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Succession

11/02/21014
The law of the distribution of assets to heirs and beneficiaries
Includes testate and intestate
Investing of a right the beneficiaries rights to property is vested (Chapter 1 of textbook)
Textbook The Law of Succession by De Waal

Testamentary Capacity

The Wills Act 7 of 1953
Governs formalities of drawing a valid will and applies where such will was executed on or after the
1 January 1954
Before the act came into operation, various provinces had different laws governing wills
The act repealed all of these laws

The Laws of Succession Amendment Act
No. 43 of 1992 Made a number of amendments and additions to the Wills Act
It applies where the Will was executed on and or after 1 January 1954 and or after the testator dies 1
October 1992 the date of death determines which Act applies

Pre 1954 Each province had its own laws and therefore nowadays it is very rare to have a case
prior to 1954
A valid will requires for testamentary capacity if the testator lacks testamentary capacity at the time
of executing the will then the will is invalid ab inicio

The Wills Act governs the formal capacity of a testator to make a will however formal capacity
does not mean that the will is invalid other factors may lead to invalidity ( there are other ways to
lead to invalidity)

Requirements for formal testamentary capacity
Set out in s4 of the Wills Act
These are
1. The testator must be of 16 years or more and must be mentally capable of understanding the nature
and effect of his actions at the time of making his will
2. In a dispute, the onus of proving mental incapacity will rest on the person alleging it
No person below 16 years is able to make a will (At all!!! Even with a guardian)

What do we mean by mental incapacity?
Mental incapacity can be caused by disease, drunkenness or the influence of drugs
This list is not exhaustive each case must also be decided upon by its own merits

The essential question is whether or not the person is mentally incapable of understanding the nature
and effects of his acts as a consequence of the mental impairment

The testator would be found to be more capable of understanding the nature and effects where he
1. Recognised that he was disposing of his property to identifiable beneficiaries after his death and
was appointed an executor to oversee the process
2. He could distinguish between potential heirs and could make a rational decision as to the
respective claims to the testators assets
3. He could appreciate the nature, extent and value of the estate

The question often arises in court as to whether the deceased had mental capacity to make a will,
despite old age or illness
We look at if the person was making a will whilst intoxicated (on drugs etc)

Essentially the mere fact that a person is of old age, does not mean that he does not have the mental
capacity to make a valid will
Harlow v Becker A 76 year old woman revoked all her previous wills, in which she left her assets
to her daughter and grandchildren. In her new will she left her entire estate to her doctor
It was argued that the will was invalid because the deceased did not have mental capacity facts
show that she took painkillers regularly
Court held when the deceased signed the document, she was in an enfeebled condition and was
unable to appreciate the nature and effect of her act
She lacked mental capacity and the will was invalid

