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Category: Will (page 1 of 2)

Maintenance claims from life partner’s estate 

August 12, 2022 / / Comments Off on Maintenance claims from life partner’s estate 

“Should a person who has shared her home and life with her deceased partner, born and raised children with him, cared for him in health and in sickness, and dedicated her life to support the family they created together, be treated as a legal stranger to his estate, with no claim for subsistence because they were never married? Should marriage be the exclusive touchstone of a survivor’s legal entitlement as against the rights of legatees and heirs?”  SACHS J Volks N.O. v Robinson [2005] ZACC 2; 2009 JDR 1018 (CC)

In 2016, statistics revealed that approximately 3.2 million South Africans live together as co-habitants outside the boundaries of marriage. South African common law has also significantly been developed to accommodate the rights of people who choose to cohabit outside of marriage. In light of this, it seems that South African Courts have accepted that cohabitation outside of marriage is now widely practised and accepted across the globe. This is evidenced in the Judgment handed down by the Constitutional Court in Bwanya v The Master of the High Court Cape Town (The Bwanya Case). 

The Apex court was left with the task of deciding whether the definition of “Survivor” as defined in Section 1 of the Maintenance of Surviving Spouses Act was invalid and resultantly unconstitutional to the extent that it does not include the words “surviving partner of a permanent life partnership terminated by death”.

Ms Bwanya and the deceased Mr Anthony Ruch were involved in a relationship that consisted of all the characteristics of a marriage. In 2014, Ms Bwanya moved in with Mr Ruch on a permanent basis, they attended many social gatherings together, and Mr Ruch often introduced Ms Bwanya to his friends as his wife. In 2015, the couple even planned to conceive a child to solidify their relationship. In the same year, Mr Ruch also proposed to Ms Bwanya and they planned to get married in 2016, after the Labola negotiations. Mr Ruch, however, passed away in November 2016.

After Mr Ruch’s passing, Ms Bwanya lodged a claim for maintenance against Mr Ruch’s estate in terms of the Maintenance of Surviving Spouses Act. The basis for her claim was that the permanent life partnership shared between herself and Mr Ruch had most, if not all, the characteristics of a marriage. Her claim was rejected by the executor on the basis that she was not married to Mr Ruch. Ms Bwanya then challenged the constitutionality of sections 1 and 2 (1) of the Maintenance of Surviving Spouses Act.

Section 2(1) of the Maintenance of Surviving Spouses Act provides that a surviving spouse has the right to lodge a maintenance claim against his or her deceased spouse’s estate if they are unable to support themselves. Section 1 of the Act defines a “survivor” as the surviving spouse in a marriage dissolved by death. The Court in the Bwanya Case had to consider whether the exclusion was still merited.

The Apex Court took cognizance of the increasing popularity of permanent life partnerships and the creation of many families within this category. In the words of  J. Madlanga, “We should be wary not to so emphasise the importance of the institution of marriage as to devalue, if not denigrate, other institutions that are also foundational to the creation of other categories of families. And this must be so especially because the other categories of families are not only a reality that cannot be wished away, but are on the rise.”

The court found that all categories of families deserve legal protection, including permanent life partnerships. The court also emphasised that permanent life partnerships are intimate relationships that are meant to last until the death of one or both partners and that it is a relationship that is often characterised by a reciprocal duty of support. In light of the above, the Constitutional Court ruled that the exclusion of permanent life partnerships in the definition of “survivor” as found in Section 1 of The Maintenance of Surviving Spouses Act was constitutionally invalid. In the same breath, the Court also found that Section 2(1) of the Maintenance of Surviving Spouses Act was constitutionally invalid to the extent that it only confers a maintenance benefit on a surviving spouse.

The order in the Bwanya Case brings about a significant change in South African Law. Prior to the judgment, a surviving partner of a permanent life partnership could not claim maintenance from their deceased partner’s estate. Now, both heterosexual and same sex life partners can now claim maintenance benefits from their deceased life partner’s estate. The Legislature has now been given 18 months to take steps to cure the constitutional defects in the Maintenance of Surviving Spouses Act.

