Succession 2023 Bellengere

Formalities for the amendment of a will

Introduction

 Read: De Waal §4.2

 Generally speaking, a testator is free to alter his will at any time; and an agreement not
to do so is invalid.
 The amendment of a will is governed by section 2(1)(b) of the Wills Act, 1953.
The section expressly states that it only applies to post execution amendments.
Furthermore it does not apply if the will that is amended was executed before 1 January
1954 (viz. the commencement date of the Wills Act, 1954).

Pre-execution amendments

 As mentioned above, the section does not govern amendments made prior to
execution of the will being amended. Theoretically speaking, these require no
formalities.
 However, there is a rebuttable presumption that any amendment was made after the
will was executed (section 2(2)).
 Consequently it is necessary for practical purposes that alterations made before
execution be initialed and witnessed as if they had been made after execution of the
will (see below for the requirements).

Post-execution amendments in the case of wills executed before 1/1/1954

 Except in Natal, the common law applied in terms of which there were no formalities
for the deletion of existing provisions, but formalities were required for the insertion
of additional provisions.
 In Natal the position was governed by statute, which required formalities for all
amendments, irrespective of whether they involved deletion or insertion of materials.

Post-execution amendments in the case of wills executed after 1/1/1954

 As indicated above, the amendment of wills executed after 1/1/1954 is governed by

section 2(1)(b).
 The formalities are practically the same as for the execution of a will.

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 The amendment must be identified by the signature of the testator (s 2(1)(b)(i)) and
by the signatures of two witnesses (s 2(1)(b)(iii)) and all three must be present at the
same time (s 2(1)(b)(ii)). Provision is made for the use of an amanuensis or the use
of a mark by the testator and in both such cases certification by a C/O is required (s
2(1)(b)(i) & (iv)).
 The signature of the testator and witnesses must be as close as possible to the
amendment.

What is meant by an amendment to a will?

Section 2(1)(b)
(b) no amendment made in a will executed on or after the said date and made after the execution thereof shall
be valid unless-
(i) the amendment is identified by the signature of the testator or by the signature of some other
person made in his presence and by his direction; and
(ii) such signature is made by the testator or by such other person or is acknowledged by the testator
and, if made by such other person, also by such other person, in the presence of two or more
competent witnesses present at the same time; and
(iii) the amendment is further identified by the signatures of such witnesses made in the presence of
the testator and of each other and, if the amendment has been identified by the signature of such
other person, in the presence also of such other person; and
(iv) if the amendment is identified by the mark of the testator or the signature of some other person
made in his presence and by his direction, a commissioner of oaths certifies on the will that he has
satisfied himself as to the identity of the testator and that the amendment has been made by or at
the request of the testator:
Provided that-
(aa) the amendment is identified in the presence of the commissioner of oaths in terms of
subparagraphs (i) and (iii) and the certificate concerned is made as soon as possible after
the amendment has been so identified; and
(bb) if the testator dies after the amendment has been identified in terms of subparagraphs (i)
and (iii) but before the commissioner of oaths has made the certificate concerned, the
commissioner of oaths shall as soon as possible thereafter make or complete his
certificate.
S2 (2) Any amendment made in a will executed after the said date shall for the purposes of subsection (1) be
presumed, unless the contrary is proved, to have been made after the will was executed.

 Signature of testator and witnesses must be places as close as possible to the amendment
or it must appear ex facie the identification of the signatures are relevant to the a specific
amendment.
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 The Act defines the terms amendment and deletion. If we read these definitions together
we find that the term amendment encompasses all of the following:
o additions;
o alterations;
o interlineations;
o deletions (cancellations, and obliterations).