The testator must have mental capacity at the time she was making the will
17/02/2014
Factors which influence the validity of wills
A will which has been duly executed by a testator with a sound mind might nevertheless be wholly
or partly invalid if the testator lacked testamentary intention
Testamentary intention might be lacking because of the effects of undue influence, duress or mistake
In the case of Tregea v Godart It was held that if a will was complete and regular on the face of it,
then the onus of proving testamentary intention was lacking, will rest on the person challenging the
will
Undue influence
A vulnerable testator might execute a will that does not express his or her true intentions because of
pressure brought to bear on him by another
It is necessary to prove that there has been a displacement of intention so that the will does not
really contain the wishes of the testator but those of someone else
The mental state of the testator his ability to resist instigation or prompting and the relationship
between the persons concerned must be taken into account
Spies v Smith The testator was mentally retarded and epileptic it was held that he was unduly
influenced by his uncle into making a will that would benefit his uncles children the court found
that a will would be invalid where the testator make a request which he would not otherwise have
made, in that it expresses the will of another person
In such an instance there has been a displacement of intention and the will does not reflect the
authentic wishes of the testator
In order to establish whether there was undue influence the court will look at factors in each
individual case (must be determined) .. The factors are as follows and include
1. The relationship between the testator and the person exercising the alleged influence
2. The period between the execution of the will and the depth of the testator
3. Flattery
4. Professions of extraordinary love and respect
5. Meek tolerance of continual humiliation
6. Protracted subservience followed by direct requests or accusations
Thirion v Die Meester The testator drew up a document in his own handwriting, in which he
revoked a previous will which benefited his parents his new will left all his assets to his girlfriend
two days later he committed suicide. The court had to determine whether he was unduly influenced
by his girlfriend it considered the fact that the testator had consumed alcohol at the time the
document was drawn up but the court found no further evidence to prove that his intention had
been displaced the will was therefore valid
Duress
If a testator executes a will or part of a will as a result of threats or violence this would amount to
duress and would invalidate the will or the relevant part of the will
As with undue influence such a will expresses the wishes of someone other than the testator
Duress is easier to prove because it is less subtle than undue influence
Mistake
Not all mistakes are relevant if the testator signs a will in the mistake belief that if there is a
contract it will be invalid
Where there is a mistake of motive then the will, will remain valid for example, where a mother
disinherits a son because she thinks he stole from her
18/02/2014
Delegation of testamentary power
The general rule is that the testator must exercise his testamentary power himself
He cannot delegate someone else to do so, on his behalf however the following exceptions exist
1. Bequests to a charitable trust here the trustees and not the testator decide who will benefit from
the trust
2. Conferment of power of appointment on 2.1 - a fiduciary 2.2 a usufructary
A trustee in a non charitable trust, provided it is in terms of a specific power of appointment
The capacity to sign as a witness
A testator must sign the will, in the presence of two competent witnesses
The Wills Act describes a competent witness as 1. Over the age of 14 years 2. Who is not
incompetent to give evidence in a court of law
The aim of witnesses signing is to confirm the signature of the testator and the witnesses do not have
to know the contents of the will
The testator must sign in the presence of the witnesses or must acknowledge the signature as his
signature where he has already signed the will
The witnesses cannot sign before the testator signs or the will is invalid
The witnesses may sign anywhere on the last page and can sign merely by initialling
A witness to a will can inherit in terms of the will under the common law
However the Wills Act states that a witness to a will and his spouse, cannot take any benefit in
terms of the will
He also cannot be an executor, guardian, trustee or administrator of the estate there are
exceptions
If a witness is a beneficiary the will is not invalid, but the witness cannot inherit unless an
exception applies
The exceptions are
1. If the court is satisfied that the witness did not defraud or unduly influence the testator in the
execution of the will
2. The witness would have been able to inherit in terms of intestate succession
3. If there are two other competent witnesses
Formalities of a will
Section 2 (1) (A) of the Wills Act sets out the formalities required for the execution of a valid will
the formalities are
1. The will must be signed at the end by the testator or by some other person in the presence of the
testator and by his direction
2. If the will comprises of more than one page than every page must be signed anywhere on that
page by the testator or by a person in his presence and by his direction
3. Signature by a testator or the other person must be made or acknowledged in the presence of two
or more competent witnesses, present at the same time
4. Such witnesses must attest and sign the will in the presence of the testator and each other and
where applicable, the other person
5. Special certification requirements apply where the testator uses a mark for another person to sign
on his behalf
A will
The act does not give any definition of a will but it may be described as a unilateral, voluntary
expression of the wishes of the testator, in legally prescribed ways, that determine what must
happen to his property, after death
A will includes a codicil or any other testamentary writings
In order for a valid testamentary disposition to take place there must be a disposition of the
bequeathed assets and identification of the beneficiaries and an indication of the beneficiaries
interests in the assets
Accordingly each of these dispositions must be contained in a document which will comply with
the will making formalities
A will must be in writing although this is not an express formality it follows from the
requirement that The will must be signed
Writing includes handwriting, typing and printing
Ways of executing a valid will
1. The will is signed at the end by means of a signature in the presence of at least two competent
witnesses
2. The will is signed by the person on behalf of or directed by the testator in the presence of the