Our family law experts are more than capable to provide sound legal advice to anyone seeking further advice on maintenance claims.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Life partners now qualify for intestate succession

June 17, 2022 / / Comments Off on Life partners now qualify for intestate succession

The Constitutional Court recently confirmed the October 2020 ruling of the Western Cape High Court that section 1(1) of the Intestate Succession Act is unconstitutional in so far as it excludes life partners in a relationship intended to be permanent, as per the definition of “spouse”. The Court ordered parliament to amend two laws to recognise the right of a surviving life partner in any relationship to inherit and claim maintenance after the other partner dies.

The case arose after Jane Bwanya challenged the constitutionality of the Intestate Succession Act and the Maintenance of Surviving Spouses Act for discriminating on the basis of marital status.

Ms Bwanya, originally from Zimbabwe, and the deceased, Mr Ruch, were involved in a relationship that comprised most, if not all, characteristics of a marriage. They met and entered into a romantic relationship in 2014. Later that year Mr Ruch asked Ms Bwanya to move in with him on a permanent basis. Ms Bwanya obliged. From then onwards, they split their time between Mr Ruch’s Camps Bay and Seaways properties. Ms Bwanya retained her place at the Meadows where she was employed as a domestic worker. Ms Bwanya’s and Mr Ruch’s friends were aware of the relationship. The pair used to accompany each other to various social gatherings. Mr Ruch introduced Ms Bwanya as his wife to his friends. They often hugged and kissed in the presence of other people. Mr Ruch referred to Ms Bwanya’s brother as his brother-in-law.

In November 2015 Mr Ruch proposed to marry Ms Bwanya. She accepted the proposal. Preparations to travel to Zimbabwe began so that lobola negotiations could commence and Mr Ruch could meet Ms Bwanya’s family. These preparations involved selling the Seaways property. The proceeds were to be used to pay lobola and purchase a vehicle for the trip to Zimbabwe. The plan was for the pair to get married after the trip. On 23 April 2016, two months before the scheduled journey, Mr Ruch passed away unexpectedly. In his will he had nominated his mother as the sole heir to his estate. However, his mother had predeceased him.

Ms Bwanya lodged two claims against Mr Ruch’s estate in terms of the Administration of Estates Act. They were for maintenance in terms of the Maintenance of Surviving Spouses Act and for inheritance in terms of the Intestate Succession Act. She based the claims on the fact that her permanent life partnership with Mr Ruch was akin to a marriage and that they had undertaken reciprocal duties of support towards each other.

The basis of the claims was the following: the deceased was her life partner, they had been living together in a permanent, stable, and intimate relationship, and they were engaged to be married. Moreover, their partnership was analogous to, or had most of the characteristics of, a marriage: the deceased supported her financially and emotionally, and introduced her to friends as his wife. Furthermore, they had undertaken reciprocal duties of support and were to start a family together.

The executor of the deceased’s estate rejected both claims on the basis that the Intestate Succession Act and Maintenance of Surviving Spouses Act conferred benefits only on married couples, not partners in permanent life partnerships.

The majority judgment of the Constitutional Court, penned by Madlanga J, stressed that permanent life partnerships are a legitimate family structure and are deserving of respect and, given recent developments of the common law, entitled to legal protection. The judgment held that the definition of “survivor” in section 1 of the Maintenance of Surviving Spouses Act is unconstitutional and invalid insofar as it omits the words “and includes the surviving partner of a permanent life partnership terminated by the death of one partner in which the partners undertook reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate”. The judgment ordered that these words be read into the definition.

“Spouse” and “marriage” are also declared to include a person in a permanent life partnership. The declaration of invalidity was suspended for 18 months to afford Parliament an opportunity to cure the constitutional defect.

Additionally, the majority judgment confirmed the declaration of invalidity of section 1(1) of the Intestate Succession Act made by the High Court. Likewise, this declaration of invalidity was suspended for 18 months to afford Parliament an opportunity to cure the constitutional defect.

The Bwanya judgment is a victory for permanent life partners, who now qualify as intestate heirs.

If you wish to avoid uncertainty and prevent unintended consequences, then the best solution remains to execute a professionally drafted will and update it as and when necessary. Having a will is always extremely important. A valid will would have avoided the necessity for a court application in the case presented above.

Executors should henceforth consider any claims from life partners under either of the mentioned Acts, as failure to do so could result in litigation.

