Law of Succession SA Notes

UNIVERSITY OF PRETORIA
Law of Succession
ERF 211
Lecture Notes
S10360183 - Matthew P. Pool
Semester One, 2011
Prof. A van der Linde

Law of Succession
Contents:
CONTENTS: ................................................................................................................................................................................. 2
TABLE OF AUTHORITIES: ............................................................................................................................................................. 4
LEGISLATION:...................................................................................................................................................................................... 4
PRECEDENT: ....................................................................................................................................................................................... 5
CHAPTER ONE - INTRODUCTION: ................................................................................................................................................ 8
GENERAL: .......................................................................................................................................................................................... 8
TESTATE AND INTESTATE LAW OF SUCCESSION: ......................................................................................................................................... 8
CONTENTS OF WILLS AND FREEDOM OF TESTATION: .................................................................................................................................. 8
Common Law Limitations: .......................................................................................................................................................... 8
Statutory Limitations: ................................................................................................................................................................. 8
General: ...................................................................................................................................................................................... 9
A Complete Disinheritance: ...................................................................................................................................................... 10
Attaching Conditions to Testamentary Bequests: .................................................................................................................... 11
VESTING AND ENFORCEMENT OF RIGHTS:............................................................................................................................................... 12
LEGAL POSITION IN RESPECT OF THE DECEASED ESTATE: ........................................................................................................................... 13
BASIC REQUIREMENTS FOR SUCCESSION: ............................................................................................................................................... 13
CHAPTER THREE – TESTAMENTARY CAPACITY; CAPACITY TO SIGN AS A WITNESS: .................................................................. 14
TESTAMENTARY CAPACITY: .................................................................................................................................................................. 14

Requirements for Formal Testamentary Capacity:................................................................................................................... 14
Meaning and Causes of “Mental Incapacity”: .......................................................................................................................... 14
General: .................................................................................................................................................................................... 15
Undue Influence: ...................................................................................................................................................................... 15
Duress (Coercion): .................................................................................................................................................................... 15
Mistake:.................................................................................................................................................................................... 16
General: .................................................................................................................................................................................... 16
On Whom May a Power of Appointment be Conferred: .......................................................................................................... 16
Invalid Power of Appointment:................................................................................................................................................. 16
Exercising a Power of Appointment: ........................................................................................................................................ 17
CAPACITY TO SIGN AS A WITNESS: ........................................................................................................................................................ 17
CHAPTER FOUR – FORMALITIES IN THE EXECUTION AND AMENDMENT OF WILLS: .................................................................. 19
FORMALITIES IN THE EXECUTION OF WILLS: ............................................................................................................................................ 19

A Will: ....................................................................................................................................................................................... 20
Ways of making a Valid Will: ................................................................................................................................................... 21
Signing and Signature: ............................................................................................................................................................. 21
The Witnesses: ......................................................................................................................................................................... 22
The Certificate: ......................................................................................................................................................................... 23
Introduction: ............................................................................................................................................................................. 24
FORMALITIES IN AMENDING A WILL: ..................................................................................................................................................... 26
CHAPTER FIVE – INVALID WILLS AND REVOCATION OF WILLS: ................................................................................................. 28
INVALID WILLS: ................................................................................................................................................................................. 28

REVOCATION OF WILLS: ...................................................................................................................................................................... 29
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Law of Succession
MDLULU V DELAREY AND OTHERS ........................................................................................................................................... 29
Introduction: ............................................................................................................................................................................. 30
Execution of a Subsequent Valid Will, Codicil, Antenuptial Contract or Revocatory Document: ............................................. 30
Revocation by Destruction: ...................................................................................................................................................... 30
Presumptions upon Destruction: .............................................................................................................................................. 31
Other Possible Methods of Express Revocation: ...................................................................................................................... 32
Court’s Power of Condonation at Revocation: ......................................................................................................................... 32
BACK AND OTHERS NNO V MASTER OF THE SUPREME COURT ................................................................................................. 32
HEREIN THE COURT RULED THAT A REVOCATION THAT AMOUNTS TO AN AMENDMENT FALLS WITHIN THE AMBIT OF ......... 32
Introduction: ............................................................................................................................................................................. 33
Execution of a Subsequent Conflicting Will: ............................................................................................................................. 33
Alienation of Bequeathed Assets: ............................................................................................................................................. 33
Other Possible Methods of Tacit Revocation and the Automatic Lapsing of a Will: ................................................................ 33
HEREIN THE COURT RULED THAT WHERE A CODICIL REVOKES CERTAIN CLAUSES OF A WILL, THE REVOCATION OF THOSE
CLAUSES IS CONDITIONAL UPON THE VALIDITY OF THE CODICIL. ............................................................................................. 33
CHAPTER SIX – CAPACITY TO INHERIT:...................................................................................................................................... 35
INTRODUCTION: ................................................................................................................................................................................ 35
GENERAL STATUTORY PROVISIONS: ....................................................................................................................................................... 35
UNWORTHY PERSONS: ....................................................................................................................................................................... 36
PERSONS PARTICIPATING IN THE EXECUTION PROCESS: ............................................................................................................................. 37
GUARDIANS, CURATORS AND ADMINISTRATORS: ..................................................................................................................................... 37
CONSEQUENCES OF THE INCAPACITY TO INHERIT: ..................................................................................................................................... 37
CHAPTER SEVEN – THE CONTENTS OF WILLS: ........................................................................................................................... 38
INTRODUCTION: ................................................................................................................................................................................ 38
BENEFICIARIES: ................................................................................................................................................................................. 38
Failure of a Legacy: .................................................................................................................................................................. 39
CONDITIONS AND DIES: ...................................................................................................................................................................... 39
Suspensive Conditions: ............................................................................................................................................................. 39
Resolutive Conditions: .............................................................................................................................................................. 40
Potestative, Casual and Mixed Conditions: .............................................................................................................................. 40
Conditions that are Impossible, Illegal or against Public Policy: .............................................................................................. 40
Vague and Uncertain Conditions: ............................................................................................................................................. 40
THE MODUS: .................................................................................................................................................................................... 41
SUBSTITUTION: ................................................................................................................................................................................. 41
General: .................................................................................................................................................................................... 41
Forms of Direct Substitution: .................................................................................................................................................... 42
Problems of Interpretation with Direct Substitution: ............................................................................................................... 42
Direct Substitution by Operation of Law: ................................................................................................................................. 42
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Law of Succession
Table of Authorities:
Legislation:
CONTENTS: ................................................................................................................................................................................. 2
 PENSION FUNDS ACT 24 OF 1956 ................................................................................................................................................. 8

 SECTION 6 OF THE IMMOVABLE PROPERTY ACT 94 OF 1965............................................................................................................... 8
 SUBDIVISION OF AGRICULTURAL LAND ACT 70 OF 1970 .................................................................................................................... 8
 SECTION 13 OF THE TRUST PROPERTY CONTROL ACT 57 OF 1988 ....................................................................................................... 8
 MAINTENANCE OF SURVIVING SPOUSES ACT 27 OF 1990 .................................................................................................................. 8
SECTION 25 OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996 .............................................................................................. 9
SECTION 36 OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996 .............................................................................................. 9
SECTION 9(3) AND 9(4) OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996 ............................................................................ 10
SECTION 2C OF THE WILLS ACT 7 OF 1953: ........................................................................................................................................... 12
SECTION 2D(1)(C) OF THE WILLS ACT 7 OF 1953: .................................................................................................................................. 13
SECTION 4 OF THE WILLS ACT 7 OF 1953: ............................................................................................................................................. 14

SECTION 2(1)(A)(II) AND 2(1)(A)(III) OF THE WILLS ACT 7 OF 1953: .......................................................................................................... 17
SECTION 4A OF THE WILLS ACT 7 OF 1953: ........................................................................................................................................... 18
SECTION 2(1)(A) OF THE WILLS ACT 7 OF 1953:..................................................................................................................................... 19

SECTION 2D OF THE WILLS ACT 7 OF 1953: ........................................................................................................................................... 20
SECTION 2(1)(A)(V) OF THE WILLS ACT 7 OF 1953: ................................................................................................................................ 23
SCHEDULE 1 TO THE WILLS ACT 7 OF 1953: ........................................................................................................................................... 24
SECTION 2(3) OF THE WILLS ACT 7 OF 1953: ......................................................................................................................................... 24
SECTION 2(2) OF THE WILLS ACT 7 OF 1953: ......................................................................................................................................... 26
SECTION 2(1)(B) OF THE WILLS ACT 7 OF 1953: ..................................................................................................................................... 26
MDLULU V DELAREY AND OTHERS ........................................................................................................................................... 29

SECTION 2B OF THE WILLS ACT 7 OF 1953: ........................................................................................................................................... 30
SECTION 8 OF THE ADMINISTRATION OF ESTATES ACT 66 OF 1965: ............................................................................................................ 31
BACK AND OTHERS NNO V MASTER OF THE SUPREME COURT ................................................................................................. 32
SECTION 2B OF THE WILLS ACT 7 OF 1953: ........................................................................................................................................... 33
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SECTION 2D(1)(C) OF THE WILLS ACT 7 OF 1953: .................................................................................................................................. 35

SECTION 1(2) OF THE INTESTATE SUCCESSION ACT 81 OF 1987: ................................................................................................................ 35
SECTION 2D OF THE WILLS ACT 7 OF 1953: ........................................................................................................................................... 35
SECTION 12 OF THE PERPETUAL EDICT OF 4 OCTOBER 1540: .................................................................................................................... 37
SECTION 1(7) OF THE INTESTATE SUCCESSION ACT 81 OF 1987: ................................................................................................................ 37
SECTION 2C(2) OF THE WILLS ACT 7 OF 1953: ....................................................................................................................................... 37
SECTION 24 OF THE GENERAL LAW AMENDMENT ACT 32 OF 1953: ........................................................................................................... 42

Precedent:
CONTENTS: ................................................................................................................................................................................. 2
MINISTER OF EDUCATION V SYFRETS TRUST LTD 2006 (4) SA 2005 (C) AT PAR [18]: .................................................................................... 9
MINISTER OF EDUCATION V SYFRETS TRUST LTD 2006 (4) SA 2005 (C) AT PAR [20]: .................................................................................. 10
MINISTER OF EDUCATION V SYFRETS TRUST LTD 2006 (4) SA 2005 (C): ................................................................................................... 11
EX PARTE BOE TRUST LTD NO AND OTHERS 2009 (6) SA 470 (WCC): ..................................................................................................... 11
CURATORS AD LITEM TO CERTAIN BENEFICIARIES OF EMMA SMITH EDUCATIONAL FUND V THE UNIVERSITY OF KWAZULU-NATAL (510/09) [2010]
ZASCA 136 (1 OCTOBER 2010): ........................................................................................................................................................ 11
BOTHA V BOTHA 1979 (2) SA 792 (T): ................................................................................................................................................ 12
HARRIS V ASSUMED ADMINISTRATOR, ESTATE MACGREGOR 1987 (3) SA 563 (A): ..................................................................................... 12
GREENBERG V ESTATE GREENBERG 1955 (3) SA 361 (A): ....................................................................................................................... 13
WESSELS V DE JAGER 2000 (4) SA 924 (SCA): ..................................................................................................................................... 13
EX PARTE GRAHAM 1963 (4) SA 145 (D): ........................................................................................................................................... 13
GREYLING V GREYLING 1978 (2) SA 114 (T): ........................................................................................................................................ 13
GELDENHUYS V BORNMAN 1990 (1) SA 161 (EC): ................................................................................................................................ 14