testator two competent witnesses and the commissioner of oaths and the will is certified by the
commissioner of oaths
3. The testator acknowledges signature, previously placed on the will in the presence of two
witnesses
4. The person who signs on behalf of the testator acknowledges the signature, in the presence of the
testator two competent witnesses and the commissioner of oaths the commissioner of oaths will
then sign the will
In the case of Ricketts v Byrne & Another The court held that the first page of a two page will
was the last will of the deceased. The first page had been signed by the testator, but he had printed
his name on the second page. The witnesses had signed both the first and second pages of the
document the court held that the printing by the testator of his name on the second page, did not
confirm with the requirements of the Wills Act
The testator or the person on his behalf, must place their signature at the end of the will
In the case of Kidwell v The Master The court had to determine what constituted the end of the
will. In this case, the testator signed the will, seventeen centimetres below the attestation clause and
thirteen centimetres below the witnesses. The court found that the will was invalid because the
signature was not as close as reasonably possible to the end of the written part of the will therefore,
for the testator, the end of the will is where the written part ends and not the bottom of the page
24/02/2014
If you want to start learning for the test start learning from section 2 testamentary capacity
Formalities of a Will (continued)
Signature and signing
The testator and the person signing on behalf of the testator must sign on the last page at the end of
the will
Each page other on the page on which the will ends, must be signed by the testator anywhere on
the page
Witnesses also need to sign the will although there is uncertainty as to whether or not witnesses
need to sign at the end of the last page of the will
Leibenberg v The Master The finding was that a will was valid where the witnesses sign at the
last page of the will on the top the witnesses need to sign the only the last page
If the testator signed by a mark or used someone to sign on his behalf and a certificate has been used
the certificate may be appended on any page
The commissioner of oaths must also sign every page, in addition to the page on which his certificate
appears
What constitutes a signature?
It is generally the persons first name and surname in full or their initials and surname
It may also be a combination of first names with initials and surnames even if these are illegible
The Wills Act states that the word sign, includes the making of initials and only in the case of the
testator the making of a mark
Harpur v Govindamall The court decided that if a testator has appended to a will that which
cannot properly be classed as a signature then it is not a signature
Intention alone cannot convert into a signature, that which is not a signature because of the
certification formalities, which apply when a mark is used in order to combat fraud it is important
to establish whether the device used by the testator is a mark or a signature
Ex Parte Goldman Kalmer The term mark was given a narrow meaning so that the device used
by the testator could be regarded as a signature
In this case the testator had signed the will with a mark that could possibly be identified as the first
letter of her name
The court decided that the concept of a mark, should be interpreted narrowly and special emphasis
should be placed on whether the testator intended to make a signature
A mark may be the making of a cross, a thumbprint, a rubber stamp, a sealed ring impression or
something other than initialling
Certification requirements
Apply where the testator uses a mark and a person signs on behalf of the testator
The requirements are 1. The mark must be made or the person must sign, together with the
witnesses in the presence of the commissioner of oaths 2. The commissioner must write a
certificate on the wall, stating that he is satisfied as to the identity of the testator that the Will
signed is the will of the testator and that he has acted in his capacity as commissioner of oaths 3. The
commissioner must sign the certificate and each page of the Will, other than the page on which the
certificate appears
Witnessing of a Will
The Wills act requires that the testator or the person signing on behalf of the testator sign the will
in the presence of two or more competent witnesses all present at the same time
Such witnesses attest and sign the will in the presence of the testator and of each other and if the
will is signed by another person on behalf of the testator then the witnesses must sign and attest to
the Will in the presence of such person
The Wills Act states that there are two aspects to witnessing a Will
1. Physical presence
2. Signature of the document
The same two witnesses must be present throughout the signing of the entire Will failing which,
the whole Will is invalid and not merely the defective pages
Witnesses are only required to sign the age on which the Will ends
The witnesses may sign anywhere on the last page
Although the witnesses do not have to sign the earlier pages of a multiple page Will they must be
present when the testator signs them
Although the witnesses signatures can lie on the last page in a higher position on the page than the
testators signature - if the witness signs before the testator in time, then the will is invalid
25/02/2015
The Courts Power To condone a formerly defective will
There have been many cases, in which the courts have struck down, Wills on highly technical
grounds of non-compliance with the strict formalities of the Wills Act
The S.A law commission recommended that the courts be given the power to condone any failure to
comply with the Will making formalities
The power of condemnation was introduced by S2 (3) of The Wills Act
The Wills Act has also provided S (2) A - which permits the court to revoke a Will which has not
been effectively revoked by a testator
S (2) (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 the document, or that
document as amended, for the purposes of the administration of the States Act 1965, as a will,
although it does not comply with all the formalities, for the execution or amendment of Wills
If the provision of S (2) (3) - are satisfied and the court is convinced that the testator intended the
document to be a will, then the court must order the Master to accept the document as a Will
The basic requirements for (2) (3) are that 1. There must be a written document 2. That has been
drafted or executed 3 With the intention that the document must be the persons Will
Once these requirements have been satisfied, the court must make a S(2) (3) order because the
section is pre-emptory and does not allow the court a discretion on whether to make the order or not
Unfortunately a number of difficulties have arisen from the interpretation of S(2) (3)