Reference List:

  • Intestate Succession Act, 81 of 1987
  • Maintenance of Surviving Spouses Act, 27 of 1990
  • Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51
  • https://collections.concourt.org.za

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Deceased’s will declared invalid, despite clear wishes

October 26, 2021 / / Comments Off on Deceased’s will declared invalid, despite clear wishes

The Wills Act sets out the requirements for a valid Last Will and Testament. For a will to be valid, it must be signed and witnessed. What happens if the wishes of the deceased are clear, but the document does not meet the requirements of a valid will?

This was the heart of the matter in Estate Late Elaine Ilsia Williams and Others v Hendricks and Another, heard in the Western Cape High Court.

In this matter, the close relations of the deceased sought an order directing the Master of the High Court to accept as a will for the purposes of the Administration of Estates Act, a pro forma document signed by the deceased in which she gave instructions to a bank to draft her Last Will and Testament.

The nature of the bank document was consistent with its printed title, “Will Application/Aansoek om testament.” It is apparent from the terms of the document that the bank offers a service for the drafting of wills. The service is provided free of charge if the bank’s trustee company is nominated as the executor.

The deceased’s instructions to the bank in respect of the content of the will were framed as follows: “I would like to give my full estate to my son until he is of age as well as any other monetary payouts as a result of any claims.” It would appear that the deceased also wished her will to provide that the bequest to her son should be administered in a trust until the child attained the age of 21.

The will application form was completed by the deceased with the assistance of a representative of the bank on the day before she died. She was terminally ill with cancer at the time. The deceased passed away before her instructions for the drafting of a will were executed.

The applicants relied on Section 2(3) of the Wills Act: “If a court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 1965 (Act 66 of 1965), as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1).”

As is evident from the wording of Section 2(3) of the Wills Act, it is required of an applicant seeking an order of the sort contemplated by the provision to establish, amongst other things, that the document in question was intended by the deceased person to be his or her will. It is in that regard that the application runs into difficulty on the merits. Nothing specifically indicates that the deceased intended the document to be anything other than what it appears to be – an instruction to the bank to draft a will.

The court held that there was no evidence that the deceased intended the will application to be anything other than an application for a proper will to be drafted. Therefore, the applicants failed to prove the requirement that the deceased intended the document to be her last will and testament, as required by Section 2(3) of the Wills Act.

Courts are wary to declare documents that do not comply with the requirements of the Wills Act as valid wills. It is advisable to obtain professional assistance from an attorney or a fiduciary expert with the drafting of your Last Will and Testament.

Reference List:

  • Wills Act 7 of 1953
  • Estate Late Elaine Ilsia Williams and Others v Hendricks and Another [2021] ZAWCHC 66

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Death during a divorce: Who takes care of the funeral?

October 26, 2021 / / Comments Off on Death during a divorce: Who takes care of the funeral?

“Family feuds, in relation to who has the right to bury a deceased person, has the potential of permanently dividing the family. These are sensitive disputes that are best suited to be mediated and resolved by family elders rather than being brought to court where there is no winner and a united family structure ends up divided and torn apart. It is a time where the family should be united more than ever, preparing to give the loved one a dignified burial, rather than airing their dirty linen in court”.

Polokwane High Court Judge Maake Kganyago stated the latter when handing down her judgment in the Mabulana v Mabulana and Others (LP) (unreported case no 5040/2021, 26-7-2021) matter.

The High Court dismissed Mrs Mabulana’s (the Applicant) application to interdict Gledies and Sophy Mabulana (the Respondents) from burying the Applicant’s estranged husband, Wilard Mabulana (the deceased). Gledies was the deceased’s sister-in-law and Sophy the deceased’s sister. Gledies took care of the deceased since 2013, especially while he was sick.

The Applicant and deceased were married on 3 July 1996 and three children were born from their marriage. However, as the years passed, the couple realised that their marriage was on rocky waters. The deceased decided to move out of their matrimonial home in 2018 and the couple effectively separated.

On 9 January 2018, the Applicant instituted divorce proceedings against the deceased on the grounds that she had no more love or affection towards the deceased. The deceased was apparently disgruntled by the pending divorce proceedings, but eventually agreed that a decree of divorce should be sought on an unopposed basis. The parties further agreed that their joint estate would be equally divided between them. During a court appearance on 30 June 2021, the parties agreed to postpone the hearing of the divorce to 28 July 2021. The reason for the postponement was that the Applicant had to obtain the assistance of an interpreter. The divorce would likely have been finalised on 30 June 2021, was it not for the postponement.

