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    Law of Succession

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    16 views43 pages

    Succession Page 81-165

    Uploaded by

    chloelazarus619
    Law of Succession

    Copyright:

    © All Rights Reserved
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    of 43
    tow a erection ofthe wi must Aisnctin in principe between amendments whente on deleted ne amendments wredy new oe eee ted,217 the common-law rules are apy eae () Provisions wi be valid in is entirety. Although the Provisions ate applicable in both cases" longer form part of the will, will rored™ ¥en inserted, they will be regarded as part of the will unl te (©) Ifthe testator mah the be bore in mind the (2 ape. Presumption tat ay amendment wil reregeroed ohare eal before execution shouldalso comply with the formali mental is therefore a rule in practice ‘hat Paik denen Te he wl mst be nite by the testator andres oS + should eit can be prove the wil ish 42.9. Amendments made ater the execution ofa will (0) ‘Alter the execution ofthe wl the testator is free at any time, A clause in a wil oth fight to amend the wil i redundant as ny Amendments to a wil are re Section i api to amend the wi a hee reflect he er es oF Shea ths power a 7 ulated by section 20) 9 the Vl eo io ‘cable only to amendments made to a will that was 2 a Or ate 1 January 154. There no dacsson Neco ena applied before before 1 January 1954; i wore me Df — 1 May be consulted for this purpose.22* 7 tha ony amendment ta wi re rege eae secition ol he wi sumption regarded as having been made aftr the (9 The provisions of section (1), read a olows a 201] ZAGPINC 10, ear Tee [nthe Execution and Aennent of Wis Hee ee smendment is identified by the signature ofthe testator or by the Dineen tr some her peron made n his presence and by His 1 er teaged byte tesatr ana, made by such ther person, aso a 4e5 made in the presence of the testator and of each other and, if 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 fa : econ 1 cf the Act provides that ‘amendment’ means any ‘deletion, addon, Best o internation’ made by the testator Theamendment must be made by the testator (or someone es in the testator’s Bpisence and by hs or her direction)” as well s two or more competent witnes Bes Precisely what is meant by identify’ Is not clear butt probably means that by Tiskng his or her signature the testator acknowledges that the amendment has Been made in accordance with his or her wishes and thatthe witnesses in turn Beknowiedge attest’) by means oftheir signatures that it isthe signature of the Bestar" The signature of the testator and the witnesses must be placed as Close Bipossibie to the amendment or ele it must appear ex facie the identfication that signatures are relevant toa specific amendment The provisions of nal q visions of section 2(1)(b) are not appl a whee on This isin accordance withthe dace at teil lere It was decided that a deletion of amounts one a the wh Ts ta aie z the whole will amounts to a revoeana irmed in section 1 of the ia eletion” means Act, which rs 2 deletion, cancelation or obiteralon ian ules effected, excluding cluding a deletion, cance reesn ft ANeton or tert tee indecent is respect the testator’ nn pe ining whether he or she withers on tl be deci inended orate nr ibe toamendrrcote a ee regres eared he wl hee shes te een i meh thetesar anes S820). Theta So eee ae ener tanto change anaeay erected nin oa " ill be aplcable the testater ecg case section 20)) i pai rca poh aoUnt pal recaton nt eee Pa besalerinsuchacase i thereweraha conker a ec OU The amendment may ako be confarer en at some ra ym 2 Be Conte by mak made by the testo ory pe in the testator’ presen ve Serko sioner of oaths must be ne 2ppend His or her crate a soon a oso a The commision must thecorney he tsatror the other person and theater as been Commisoner must cert the sees the cet in any event he formal requirements in cate (@ heorshehes ) convinced hime or oer ior herself as tothe identity ofthe testa tment hasbeen made by or atthe equestof sre ee nd Wr the testator dies after the amendment has b ‘equled certificate has ben appernie Wen aroma it lore the = of oaths must append o 0) Fee Mate 1988 4.200 ©) 291; sana 1983 sy swe ONY ht ibe 2090 bn ames Dates inthe Execution ord Amendmentof Wil sequences of non-compliance with formality requirements {424 Consequences of pl th formality Drwilstil has tobe a comprehensible whole after any amendments tot. Amend: pers at have rested inthe will becoming incomprehensible or inoperable can To the revocation of the wil, I the will has been amended without amount famine with the formality requirements the amendments willbe ineffective pd eect wl be given to the orginal words, Hf the orginal words ae no longer Fesiethen evidence on their nature and content is permissible. The courts were also given the power to condone non-compliance with the Jormalityeequirementsin the amendment of wil. In section 2(3) the following is provide: Ifa courts sated thata document or the amendment ofa document drafted ‘rexecuted by a person who has ded since the drafting or execution thereof, ‘was intended to be his wil or an amendment of his wil, the court shall det the Master to accept that document, or that document as amended, forthe purposes ofthe Administration of Estates Act, 1965 (Act 66 of 1965), a il, Although it does not comply with all the formalities for