Difficulties - A. Must the document comply with all the Will making formalities in order to be
condoned
In Webster v The Master - The court stated that at least some of the Will making formalities must
be complied with therefore the courts are usually prepared to condone a document where there has
been partial compliance with the formal requirements

B. Must the document have been drafted or completed by the deceased himself attempts have been
made to distinguish the words draft and execute to determine what is meant by the phrase
drafted or executed by a person who has died since the drafting or execution thereof
Typically the interpretation of this phrase has become a problem where the Will was prepared by an
attorney or another advisor and was approved by the testator, who then died
In Websters The testator had given instructions for certain amendments to be made his attorney
had drawn up the Will - however the testator died before he could see the final Will. He also had not
signed the Will
The Court said that S (2) (3) contemplates a document drafted by the deceased personally and that
accordingly an unsigned document prepared by the deceaseds attorney and approved by the
deceased cannot be rescued
This interpretation has been conclusively ruled in the SCA In the case of Bekker v Naude - In the
case, a document had been drafted by a bank official in accordance with the instructions of the
testator and his wife. The document was sent to them but they did not sign it before the death of the
testator The court found that someone else cannot draw up a document, which later appears not
signed, on behalf of the testator
A distinction must be drawn, between a document that the testator drafted himself and one which he
caused to be drafted by someone else
Only if the testator had been personally involved, in the drafting will the court condone the
document
The problem with this decision is that not every person, can personally draft their Will
For example illiterate people, will not be able to benefit from this provision as they cannot draft or
execute their own Will
Can the court condone a Will when the testator makes a request for another person to draft his
will?
De Reske v Maras The deceased gave instructions to an employee, in which he informed her that
he wanted to draw up a new Will and indicated how he wanted his assets distributed. She typed it up
he also instructed her to contact an attorney to draw u the will for him. He then repeatedly changed
the distribution of his assets. Once the employee typed up the final document, the deceased signed
together with a witness. He then requested the attorney to draw up a new Will for him but he died
before this could be done. The court refused to condone the document as a Will