On 18 July 2021, the Applicant was informed by one of her children that the deceased had passed away. The Applicant, therefore, started preparing and making arrangements for the deceased’s burial. When the Applicant approached the burial services to claim the body, she was advised that the Respondents brought the deceased to them and that they accordingly cannot assist the Applicant. This led to the Applicant instituting an application to interdict the Respondents from burying the deceased.

The Applicant submitted that she had a clear right to bury the deceased as she had been married to the deceased, and the deceased’s will was silent on the issue of the person who had to prepare and arrange the deceased’s funeral.

The court held that it was evident from the facts of the matter that the Applicant had lost her love, affection, and respect towards the deceased. The Applicant failed to explain how the death of the deceased had restored the lost love, affection, and respect towards the deceased when she was on the verge of divorcing him.

The court pointed out that the deceased, in his will, did not give directions as to who would be responsible for arranging his burial. The deceased, however, made a separate will, despite being married in community of property with the Applicant, and in that will had disinherited the Applicant. According to the court, this was a sign that the deceased had made his position clear that he had severed ties with the Applicant.

The court referred to Trollip v Du Plessis and Another where the court held that it was within the bounds of reasonableness to respect the wishes of the deceased, whether expressed in a testament or not, and if no such preference was expressed, to resort to the wishes of the heirs.

During the deceased’s final days, he was in the care of the Gledies and expressed his wish that Gledies should bury him. The Applicant was not present when the deceased passed away and they have been separated from each other for a long time.

In turning down the wife’s application, the judge held the wishes of the deceased had to be respected.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Locked down during the pandemic: How to make a will and get it witnessed

August 13, 2021 / / Comments Off on Locked down during the pandemic: How to make a will and get it witnessed

The last few weeks have seen huge changes in the way we live our lives. The demand for wills has surged during the COVID-19 pandemic, which is understandable in the midst of a grave health crisis.

As attorneys, we are able to work from home and have access to the necessary technology that enables agile and secure working, meaning that we are able to engage with and service clients as we would in the office. Instructions can be taken telephonically or by email and the drafted will can be sent to the client by email for approval and amendment.

Once the contents of the will have been finalised, it has to be signed. The Wills Act, 7 of 1953 (“the Act”), requires the following for the proper execution of a valid will:

“2.   Formalities required in the execution of a will.

(1)  Subject to the provisions of section 3 bis

(a)          no will executed… shall be valid unless

(i)            the will is signed at the end thereof by the testator…; and

(ii)           such signature is made by the testator…, in the presence of two or more competent witnesses present at the same time; and

(iii)          such witnesses attest and sign the will in the presence of the testator and each other…; and

(iv)         if the will consists of more than one page, each page other than the page on which it ends is also signed by the testator… anywhere on the page.”

As far as the competency of witnesses are concerned, the Act reads as follows:

“4A.   Competency of persons involved in execution of a will.

(1)  Any person who attests and signs a will as a witness… or who writes out the will or any part thereof in his own handwriting, and the person who is the spouse of such person at the time of the execution of the will, shall be disqualified from receiving any benefit from that will.”

A beneficiary to a will should not sign as a witness, because he/she will then be disqualified from receiving any benefit from that will. Anyone who signs a will as a witness is disqualified from receiving any benefit under the will. A benefit includes nomination as executor, trustee or guardian. Despite this provision, someone who would have inherited under the rules of intestate succession will not be disqualified, but the inheritance will be limited to the intestate portion the person would have inherited.

Thus, a person creating a will and two competent witnesses have to be in the same place and all sign the document to ensure it is valid. During the lockdown, the two-witness rule is hindered by social distancing and is creating practical – but not insurmountable – challenges. People with existing health conditions and the elderly are the most likely to want to sort out their will right now, but they are also the most threatened by close contact with others.

Several clients have enquired about practical ways to have wills signed during the lockdown. One option would be to sign your will outside in the presence of two neighbours who are not displaying coronavirus symptoms. They should remain at least two metres away from you, in a place where they are still able to see you sign the will. The witnesses also need to sign the will so you would then place it in a convenient spot visible to all parties and move away. Both witnesses could separately approach and sign and as long as precautions are taken such as using your own pens, making no physical contact, wearing gloves, conducting the process quickly, and adhering to strict handwashing measures afterwards.

