STUDY UNIT 7: THE REVOCATION OF WILLS

A testator, having made a will, can change his/her mind regarding

the distribution of his/her assets stipulated in that will

A testator can then decide to make dispositions different from the

ones contained in the existing will

One possibility in this regard, is for the testator to revoke (cancel)

the existing will and then to make a new will containing the new
dispositions

As far as the revocation of wills is concerned, a dual distinction can

be made between:

 express revocation – this concerns those instances where the

revocation of a will is apparent (or obvious)

 tacit revocation – this concerns those instances where the

revocation of a will has occurred, but in a less apparent
manner

Irrespective of which method of revocation was used, two

requirements are set for such a revocation to be effective:

 a legally-recognised act of revocation must have been

performed

 the testator must have possessed the animus revocandi (the

intention to revoke his/her will)

A Express revocation

Two possibilities:

(i) The execution of a later will or revocatory document that

contains an express revocatory clause or statement

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 Will of Humphrey Julies Will of Humphrey Julies

I leave all my property to I hereby revoke all

my father, Raymond previous wills made by
Julies. me and I declare that:

Executed on 1/3/2010 in I leave all my property to

Bellville, my wife,
all the parties acting in Gabby Julies.
one another’s
presence. Executed on 1/3/2019 in
Bellville,
Testator: H Julies all the parties acting in
one another’s
Witness: V Nyabaza presence.
Witness: K September Testator: H Julies
Witness: P Carelse
Witness: Z Mdlulu

The will on the right contains an express revocatory clause: ‘I

hereby revoke all previous wills made by me’

As soon as the will on the right was executed, it revoked the earlier
will on the left through the operation of the revocatory clause

In other words, as from 1/3/2019, the earlier will on the left was
revoked and the will on the right became the testator’s will

Why is this the case?

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  Because the two requirements for revocation are present:

o the testator performed an act of revocation, namely the

execution of the will on the right

o the will on the right contains an express statement of

revocation whereby the testator clearly and
unequivocally intended to revoke the will on the left
(the testator had the animus revocandi)

Note that a revocatory clause or statement can be contained in a

later will, in an ante-nuptial contract or even in a document that
contains no other provisions but only the revocatory clause or
statement

A document that contains no other provisions but only the

revocatory clause or statement is referred to as a revocatory
document and must be validly executed in accordance with the
prescribed formalities of s 2(1)(a) of the Wills Act in order to have
revocatory effect

If a testator has an existing will and then executes a revocatory

document, but does not follow it up with the execution of a new
will, the testator will die intestate

(ii) Destruction of a will

A testator can revoke an existing will by destroying it with the

intention to thereby revoke the will

Two forms of destruction are recognised in terms of the common

law:

» physical destruction where the document perishes (for

example, the will is burnt, shredded or torn apart)

» symbolic destruction where the document survives, but is

damaged or defaced in some way (for example, lines are drawn

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 through all the pages of the will or the signatures on the will are
cut out or erased)

Note that, if an act of revocation occurred (namely the physical or

symbolic destruction of the will) and, if the will was destroyed
because the testator thereby intended to revoke it (the testator
possessed animus revocandi), the will’s revocation is effective from
the moment of its destruction

Note, further, that the common law requires that the original will
must be destroyed physically or symbolically in order for the
revocation thereof to be effective

The destruction of an unsigned copy of a will or a photostat of a

signed will, will generally not result in its revocation

However, note the exception established in Marais v The Master

1984 (4) SA 288 (D) where the court acknowledged that:

 the symbolic destruction of an original will (by, for example,

drawing lines across the face of the will), was recognised as a
valid act of destruction under the common law

 the symbolic destruction of a copy of a will suffices for

purposes of its revocation if the original will was beyond the
testator’s reach because, for example, it was in the possession
of his attorney and the testator had only the copy in his/her
own possession

In the following example, the testator symbolically destroyed her

original will by drawing diagonal lines across it and by writing
‘Cancelled’ on the will

She performed an act of revocation (the destruction of the will)

and clearly intended thereby to revoke the will

The revocation will be effective from 1/4/2017:

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 Will of Mtombi Kakane made on 1/3/2010

I leave my BMW 320i to my sister, Zinzi Odwa.

I leave the residue of my estate to my mother,

Ntathi Kakane.

