Succession 2023 Formalities for the execution of a valid will
You must supplement these notes from lectures and extra reading.
Formalities for the execution of a valid will
(Read De Waal Chap 4 pgs 53-67)
§ 1 Formal validity and substantive validity distinguished
1. In this topic we look at what is required for the formal validity of a will.
Formal validity is concerned with the question whether the rules laid down by law for
transforming a simple document into a will, that will have legal force on the maker’s
death, have been satisfied.
2. Some terminology:
(a) Testator: the person who makes a will.
(b) Formalities: the rules that must be complied with by the testator when the will
is signed in order for it to acquire legal validity as a will.
(c) Execution: the signing of a will by the testator in such a way as to give it
legal validity, by complying with the formalities.
3. It is important to distinguish between formal validity and substantive validity. Formal
validity is unconcerned with the contents of the will. Substantive validity, on the
other hand, is concerned with whether the contents of the will can survive legal
scrutiny. In Topic H we are only concerned with the question of formal validity.
§ 2 Common law and legislation
4. Historical background - Roman-Dutch law as applied in the territories that
combined in 1911 to form the Union of South Africa recognised various kinds of
will, including the holograph will (a will written out in the testator’s own hand
which benefits his descendants) and the soldier’s will (executed by a soldier on
active service), both of which required only reduced formalities for
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, validity. At an early stage, however, each of the territories that came to comprise
South Africa passed legislation abolishing the Roman-Dutch forms of will and
adopting the English form, known as the underhand or statutory will. The soldier’s
will was also retained at that stage. Each of these territories had its own wills
legislation with its own set of rules.
5. In 1954 the system for executing wills was rationalised by the enactment of uniform
legislation, applying to the whole of South Africa, in the form of the Wills Act 7 of
1953. This replaced the separate provincial legislation and applies to all wills
executed after 1 January 1954. The common law remains relevant to the
interpretation of this Act. The Wills Act, 1953 originally provided for two kinds of
will: the statutory or underhand will, and a soldier’s will which required reduced
formalities. In 1992, however, the Wills Act, 1953 was amended by abolishing the
soldier’s will, so now only one kind of will can be executed in South Africa, the
statutory or underhand will.
(The preceding historical background draws on Corbett 2001 49-50; and on an
interesting historical survey by Beinart (1953) 70 SALJ 159-166 (optional reading)).
6. As a result of the strict requirements of the will-making rules, and their rather
formalistic interpretation by the courts, over the years a significant number of wills
were ruled to be invalid in circumstances in which there was no reason to believe
that they did not genuinely reflect the testator’s wishes. Following an investigation
into the law of succession by the South African law commission, the Law of
Succession Amendment Act 43 of 1992 was enacted. This act introduced into the
Wills Act a number of reforms, the most significant of which were:
(a) The requirements for executing a will were simplified to some extent; and
(b) The courts were, for the first time, given a power to condone the defective
execution of a will, provided the court is satisfied that the defective will was
intended by the testator to be his (or her) will. In other words it is now
possible, in certain circumstances, to obtain a
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, court order giving legal effect to what would otherwise be an invalid will.
This power of condonation will be discussed later in the course.
7. The formalities for the execution of a valid will are contained in section 2 of the
Wills Act 7 of 1953 (as amended). (Hereinafter referred to as the ‘Act’). In their
current format they apply to all wills executed on or after 1 January 1954 of which
the testator died on or after 1 October 1992, this being the date of
commencement of the amendments introduced by the Law of Succession
Amendment Act, 1992
(See De Waal 2015 55; 2008 54; 2003 50; the headings in Corbett 2001 51; the
headings in the 1994 Supplement to the 1980 Corbett at 25 & 30).
If the testator died before 1 October 1992, the validity of the will falls to be tested
against the provisions of section 2 as it read before amendment by the Law of
Succession Amendment Act, 1992. Since you are unlikely to have to deal with such a
will, we will largely confine ourselves to the post-1992 formalities, although cases
decided prior to the amendments are still relevant to some extent.
§ 3 The need for strict compliance with formalities
8. Strict compliance with the will-making formalities is required. Non- compliance
results in invalidity and intestacy; unless there is another valid will, or the defective
will is ‘rescued’ by an order of the High Court in terms of section 2(3) – very
embarrassing if you are the legal practitioner responsible for the execution of the
will!
9. The reasons for such a strict approach (see Harpur NO v Govindamall 1993 4 SA
751 AD) are:
(a) There is a need to protect against fraud because the person most qualified
to testify about the will is dead.
(b) It promotes certainty, which avoids expensive litigation that delays the
finalisation of the winding up of an estate..
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