Another option would be for you to approach two essential workers, many of whom are risking their lives to continue serving the country. For instance, when attending the local supermarket for your essential requirements — such as food — or when attending the pharmacy for medication, request the workers there to witness your will. If a terminally ill patient in a hospital wishes to sign a will, it should be possible to arrange for the will to be signed in the presence of two nursing staff members.

In circumstances where none of the above is an option and there is absolutely no other way to validly execute the will, the common sense approach would be to date and sign the will properly and draft and sign a memorandum or letter making it clear why the will was not signed by witnesses but stating that the will is intended to be the last will and testament. This course of action will make an application under Section 2(3) of the Act, to validate such a document as the will of the deceased, much more likely to succeed.

Section 2(3) of the Act reads as follows:

“2.   Formalities required in the execution of a will.

(3)  If a court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 66 of 1965, as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1).”

In order to ensure that the will is valid and to avoid the delay and expense of a High Court application, we invite clients to come and see us once things are back to normal to review and, if necessary, re-sign their wills. These are highly unusual circumstances, so wills written during this time may well need to be revisited in the future.

Reference List:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Intestate succession in life partnership relationships

February 22, 2021 / / Comments Off on Intestate succession in life partnership relationships

On 28 September 2020, the Cape Town High Court handed down judgment in favour of Ms Bwanya directing that section 1(1) of the Intestate Succession Act 81 of 1987 (“the ISA”) is unconstitutional and invalid insofar as it excludes Ms Bwanya, a surviving life partner in a permanent opposite-sex life partnership, from inheriting from her deceased fiancé’s estate.

The Facts

Ms Bwanya and Mr Ruch (“the deceased”) met in February of 2014 when she was waiting for a taxi in Camps Bay. The deceased reportedly “swept her off her feet” by taking her to the Cape Town train station in his car. Later that same evening, the deceased took her on their first date.

Ms Bwanya averred that, at the time of the deceased’s death, she and the deceased were partners in a permanent opposite-sex life partnership, with the same or similar characteristics as a marriage, in which they had undertaken reciprocal duties of support and had committed themselves to marrying each other.

Ms Bwanya sought an order that—

  1. Section 1(1) of the ISA be declared unconstitutional and invalid insofar as it excludes the surviving life partner in a permanent opposite-sex life partnership from inheriting in terms of this Act; and
  2. The definitions of “survivor”, “spouse” and “marriage” in section 1 of the Maintenance of Surviving Spouses Act 27 of 1990 (“the MSSA”) be declared unconstitutional and invalid insofar as they exclude partners in permanent opposite-sex life partnerships from claiming maintenance in terms of this Act.

Applicable Law

Section 1(1) of the ISA, as it currently stands, excludes life partners in a permanent opposite-sex life partnership from inheriting in terms of the ISA. Similarly, the definitions of “survivor”, “spouse” and “marriage” in section 1 of the Maintenance of Surviving Spouses Act 27 of 1990 (“the Surviving Spouses Act”) excludes partners in permanent opposite-sex life partnerships from claiming maintenance in terms of this Act.

Ms Bwanya submitted to the Court that the ISA and the Surviving Spouses Act, as they currently stand, infringe on her Constitutional rights to human dignity and equality. Ms Bwanya further argued that she is being discriminated against in terms of section 9(3) of the Constitution on the grounds of sex, gender, marital status, and sexual orientation.

Ms Bwanya argued that, on her facts, she should be permitted to inherit from the deceased’s estate in terms of the ISA, and that she should be entitled to claim maintenance from the deceased’s estate in terms of the Surviving Spouses Act.

For similar reasons, the Women’s Legal Centre and the Commission for Gender Equality argued that the ISA and the Surviving Spouses Act are unconstitutional.

The Court’s Finding

The Court held that it can be inferred that Ms Bwayna and the deceased tacitly agreed they were in a permanent life partnership akin to marriage. Accordingly, it was held that Ms Bwanya and the deceased were permanent life partners who had undertaken reciprocal duties of support to one another.