ESSOP V MUSTPHA AND ESSOP 1988 (4) SA 213 (D) AT 22 IC-D: ............................................................................................................ 14
KATZ V KATZ [2004] 4 ALL SA 545 (C) AT PAR [22]: .............................................................................................................................. 14
HARLOW V BECKER 1998 (4) SA 639 (D) AT 648F-G: ........................................................................................................................... 15
SPIES V SMITH 1957 (1) SA 539 (A) AT 547: ........................................................................................................................................ 15
SPIES V SMITH 1957 (1) SA 539 (A).................................................................................................................................................... 15
THIRION V MEESTER 2001 (4) SA 1078 (T): ......................................................................................................................................... 15
KATZ V KATZ [2004] 4 ALL SA 545 (C) AT PARS [114] AND [119]: ........................................................................................................... 15
BRAUN V BLANN AND BOTHA 1984 (2) SA 850 (A):............................................................................................................................... 16
BRAUN V BLANN AND BOTHA 1984 (2) SA 850 (A) AT 867: .................................................................................................................... 16
ADMINISTRATORS, ESTATE RICHARDS V NICHOL 1996 (4) SA 253 (C): ...................................................................................................... 16
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FERREIRA V SMIT 1981 (3) SA 1264 (A): ............................................................................................................................................. 17
EX PARTE ESTATE DAVIES 1957 (3) SA 471 (N) AT 474 .......................................................................................................................... 20

OOSTHUIZEN V DIE WEESHEER 1974 (2) SA 434 (O): ............................................................................................................................ 20
WESSELS V DIE MEESTER [2007] SCA 17 (RSA): ................................................................................................................................... 20
STERBAN V DIXON 1968 (1) SA 322 (C) AT 324-325: ........................................................................................................................... 21
BOSCH V NEL EN ANDERE 1992 (3) SA 600 (T): .................................................................................................................................... 21
THAKER AND OTHERS V NARAN AND ANOTHER 1993 (4) SA 665 (N): ....................................................................................................... 21
KIDWELL V THE MASTER 1983 (1) SA 509 (E): ..................................................................................................................................... 21
LIEBENBERG V THE MASTER 1992 (3) SA 57 (D): .................................................................................................................................. 22
RICKETTS V BYRNE 2004 (6) SA 474 (C): ............................................................................................................................................. 22
KIDWELL V THE MASTER 1983 (1) SA 509 (E): ..................................................................................................................................... 22
EX PARTE AUFRICHTIG 1979 (4) SA 426 (D): ........................................................................................................................................ 23
LEITAO V THE MASTER AND OTHERS 1981 (1) SA 318 (W): .................................................................................................................... 23
LOGUE V THE MASTER 1995 (1) SA 199 (N): ....................................................................................................................................... 25
MACDONALD AND OTHERS V THE MASTER AND OTHERS 2002 (5) SA 64 (O):............................................................................................. 25
WEBSTER V THE MASTER AND OTHERS 1996 (1) SA 34 (D):.................................................................................................................... 25
BACK AND OTHERS NNO V THE MASTER 1996 (2) ALL SA 161 (C): ......................................................................................................... 25
BEKKER V NAUDE EN ANDERE 2003 (5) SA 173 (SCA): .......................................................................................................................... 25
EX PARTE MAURICE 1995 (2) SA 713 (C): ........................................................................................................................................... 25
VAN WETTEN AND ANOTHER V BOSCH AND OTHERS 2004 (1) SA 348 (SCA): ............................................................................................ 25
RAMHAL V RAMDHANI’S ESTATE 2002 (2) SA 643 (N): .......................................................................................................................... 25
EX PARTE DE SWARDT AND ANOTHER NNO 1998 (2) SA 204 (C): ........................................................................................................... 25
DE RESZKE V MARAS 2006 (2) SA 277 (SCA): ...................................................................................................................................... 25
HARLOW V BECKER NO AND OTHERS 1998 (4) SA 639 (D): .................................................................................................................... 25
O’CONNOR V THE MASTER AND ANOTHER 1999 (4) SA 614 (NC): ........................................................................................................... 25
VAN DER MERWE V MASTER OF THE HIGH COURT AND ANOTHER (605/09) [2010] ZASCA 99 (6 SEPTEMBER 2010): ..................................... 26
MOSKOWITZ AND ANOTHER V THE MASTER AND OTHERS 1976 (1) SA 22 (C): ............................................................................. 26
ANDERSON AND WAGNER NNO AND ANOTHER V THE MASTER AND OTHERS 1996 (3) SA 779 (C): ............................................. 27
SMITH V PARSONS NO AND OTHERS 2010 (4) SA 378 (SCA): ......................................................................................................... 27
EX PARTE DESSELS 1976 (1) SA 851 (D): ........................................................................................................................................ 28

ARONSON V ESTATE HART AND OTHERS 2 1950 (1) SA 539 (A): .................................................................................................... 28
EX PARTE LUTCHMAN AND OTHERS 1951 (1) SA 125 (T): .............................................................................................................. 28
MARAIS V THE MASTER AND OTHERS 1984 (4) SA 288 (D) AT 291: ................................................................................................ 29
MDLULU V DELAREY AND OTHERS [1998] 1 ALL SA 434 (W) AT 450-451: ................................................................................................ 29
SENEKAL V MEYER, NO EN ANDERE 1975 (3) SA 372 (T): ............................................................................................................... 31
MARAIS V THE MASTER AND OTHERS 1984 (4) SA 288 (D): ........................................................................................................... 31
LE ROUX V LE ROUX AND OTHERS 1963 (4) SA 273 (C): .................................................................................................................. 32
LETSEKGA V THE MASTER AND OTHERS 1995 (4) SA 731 (W): ....................................................................................................... 32
WEBSTER V THE MASTER AND OTHERS 1996 (1) SA 34 (D): ........................................................................................................... 32
BACK AND OTHERS NNO V MASTER OF THE SUPREME COURT [1996] 2 ALL SA 161 (C): .............................................................................. 32
OLIVIER V DIE MEESTER EN ANDERE: IN RE BOEDEL WYLE OLIVIER 1997 (1) SA 836 (T): ............................................................... 32
EX PARTE DE SWARDT AND ANOTHER NNO 1998 (2) SA 204 (C): .................................................................................................. 32
LE ROUX V LE ROUX AND OTHERS 1963 (4) SA 273 (C): .................................................................................................................. 33
OLIVIER V DIE MEESTER EN ANDERE: IN RE BOEDEL WYLE OLIVIER 1997 (1) SA 836 (T): ............................................................... 33
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MOSES V ABINADER 1951 (4) SA 537 (A): ...................................................................................................................................... 34
CASEY NO V THE MASTER AND OTHERS 1992 (4) SA 505 (N): ........................................................................................................ 36
EX PARTE STEENKAMP AND STEENKAMP 1952 (1) SA 744 (T): ...................................................................................................... 36
EX PARTE DESSELS 1976 (1) SA 851 (D): ........................................................................................................................................ 40

ARONSON V ESTATE HART AND OTHERS 2 1950 (1) SA 539 (A): .................................................................................................... 40
WESSELS EN 'N ANDER V D A WESSELS EN SEUNS (EDMS) BPK EN ANDERE 1987 (3) SA 530 (T): ................................................... 41
WEBB V DAVIS NO AND OTHERS 1998 (2) SA 975 (SCA):................................................................................................................ 41
VAN ZYL AND OTHERS V VAN ZYL AND OTHERS 1951 (3) SA 288 (A): ............................................................................................. 42
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Law of Succession
Chapter One - Introduction:

General:
The Law of Succession is the totality of the legal rules which control the transfer of those assets of the deceased
which are subject to distribution among beneficiaries, or those asserts of another over which the deceased had the
power of disposal.
Van der Merwe and Rowland
Testate and Intestate Law of Succession:

Where the deceased dies without leaving a valid will or an Antenuptial contract containing provisions for inheritance
or the will that he has left is inoperative, such person is deemed to have died intestate and the rules in this regard
are applied. See the Intestate Succession Act 81 of 1987.
Where the deceased has left a valid will, he is referred to as the testator and his estate is inherited wholly or in part
according to the rules of testate succession.
Contents of Wills and Freedom of Testation:
Freedom of Testation and its Limitations:

Common Law Limitations:
A provision in a Will will not be executed if:
 It is generally unlawful
 Contra bonos mores
 Impracticably vague
 Impossible
There may also be a common law claim to maintenance from minor children.
Statutory Limitations:
 Pension Funds Act 24 of 1956
 Section 6 of the Immovable Property Act 94 of 1965
 Subdivision of Agricultural Land Act 70 of 1970
 Section 13 of the Trust Property Control Act 57 of 1988
 Maintenance of Surviving Spouses Act 27 of 1990
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The Influence of the Constitution on Freedom of Testation:

General:
Section 25 of the Constitution of the Republic of South Africa, 1996

25 Property
(1) No one may be deprived of property except in terms of law of general application, and no law may
permit arbitrary deprivation of property.
Minister of Education v Syfrets Trust LTD 2006 (4) SA 2005 (C) at par [18]:
In so far as the Constitution guarantees Freedom of Testation.
[18] In this regard, counsel on both sides accepted that, although neither s 25 nor any other provision in the
Constitution specifically refers to freedom of testation or the right of persons to dispose of their assets upon death,
freedom of testation forms an integral part of a person’s right to property, and must therefore be taken to be
protected in terms of s 25. This suggested principle has not yet been authoritatively recognised by our courts,
although it enjoys support from some of the learned authors on the subject. I am prepared, for purposes of this
judgment, to accept the correctness of such view without making any firm finding to that effect.
Section 36 of the Constitution of the Republic of South Africa, 1996