Testator: Mtombi Kakane

Witness: P Serume Witness: KL
Molefe

Presumptions upon the destruction of a will

A number of common law presumptions apply to the revocation of

a will through destruction:

o if it is proved that the testator destroyed his/her will, it is

presumed that he/she did so with the necessary animus
revocandi

o if a will was in the testator’s possession prior to his/her

death and the will cannot be found after his/her death, or it is
found but in a damaged state, it is presumed that the testator
destroyed the will with the necessary animus revocandi

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 o the foregoing presumption does not apply if the original will
was in the possession of a third party (for example, the
testator’s attorney) and the will is found destroyed or
damaged after the testator’s death

o the foregoing presumption does also not apply if a copy of the

original will was the testator’s possession prior to his/her
death and cannot be found or is found in a damaged state
after his/her death (but keep the exception identified in
Marais v The Master in this regard in mind)

B Tacit revocation

Two possibilities:

(i) The execution of a subsequent conflicting will that does not

contain an express revocatory clause

Consider the two wills on the next page: the will on the left is the
testator’s first will and the will on the right is a later will executed
by the testator

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Will of Humphrey Julies Will of Humphrey Julies

1 I leave all my Mercedes 1 I leave all my Mercedes

C200 to my brother,
Carlton Julies.
2 I leave my yacht, Sea
Breeze, to my best friend,
Fabian Davids.
3 I leave the rest of my
property to my son,
Harold Julies.
C200 to my brother,
Carlton Julies.
2 I leave my yacht, Sea
Breeze, to my new best
friend, Damien Galant.
3 I leave the rest of my
property to my son,
Harold Julies.

Executed on 1/3/2009 in Executed on 1/3/2012 in

Rondebosch, Rondebosch,
all the parties acting in all the parties acting in
one another’s one another’s
presence. presence.
Testator: H Julies Testator: H Julies
Witness: V Nyabaza Witness: P Carelse
Witness: K September Witness: Z Mdlulu

The will on the right (the later will) does not contain an express
revocatory clause

Therefore: it does not revoke the will on the left in full

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The provisions of the will on the right are almost identical to that
of the will on the left – the only difference is regarding the
disposition of the yacht in clause 2: in the first will the yacht is
bequeathed to Fabian Davids, whereas it is bequeathed to Damien
Galant in the second will

Should the testator have died on 1/1/2022, he would effectively

have left two wills – the will on the left (first will) and the will on
the right (second will)

These wills would then be read together and reconciled as far as

possible

Where reconciliation is not possible, the later will, by reason of its

conflicting provisions, will revoke the earlier will in respect of the
irreconcilability

In the above example the bequests of the motor vehicle and the
residue of the estate are reconcilable because they correspond in
the two wills, but that of the yacht is not

Therefore, the yacht will go to Damien Galant, as the later will has,
by reason of its conflicting provision on the bequest of the yacht,
impliedly revoked the bequest of the yacht to Fabian Davids in the
earlier will

The two requirements for revocation of the bequest of the yacht to

Fabian Davids have been met:

» the testator performed an act of revocation (the execution of the

second will that contained a conflicting provision regarding the
yacht)

» the testator did so because he intended to cancel the bequest of

the yacht to Fabian Davids and to leave the yacht to Damien
Galant (the testator possessed the animus revocandi)

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(ii) Ademption (Latin: ademptio)

Ademption is the revocation of a legacy through the voluntary

alienation during the testator’s lifetime of the object of the legacy

Will of Humphrey Julies

1 I leave all my Mercedes C200 to

my brother, Carlton Julies.
2 I leave my yacht, Sea Breeze, to
my best friend, Fabian Davids.
3 I leave the rest of my property
to my son, Harold Julies.

Executed on 1/3/2011 in East

London,
all the parties acting in one
another’s
presence.
Testator: H Julies
Witness: V Nyabaza
Witness: K September

If the testator sells the Mercedes C200 voluntarily during his

lifetime with the intention that Carlton Julies should no longer
receive the vehicle or its value in cash upon his (the testator’s)
death, the bequest of the car to Carlton Julies will have been
revoked through ademption

The two requirements for revocation of the bequest of the car to

Carlton Julies will have been met:

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» the testator performed an act of revocation (the voluntary sale
of the car)

» the testator did so because he intended to cancel the bequest of

the car to Carlton Julies (the testator possessed the animus
revocandi)

C Conditional or supposed revocation and the revival of

revoked wills

If a testator revoked a will on condition that an uncertain future

event occurs or on the basis of a particular supposition, the
revocation is effective only if the condition is fulfilled or the
supposition is correct

South African courts have employed the so-called ‘doctrine of

dependent relative revocation’ to address this issue

The doctrine dictates that, where a testator’s intention to revoke

depends upon a condition that is not fulfilled or a supposition that
proves to be incorrect, the purported revocation is ineffective

For example, if a testator stipulated:

I revoke my existing will on condition that I enter into marriage

within the next six months.