C. The intention that the document must be a Will
It must be clear that the testator has reconciled with the content of this specific document whether
or not the court should condone a document as a Will may depend on the intention of the testator
The court is usually convinced of the testators intention, where he was personally involved in the
drafting of the document or he had executed the document
In Van Wetten v Bosch The court looked at the surrounding circumstances and the actions of the
deceased in order to determine the testators intention
However in De Reske v Maras - Evidence showed that whilst the deceased prepared and drafted the
document, simply as an instruction to his attorney he later manifested a different intention, mainly
an intention that the document should be his Will
The court was not persuaded that he had intended the document to be his Will
Formalities in amending a Will
Generally speaking a testator is free to alter his Will at any time and an agreement not to do so is
invalid if someone amends the will without the consent of the testator the amendment is invalid
Amendments made before the execution of a Will
A testator is free to make any amendments to a Will, prior to execution
There are no statutory requirements to be met
Provisions of the Will may be deleted or erased and would thereafter be ignored
If new provisions were added with the knowledge of the testator then they become part of the Will
However S(2) (2) of the Wills Act creates a rebuttable presumption that any amendments to a Will
are regarded as having been made after execution
Consequently it is necessary for practical purposes for amendments to be made before the execution
stage
In practice amendments made before execution are initialled by the testator and witnesses
Amendments made after the execution of a Will
After the execution the testator is free to make amendments at any time
These amendments of a Will are regulated by S (2) (1) (B) of the Wills Act the amendments
must be identified by signatures of the testator and two witnesses and all three people must be
present at the same time
Provision is made for the use of a person to sign on behalf of the testator or the use of a mark by the
testator and in both cases certification by a commissioner of oaths is required
The signature of the testator and witnesses must appear as close as possible to the amendment
The wording of the section indicates that amendments include additions, alterations, deletions,
cancellations and words placed in-between the lines
However it cannot include the revocation of the entire Will
The testators intention will be decisive in determining whether he wished to amend or revoke the
Will
If he intended to revoke the Will then the rules according to the common law would apply
I he intended to amend he Will then S (2) (1) (B) of the Wills Act would apply
Partial revocation is nothing other than an amendment for change to an existing Will
S (2) does in fact grant the court the power to declare a Will partially revoked
The difference between a partial revocation and an amendment is that the partial revocation occurs
when a portion of a Will is deleted and not replaced with a new stipulation
The test should be whether a testator wants to change an already existing Will in which case S (2)
(1) (B) will be applicable
If the testator feels that the stipulation should no longer be part of the Will and evoked and then can
take place without any formalities
If the Will has been amended without compliance of the formalities then the amendment would be
ineffective and effect would be given to the original words
The court may also condone non-compliance with the formalities in the amendments of the Will
through S (2) (3) of the act
In Webster v The Master - the testator deleted certain references to his wife on a copy of his Will
the court was not willing to order condemnation in order of S (2) (3) but had found on the basis of
S (2) (A) That the action did result in the revocation of the original Will
Anderson v Wagner & The Master - The testator wanted to amend his will he wrote a letter to
his attorney on how the Will was to be amended and to draw up a Will reflecting the amendments.
The testator died before the Will was amended an application was made to have the letter accepted
as the amendment of the testators will in terms of S(2) (3) the court found that the document
should have been drafted with the intention that the specific document should serve as a Will or an
amendment of the Will
04/03/2014
Express and Implied revocation by destruction
Where a will is revoked because it is destroyed physically or in body
Presumptions upon destruction
Common law presumptions come into operation upon revocation through destruction
These presumptions are 1. The will is destroyed with intention
2. If the will was in the possession of the testator, before his death but cannot be traced after his
death, it is presumed that it was revoked with intention
3. The presumption does not apply if the will was in the possession of a third party when it was
destroyed
4. If the testator was in possession of a duplicate of the original and it cannot be found after his
death it is presumed it was revoked with intention
5. The presumption does not apply if the testator was in possession of a duplicate and the original
and only one of them is found after his death
6. The presumption does not apply if only a copy of the will was in the testators possession and it
cannot be found after his death however in Marais v The Master - It was held that the
presumption can be rebutted by evidence
STOP LEARNI NG FOR THE TEST HERE!!!!!
The courts power of condonation at revocation
The court is given the power to condone an act of revocation in S2 (A) If the court is convinced that
the testator intended to revoke his will but the revocation is legally ineffective for certain reasons
The revocation must be apparent from the appearance of the will or should be evident from another
document
The court must determine whether the testator intended to revoke his will
In terms of S (2) (A) the court can declare a will revoked, if it is satisfied that the testator has
1. Made a written indication on his will or before his death caused such indication to be made
2. The testator performed any other act with regard to his will or before his death caused such act
to be performed, which is apparent from the face of the will
3. The testator drafted another document or before his death caused such document to be drafted by
which he intended to revoke his will or part of his will then the courts shall declare the will or part
of the will to be revoked
Interaction between S2 (3) and S(2)(A)
While S(2) (A) regulates the condonation of revocation where the common law principles are not
clear
S (2) (3) regulates condonation with regard to the execution and amendment of Wills, where
statutory requirements apply
S(2)(3) and S(2)(A) may overlap because an amendment can lead to partial revocation
The intention of the testator is examined to determine if the testator intended to amend or partially
revoke his will