The Court further held that section 1(1) of the ISA in fact discriminates against Ms Bwanya unfairly on the grounds of marital status, sexual orientation and gender, and that this discrimination has gravely affected the rights of heterosexual permanent life partners where the parties depended on each other for support. It was also held that Ms Bwanya’s constitutional rights to equality and dignity were infringed upon.

The Court dismissed Ms Bwanya’s request to have the relevant definitions of the MSSA declared unconstitutional, on the ground that there must be a duty of support by operation of law, and not a mere contractual one. As there was no duty of support by operation of law between Ms Bwanya and the deceased, she did not succeed on this leg.

Reference List:

  • Bwanya v Master of the High Court, Cape Town and Others (20357/18) [2020] ZAWCHC 111.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Determining the validity of your will

September 7, 2020 / / Comments Off on Determining the validity of your will

I gave instructions to my attorney to prepare a Will for me as my most recent Will no longer reflected my wishes. My attorney emailed the Will to me with clear instructions as to how I should go about signing the Will. I asked my neighbours to act and sign as witnesses. My neighbours signed the Will on all the pages and left before I signed the Will on all the pages. I am now worried about the validity of my Will as the email from my attorney states that I have to sign the Will in the presence of two witnesses. Is my Will valid?

The formalities for the valid execution of a Will are set out in the Wills Act. Section 2 of the Wills Act, Act 7 of 1953, reads: “No will executed … shall be valid unless the will is signed at the end thereof by the testator… and such signature is made by the testator… in the presence of two or more competent witnesses present at the same time and such witnesses attest and sign the will in the presence of the testator and of each other…”. Therefore, for a Will to be valid, it must be signed in the presence of two witnesses, both witnesses being present when the Will is signed by the testator.

The two witnesses signed your Will in the presence of each other, but not in your presence. A similar set of facts presented itself in a court case heard by the Gauteng Local Division of the High Court. In this matter, the two daughters of the deceased, who lost out on their inheritance in terms of the Will of their father, claimed that it was never their father’s intention for his much younger lover to inherit his total estate. The testator was 85 years old at the time of his death and he had been living with a woman 38 years his junior, for 8 years.

The deceased executed two wills during his lifetime. One on 6 November 2011 (“the 2011 Will”) and another on 7 January 2014 (“the 2014 Will”). The 2014 Will was signed shortly before his death, leaving the bulk of his estate to his much younger lover.

One of the witnesses called to testify in court was a witness to the 2014 Will. Her testimony focused on the circumstances surrounding the signing of the 2014 Will. She testified that she and her husband met the deceased in the street. As they were acquainted, they engaged in social conversation. She and her husband were informed that the deceased was on his way to the police station to sign a Will. She and her husband were asked if they would accompany the deceased to sign the Will as witnesses. They were assured that the process would not take long so they agreed to assist.

She and her husband signed the Will and immediately left before witnessing the deceased signing the will. Hence, the 2014 Will was not signed by the deceased in their presence even though it reflects their respective signatures as witnesses.

The evidence assessed collectively established that the deceased signed the 2011 Will and that he signed the 2014 Will. However, the 2014 Will was signed by the deceased after the two witnesses to the Will had already left and therefore was signed in their absence.

The court referred to Section 2 of the Wills Act, in terms whereof no Will is valid unless the signature made by the testator is made “in the presence of two or more competent witnesses present at the same time”. The court confirmed that this requirement is mandatory and, if not met, the Will is not valid for want of compliance with a statutorily required formality.

The court, therefore, found the 2014 Will to be invalid and, as there was no evidence that there was any irregularity in the execution of the 2011 Will, the 2011 Will was declared the Will of the deceased.

This judgement of the High Court once again emphasizes the importance of complying with the Wills Act. Your Will is thus invalid and it is advisable for you to print the Will again and to sign it in the presence of two competent witnesses or, even better, for you to make an appointment with your attorney in order to sign the Will at his office.

Reference List:

  • Twine and Another v Naidoo and Another [2017] ZAGPJHC 288; [2018] 1 All SA 297 (GJ)
  • Wills Act, Act 7 of 1953

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Is an e-will valid in South Africa?

March 12, 2020 / / Comments Off on Is an e-will valid in South Africa?

In terms of South African law, for a will to be accepted as valid by the Master of the High Court (a statutory body to which deceased estates are reported), it must comply with the legal formalities as set out in section 1(a) of the Wills Act, 7 of 1953 (hereinafter referred to as the Wills Act).

