Notes for the August 2023 Test:
- Unit 7: The revocation of wills
- Unit 8: Capacity to Inherit
- Unit 9: The contents of wills - Until end of B
Content in given units originally 43 pages and I have covered it in 10. Included at the end are summaries of the relevant cases (2,5 pages long). Usin...
Unit 7: The revocation of wills
Unit 8: Capacity to Inherit
Unit 9: The contents of wills - Until end of B
*CASES INCLUDED AT THE END*
Louw v Kock
JW v Williams-Ashman
Blom v BrowN
, UNIT 7: THE REVOCATION OF WILLS
Testator, having made will, can change their mind regarding distribution of their assets stipulated in that will. Testator can then decide to make
dispositions different from those contained in existing will. 1 possibility in this regard is for testator to revoke (cancel) existing will & then
make new will containing new dispositions. Dual distinction can be made between: express revocation - revocation of will is apparent (or
obvious) & tacit revocation - revocation of will has occurred, but in less apparent manner. Irrespective of which method of revocation was used,
2 requirements are set for such revocation to be effective: legally-recognised act of revocation must have been performed & testator must have
possessed animus revocandi (intention to revoke their will).
Express revocation
(i) Execution of a later will or revocatory document that contains an express revocatory clause or statement
Will contains express revocatory clause: ‘I hereby revoke all previous wills made by me’ As soon as will
on right was executed, it revoked earlier will on left through operation of revocatory clause. So from
1/3/2019, earlier will on left was revoked & will on right became testator’s will. 2 requirements for
revocation are present: testator performed act of revocation - execution of will on right, & will on right
contains express statement of revocation whereby testator clearly & unequivocally intended to revoke will
on left (testator had animus revocandi). Revocatory clause or statement can be contained in later will, in
ante-nuptial contract or even in doc that contains no other provisions but only revocatory clause or
statement. Doc that contains no other provisions but only revocatory clause or statement is referred to as
revocatory document & must be validly executed in accordance with prescribed formalities of s 2(1)(a)
Wills Act to have revocatory effect. If testator has existing will & then executes revocatory doc, but doesn’t follow it up with execution of new
will, testator will die intestate.
(ii) Destruction of a will
A testator can revoke an existing will by destroying it with intention to thereby revoke will. 2 forms of destruction are recognised in terms of
common law: 1) physical destruction - document perishes (e.g. burnt). 2) symbolic destruction - document survives, but is damaged or defaced
(e.g. lines drawn through all pages of will or signatures on will are cut out or erased). If act of revocation occurred & if will was destroyed
because testator thereby intended to revoke it (testator possessed animus revocandi), will’s revocation is effective from moment of its
destruction. Common law requires that original will must be destroyed physically or symbolically for revocation thereof to be effective.
Destruction of unsigned copy of will or photostat of signed will, will generally not result in its revocation. Exception established in Marais v
The Master 1984: symbolic destruction of original will was recognised as valid act of destruction under common law & symbolic destruction of
copy of will suffices for purposes of its revocation if original will was beyond testator’s reach as, e.g. it was in possession of their attorney &
testator had only copy their own possession. In following e.g. testator symbolically destroyed her original will by drawing diagonal lines across
it and by writing ‘Cancelled’ on will. She performed an act of revocation & clearly intended thereby to revoke the will. Revocation will be
effective from 1/4/2017:
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