The revocation will be effective only if the testator indeed

concludes a marriage within the stipulated six-month period

If the testator does not, the existing will shall not be revoked and
shall continue to exist as the testator’s will

Also, if a testator revoked an existing will in the belief that by doing

so he/she will revive a previously-revoked will, the supposition is
incorrect – the common law is very clear on the fact that the

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revocation of a later will does not serve to revive an already-
revoked will

In this scenario, therefore, the will that the testator purported to

revoke will continue to exist as the testator’s will

The foregoing was confirmed in Le Roux v Le Roux 1963 (4) SA 273

(C) where the court found:

 The revocation of a later will does not occasion the revival or

restoration of an earlier will that the later will has revoked

 Where a testator destroyed a later will on the supposition

that an earlier, already-revoked will shall thereby revive, the
testator acted on an erroneous supposition and no revival of
the earlier, already-revoked will occurred

 The reason is because the testator did not possess the

absolute and final intention to revoke the later will

This does not mean that a will that has been revoked can never
revive (regain its effectiveness)

As noted above, the revival of an earlier, already-revoked will

cannot be achieved simply through the revocation of the later will
that revoked the earlier will

Revival can be achieved by:

- re-executing the revoked will

- by executing a reviving document (in other words, a

document that does not contain any testamentary
provisions, but simply expresses the testator’s desire to
revive a will that has already been revoked)

» in order for a reviving document to have the effect of

reviving a revoked will, it must be validly executed in

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 accordance with the formalities of s 2(1)(a) of the Wills
Act

Mtombi Kakane revoked her will through symbolic destruction on

1/4/2012

Will of Mtombi Kakane

1 October 2007

1 I leave my BMW 320i to my sister, Zinzi Odwa.

2 I leave the residue of my estate to my mother,

Ntathi Kakane.

Testator: Mtombi Kakane

Witness: P Serume Witness: KL
Molefe

If Mtombi executed the document below, this revoked will will

revive on 1/1/2018:

I, Mtombi Kakane, hereby refer to my will dated

1/10/2007 that I revoked on 1/4/2012 and I
hereby reinstate that will as my last will and
testament on 1/1/2018.
Testator: Mtombi Kakane
Witness: RP Zwili
Witness: L Futusi
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The possibility of reviving a revoked will by means of a reviving
document was accepted by Schreiner JA in Moses v Abinader 1951
(4) SA 537 (A) upon the meeting of the following requirements:

 the original will (that was revoked and is to be revived) must

still exist (the revival of a will that was revoked through
complete destruction is, therefore, not possible)

 the original will must have been validly executed in

accordance with the prescribed execution formalities

 there must be a reviving document, validly executed in

accordance with the prescribed execution formalities

 the testator’s intention to revive the revoked will must be

clearly evident from the reviving document

D The court’s power of condonation regarding revocation

S 2A of the Wills Act bestows on the High Court the power to

condone certain acts of revocation that would not necessarily have
brought about the effective revocation of a will in terms of the
common law

S 2A renders three acts of revocation condonable:

 where a testator has made a written indication on his/her

will or before his/her death caused such an indication to be
made by a third party by which the testator intended to
revoke his/her will or a part of his/her will

» for example, by writing ‘Cancelled’ on the will

 where a testator has performed any other act with regard to

his/her will or before his/her death caused such an act to be
performed which is apparent from the face of the will by
which the testator intended to revoke his/her will or a part of
his/her will

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 » for example, by cutting out witnesses’ signatures on the
first page of a two-paged will – this will not occasion the
revocation, through symbolic destruction, of the will in
terms of the common law, because witnesses are not
required to sign the pages of a will that precede the final
page

 where a testator has drafted another document or before

his/her death caused such a document to be drafted by a
third party by which the testator intended to revoke his/her
will or a part of his/her will

» for example, by drafting a document that purports to

revoke a will, but which does not comply with the
execution formalities prescribed by s 2(1)(a) of the Act

De Waal & Schoeman-Malan, Law of Succession 5th ed at 96 note the

following:

‘There is a fine dividing line between amendment (section 2(3))

and partial revocation (section 2A) of wills. … An amendment
normally means that the testator wishes to change his or her
existing will. Partial revocation would mean that the testator does
not want a part of his or her existing will to be applicable any
longer. … The test should be whether the testator intended to
amend an already executed will, in which case section 2(1)(b), and
in case of non-compliance with these formal requirements, section
2(3), of the Act will be applicable. If the testator feels that parts of
his or her will should no longer be included, the testator can
partially revoke such parts in one of the ways recognised at
common law. If there is doubt whether this is a partial revocation
at common law, the court can determine on the basis of section 2A
whether the testator had the intention of revoking those parts of
the will in one of the ways mentioned in section 2A.’

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S 2B of the Wills Act provides for the lapsing of any bequest made
to a testator’s surviving spouse in the scenario sketched in the
section:

‘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.’

Marriage Will made in which Divorce 3 months 4 months

spouse benefited

If the testator’s death occurs within this 3-month

period, the bequest to the spouse will lapse
(unless the will indicates that this should not
happen), because the spouse will be fictitiously
regarded as having died prior to the divorce, in
other words, the spouse will be regarded as
predeceased

If the testator’s death occurs 4 months after divorce, the

bequest to the spouse will remain intact, because the 3-month
period stipulated in s 2B has lapsed and the fiction of the
surviving spouse’s predecease no longer applies

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S 2B was interpreted in Louw v Kock 2017 (3) SA 62 (WCC)

The legal question in this case was whether the testamentary

appointment of a surviving former spouse as the sole heir of the
first-dying former spouse is sufficient to meet the criterion laid
down by the proviso in s 2B that the testator, who died within 3
months of the dissolution of his/her marriage, nevertheless
intended to benefit his/her previous spouse notwithstanding the
dissolution of their marriage?

 The WCC answered this question in the negative: the mere

testamentary appointment of a survivor as sole heir does not
meet the intention requirement to negate s 2B’s prescript
regarding the inability of a surviving former spouse to inherit
under the deceased former spouse’s will

 The WCC required a stronger indication – through the

wording of the will (or the making of a new will) – of the first-
dying’s intention to benefit the survivor despite the
termination of their marriage

S 2B was also at issue in JW v Williams-Ashman 2020 (4) SA 567

(WCC)

The legal question in this case pertained to the constitutionality of

s 2B, in particular whether it infringes the right to property (s 25 of
the Constitution); the right to access to court (s 34 of the
Constitution); or public policy?

 The WCC held that s 2B does not infringe on the right to

property because it serves the legitimate purpose of
preventing a surviving former spouse from ‘unfairly
benefitting’ from a will made before the termination of that
spouse’s marriage with the deceased spouse

 The WCC held furthermore that s 2B is not procedurally

unfair (on the basis that it does not permit extraneous
evidence of the testator’s intention) because it contains

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 neither an ouster clause nor a time bar and does therefore
not amount to an unconstitutional limitation of access to
court

 The WCC held finally that s 2B does not violate public policy
because it contains a fiction that is contrary to public policy:
the section merely states an indisputable conclusion that
would take effect if the stipulated factual requirements were
met, without importing any artificiality or fiction

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STUDY UNIT 7: SELF-ASSESSMENT QUESTION

Jerome Petersen died at his home in Bellville on 1 May 2016

A single-paged document, dated 1 March 2010, was found among

his personal effects

This document stipulated that Jerome bequeathed his entire estate

to his brother, Leroy Petersen

However, two lines in red ink were drawn diagonally across the
face of the document, and the word ‘Cancelled’ as well as Jerome’s
signature and the date, 27 February 2016, were inserted in the
same red ink (and in Jerome’s handwriting) between these lines

Provide a reasoned opinion whether Jerome revoked his will:

(a) in terms of the common law if the aforementioned document

was not an original will but an unsigned copy of a will, the
original of which was retained by Jerome’s attorney at the
latter’s offices in Johannesburg

(b) in terms of s 2A of the Wills Act 7 of 1953 if the

aforementioned document was indeed Jerome’s duly-
executed original will

Outline of the answer to this question

(a)

 State the common law position on the symbolic destruction of

wills

 State the relevant common law presumptions on the

destruction of wills

 Discuss the exception identified in Marais v The Master 1984

(4) SA 288 (D)

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  Apply to the facts

(b)

 State the relevant provision from s 2A of the Wills Act

 Apply to the facts

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