Deletion of entire will

 S2(1)(b) not applicable
 a deletion of the entire will made animo revocandi constitutes revocation of the will and
is not regulated by the Act. In terms of the common law it requires no formalities
provided it amounts to actual or symbolic destruction
 Deletion of entire will= revocation and not an amendment
 Senekal v Meyer 1975 (3) SA 372 (T)
The testator had a valid will. On it he had written the word “gekanselleer” (cancelled) on both of the
pages of the copy in his possession. The Master, however, accepted the testator's attorney’s copy as the
deceased's valid will and testament. The deceased's current wife sought an order from
the court declaring that the deceased had died intestate, as he had intended to revoke this earlier will.
This was opposed by the deceased's first wife, who was the sole heir in terms of the will. The court held
that the deceased had expressed a clear intention to revoke his will, and so the deceased was found to
have died intestate.

 If there doubt as to whether testator intended to amend or revoke,

 Amendment or change – s2(1)(b) applies
 If testator no longer wants a provision to be part of the will = partial revocation ( no
formalities)

“deletion” means a deletion, cancellation or obliteration in whatever manner effected, excluding a deletion,
cancellation or obliteration that contemplates the revocation of the entire will;

 The words ‘in whatever manner effected’ were part of the definition of deletion
introduced in 1992 in order to counter arguments put forward by Professor Beinart, and
others, to the effect that deletions made other than with a writing instrument (for example,
cutting out or tippexing out) were not regulated by the Act

Consequences of non- compliance

 After amendment the document must still be comprehensible as a whole
 Amendment which render will incomprehensible or inoperable may amount to a
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revocation
 If a will is amended without the requisite formalities then the original words will be given
effect to as they were prior to the putative alteration.
 Evidence may be led to establish the original wording if it is illegible. ( S2(3))
 The rescue provisions (s 2(3) of the Act) also apply to alterations that have not been
properly attested. ( to be discussed later)
 Webster v The Master1 - deletions in copy of will. Court did not condoned ito s2(3) but
did revoke original will ito S2A.
 Letsekga v The Master – 1995 (4) SA 731 (W)
 an application was made in terms of section 2(3) for the court to accept the document as the final will of the
deceased and in the alternative to accept that the document was intended to revoke a part of a will in terms
of section 2A(c). The deceased died leaving a valid will and a set of notes, written in his own hand,
recording prospective amendments to the will, which may have been a reminder to the deceased of what he
intended to change, or instructions to someone regarding changes to be effected. As regard the first
application the court held that the deceased did not intend in making the document his last will, hence the
application failed.
 Concerning section 2A(c) the court held that for the same reasons given for the application of section 2(3),
the document did not qualify as a document as specified in terms of section 2A(c).249 The court held further
that the notes themselves were not intended to revoke or amend the will. The intention of the testator in such
a case is that a further document will be made in due course that will bring about the revocation

Pre-printed forms

Read De Waal 4.2.5

 Use of a pre-printed form requires blank spaces to be completed and inapplicable words to
be deleted.
 Since this is done pre-execution in principle no formalities are required.
 But the rebuttable presumption (referred to above) that amendments were made post-
execution must be taken into account.
 This means that, from a practical point of view, amendments to the pre-printed form will
need to be attested if it is not possible to determine from the appearance of the will that the
addition was made as part of the execution process (i.e. that they are pre-execution
amendments).

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1996(1) SA 34(D)
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Presumption of validity of wills

 At common law a rebuttable presumption exists that a will which appears on the face of it
to be validly executed is in fact valid (De Waal 2015 87; 2008 89; 2003 83; 1996 62,
citing inter alia Kunz v Swart 1924 AD 618 651; Sterban v Dixon 1968 (1) SA 322 (C) 322
325; and Thaker v Naran 1993 (4) SA 665 (N).
 A will is ‘complete and regular on the face of it’ if it appears from the face of the will
that all the formal requirements of the Wills Act, 1953 for the valid execution of a will have
been satisfied (Thaker v Naran 1993 (4) SA 665 (N)).

Dependent relative revocation/amendment

 a doctrine holding that if the destruction, cancellation, or revocation of a will is dependent
on the making of a new will which is not made or is found to be invalid then the original
will is still in effect.
 Same applies for partial revocations and amendments