S(2)(A) will only be applied in cases where the will has not been revoked in ways recognised at
common law
S(2)(A) does not do away with the common law recognition of revocation but it elaborates on
them by identifying ways in which revocation can take place
If the court allows a S(2)(3) application for condonation and accepts a document as a will, then this
new will, would expressly or tacitly revoke the previous will
The S(2)(A) application is then unnecessary
In MacDonald v The Master There was a S(2)(3) application before the court a document was
found on the testators computer, containing a provision that revoked all previous wills the court
condoned the document as a will this meant that the condonation of the document allowed the
revocatory clause of the document to come into effect
The application by the courts of S(2)(3) and S(2)(A) is confusing because 1. S(2)(3) Deals with the
condonation of non compliance with the formal requirements for the execution and amendment of
Wills
2. In terms of S(2)(A) The court must decide whether the testator revoked the Will with the
necessary intention to revoke regardless of the fact, that not one of the methods of revocation,
recognised at common law was used
In Bekker v Naude The court made a distinction between S(2)(3) and S(2)(A) S(2)(3) requires
an action in which the testator had to be involved himself S(2)(A) Can involve a document drawn
by the testator himself or by someone else on his behalf therefore, S(2)(A) is broader
In Webster v The Master The S(2)(3) application failed while the S(2)(A) application succeeded
the testator had deleted certain words on a copy of his existing will this was accepted as a
complete revocation in terms of S(2)(A) and therefore the testator died intestate
S(2)(A) Sets out three ways in which the testator can show his intention to revoke a will
S(2)(A)(a)Written indications made on the will
S(2)(A)(b)Any other act performed with regard to the will that is apparent from the face of the Will
S(2)(A)(c)The drafting of another document that is apparently not the will itself
There has been a question as to whether the term Will refers to the original Will or a copy of the Will
In Websters Case The testator deleted the name of a former spouse in a copy of the Will in his
possession the court found that S(2)(a) could not apply because the deletions were made on a copy
of the Will however S(2)(A)(b) apply because the testator performed an act with regard to his Will
the testator therefore revoked his original Will
10/03/2014
Tacit/implied revocation
Tacit revocation is indicated from the testators actions cases involving tacit revocation are usually
those in which, the testator executed a subsequent Will, that does not expressly contain a revocatory
clause
Or - when he alienates bequeathed assets
These methods of revocation amount to the lapsing of the prior Will
Pienaar v The Master of the Free State High Court The testator had two wills, the later will did
not revoke the earlier Will but the court held that there was implied revocation the testator
dictated the new Will, to his second wife, which she wrote in manuscript the court said that where
there are two Wills, which to some extent contained similar provisions but are in effect different
and each of the Wills deal with the entire estate then they cannot stand together and the later
Will must be construed as having complied the revoked the earlier Will the second Will was held
to have impliedly revoked the earlier will
Execution of a subsequent conflicting Will
If a testator dies leaving behind several Wills and the last Will does not expressly revoke a prior
Will then the Wills must be read together and reconciled as far as possible
If they contain conflicting provisions then the later Will is regarded as the valid Will
The later Will must be a valid Will if a court condones a document in terms of S(2)(3) such a
Will, containing conflicting provisions may revoke a prior Will
If there are several Wills of the same date each Will with conflicting provisions then all the
Wills are invalid because the intention of the testator is not clear
Alienation of bequeathed assets
If a testator voluntarily alienates the subject matter of a legacy then the legacy is regarded as
revoked
The legacy is said to have been lapsed by ademption however ademption would still occur if the
testator expressly revoked the legacy when he voluntarily disposed of the subject matter of the
legacy - during his lifetime
In determining whether ademption has occurred - regard must be had to the testators intention
If the testator was forced to alienate the subject matter then the legacy will not be regarded as
revoked
If the testator requires the subject matter and still wishes to leave the legacy to a person he must
once again bequeath it if it is proved that the testator alienated the subject matter of the legacy
voluntarily there is a rebuttable presumption that the legacy has lapsed through ademption
Automatic revocation on divorce in terms of S (2)(B) of the Wills Act
Reads as follows if any person dies within three months after his marriage was dissolved by
divorce or annulment by a competent court and that person executed a Will before the date of such
dissolution then that Will shall be implemented as if it would have been implemented if his
previous spouse had died before the date of dissolution concerned unless it appears from the Will
that the testator intended to benefit his previous spouse notwithstanding the dissolution of his
marriage
This provision is intended to deal with the problematic situation where the testator makes a Will
during his/her marriage appointing his spouse as a beneficiary
Subsequently they are divorced but at the time of the testators death he has done nothing to
revoke the bequest to his former spouse
Previously no matter how much bad blood there was between the spouses if the testator omitted to
revoke the bequest during his/her lifetime then his former spouse would inherit on his death in
accordance with the Will
S(2)(B) Gives partial belief in this situation when a Will confers a benefit it does not make the
benefit conditional on the survival of a marriage
For example if a testator bequeaths and asset to his wife Lindiwe The reference to the testators
wife is merely descriptive accordingly, if they have divorced Lindiwe Would still be entitled to
inherit unless S(2)(B) applied to deprive her of her inheritance
S(2)(B) only applies to Wills executed before the divorce It also only applies if the testator dies,
within three months after the dissolution of the marriage
If the testator dies at a later stage the former spouse will inherit unless the testator has formerly
revoked the bequest
This means there must first be a Will then a divorce and then the depth of the testator, not later
than three months after the divorce
If the sequence of events is different Then S(2)(B) will not apply and the spouse will be entitled
to whatever benefits are conferred on him/her, by the Will
It is open to the spouse to prove that the testator intended her to benefit notwithstanding the divorce
and if she can do so then she will inherit but this proof, must appear from the Will itself