36 Limitation of rights
(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that
the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and
freedom, taking into account all relevant factors, including-
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any
right entrenched in the Bill of Rights.
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Section 9(3) and 9(4) of the Constitution of the Republic of South Africa, 1996
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds,
including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in
terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that
the discrimination is fair.
Minister of Education v Syfrets Trust LTD 2006 (4) SA 2005 (C) at par [20]:
In so far as the horizontal application of rights contained in the Bill of Rights and that a change in the provisions of a
trust amounts to a deprivation of property
[20] I have not been referred to any authority justifying the conclusion that the relief sought in the present
application amounts to a ‘deprivation’ of property. Insofar as the testator is concerned (even assuming that he can
still at this stage be the bearer of rights in respect of property), the relief sought does not in any way interfere with
his ‘use, enjoyment or exploitation’ of his property, nor does it constitute ‘substantial interference or limitation that
goes beyond the normal restrictions on property use or enjoyment’. Having had full and unfettered use, enjoyment
and exploitation of his property during his lifetime, the testator upon his death chose to dispose of his property by
leaving it in trust to the appointed trustee. The present application does not seek to alter that state of affairs. All that
it seeks to achieve is to vary the existing terms of the trust so as to remove therefrom certain provisions that are
claimed to be repugnant to public policy. This kind of exercise has been performed by the courts in innumerable
cases over the years, where trust instruments have been varied on the grounds of public policy, necessity or
impossibility or in the application of the cy près doctrine – without it ever being suggested that the testators or the
trusts in question were in the process being ‘deprived’ of their property. In my view, it would be unduly straining the
language of s 25(1) to hold in these circumstances that the order sought, if granted, would amount to a deprivation
of property.
A Complete Disinheritance:
When a potential beneficiary to a will is left out, even when the decision to do so is a result of one of the prohibited
grounds outlined in Section 9 of the Constitution of the Republic of South Africa, 1996 such a decision is believed to
be valid and the potential beneficiary would not be able to challenge the will. This is because:
 An opposite conclusion would reduce the principle of freedom of testation to a fiction

 No one has a fundamental right to inherit
 An opposite conclusion would lead to almost insurmountable practice difficulties
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Law of Succession
Attaching Conditions to Testamentary Bequests:
When a person is included as a beneficiary in a will, but the inheritance is subject to a certain condition, that
condition can be challenged when it amounts to discrimination under Section 9 of the Constitution of the Republic
of South Africa, 1996.
Minister of Education v Syfrets Trust LTD 2006 (4) SA 2005 (C):

Herein the Court ruled that where provisions in a testamentary trust amount to discrimination, such provisions can
be removed or altered.
Ex parte BOE Trust Ltd NO and Others 2009 (6) SA 470 (WCC):
Herein the Court refused to alter a provision in a testamentary trust that required that only white students benefit
provided that they return to South Africa after completing their course. The reasoning was that it was clearly the
intention of the testator to counter the effects of the skills shortage in our country. The clause was nonetheless
unenforceable as the universities empowered to offer the bursaries refused to do so. As a result, the court found
that the trustees must implement the secondary bequest of the will, that is of a donation to a variety of charities.
Curators Ad Litem to Certain Beneficiaries of Emma Smith Educational Fund v The University of KwaZulu-Natal
(510/09) [2010] ZASCA 136 (1 October 2010):
Herein the Court found that a provision in a testamentary trust that amounts to racial discrimination should be
removed in the interests of public policy.
General Testamentary Institutions:

Some general institutions include:
 Legacy and the Inheritance

 Conditions and the dies
 The modus [modal] clause
 Direct and Fideicommissary substitution and usufruct
 The trust and foundation
 Election and massing of estates
 Accrual
 Collation
Freedom of Testation and the Revocation and Amendment of Wills:

As a result of the principle of freedom of testation, the testator can alter his/her will at any point before death,
except where a beneficiary has accepted a benefit in terms of a joint or mutual will in which there has been a
massing of estates. The only case in which one cannot unilaterally alter the disposal of ones estate after death is in
the case of a donation mortis causa and where the provisions are contained in the Antenuptial contract.
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Law of Succession
Vesting and Enforcement of Rights:
The “Falling Open” of the Estate: Dies Cedit and Dies Venit:
The beneficiary’s claim on an executor arises the moment the estate falls open with regard to the particular
beneficiary’s benefit. The moment when the estate falls open is known as delatio of as dies cedit [the moment the
beneficiary’s right becomes vested]. This must be distinguished from the moment when the right becomes
enforceable, dies venit. Except in cases of the presumption of death, dies cedit cannot occur before the death of the
testator. Prior to death, the potential beneficiary has only a spes [expectation to benefit].
Vesting of Rights in the Law of Testate Succession:

In this case, the arrival of dies cedit is dependent on the intention of the testator as declared in his/her will. Where
there is no postponement of the vesting of rights, dies cedit coincides with the time of death.
In cases where the provision is postponed with regard to time, dies cedit occurs at death but dies venit only occurs at
the time/age specified.
The in cases where the provision is suspended based on a condition, dies cedit and dies venit occur only when the
condition is met.
Section 2C of the Wills Act 7 of 1953:
2C. Surviving spouse and descendants of certain persons entitled to benefits in terms of will.—(1) If any
descendants of a testator, excluding a minor or a mentally ill descendant, who, together with the surviving spouse of
the testator, is entitled to a benefit in terms of a will renounces his right to receive such benefit, such benefit shall
vest in the surviving spouse.
(2) If a descendant of the testator, whether as a member of a class or otherwise, would have been entitled to
a benefit in terms of the provisions of a will if he had been alive at the time of death of the testator, or had not been
disqualified from inheriting, or had not after the testator’s death renounced his right to receive such a benefit, the
descendants of that descendant shall, subject to the provisions of subsection (1), per stirpes be entitled to the
benefit, unless the context of the will otherwise indicates.
Botha v Botha 1979 (2) SA 792 (T):

Herein the Court dealt with a suspensive condition.
Vesting of rights in the Law of Intestate Succession:

In cases where the testator dies without a valid will, dies cedit coincides with the time of death and dies venit occurs
as soon as the administration can do so.
Harris v Assumed Administrator, Estate MacGregor 1987 (3) SA 563 (A):

Herein the Court ruled that if a person dies with a valid will that later becomes inoperative, dies cedit coincides with
the moment that the will becomes inoperative.
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Law of Succession
Problems Related to the Vesting of Rights:

Greenberg v Estate Greenberg 1955 (3) SA 361 (A):
Herein the court ruled that a beneficiaries right vests automatically when the moment of vesting occurs.
A beneficiary always has a right to accept [adiate] or reject [repudiate] a benefit, but because one can only inherit
assets [as a result of the fact that the Roman principle of succession in universitatem no longer applies], the
beneficiary acquires a right to the subject matter of the request unless he repudiates it.
Where a beneficiary choses to repudiate a benefit, such choice is deemed retrospective to the moment of vesting.
Wessels v De Jager 2000 (4) SA 924 (SCA):

Herein the judge ruled that repudiation of a benefit does not count as “disposition without value” in terms of the
Insolvency Act 24 of 1936. There was, however, some confusion as to the status regarding the vesting of rights.
Legal Position in Respect of the Deceased Estate:

This is unclear. The most commonly accepted view is that the executor in his official capacity becomes the owner of
all the assets until such time as the administration of the estate is complete and the assets are transferred to the
beneficiaries.
Basic Requirements for Succession:

Except in cases of a presumption of death, the testator must be dead for the beneficiaries to benefit. Further, the
beneficiaries must be alive at the time of delatio, unless the testator has made provision for the benefiting of
persons born later, bearing in mind the nasciturus fiction.
When dealing with people who died simultaneously, the courts must consider the facts of the case without any
presumptions to determine the order of death, as the common law presumptions no longer apply. Where no
evidence can be presented to out rule the possibility that they died simultaneously, this will be taken as correct. In
such a case, the parties cannot inherit from one another.
Ex Parte Graham 1963 (4) SA 145 (D):

Herein the Court found that the old presumptions no longer apply and that the time of death must be determined by
examination of the facts.
Greyling v Greyling 1978 (2) SA 114 (T):

Herein the Court found that the old presumptions no longer apply and that the time of death must be determined by
examination of the facts.
Section 2D(1)(c) of the Wills Act 7 of 1953:
2D. Interpretation of wills.
(1) In the interpretation of a will, unless the context otherwise indicates—
(c)
any benefit allocated to the children of a person, or to the members of a class of persons, mentioned
in the will shall vest in the children of that person or those members of the class of persons who are
alive at the time of the devolution of the benefit, or who have already been conceived at that time
and who are later born alive.
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Chapter Three – Testamentary Capacity;

Capacity to sign as a Witness:
Testamentary Capacity:
Formal Testamentary Capacity:
Requirements for Formal Testamentary Capacity:
Section 4 of the Wills Act 7 of 1953:

4. Competency to make a will.—Every person of the age of sixteen years or more may make a will unless at the time of making
the will he is mentally incapable of appreciating the nature and effect of his act, and the burden of proof that he was mentally
incapable at that time shall rest on the person alleging the same.
Meaning and Causes of “Mental Incapacity”:
The question in this case is whether or not the testator is mentally incapable of understanding the nature and effect
of his/her act as a consequence of the impairment. Some examples of where the court has ruled certain classes of
persons competent include:
 Persons declared incompetent to handle their own affairs

 Persons declared mentally retarded
 The aged
Geldenhuys v Bornman 1990 (1) SA 161 (EC):

Herein the Court found that a person deemed incompetent to handle his own affairs as a result of mental illness was
nonetheless capable of drafting a valid will.
Essop v Mustpha and Essop 1988 (4) SA 213 (D) at 22 IC-D:

With regard to the fact that in the case of old and/or ill persons, the point of departure remains that the will is valid.
“The mere fact that the mental capabilities of a testator are reduced below that which they were, either because of disease or
because of infirmity or for some other reason, does not mean that he is thereby incapable of appreciating the effects of the will
he is executing.”
Katz v Katz [2004] 4 All SA 545 (C) at par [22]:

With regard to the factors that must be present for mental capacity.
“What is required in order to satisfy the test is the ability to ‘understand and appreciate the testamentary act in its different
bearings’. This entails, first, an appreciation of the nature of the transaction itself, i.e. the act of disposing of ones property to
named beneficiaries after one’s death and appointing one or more executors to oversee the process; secondly, the ability to
distinguish between potential heirs and to make a rational and reasoned decision as to their respective claims to the testators
assets; and finally, the ability to appreciate in broad terms the nature, extent and value of the testators estate.”
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Harlow v Becker 1998 (4) SA 639 (D) at 648F-G:

Herein the Court found that the deceased was, as a result of age, illness and the effect of pain-killers, “unable to form a rational
appreciation of the claims of those who were her heirs … and unable to form an intelligent purpose of depriving them of their
inheritance.”
This, however, stands in contrast to the above cases of Katz v Katz and Essop v Mustpha and Essop where the same conditions
existed and the testator was deemed to have the necessary capacity.
Factors Influencing Free Testamentary Expression:

General:
The fact that the testator formally had the capacity to make a will does not guarantee the validity of the will. Any
impairment of the testator’s freedom of expression at the making of a will may also result in the will being invalid.
Undue Influence:
In all cases of undue influence, the onus rests upon he who alleges the same.
Spies v Smith 1957 (1) SA 539 (A) at 547:

With regard to what constitutes undue influence:
“… it thus appears that a last will may in fact be declared invalid if the testator has been moved by artifices of such a nature that
they may be equated by reason of their effect to the exercise of coercion or fraud to make a bequest which he would not
otherwise have made and which therefore expresses another person’s will rather than his own. In such a case one is not dealing
with the authentic wishes of the testator but with a displacement of volition and the will is thus not upheld.” [Translated from
the original Afrikaans]
Spies v Smith 1957 (1) SA 539 (A) and Kirsten v Bailey 1976 (4) SA 108 (K):
Factors to consider when establishing undue influence:
 The mental state of the testator
 His ability to resist being influenced
 The relationship between the testator and the person exercising the alleged influence
 The period between the execution of the will and the death of the testator
Thirion v Meester 2001 (4) SA 1078 (T):

Herein the Court applied the test formulated in Spies v Smith to conclude that a will drawn up by a young man who later
committed suicide did not reflect undue influence in the part of his girlfriend.
Katz v Katz [2004] 4 All SA 545 (C) at pars [114] and [119]:
Herein the Court ruled that evidence must be presented to support an allegation that one or more of the above factors was
present – unfounded suspicion and speculation were not sufficient.
Duress (Coercion):
When it can be proved that a Will came about through duress, such will will be declared invalid. Due to the less
subtle nature of duress (as opposed to undue influence) it would be easier to prove.
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Mistake:
In this case, the will will be deemed invalid only in certain circumstances.
Where the mistake results in a lack of animus testandi, for example where the testator signs under the belief that it
is a contract, such a will will be entirely invalid.
If, however, the mistake is in respect of motive [causa], the will or a particular provision will probably not be deemed
invalid.
Delegation of Testamentary Power:

General:
As a point of departure, testamentary power must be exercised by the testator and cannot be delegated to someone
else to do so on his behalf. There are, however, a few exceptions:
 Bequests for charitable purposes, here the trustee of a charitable trust can be given a wide discretion in
identifying beneficiaries of objectives within a broad scope identified by the testator.
 Conferment of a Power of Appointment, here the grantee of the power can appoint on behalf of the
testator and after the latter’s death beneficiaries who receive a benefit of one kind or another from the
testator
On Whom May a Power of Appointment be Conferred:
Originally, only a fiduciary or a usufructory could have such powers of appointment conferred on them. This is no
longer the case.
Braun v Blann and Botha 1984 (2) SA 850 (A):

Here the Court found that our law must recognise the conferment of specific powers of appointment on trustees of a
testamentary trust. These specific powers allow the trustee to appoint one or beneficiaries from a specific class of persons
appointed by the testator.
Invalid Power of Appointment:
A power of appointment is deemed invalid if the grantee of the power is given unlimited discretion whether he
wants to appoint further beneficiaries or not.
Braun v Blann and Botha 1984 (2) SA 850 (A) at 867:

Here the Court found that a power of appointment cannot extend to ‘will-making power’, which includes the right to create a
trust not created in the will.
“In my opinion this amounts to a delegation of will-making power which exceeds the scope of a mere power of appointment of
income and/or capital beneficiaries from a specified group of persons. It is in substance a delegation of will making power to her
administrators to create a new trust which the testatrix should have exercised herself”
Administrators, Estate Richards v Nichol 1996 (4) SA 253 (C):

Here the Court found that authorising the creation of a trust with a constitution and trustees created and appointed
at the absolute discretion of the administrators was a permissible delegation of testamentary powers.
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If the conferred power of appointment is valid, the effect thereof depends, in principle, upon the intention of the
testator. Where no such intention can be found, then the effect will depend upon the nature of the bequest and the
legal position of the grantee.
In the case of a Fideicommissary where the power of appointment is conferred upon the fiduciary, the latter has a
beneficiary interest in the bequest and the power of appointment is simply ignored.
If the grantee is a usufructuary, the assets will revert to the estate of the testator at the termination of the
usufructuary interest and thereafter dissolve either in terms of the alternative arrangements or intestate succession.
Similarly, where the grantee is a trustee, the assets revert to the estate of the testator.
Exercising a Power of Appointment:
A power of appointment cannot be exercised until the will in which it is conferred becomes operative.
Ferreira v Smit 1981 (3) SA 1264 (A):

Here the Court outlined some general requirements for the valid exercise of a power of appointment:
a) The grantee must have the intention of exercising the power of appointment
b) The power of appointment must be exercised in accordance with the provisions of the will [this means that an exercise
that falls short will be invalid and an exercise that goes beyond will only be valid insofar as the will allows]
Where a power of appointment not exercised or is exercised invalidly, it can result in:
 Were provision is made in the will for such eventualities, this provision is given effect
 Where there is a specific power, the persons identified will receive the benefit
 Where there is a general power upon someone who has a beneficiary interest in the bequest, it will devolve
upon the latter’s intestate heirs
 In all other cases the bequest will revert to the testators estate and dissolve amongst intestate heirs
Capacity to Sign as a Witness:

Section 2(1)(a)(ii) and 2(1)(a)(iii) of the Wills Act 7 of 1953:
2. Formalities required in the execution of a will.—(1) Subject to the provisions of section 3bis—
(a)
no will executed on or after the first day of January, 1954, shall be valid unless—
(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)
such witnesses attest and sign the will in the presence of the testator and of each other and, if the will is
signed by such other person, in the presence also of such other person; and

“competent witness” means a person of the age of fourteen years or over who at the time he witnesses a will is not
incompetent to give evidence in a court of law;
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Although not required, the inclusion of an attestation clause is recommended for evidentiary purposes.
We, A and B, hereby confirm the signature of testator T and declare that we signed the will of T on 6 June 2008 in the Presence of
one another and T
The witnesses need not have any knowledge of the contents of the Will as their presence is merely for the purposes
of confirming the signature of the testator.
The witnesses must sign after the testator and may sign anywhere on the last page.
Where a witness is also a beneficiary, such witness will not be able to benefit unless one of the exceptions below
applies. This will not, however, affect the validity of the will.
Section 4A of the Wills Act 7 of 1953:

4A. Competency of persons involved in execution of will.—
(1) Any person who attests and signs a will as a witness, or who signs a will in the presence and by direction of the
testator, 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.
(2) Notwithstanding the provisions of subsection (1)—
(a)
a court may declare a person or his spouse referred to in subsection (1) to be competent to receive a benefit
from a will if the court is satisfied that that person or his spouse did not defraud or unduly influence the
testator in the execution of the will;
(b)
a person or his spouse who in terms of the law relating to intestate succession would have been entitled to
inherit from the testator if that testator has died intestate shall not be thus disqualified to receive a benefit
from that will: Provided that the value of the benefit which the person concerned or his spouse receives, shall
not exceed the value of the share to which that person or his spouse would have been entitled in terms of the
law relating to intestate succession;
(c)
a person or his spouse who attested and signed a will as a witness shall not be thus disqualified from receiving a
benefit from that will if the will concerned has been attested and signed by at least two other competent
witnesses who will not receive any benefit from the will concerned.
(3) For the purposes of subsections (1), and (2) (a) and (c), the nomination in a will of a person as executor, trustee or
guardian shall be regarded as a benefit to be received by such person from that will.
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Chapter Four – Formalities in the Execution

and Amendment of Wills:
Formalities in the Execution of Wills:
Underhand (or Statutory) Will:
Section 2(1)(a) of the Wills Act 7 of 1953:
2. Formalities required in the execution of a will.
(1) Subject to the provisions of section 3bis—
(a)
(i)
the will is signed at the end thereof by the testator or by some other person 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)
such witnesses attest and sign the will in the presence of the testator and of each other and, if the will is
signed by such other person, in the presence also of such other person; 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 or by such other person anywhere on the page; and
(v)
if the will is signed by the testator by the making of a mark or by some other person in the presence and by
the direction of the testator, a commissioner of oaths certifies that he has satisfied himself as to the
identity of the testator and that the will so signed is the will of the testator, and each page of the will,
excluding the page on which his certificate appears, is also signed, anywhere on the page, by the
commissioner of oaths who so certifies: Provided that—
(aa)
the will is signed in the presence of the commissioner of oaths in terms
of subparagraphs (i), (iii) and (iv) and the certificate concerned is made as soon as possible after
the will has been so signed; and
(bb)
if the testator dies after the will has been signed in terms of subparagraphs (i), (iii) and (iv) 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, and sign each page of the will,
excluding the page on which his certificate appears;
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A Will:
Although not defined by the legislature, a will can be seen as:
 A unilateral, voluntary expression of the wishes of the testator

 In legally prescribed ways
 That determines what must happen to his property after his death
 This includes a codicil and any other testamentary writing
 It must be in written form, not verbally or informally
 Writing can include a typed or printed or computer generated document
Ex parte Estate Davies 1957 (3) SA 471 (N) at 474 and

Oosthuizen v Die Weesheer 1974 (2) SA 434 (O):
Herein the Courts determined the elements required for an effective testamentary disposition.
There must be an indication of:
a) The bequeathed assets;
b) The extent of the interest bequeathed in the assets; and
c) The identity of the beneficiaries.
The formalities must be complied with in every will, codicil and supplements to the will (including any that are
referred to as part of the will)
Wessels v Die Meester [2007] SCA 17 (RSA):

Herein the Court found that the doctrine of incorporation into a document by reference does not apply in South African law and
thus any other document intended to form part of the will must be executed in terms of the prescribed formalities
Where an Antenuptial contract contains testamentary provisions, the provisions of the Wills Act 7 of 1953 are
superseded by those of section 87 of the Deeds Registries Act 47 of 1937.
Section 2D of the Wills Act 7 of 1953:

2D. Interpretation of wills.—(1) In the interpretation of a will, unless the context otherwise indicates—
(a)
an adopted child shall be regarded as being born from his adoptive parent or parents and, in determining his
relationship to the testator or another person for the purposes of a will, as the child of his adoptive parent or
parents and not as the child of his natural parent or parents or any previous adoptive parent or parents, except
in the case of a natural parent who is also the adoptive parent of the child concerned or who was married to
the adoptive parent of the child concerned at the time of the adoption;
(b)
the fact that any person was born out of wedlock shall be ignored in determining his relationship to the testator
or another person for the purposes of a will;
(c)
any benefit allocated to the children of a person, or to the members of a class of persons, mentioned in the will
shall vest in the children of that person or those members of the class of persons who are alive at the time of
the devolution of the benefit, or who have already been conceived at that time and who are later born alive.
(2) In the application of this section “will” means any writing by a person whereby he disposes of his property or any
part thereof after his death.
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Ways of making a Valid Will:
A will may validly come into existence in one of the following ways:
a) The will is signed at the end by means of the testator’s signature in the presence of two competent
witnesses
b) The will is signed by someone else on behalf of and as directed by the testator in the presence of the
testator, at least two competent witnesses and a commissioner of oaths and the will is certified by the
commissioner of oaths
c) The testator acknowledges in the presence of at least two competent witnesses his signature previously
placed on the will
d) The person who signs on behalf of the testator and by his direction acknowledges his signature previously
placed on the will in the presence of the testator, at least two competent witnesses and a commissioner of
oaths and the commissioner of oaths certifies the will. The witnesses cannot simply acknowledge their
signatures
e) The testator signs the will by placing his mark in the presence of at least two competent witnesses and a
commissioner of oaths and the will is then certified by the commissioner of oaths
Only the testator is permitted to sign the will by placing his mark, all other parties must sign using their signature.
The date and place of execution and signature of the will need not be stated.
A will that appears to have been signed by the testator and witnesses in accordance with the formalities is presumed
to be valid and anyone alleging other must prove so on balance of probabilities.
Sterban v Dixon 1968 (1) SA 322 (C) at 324-325:

In the case of a properly executed will the testator signs first, either in the presence of witnesses or out of their presence and
affirms his signature(s) is their presence.
Bosch v Nel en Andere 1992 (3) SA 600 (T):

Here the Court found that it was permissible for a testator to merely acknowledge his signature in front of two competent
witnesses, provided that he has previously signed the will.
Thaker and Others v Naran and Another 1993 (4) SA 665 (N):
Here the court found that where a will appears on the face of it to be valid, this will be presumed unless the contrary is proven.
Signing and Signature:
What is signing and where must the signature be placed:
The testator (or someone acting on his behalf) must sign the last page at the end of the will and anywhere on every
other page of the will. This must be made or acknowledged in the presence of witnesses.
Kidwell v The Master 1983 (1) SA 509 (E):

Here the courts found that “the end of the Will” meant as close to the concluding words thereof as was reasonably possible.
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The witnesses must sign the final page of the will. It is preferable that this signature appear after that of the testator
(since the witnesses must sign after the testator in time), but this is not always practically possible and the witnesses
may sign anywhere on the page.
Liebenberg v The Master 1992 (3) SA 57 (D):

Here the Court found that a will was valid where the will has been signed by the witnesses anywhere on the last page (in this
case at the top).
The commissioner of oaths must sign anywhere on every page of the will and may append his certificate on any
page.
What is a signature:
“sign” includes the making of initials and, only in the case of a testator, the making of a mark and “signature” has a
corresponding meaning;
According to case law, signatures should not be in printed or capital letters (although there are some cases where
these have been condoned). The test should always be whether it was the signatories intention to sign or attest to
the will.
What is a mark:
This usually entails the making of a cross, but can also include a thumbprint, rubber stamp or seal-ring impression.
Ricketts v Byrne 2004 (6) SA 474 (C):

Herein the Court refused to recognise a printed name as a signature. It could, however, be seen as a mark.
Where is the end of a will:
Kidwell v The Master 1983 (1) SA 509 (E):

Here the courts found that “the end of the Will” meant as close to the concluding words thereof as was reasonably possible.
The Witnesses:
The Same Witnesses and Such Witnesses:
It is not necessary for the testator to see the witnesses sign the will, it is merely necessary that they do so in a place
where the testator could reasonably have seen them sign it. The same witnesses must sign the will and any addenda
and must also witness (or be attested to) the signature of the testator on all other pages, but need not sign these
pages.
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Only Certain Pages Valid:
Where the last page is formally defective, the courts have been willing to condone the remainder of the will.
However, where the defective pages are in the middle, the court is not willing to condone the will.
Ex Parte Aufrichtig 1979 (4) SA 426 (D):

Herein the court found the first seventeen pages of a will to be valid where the final page was not validly executed. The
important question was whether or not the part of the will was validly executed contained the material or essential components
thereof.
The Certificate:
Section 2(1)(a)(v) of the Wills Act 7 of 1953:

(1) Subject to the provisions of section 3bis—
(a)
(v)
if the will is signed by the testator by the making of a mark or by some other person in the presence and by
the direction of the testator, a commissioner of oaths certifies that he has satisfied himself as to the
identity of the testator and that the will so signed is the will of the testator, and each page of the will,
excluding the page on which his certificate appears, is also signed, anywhere on the page, by the
commissioner of oaths who so certifies: Provided that—
(aa)
the will is signed in the presence of the commissioner of oaths in terms
of subparagraphs (i), (iii) and (iv) and the certificate concerned is made as soon as possible after
the will has been so signed; and
(bb)
if the testator dies after the will has been signed in terms of subparagraphs (i), (iii) and (iv) 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, and sign each page of the will,
excluding the page on which his certificate appears;
Leitao v The Master and Others 1981 (1) SA 318 (W):

In this case there were two original documents on which the testator had made his mark. The one was formally defective as the
signature of the notary did not appear on the first page. The court found that a duplicate original that in all respects complies
with the formalities can be accepted as a last will and that a certificate need not follow exactly the words given in the act or the
schedule there to.
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The Wording:
Schedule 1 to the Wills Act 7 of 1953:
Schedule 1
Certificate in terms of section 2 (1) (a) (v)
I, (full name)
of (full address)
in my capacity as commissioner of oaths certify that I have satisfied myself as to the identity of
the testator (full name)
and that the accompanying will is the will of the testator.
Signature
Commissioner of Oaths
Capacity
Place Date
The Court’s Power to Condone a Formally Defective Will:

Introduction:
Section 2(3) of the Wills Act 7 of 1953:

(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, 1965 (Act
No. 66 of 1965), as a will, although it does not comply with all the formalities for the execution or amendment of wills referred
to insubsection (1).
The following are categories of cases that deal with section 2(3):
a) The testator writes a document in his own handwriting and signs it.
b) The testator writes a document in his own handwriting and doesn’t sign it.
c) The testator requests someone in a letter to draw up a will for him.
d) The testator requests in another way to draw up a will for him and the person the draws up a document on
behalf of the testator but no further formalities are complied with.
e) Someone is requested by the testator to draw up a will on behalf of the testator. The process of execution
of the document is initiated, but the result is formally defective.
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Logue v The Master 1995 (1) SA 199 (N):

Herein the Court condoned a will written in the testators hand and signed by the testator (all but the first page) but where no
witnesses had signed.
Macdonald and Others v the Master and Others 2002 (5) SA 64 (O):
Here the court found that a document drafted on the deceased’s personal computer, to which he had sole access, could be seen
as having been drafted by the deceased personally and that the wording thereof was that of a will. The court further held that
there was no need for any of the formalities to have been complied with.
Webster v The Master and Others 1996 (1) SA 34 (D):

Herein the Court found that a document drafted by an attorney on instruction from a testator doesn’t qualify as ‘drafted’ but
rather ‘caused to be drafted’ and further that the document itself must be intended to serve as a final will, not as an indication
of intent.
Back and Others NNO v The Master 1996 (2) All SA 161 (C):
Here the court found that:
 There was no discretion if it was shown that the document qualified for Condonation
 That there need not be partial compliance with formalities
 It is not necessary that the draft be prepared by the testator, merely that it be a clear indication of his intent (if drafted
by an attorney etc, the testator should have read and approved of the draft)
Bekker v Naude en Andere 2003 (5) SA 173 (SCA):

Here the testator and his spouse had given instructions for a will to be drafted. The document was sent to the deceased and his
spouse, but never signed. Here the court found that the legislature had clearly intended ‘drafted’ to mean a personal act. The
court would be willing, however, to accept a dictated document.
Ex Parte Maurice 1995 (2) SA 713 (C):

Here the court found that it was necessary that a document drafted must be the document intended to be the will, not
instructions in this regard.
Van Wetten and Another v Bosch and Others 2004 (1) SA 348 (SCA):
Herein the court ruled that a letter addressed to an attorney but worded with the intention to serve as a will could be condoned
as it did not constitute instructions.
Ramhal v Ramdhani’s Estate 2002 (2) SA 643 (N):

Here the Court found that a document drafted by another could only be condoned if the testator had seen the document and
approved of it.
Ex parte De Swardt and Another NNO 1998 (2) SA 204 (C):

Here the testatrix approved of a will but one page was missing from the final draft. The court found that this page could be
included in terms of section 2(3).
It should be noted that this case was before the case of Bekker v Naude en Andere and in light of that judgement it would
probably have failed.
De Reszke v Maras 2006 (2) SA 277 (SCA):

Here the court found that condonantion in terms of section 2(3) was only permissible where:
 The deceased intended the document to serve as his/her will
 Such intent existed at the time of drafting or execution
Harlow v Becker NO and Others 1998 (4) SA 639 (D):

Herein the Court found that a defectively executed document signed by the testatrix two days before her death was invldi, not
on the grounds on section 2(3) but on the basis of a lack of testamentary capacity.
O’Connor v the Master and Another 1999 (4) SA 614 (NC):

Here the courts found that an application in terms of section 2(3) could succeed where there is no commissioner of oaths
present and no certification occurs but where there are sufficient people involved to count against the risk of fraud.
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Van der Merwe v Master of the High Court and Another (605/09) [2010] ZASCA 99 (6 September 2010):
Herein the court ruled that the absence of the deceased’s signature was not an absolute bar against declaring a will to be valid
where the document is authentic and there is clear intent.
Formalities in Amending a Will:
Introduction:
Provided that the testator has testamentary capacity, he or she may amend his or her will at any point uup to his or
her death. Any clause purporting to limit the testators right to amend his or her will is unenforceable and any
amendment made by another person with the consent of the testator is invalid.
Amendments made before the Execution of a Will:

A testator may amend any part of his or her will before execution, provided that upon execution the will is valid in its
entirety. Where provisions are erased, they are simply ignored. Where new provisions are added, they are seen to
be part of the will unless it can be proven that they were added without the testators knowledge.
Due to the rebuttable presumption that any amendment made to a will is made after execution, it is preferable that
amendments made before execution comply with the formal requirements. It is also recommended (as a rule in
practice) that any amendment be initialled by the testator.
Section 2(2) of the Wills Act 7 of 1953:

(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.
MOSKOWITZ AND ANOTHER v THE MASTER AND OTHERS 1976 (1) SA 22 (C):
Herein the Court confirmed that section 2(1)(b) of the Wills Act 7 of 1953 only applies to amendments made after
the execution of the Will and that evidence from the witnesses can be brought to rebut the presumption of section
2(2) of the Wills Act 7 of 1953.
Amendments made after the Execution of a Will:

Section 2(1)(b) of the Wills Act 7 of 1953:
2. Formalities required in the execution of a will.—(1) Subject to the provisions of section 3bis—
(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 some 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
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(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.
ANDERSON AND WAGNER NNO AND ANOTHER v THE MASTER AND OTHERS 1996 (3) SA 779 (C):
Herein the Court ruled that in order to condone an amendment to a Will in terms of section 2(3) of the Wills Act 7 of
1953, it was necessary that that document was intended to be the final expression of the testators wishes.
SMITH v PARSONS NO AND OTHERS 2010 (4) SA 378 (SCA):
Here the court ruled that a suicide note that unequivocally states the intention of the testator to amend his/her will
can be condoned as an amendment in terms of section 2(3) of the Wills Act 7 of 1953.
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Chapter Five – Invalid Wills and Revocation of

Wills:
Invalid Wills:
A will can be invalid in the following ways:
 Invalid in its entirety ab initio, where:

o The prescribed formalities have not been complied with
o The witnesses do not have the necessary attestation capacity
o The testator does not have testamentary capacity
o The testator lacks the necessary animus testandi
 Declared invalid by the Court, where:
o The testator was unduly influenced
o The testator was deceived or forced into drawing up the will
 Partially invalid, where
o A portion of the will cannot be given effect
 Lapsed, where
o A beneficiary has accepted benefits
A will can become inoperative where:
 The only beneficiaries have signed the will as witnesses

 The beneficiaries repudiate the request
 The testator revokes the will before his death
 There are provisions in the will that are unclear, nonsensical, impossible, contra bonos mores or nudum
praeceptum (a prohibitory clause without anyone being appointed in whose favour the prohibition operates)
It should be noted that a document that on the face of it appears to be validly executed is presumed to be a valid will
and the onus rests upon he who alleges otherwise to prove his allegations.
EX PARTE DESSELS 1976 (1) SA 851 (D):

Herein the Court ruled that a will can become inoperative where it contains, nonsensical clauses or clauses that are
contra bonos mores.
ARONSON v ESTATE HART AND OTHERS 2 1950 (1) SA 539 (A):
Herein the Court ruled that a will can become inoperative where it contains clauses that are impossible, contra
bonos mores or nudum praeceptum.
EX PARTE LUTCHMAN AND OTHERS 1951 (1) SA 125 (T):

Herein the Court ruled that it was possible for only a single clause (in this case a revocation clause) to be declared
invalid.
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Revocation of Wills:
Introduction:
The only way for a valid will to lose its legal force is through revocation by a competent testator before his death.
Generally, any competent testator is also competent to revoke his will, except:
 In the case of a joint will whereby the estates are massed, a surviving spouse loses the competence to
dispose of the ,asses assets if adiation takes place
 In the case of an Antenuptial contract containing testamentary provisions, one spouse cannot unilaterally
change the provisions and where provisions are changed in terms of a joint will the surviving spouse can
choose where to benefit in terms of the Antenuptial contract or the latter joint will.
Revocation occurs at the moment that a valid revocatory act occurs. A will can also be partially revoked, although it
is unclear how this differs from an amendment.
Revocation of a will implies:
a) The intention to revoke (animus revocandi); and

b) An act through which the revocation is manifested.
For the most part, revocation of a Will is regulated by common law, with certain cases regulated by statute.
MARAIS v THE MASTER AND OTHERS 1984 (4) SA 288 (D) at 291:
Revocation, it thus emerges, was left to the care of our common law.
This recognises two ways at least in which wills are revocable. A will can be revoked by a subsequent will or codicil
duly executed by the testator which expressly or impliedly revokes it or, for that matter, by any written instrument
with the same effect which, though itself neither a will nor a codicil, the testator executes in compliance with the
formalities prescribed for such. That is the first way. The second is this. Revocation can be accomplished by the
testator's destruction of the will, provided that he destroys it deliberately and with the intention of revoking it. The
document does not have to perish physically, although the destruction envisaged is assuredly achieved once that
happens. It also occurs, however, when the document survives but is defaced, or when the writing on it is erased or
obliterated.
Mdlulu v Delarey and others [1998] 1 All SA 434 (W) at 450-451:
Oral revocation of a will was not recognised in our common law except for certain specified circumstances and there
is no trace in any of the authorities that such exceptions have been received into our law. Most authorities are in
agreement that revocation of a duly executed will cannot be effected orally.
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2A. Power of court to declare a will to be revoked.—If a court is satisfied that a testator has—
(a)
made a written indication on his will or before his death caused such indication to be made;
(b)
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; or
(c)
drafted another document or before his death caused such document to be drafted,
by which he intended to revoke his will or a part of his will, the court shall declare the will or the part concerned, as
the case may be, to be revoked.
Section 2B of the Wills Act 7 of 1953:

2B. Effect of divorce or annulment of marriage on will.—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.
Express Revocation:
Introduction:
A will may be expressly revoked through:
a) The execution of a subsequent valid will, codicil, Antenuptial contract or other revocatory document; or
b) The destruction of a will with the accompanying intention of revoking it.
Execution of a Subsequent Valid Will, Codicil, Antenuptial Contract or Revocatory

Document:
A subsequent will that contains a clause expressly revoking all prior wills (clausa revocatoria) revokes all previous
wills where the clause forms part of a validly executed document or a document that is invalidly executed but
condoned by the Courts in terms of section 2(3) of the Wills Act 7 of 1953.
Where a subsequent Antenuptial contract or codicil contains a clause expressly revoking all prior wills, this is given
effect. It is also possible for a document to contain no clauses except one expressly revoking all prior wills.
In all of these cases, the clause revoking prior wills is deemed to be effective from the moment the subsequent
document is validly executed (not upon death as is the norm for testamentary provisions).
Revocation by Destruction:
A will may be validly revoked if the testator or someone acting on his behalf destroys the will with the intention to
revoke it. The testator must at the time have the necessary competency. Destruction can be either physical
destruction or symbolic destruction.
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SENEKAL v MEYER, NO EN ANDERE 1975 (3) SA 372 (T):

Herein the Court ruled that writing “Cancelled” across an original will, when confirmed by the testators signature,
amounted to symbolic destruction of a will and as such the will was revoked, despite the existence of a duplicate
original.
The Court further confirmed the common law presumption that if the testator was in possession of a duplicate
original and it cannot be found, it is presumed that he destroyed it with the necessary animus revocandi. See below.
MARAIS v THE MASTER AND OTHERS 1984 (4) SA 288 (D):

Herein the testator symbolically destroyed a copy of his will. The Court ruled that whilst the destruction of a copy did
not necessarily result in the revocation of the original, in this case the intention of the testator was clear and as such
must be given effect.
Although not possible at the time, amendments have since been made to the Wills Act (section 2A of the Wills Act 7
of 1953) that allow such an act to be condoned not in terms of common law, but in terms of statute.
Presumptions upon Destruction:
The following common law presumptions come into operation upon revocation through destruction:
 If it is proved that the testator destroyed the will, it is presumed that he did this with the necessary animus
revocandi
 If the will was in the possession of the testator before his death and later cannot be found or is found in a
damaged condition, it is presumed it was destroyed with the necessary animus revocandi
 Thus does not apply where the original was kept by a third party and is later found to be destroyed or
damaged
 If the testator was in possession of a duplicate original and it cannot be found, it is presumed that he
destroyed it with the necessary animus revocandi
 If the testator was in possession of both an original and duplicate original and only one can be found, it is
presumed that it was not revoked
 If the testator was only in possession of a copy and this is found to be destroyed, the presumption s that it
was not done with the necessary animus revocandi
The above presumptions can be rebutted through either direct or circumstantial evidence and where they are
rebutted, oral evidence or a copy of the will can be submitted.
The above presumptions can only be relied upon through an application to a Court, the Master shall not take them
into account.
Section 8 of the Administration of Estates Act 66 of 1965:

8. Transmission or delivery of wills to Master and registration thereof
(4A) In taking a decision concerning the acceptance of a will for the purposes of this Act, the Master shall take
into account the revocation of a will by a later will, but not the common law presumptions concerning the revocation
of a will.
(4B) The Master may for the purposes of this Act also accept a duplicate original will.
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LE ROUX v LE ROUX AND OTHERS 1963 (4) SA 273 (C):

Herein the Court confirmed the common law presumption that if the will was in the possession of the testator
before his death and later cannot be found or is found in a damaged condition, it is presumed it was destroyed with
the necessary animus revocandi.
Other Possible Methods of Express Revocation:
It appears that a will cannot be orally revoked or revoked through informal writing.
Court’s Power of Condonation at Revocation:

2A. Power of court to declare a will to be revoked.—If a court is satisfied that a testator has—
(a)
made a written indication on his will or before his death caused such indication to be made;
(b)
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; or
(c)
drafted another document or before his death caused such document to be drafted,
by which he intended to revoke his will or a part of his will, the court shall declare the will or the part concerned, as
the case may be, to be revoked.
With regard to partial revocation and amendment, it appears that Section 2A of the Wills Act 7 of 1953 can only be
applied where the act in question gives rise only to revocation of a certain part of the will and no other clause is to
be inserted.
LETSEKGA v THE MASTER AND OTHERS 1995 (4) SA 731 (W):

Herein the Court ruled that a document that appears to merely contemplate a redrafting of a Will cannot be seen as
an express revocation of a previous will.
WEBSTER v THE MASTER AND OTHERS 1996 (1) SA 34 (D):

The Court here ruled that it was possible for symbolic destruction of a copy to constitute “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… by which
he intended to revoke his will or a part of his will” in terms of Section 2A(b) of the Wills Act 7 of 1953. In contrast,
the court found that a change to a copy does not constitute a “written indication on his will”.
Back and others NNO v Master of the Supreme Court [1996] 2 All SA 161 (C):
Herein the Court ruled that where a Will containing a revocatory clause is condoned in terms of section 2(3) of the
Wills Act 7 of 1953 revokes all previous wills.
OLIVIER v DIE MEESTER EN ANDERE: IN RE BOEDEL WYLE OLIVIER 1997 (1) SA 836 (T):
Herein the Court ruled that a revocation that amounts to an amendment falls within the ambit of section 2(3)
of the Wills Act 7 of 1953 and as such cannot be condoned in terms of section 2A of the Wills Act 7 of 1953.
EX PARTE DE SWARDT AND ANOTHER NNO 1998 (2) SA 204 (C):

Herein the Court ruled that where a document containing a revocatory clause is not executed validly, it is still
possible for that revocatory clause to be condoned in terms of section 2A of the Wills Act 7 of 1953.
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Tacit Revocation:
Introduction:
In this case, the testator either executes a subsequent will, but does not expressly revoke prior wills or the testator
alienates certain assets.
Execution of a Subsequent Conflicting Will:
Where the testator dies with several wills, the wills must be read together as far as possible. Where a later will
contradicts an earlier will, the later will is deemed to tacitly revoke the earlier will insofar as they contradict one
another.
Alienation of Bequeathed Assets:
Where a testator alienates a bequeathed asset, this is seen to be tacit revocation of the asset through ademption.
Ademption is:
The adeption of a legacy is described as the tacit or implied revocation of a legacy by the conduct of the
testator. However, ademption would still operate should the testator expressly revoke the legacy when
voluntarily disposing of the subject-matter of the legacy during his lifetime.
Other Possible Methods of Tacit Revocation and the Automatic Lapsing of a Will:
Section 2B of the Wills Act 7 of 1953:
2B. Effect of divorce or annulment of marriage on will.—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.
Conditional or Supposed Revocation:

It is possible for a will to be revoked by the occurrence or non-occurrence of an uncertain future event. Where the
revocation of a will is dependent upon the creation of a new will, where such new will is inoperative then revocation
will not occur.
Where the will is revoked based on a particular supposition, this will only be effective where the supposition was
correct.
The question is always whether it was the intention of the testator to revoke the will no matter what or did he intent
to revoke the will only if a certain condition was fulfilled or the supposition was correct.
LE ROUX v LE ROUX AND OTHERS 1963 (4) SA 273 (C):

Herein the Courts ruled that where a Will is revoked in the erroneous belief that a previous (revoked) Will will
automatically revive, this revocation is not given effect as it is based upon an erroneous supposition.
OLIVIER v DIE MEESTER EN ANDERE: IN RE BOEDEL WYLE OLIVIER 1997 (1) SA 836 (T):
Herein the Court ruled that where a codicil revokes certain clauses of a will, the revocation of those clauses is
conditional upon the validity of the codicil.
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Revival of a Revoked Will:

It is possible that a previously revoked will can be revived, provided that it has not been physically destroyed.
One school of thought believes that a will can only be revived through re-execution, whilst another believes that it is
sufficient to referring to it in a latter will. The latter view is generally accepted.
MOSES v ABINADER 1951 (4) SA 537 (A):

This first, as per the judgement of VAN DEN HEEVER, J.A. was that a previously revoked will could only be revived
through re-execution.
The second, as per the judgement of SCHREINER, J.A. was that provided the original revoked will still existed and had
been validly executed, it would be sufficient to refer to the revoked will in a subsequent will that is validly executed.
This need not be done expressly, it is merely sufficient that the intention of the testator is clear from the language
used.
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Chapter Six – Capacity to Inherit:

Introduction:
As a point of departure, all persons alive at delatio are capable of being testate and/or intestate heirs. The capacity
to inherit must exist both at the time the estate falls open and at the time the benefit is accepted. Anyone alleging
otherwise bears the onus of proving the allegation on the balance of probabilities.
With regard to time, it is necessary for testate heirs to have capacity at the time of death (unless the falling open of
the estate and the vesting of rights is postponed) and, if the will becomes inoperative, intestate heirs are tested at
the time the will becomes in operative.
General Statutory Provisions:
The Unborn Child:

Section 2D(1)(c) of the Wills Act 7 of 1953:
(c)
any benefit allocated to the children of a person, or to the members of a class of persons, mentioned
in the will shall vest in the children of that person or those members of the class of persons who are
alive at the time of the devolution of the benefit, or who have already been conceived at that time
and who are later born alive.
Extra-Marital and Adopted Children:

Section 1(2) of the Intestate Succession Act 81 of 1987:
Section 2D of the Wills Act 7 of 1953:

(a)
an adopted child shall be regarded as being born from his adoptive parent or parents and, in
determining his relationship to the testator or another person for the purposes of a will, as the child
of his adoptive parent or parents and not as the child of his natural parent or parents or any previous
adoptive parent or parents, except in the case of a natural parent who is also the adoptive parent of
the child concerned or who was married to the adoptive parent of the child concerned at the time of
the adoption;
(b)
the fact that any person was born out of wedlock shall be ignored in determining his relationship to
the testator or another person for the purposes of a will;
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Statutory Representation (or Accrual):

Unworthy Persons:
General:
In the words of Corbett and others:
The basis of the grounds of unworthiness mentioned by the authorities is that to allow the beneficiary to
take the benefit would offend against public policy and the general principle that no one should be allowed
to benefit from his or her own wrongful act or derive benefit from conduct which is punishable.
Specific Cases of Unworthiness:
De bloedige hand neemt geen erf
Included among persons unworthy to inherit in terms of common law, arethose who unlawfully and intentionally
caused the death of the deceased or the deceased’s conjuctissimus. The deceased’s cunjunctissimi are persons with
close ties of relationship to the deceased, namely his parents, spouse and children.
CASEY NO v THE MASTER AND OTHERS 1992 (4) SA 505 (N):

Herein the Court ruled that persons whose negligence results in the death of another should not be entitled to
inherit from the deceased.
With regard to other cases, the behaviour of the beneficiary towards the testator is looked at to determine whether
he is unworthy or not.
In the case of a person who improperly influences a person to make a will, such person will not be entitled to inherit
in terms of intestate succession once the will is declared invalid.
Where there is a clear casual link between a crime and enrichment, the person who committed the crime cannot
benefit from intestate or testate succession. The test for a clear casual link is whether the consequence was “an
ordinary natural or reasonably foreseeable consequence” of the act.
EX PARTE STEENKAMP AND STEENKAMP 1952 (1) SA 744 (T):

Here the Court ruled that the unworthiness of a murder was not general – there must be clear causation between
the crime and the enrichment for the murderer to be precluded from inheritance.
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Persons Participating in the Execution Process:

Position Regarding Testators who Died before 1 October 1992:
Position Regarding Testators who Die on or After 1 October 1992:

4A. Competency of persons involved in execution of will.—(1) Any person who attests and signs a will as a
witness, or who signs a will in the presence and by direction of the testator, 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.
(2) Notwithstanding the provisions of subsection (1)—
(a)
a court may declare a person or his spouse referred to in subsection (1) to be competent to receive a
benefit from a will if the court is satisfied that that person or his spouse did not defraud or unduly
influence the testator in the execution of the will;
(b)
a person or his spouse who in terms of the law relating to intestate succession would have been
entitled to inherit from the testator if that testator has died intestate shall not be thus disqualified to
receive a benefit from that will: Provided that the value of the benefit which the person concerned or
his spouse receives, shall not exceed the value of the share to which that person or his spouse would
have been entitled in terms of the law relating to intestate succession;
(c)
a person or his spouse who attested and signed a will as a witness shall not be thus disqualified from
receiving a benefit from that will if the will concerned has been attested and signed by at least two
other competent witnesses who will not receive any benefit from the will concerned.
(3) For the purposes of subsections (1), and (2) (a) and (c), the nomination in a will of a person as executor,
trustee or guardian shall be regarded as a benefit to be received by such person from that will.
Guardians, Curators and Administrators:

Section 12 of the Perpetual Edict of 4 October 1540:
In terms of this, any bequest by a minor of immovable property to his curator, guardian or administrator or to the
children of such persons or to his godparents or concubine was impermissible and invalid.
It is unclear whether this is still applicable, but it seems that it would be, at least in cases involving undue influence.
Consequences of the Incapacity to Inherit:

Section 1(7) of the Intestate Succession Act 81 of 1987:
Section 2C(2) of the Wills Act 7 of 1953:
2C. Surviving spouse and descendants of certain persons entitled to benefits in terms of will.—
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Chapter Seven – The Contents of Wills:

Introduction:
No matter how fickle, imaginative, egotistical and unreasonable a testator was, as appears from the terms of his will,
no matter how complicated and subtle those terms may seem, the point of departure in our law remains to carry out
the wishes of the testator as these are embodied in his will.
The exceptions to this freedom of testation include:
 Effect will not be given to impossible dispositions, unlawful dispositions, dispositions which are against
public policy or to dispositions that cannot be carried out because of their vagueness
 The Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965 limits the testator’s
capacity to prevent the alienation of land by way of long term provisions
 The maintenance and education of the testators minor children constitute a claim against the testators
estate. This claim is subordinate to that of creditors but has precedence above that of legatees and heirs
 The Maintenance of Serving Spouses Act 27 of 1990 stipulates that in certain circumstances the surviving
spouse has a claim for maintenance against the estate of the deceased spouse. This claim is equal in priority
as that of a minor child and where such claims are in competition they may be reduced proportionally if
necessary.
In addition, the courts may alter the provisions of a will where circumstances have changed to such an extent since
the will was drawn up that they were impossible for the testator to foresee.
Beneficiaries:
Heirs:
An heir inherits the entire inheritance, a proportional part of it, a particular part of it or the residual of it. There may
be one or more heirs and they can benefit in terms of a Will, Antenuptial contract or intestate succession.
The Roman concepts of universal succession (whereby the entire estate, both assets and liabilities was inherited)
and necessary heir (because the heir fulfilled the duties of the modern day executer) no longer apply in South
African law.
Legatees:
A legatee always inherits a specific or determinable asset or a specific amount of money. A legatee can only be
appointed in terms of a Will or Antenuptial contract.
A pre-legacy is a special bequest that takes precedence over all other bequests in terms of the testamentary
instructions.
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A testator may bequest his own assets or the assets of a third party by means of a legacy. Where the assets of a third
party are bequeathed, it must be clear that the testator was aware that the assets were those of a third party (or
that the testator would have made the bequest regardless) and the executor must attempt to obtain the third
party’s asset or to pay the legatee the value of the legacy.
If a testator bequeaths an asset that he holds in joint ownership with another, it is presumed that he merely
intended to dispose of his own share.
Failure of a Legacy:
A legacy will fail under the following circumstances:
 If the testator voluntarily alienates the subject-matter of a legacy during his lifetime, it is said that the legacy
fails through ademption.
 If the legacy should die before the legacy passes to him
 In the event the legatee repudiates
 In the event the legatee is unfit to inherit
 If the bequeathed asset is destroyed
 If the legacy is made for a specific purpose and that purpose becomes impossible to execute
The Difference between Heirs and Legatees:

Although the differences between heirs and legatees have largely been made irrelevant through the use of
executors, the following differences remain:
 After settling the debts of the estate, the executor will first distribute or pay out the legacies to the legatees
and only then hand over the inheritance to the heirs
 Heirs are obliged to collate, which at common law is not obligatory for legatees
 There is a slight difference between heirs and legatees as far as accrual is concerned
Conditions and Dies:
Introduction:
A bequest can be made unconditionally, conditionally or subject to a dies. A conditional bequest is linked to an
uncertain future event whereas a dies is linked to a certain future event.
Conditional Provisions:
Van der Merwe and Roland describe a condition as:
A testamentary provision is a particular clause or provision in a will in terms of which the existence or
continuation of a beneficiaries right regarding the benefit allocated to him is made subject to the occurrence
or otherwise of an uncertain future event.
Suspensive Conditions:
In this case the operation of the clause and the vesting of the rights is suspended until the condition has been
complied with or fulfilled.
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Resolutive Conditions:
This is a bequest that is terminated if an uncertain future event occurs. The right vests upon the death of the
testator.
Potestative, Casual and Mixed Conditions:
A testamentary condition that falls within the power of the beneficiary is deemed potestative, that which falls
without is deemed casual and that which is only party within is deemed mixed.
A condition can also be divisible or indivisible, depending on whether or not partial fulfilment of the condition can
lead to the benefit being taken or not.
A conjunctive condition depends on more than one condition, a disjunctive condition depends on one of any
number of conditions.
Conditions that are Impossible, Illegal or against Public Policy:
If compliance with a condition is impossible, illegal or against public policy, then the condition is regarded as pro non
scripto and the beneficiary receives the benefit free of the condition (provided of course that the bequest still make
sense once the condition is deleted).
Examples of where a benefit is contrary to public policy include:
 Conditions calculated to destroy an existing marriage or absolutely prohibiting marriage