The main requirements in terms of the Wills Act are that the will must be signed by the testator and two competent witnesses, all in the presence of one another. Non-compliance with the formal requirements of the Wills Act will render the will invalid and void. Please note that a certified copy of a signed will is not valid as the Master of the High Court will only accept an original signed will.

An electronic will is a will saved as a data message, email or word document on a hard disk or memory device. This type of will is usually typed on the computer/email/data message, but there is no actual signature which allows the law to recognise the document as authentic.

The legislator saw a need for a court to be able to declare a will valid even though it does not comply with the formalities of the Wills Act and added section 2(3):

“(3) If a court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 1955, as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1)”

Therefore, a will that is drafted electronically can be regarded as a validly executed will if application is made to the High Court and the court is satisfied that (a) the document was drafted by the deceased (b) the deceased has died since the drafting of the document and (c) the document was intended by the deceased to be his last will.

Currently, there is no legal certainty as to how and when electronic data can be used for the purpose of conveying your final will. Until the Wills Act is amended to include electronic wills, it would be best, if you wish to avoid complications, to draft your will the old-fashioned, hard-copy way and have it properly executed in terms of the Wills Act.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

How do our courts interpret Wills and Testaments?

July 10, 2019 / / Comments Off on How do our courts interpret Wills and Testaments?
It is trite that the law of succession aims to give effect to the wishes of the testator. Accordingly, when a person passes on and leaves a will or a testament, it is the duty of the court interpreting the will or testament to make an order that obeys the wishes of the testator as far as legally possible.

This article will look at the two competing approaches taken by courts in the interpretation of wills and testaments – namely the golden rule and the use of armchair and extrinsic evidence – and attempt to identify the current approach taken by our courts.

The Golden Rule

The starting point for the interpretation of wills and testaments is the golden rule established in the case of Robertson v Robertson’s Executors 1914 AD 503. In this case, it was held that courts are to “ascertain the wishes of the testator from the language used. And, when these wishes are ascertained, the Court is bound to give effect to them, unless it is prevented by some rule or law from doing so”.

In other words, the golden rule holds that courts must ascertain the wishes or intentions of the testator by merely looking at the language used by the testator. Accordingly, this rule makes no provision for courts to have regard to external factors when interpreting the testator’s language.

The rationale for restricting courts to the words used by the testator in their will or testament is because the testator’s words are the primary indication of their intention. Therefore, the courts are often reluctant to depart from the ordinary or literal meaning of the words used by the testator.

However, there have been some significant developments in the approach of our courts to the interpretation of wills and testaments since the golden rule was established. One such development is the use of armchair and extrinsic evidence in the interpretation of wills and testaments.

Armchair and Extrinsic Evidence

Armchair evidence sees a court placing itself in the position of the testator in order to determine their intention. In other words, a court puts itself in the armchair of the testator to understand their thought process in the creation of their will.

Extrinsic evidence is evidence that is obtained elsewhere, i.e. not from the will itself. Extrinsic evidence, therefore, refers to the surrounding circumstances or factors accompanying the will.

In Cuming v Cuming 1945 AD 201, it was held that armchair and extrinsic evidence may only be used if the wording of the will is ambiguous or uncertain, and the intention of the testator cannot be determined merely by examining the wording used in the will.

In other words, when armchair and extrinsic evidence is used in situations where the testator’s use of language is ambiguous, the courts can step into the shoes of the testator and investigate the surrounding circumstances of the creation of the will in order to determine the testator’s intention at the time of creating the will.

However, this line of reasoning has been challenged. In Allen v Estate Bloch 1970 (2) SA 376 (C), the court held armchair evidence to be admissible in cases where there is no ambiguity or uncertainty regarding the words that the testator used in their will. In this case, the court held that the correct approach is that a will should not be analysed in isolation. It is seen as a more practical approach to ascertain the intention of the testator, as it takes into account all the relevant factors surrounding the creation of the will.

Conclusion: What is the Approach of Our Courts?

The case law regarding whether or not the golden rule is still adhered to by courts remains inconclusive. The magnitude of case law seems to suggest that, to a large extent, our courts do not follow the golden rule, but rather follow the reasoning of the Cuming case, which allows for the use of armchair and extrinsic evidence only where the wording used by the testator is ambiguous.

