Summary
Summary Topic 12 - Interpretation of Wills
- Course
- Law of Succession (RDL2003H)
- Institution
- University Of Cape Town (UCT)
Interpretation of Wills
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112. INTERPRETATION OF WILLS
1. Golden rule of interpretation
‘The golden rule for the interpretation of testaments is to ascertain the wishes of the testator from the
language used. And when these wishes are ascertained, the Court is bound to give affect to them.’
• All rules of interpretation are geared towards determining and giving effect to the intention of the
testator.
• The words the testator uses must be the primary indication of his/her intention. Thus, the courts are
reluctant to deviate from the ordinary and literal meaning of the words used by the testator UNLESS:
- The testator had not intended those words to bear their ordinary and literal meaning. The
court will be required to interpret the words used by the testator to give effect to his/her true
intention.
- The testator had not intended those words to be used in the first place and had actually
intended that other words be used to convey his/her intention. The complainant would have to
ask the High Court to rectify the will.
• The Master of the High Court does not have an adjudicative function, thus he/she cannot settle a
dispute. He/she has an administrative function only. Therefore, the Master interprets a will literally,
having regard to the actual words used by the testator.
• If one wishes to deviate from the ordinary and literal meaning of a will, proceedings must be
instituted in the High Court to interpret the will. *Lower courts do not have jurisdiction to hear
matters involving the validity and interpretation of wills.
2. Statutory rules of interpretation
The Wills Act contains certain rules for the interpretation of wills à statutory rules on interpretation.
A. Section 2B – ex- spouses:
‘If any person dies within three months after his marriage was dissolved by a divorce or annulment by a competent
court and that person executed a will before the date of such dissolution, that will shall be implemented in the same
manner as it would have been implemented if his previous spouse had died before the date of the dissolution
concerned, unless it appears from the will that the testator intended to benefit his previous spouse notwithstanding
the dissolution of his marriage.’
• Section 2B applies when a marriage between a testator and his/her former spouse has been
dissolved by divorce or has been annulled by a court.
• The section provides that the testator’s will shall be implemented as if the former spouse had
predeceased the testator provided that the testator dies within three months of the dissolution of
their marriage. *If the testator dies more than three months after the dissolution of the marriage,
the former spouse is entitled to all the benefits.
, 2
• Section 2B only applies if the testator executed the will before the dissolution of the marriage.
• However, the former spouse will be entitled to inherit if it appears from the will that the testator
intended to benefit the former spouse despite the marriage having ended. The testator must have
made it clear in his/her WILL and expressly or impliedly indicated that his/her spouse was to inherit
regardless of whether or not they were still marries.
B. Section 2D – ‘child’ or ‘children:’
‘In the interpretation of a will, unless the context otherwise indicates-
(a) an adopted child shall be regarded as being born from his adoptive parent or parents and, in determining his
relationship to the testator or another person for the purposes of a will, as the child of his adoptive parent
or parents and not as the child of his natural parent or parents or any previous adoptive parent or parents,
except in the case of a natural parent who is also the adoptive parent of the child concerned or who was
married to the adoptive parents of the child concerned at the time of the adoption;
(b) the fact that any person was born out of wedlock shall be ignored in determining his relationship to the
testator or another person for the purposes of a will;
(c) any benefit allocated to the children of a person, or to the members of a class of persons, mentioned in the
will shall vest in the children of that person or those members of the class of persons who are alive at the
time of the devolution of the benefit, or who have already been conceived at that time and who are later
born alive. ‘
• ‘In the interpretation of a will, unless the context otherwise indicates…’
- When interpreting a will, these rules will automatically apply unless the testator expressly or
impliedly intended that they do no apply (which is allowed).
- These statutory interpretative rules override the common law rules.
• S 2D(1)(a): This provision creates a fiction of ascendancy and descendancy for adopted children. An
adopted child is deemed to be a descendant child of his/her adoptive parents. Thus, any reference
to a child in the will includes an adopted child. The adopted child is deemed to be a descendant of
his/her adoptive parents AND is also deems to be related to the adoptive parents’ relations.
• S 2D(1)(b): This provision provides that the fact that a child was born out of wedlock must be
ignored.
• S 2D(1)(c): This provision entrenches the nasciturus fiction. Thus, it is presumed that if the testator
leaves an inheritance to his/her children or any other class of persons, he/she would have intended
to benefit the nasciturus conceived at the time of the devolution of the benefit and subsequently
born alive.
* The testator may deviate from these statutory rules by explicitly stating so in the will.
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