the wishes of the testator and
when these wishes are ascertained the court is bound to give
effect to them.
De Waal and Schoeman-Malan Law of Succession 5th ed (2015) 222-
223 indicate that, when a court interprets a will to determine a
testator’s intention, the following general rules apply:
- General rules that apply when a rule is interpreted:
the will must be read in its entirety and all the will’s clauses
and provisions must be read and interpreted in relation to
one another
- a court will take a holistic approach when it interprets a will,
it won’t focus just on the particular problematic/contentious
provision when it interprets the will.
- It will look at the will in its entirety and how that provision fit
into the greater scheme of the will and what the will in
general tells us about the intention of the testator.
- Holistic exercise – not an entirely focused exercise of the
problematic provision.
the will’s dominant clause, if the will contains one, must be
established and the will must be interpreted so that the
dominant clause can be implemented
- will contains a dominant clause – which conveys the main
intention of the testator. Dominant clause is very often the
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