To summarise, it is evident that our courts still use the golden rule as the starting point for interpreting wills and testaments, but it is generally no longer used in isolation.

Reference List:

  • Robertson v Robertson’s Executors 1914 AD 503.
  • Jamneck, et al The Law of Succession in South Africa 2 ed (2012).
  • Cuming v Cuming 1945 AD 201.
  • Allen v Estate Bloch 1970 (2) SA 376 (C).

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

PROPERLY EXECUTING A WILL IS EXTREMELY IMPORTANT

July 6, 2018 / / Comments Off on PROPERLY EXECUTING A WILL IS EXTREMELY IMPORTANT

I gave instructions to my attorney to prepare a last will and testament for me as my will no longer reflected my wishes. At my request, my attorney emailed the will to me with clear instructions as to how I should go about signing it. I asked my neighbours to act and sign as witnesses. My neighbours signed the will on all the pages and left before I signed. I then signed the will on all the pages. I am now worried about the validity of my will as the email from my attorney states that I have to sign the will in the presence of two witnesses. Is my will valid?

The formalities for the valid execution of a will are set out in the Wills Act. Section 2 of the Wills Act, Act 7 of 1953, reads: “No will executed… shall be valid unless the will is signed at the end thereof by the testator… and such signature is made by the testator… in the presence of two or more competent witnesses present at the same time and such witnesses attest and sign the will in the presence of the testator and of each other…”. Therefore, in order for a will to be valid, it has to be signed in the presence of two independent witnesses, both witnesses being present when the will is signed by the testator. The two witnesses signed your will in the presence of each other, but not in your presence.

A similar set of facts presented itself in a court case recently heard by the Gauteng Local Division of the High Court. In this matter, the two daughters of the deceased, who lost out on their inheritance in terms of the will of their father, claimed that it was never their father’s intention for his much younger lover to inherit his total estate. The testator was 85 years old at the time of his death and he had been living with a woman 38 years his junior for 8 years.

The deceased executed two wills during his lifetime. One on 6 November 2011 (“the 2011 will”) and another on 7 January 2014 (“the 2014 will”). The 2014 will was signed shortly before his death leaving the bulk of his estate to his much younger lover. The daughters of the deceased claimed the 2014 will was invalid as there were “suspicious” circumstances. They claimed their father either did not sign the 2014 will himself or, if he did, that he lacked the mental capacity to execute a valid will by reason of dementia. The daughters of the deceased were not successful in proving that the deceased’s signature was a forgery despite the fact that three handwriting experts testified.

Another witness called to testify was a witness to the 2014 will. Her testimony focused on the circumstances surrounding the signing of the 2014 will. She signed the will as a witness. She testified that she and her husband met the deceased in the street. As they were acquainted they naturally engaged in social conversation. She and her husband were informed that the deceased was on his way to the police station to sign a will. She and her husband were asked if they would accompany the deceased in order to sign the will as witnesses. They were assured that the process would not take long so they agreed to assist.

She and her husband signed the will and immediately left. They were the first to sign the will. At the time they signed the will the deceased had not signed the will. They left before witnessing the deceased signing the will.  Hence, the 2014 will was not signed by the deceased in their presence even though it reflects their respective signatures as witnesses.

The evidence assessed collectively established that the deceased signed the 2011 will and also that he signed the 2014 will. However, the 2014 will was signed by the deceased after the two witnesses to the will had already left and therefore was signed in their absence.

The court referred to Section 2 of the Wills Act in terms whereof no will is valid unless the signature made by the testator is made “in the presence of two or more competent witnesses present at the same time”. The court confirmed that this requirement is mandatory and, if not met, the will is not valid for want of compliance with a statutorily required formality.

The court therefore found the 2014 will to be invalid and, as there was no evidence that there was any irregularity in the execution of the 2011 will, the 2011 will was declared the will of the deceased.

This judgement of the High Court once again emphasizes the importance of complying with the Wills Act. Your will is invalid, and it is advisable for you to print the will again and to sign it in the presence of two competent witnesses or, even better, for you to make an appointment with your attorney in order to sign the will at his office.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Reference List:

  • Twine and Another v Naidoo and Another [2017] ZAGPJHC 288; [2018] 1 All SA 297 (GJ)
  • Wills Act, Act 7 of 1953
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