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Summary Section 5 - Formalities of a Will
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- Law of Succession (RDL2003H)
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- University Of Cape Town (UCT)
Formalities of a Will
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5. FORMALITIES FOR A VALID WILL5.1 The period from 1 January 1954 as amended by the Law of Succession Amendment Act of 1992
• Textbook pp. 60-71.
5.2. Onus as regards formal validity of a will
5.3. Signing a will; the meaning of ‘sign’
• Section 2 of WA
• Section 1 of WA
5.4 The meaning of ‘end thereof’
5.5 Signature by proxy/ amanuensis
5.6 Witnessing a will; meaning of competent witness; place where witnesses must sign
• Section 1 of WA
5.7 Meaning of ‘attest and sign’
• Ex parte Suknanan
• Sterban v Dixon
5.8 The commissioner’s certificate
5.9 Amendment of Wills
• Textbook pp. 71-73.
5.10 The power of the court to condone non- compliance with formalities in terms of section 2(3) of WA
• Textbook pp. 73-80.
5.10.1 Onus
• Harlow v Becker
5.10.2 Interpreting and applying section 2(3)
• Section 2(3) of WA
• Ex parte Williams: In re Williams’ Estate
• M Paleker ‘Bekker v Naude: The Supreme Court of Appeal settles the Meaning of ‘Drafted’ in
Section 2(3) of the Wills Act, But Creates a Potential Constitutional Problem
• Letsekga v The Master
• Wetten v Bosch
• Macdonald v The Master
• Webster v The Master
,Introduction:
When a testator signs or executes his/her will, it has to be done in accordance with certain rules set out in
the Wills Act à formalities for the execution of a will.
• Execution of a will- process through which the testator and other parties comply with all the
formalities required to bring a valid will into existence.
• A will that is not executed in accordance with the formalities is invalid à it is of no force and its
contents are ignored.
• A will that is invalid may be accepted as having been validly executed in terms of s 2(3) of the WA
à the will is condoned. *This is not always possible and the process is very time consuming and
expensive.
• Substantive validity- the contents of the will are unlawful.
• Formal validity- the will does not comply with formalities.
• We will only deal with formal validity of wills.
Formalities in terms of s 2(1)(a) of the Wills Act:
(1)(a) No will executed on or after the first day of January, 1954, shall be valid unless –
i. The will is signed at the end thereof by the testator or by some other person in his presence and by
his direction i.e. on his behalf (amanuensis); and
ii. The signature of the testator or the amanuensis must be made (or acknowledged =) in the presence
of 2 or more competent witnesses.
iii. Such witnesses must attest and sign the will in the presence of the testator and each other and
(where applicable) of the amanuensis.
iv. If the will comprises more than one page, every page other than the last must be signed anywhere
on the page by the testator or the amanuensis.
v. Where the testator signs with a mark, or an amanuensis signs for the testator, a commissioner of
oaths must be present and certification formalities apply.
Persons required at the execution of a will
Methods of execution Persons present
Testator signs with his own signature Testator and 2 witness
Testator signs with a mark Testator, 2 witnesses and commissioner of oath
Amanuensis signs for testator Testator, amanuensis, 2 witnesses and
commissioner of oath
A. Requirement of a written document
• The WA does not expressly require that a will should be a written document, but the requirement is
implied from the requirement that the will must be singed by the testator in certain specified
places and from the reference to pages of the will.
B. Meaning of ‘sign’ and ‘signature,’ and the concept of a mark
Prior to 1 October 1992:
, • Definition of ‘sign’: in the case of a testator, ‘sign’ includes the making of a mark, but it does not
include the marking of a mark in the case of a witness.
• The Act accordingly drew a distinction between a signature in the ordinary sense of the word and
other devices/characters on the pagesà marks. The use of a mark was reserved for the testator
only and the Act provided that when a testator used a mark, certification of the will by a
commissioner of oath was required.
• Issue arose whether or not initials qualify as a form of a mark. If they were recognised as a mark,
they would not qualify as a signature when used by a witness and when used by a testator, the will
would have to be certified by a commissioner of oaths.
- In Harpur v Govindamall, the Court ruled that initials constitute a form of mark. Therefore, a
witnesses’ signature using initials invalidated the will.
- However, before the delivery of the judgement, parliament stepped in and revised the
definition of ‘sign’ to state that it includes ‘the making of initials and only in the case of the
testator, the making of a mark.’
* The use of a mark can only be used by a testator (commissioner of oath must certify will) but the testator,
witnesses, amanuensis and a commissioner of oaths may sign by means of initials.
* mark = simple cross; thumbprint is also allowed
C. Where must the testator sign?
• Section 2(1)(a)(i) of WA requires the testator to sign the will at ‘the end thereof.’ This raises the
issue of where the will ends.
- In Tshabalala v Tshabalala, the Court held that the will consists of the words, not the paper, and
therefore the will ends at the end of the last paragraph of writing. This means that the testator
must sign the will as close as reasonably possible to the concluding words of the will (Kidwell v
The Master) and a failure to do so invalidates the will.
- The purpose of this strict approach is to prevent the fraudulent insertion of words at the end
of the will after the testator’s signature.
• In Kidwell v The Master, the Court said that the testator’s signature must appear as close as
reasonably possible to the ‘concluding words of the will.’ In this case there was a 9 cm gap between
the end of the writing and the testator’s signature. It was held that such a gap meant that the
signature was not as close as reasonably possible to the concluding words of the will and that the
will was invalid.
• If the will comprises more than one page, then, in addition to signing the end of the will, the testator
or amanuensis is also required to sign each of the other pages of the will. They can sign anywhere on
these pages.
D. Signature by an amanuensis
• Amanuensis- someone who signs the will on behalf of the testator.
• Section 2(1)(a)(i) of WA requires that the will be signed at the end by ‘the testator or by some other
person in his presence and by his direction’ à amanuensis.
• This is used for example, when the testator does not have the use of his hands or may be illiterate.
• The amanuensis is simply the vehicle by which the testator executes the will, therefore he/she
should sign the testator’s name (Oosthuizen v Sharp; Ex parte Fourie’s Estate). If the testator sign
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