 In some cases, a partial restriction on marriage is permissible
 A condition that operates to the detriment of a surviving spouse upon remarriage is not against public policy
 A condition that terminates upon the insolvency of the beneficiary is not against public policy
 A condition excluding the jurisdiction of the courts is against public policy
When considering whether or not a condition is conra bonos mores, the values and rights of the Constitution of the
Republic of South Africa, 1996 must be taken into account.
EX PARTE DESSELS 1976 (1) SA 851 (D):

Here the court ruled that a clause regarding an immoral lifestyle was not against public policy, but that several
conditions regarding visitors and bringing the name of the deceased into disrepute were so vague and unreasonable
as to be unenforceable.
ARONSON v ESTATE HART AND OTHERS 2 1950 (1) SA 539 (A):

Herein the Court ruled that a condition based upon marriage to a person not of the same faith as the testator was
neither against public policy nor sufficiently vague as to warrant removal.
Vague and Uncertain Conditions:
Where a clause is so vague and uncertain that it is impossible to determine what a testator intended and the Court
is unable to find a construction that will have the effect of giving it validity, it will be considered pro non scripto.
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Law of Succession
Dies:
Unconditional bequests may be subject to a dies, which may be suspensive or resolutive and the timing may be
certain (dias certus) or uncertain (dies incertus).
The Modus:
A testator who bequeaths an inheritance or legacy may burden the bequest with a duty to perform, otherwise
known as a modus or obligation.
This differs from the condition is that vesting occurs immediately and the favoured beneficiary acquires a personal
right against the appointed beneficiary.
Where there is confusion as to whether a bequest is subject to a modus or condition, it is presumed to be subject to
a modus. It is further possible for the modus to be combined with other forms of bequest and for other forms of
bequests to constitute a modus.
It is possible for the beneficiaries concerned to agree among themselves that performance take place in a different
manner or at a different time form that specified in the will.
WESSELS EN 'N ANDER v D A WESSELS EN SEUNS (EDMS) BPK EN ANDERE 1987 (3) SA 530 (T):
Herein the Court inter alia confirmed that a modus gives rise to a personal obligation, that the vesting of rights
subject to a modus is not postponed, the presumption that a bequest is subject to a modus rather than a condition
and that the appointed and favoured beneficiaries can alter the terms of the obligation between them. The testator
also combined a Fideicommissum with a usufruct and modus.
WEBB v DAVIS NO AND OTHERS 1998 (2) SA 975 (SCA):

Herein the Court confirmed that a modus can take the form of any modification to the institution of an heir, of the
bequest of a legacy, of a Fideicommissum … that has the effect of imposing a duty on the beneficiary.
Substitution:
Introduction:
Substitution is where the testator or the rules of the law of succession nominate someone to inherit in the place if
the instituted beneficiary under certain circumstances.
Direct substitution is where the instituted beneficiary takes the benefit to the exclusion of the substitute.
Fideicommissary substitution occurs where the instituted beneficiary must allow the benefit to pass to a subsequent
beneficiary after a lapse of time or the death of the heir.
Direct Substitution:
General:
In this case, the testator nominates a beneficiary as well as substitutes in case the instituted beneficiary cannot or
does not wish to inherit.
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Law of Succession
Forms of Direct Substitution:
 There can be one institutus and several substitutii

 There can be several institutii and one substitutus
 There can be one institutus and several alternate substitutii
 Institutii can substitute for one another
It is possible for direct substitution to be combined with Fideicommissary substitution, the result is known as
substitutio compendiosa.
Problems of Interpretation with Direct Substitution:
 The use of the word “or” usually indicates substitution whilst the use of “and” indicates co-beneficiaries.
Where the heir is mentioned with his descendents, it is resumed to be direct substitution. Where the heir is
mentioned with his heirs, this does not apply.
 In cases of “A is my heir, if A dies B is my heir”, difficult arises in determining whether this creates direct
substitution (in the case of A predeceasing the testator and B inheriting) or Fideicommissary substitute (in
the case of B inheriting from A upon A’s death).
 In the case of “A is my heir. If a should die without children than B is my heir. In this case, the children whose
nonexistence is mentioned as a condition for the substitute to take place o the instituted beneficiary will act
in place of the instituted beneficiary where the instituted beneficiary is a descendent of the testator.
 Where there is uncertainty regarding direct or Fideicommissary substitution, the presumption is in favour of
direct substitution
VAN ZYL AND OTHERS v VAN ZYL AND OTHERS 1951 (3) SA 288 (A):
Herein the Court ruled that “in the event of one or more of the legatees dying (te sterwe mag kom) without leaving
children then the land left to such legatee should revert (terugval) in equal shares to the other living legatees or their
descendants by representation” constituted a Fideicommissary substitution.
Direct Substitution by Operation of Law:
Where the testator died before 1 October 1992:
Section 24 of the General Law Amendment Act 32 of 1953:
Where the testator died after on or 1 October 1992:

Page 42 of 42

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UNIVERSITY OF PRETORIA

S10360183 - Matthew P. Pool

Semester One, 2011

Prof. A van der Linde

TABLE OF AUTHORITIES: ............................................................................................................................................................. 4

CHAPTER ONE - INTRODUCTION: ................................................................................................................................................ 8

CHAPTER THREE – TESTAMENTARY CAPACITY; CAPACITY TO SIGN AS A WITNESS: .................................................................. 14

TESTAMENTARY CAPACITY: .................................................................................................................................................................. 14

CHAPTER FOUR – FORMALITIES IN THE EXECUTION AND AMENDMENT OF WILLS: .................................................................. 19

FORMALITIES IN THE EXECUTION OF WILLS: ............................................................................................................................................ 19

CHAPTER FIVE – INVALID WILLS AND REVOCATION OF WILLS: ................................................................................................. 28

INVALID WILLS: ................................................................................................................................................................................. 28

MDLULU V DELAREY AND OTHERS ........................................................................................................................................... 29

BACK AND OTHERS NNO V MASTER OF THE SUPREME COURT ................................................................................................. 32

CHAPTER SIX – CAPACITY TO INHERIT:...................................................................................................................................... 35

CHAPTER SEVEN – THE CONTENTS OF WILLS: ........................................................................................................................... 38

TABLE OF AUTHORITIES: ............................................................................................................................................................. 4

CHAPTER ONE - INTRODUCTION: ................................................................................................................................................ 8

 PENSION FUNDS ACT 24 OF 1956 ................................................................................................................................................. 8

CHAPTER THREE – TESTAMENTARY CAPACITY; CAPACITY TO SIGN AS A WITNESS: .................................................................. 14

SECTION 4 OF THE WILLS ACT 7 OF 1953: ............................................................................................................................................. 14

CHAPTER FOUR – FORMALITIES IN THE EXECUTION AND AMENDMENT OF WILLS: .................................................................. 19

SECTION 2(1)(A) OF THE WILLS ACT 7 OF 1953:..................................................................................................................................... 19

CHAPTER FIVE – INVALID WILLS AND REVOCATION OF WILLS: ................................................................................................. 28

MDLULU V DELAREY AND OTHERS ........................................................................................................................................... 29

SECTION 2A OF THE WILLS ACT 7 OF 1953: ........................................................................................................................................... 30

BACK AND OTHERS NNO V MASTER OF THE SUPREME COURT ................................................................................................. 32

SECTION 2B OF THE WILLS ACT 7 OF 1953: ........................................................................................................................................... 33

CHAPTER SIX – CAPACITY TO INHERIT:...................................................................................................................................... 35

SECTION 2D(1)(C) OF THE WILLS ACT 7 OF 1953: .................................................................................................................................. 35

CHAPTER SEVEN – THE CONTENTS OF WILLS: ........................................................................................................................... 38

SECTION 24 OF THE GENERAL LAW AMENDMENT ACT 32 OF 1953: ........................................................................................................... 42

TABLE OF AUTHORITIES: ............................................................................................................................................................. 4

CHAPTER ONE - INTRODUCTION: ................................................................................................................................................ 8

CHAPTER THREE – TESTAMENTARY CAPACITY; CAPACITY TO SIGN AS A WITNESS: .................................................................. 14

GELDENHUYS V BORNMAN 1990 (1) SA 161 (EC): ................................................................................................................................ 14

FERREIRA V SMIT 1981 (3) SA 1264 (A): ............................................................................................................................................. 17

CHAPTER FOUR – FORMALITIES IN THE EXECUTION AND AMENDMENT OF WILLS: .................................................................. 19

EX PARTE ESTATE DAVIES 1957 (3) SA 471 (N) AT 474 .......................................................................................................................... 20

CHAPTER FIVE – INVALID WILLS AND REVOCATION OF WILLS: ................................................................................................. 28

EX PARTE DESSELS 1976 (1) SA 851 (D): ........................................................................................................................................ 28

MOSES V ABINADER 1951 (4) SA 537 (A): ...................................................................................................................................... 34

CHAPTER SIX – CAPACITY TO INHERIT:...................................................................................................................................... 35

CHAPTER SEVEN – THE CONTENTS OF WILLS: ........................................................................................................................... 38

EX PARTE DESSELS 1976 (1) SA 851 (D): ........................................................................................................................................ 40

Chapter One - Introduction:

Testate and Intestate Law of Succession:

Contents of Wills and Freedom of Testation:

Freedom of Testation and its Limitations:

A provision in a Will will not be executed if:

 Pension Funds Act 24 of 1956

 Section 6 of the Immovable Property Act 94 of 1965

 Subdivision of Agricultural Land Act 70 of 1970

 Section 13 of the Trust Property Control Act 57 of 1988

 Maintenance of Surviving Spouses Act 27 of 1990

The Influence of the Constitution on Freedom of Testation:

Section 25 of the Constitution of the Republic of South Africa, 1996

Section 36 of the Constitution of the Republic of South Africa, 1996

 An opposite conclusion would reduce the principle of freedom of testation to a fiction

Attaching Conditions to Testamentary Bequests:

Minister of Education v Syfrets Trust LTD 2006 (4) SA 2005 (C):

General Testamentary Institutions:

 Legacy and the Inheritance