the execution of amendmen of wil rere tin subsection (1). Tie same principles and rules discussed above" with respec to the aplication ‘of section 2(3) atthe execution of a wil are also applicable in principle to the amendment of wils. To ilutrate this a few relevant court decisions wl be discus in Webster v The Mast the testator deleted certain references to his former wife ona copy of his wll, The court wasnot prepared to order candonatin in terms af section 2(3), butt found on the basis of section 24 ofthe Act thatthe action oid result inthe revocation of the original wil In Letsehga v The Master the testator had a valid wil {document was found in his own handwriting, butt was not signed. twas clear that the document did not satisfy the provisions of section 2(1)() regarding the After his death a amendment of wils. There was no reference to his wil, but certain parts of the document could be read together with his wllandt also contained references that corresponded with clauses In his wil, The court found that the document to be condoned must have been intended by the testator as the final distribution of his a4 Low of Succession Gratay mey’ang {othe court, the testator wanted a futher document to by Gezhes that was to contain the amendments, The cot ts toon tat document that the testator had written was noe hiswit nee ey ke Meester the testator and his spouse equesed an accountant ig cone arent 10 the joint wil by means ofa odie The spans see wr be deen aot Deglected todo so, The cdl povided tats rece oe impor sya be replaced with a aus inthe cae, The cout stone ne Oe cae ermal requirements in section 21)0).25 Hereane hea oe with seen an an acon, The cour, however, requied subntantel sen the doconcets formal requirements and also thatthe testator shoul ave oes the document or made the amendment himself In Anderson and Wagner v The Master the testator wanted to arene at tis atlomey giving an indleaon of how the wal pe ae te more sae eid fe eter he requested the atomey ‘soon ce ye not areata fof the wil that would reflect the amendments Bor the ean Foes ed before the death ofthe testator and an applaion vse aeeriee Baya te accepted as an amendment of the testators willis ornare eee rehome Act. The court found thatthe document should have bar ratca eon waren thatthe specie dcument should eve asa willy anamoepo ill” According to the cour, tis was not posed eat ‘The request for condonation was thus tuner dove, In Smith v Parsons" the Supreme Cour ection 20) This document wasin facta code to an cxstng ait the connec the willwas tact paral revoked is hus eos ta wane "ered In several places tothe suicide eter as an “amen wise intended to be an amendment of amend his wil. He respect tothe etter in cava, Of Appeal condoned a suicide eter in 425 Amendment of printed forms Trae Commercial printed forms of wilsavalable on which awit can be reat ing Inthe appropriate information inthe relevant pace va ets ean ars ofthe wl or fils in etas during the dating ct oe Ty are gre obviously not amendments as contemplated in rection hor {ny amendments are made alter the execution ofthe wil Ue formahin oc be 8s the Execuon and Amendment of Wis Formas inthe carance of the wl 21 ts not posible to determine from the appear Since aduion ves move betoreor ate execution then the presumpin n Minter an adtion wos mae Bator on wh h certain blank spaces had been filed in in handing Pa up for dscsion in Frinton» Koyo in Us case the cr erent Fepared the filing in fl rendments’ to a will that had to the bank spaces as ‘am ire ing of te Ba ae arent 0 Emmy withthe formally requirements in selion 201) of dependent relative amendment The doen of operat eave evcrton an be appcae inte caso Teporslrovcatonerthe amendment of vl®”The mplcatonwilbethat tne 2 tends i of her will because his or her point of departure is a particular in spptca this is found in Olivier v Die Meester.25° In this ca: nd fat wes he eet’ ces intnin ta the revecaon Sipuagtpn 8a Me wal could only occur fi were accompanied te bt pron Ciena uty svn amenn.Te Bre depenenonanccive mariner denver r to be incorrect or if the condition is mercer not oot The ofc vl ne povsonal amendments ere made Farrar, Corbet andthesthnk tat lhe testator deletes the name er ary and adds the name of another tea, ean beth the non thee es te en ant should only be vad Ue adeton ofthe name valid and et Chapter g INVALID WILLS AND REVOCATION OF WiLLg 5.1 tabi 66) Revocan va a 5.21 moduction 8 5.22 Express revocation 2 5.22.1 nvoduction 7 52.2.2 Erection oa subsequent valid wil cai sntenupul ds trot orrevocatoydacument 0 $22.3 Revocaionby destruction 7 5.2.24 Presumption upon destncton 92 5.22.3 Other possible methods of express revecston 4 52.26 Cours power of condonatomatrevsenan 9s 523 Tacitrevoaton' 100 5.23.1 Inraduction +00 523.2 brection oa subsequent conficting it 5.23.3 Alenaton of bequeathed assets $2344 Other pouble methods of tac revocation andi suena lapsing ofa wil or oa provision na 3.24 Conditonalor upposedrevosnion ‘5.25 Revvalota revoked val 5.4 INVALID WILLS Strictly speaking, there is no such thing nn terms torefertoitas such fact never a legally valid wil. Ye ie documents as invalid wis’. A will can be ivaid do per nan rescrbed formalities have not been complied wih ie wee cosa itestaton capacity? if the testator dows not have eet pacity? ori the testator does not ave the necesary animus testa, 435 an invalid il ancl it is actually @ In other words, such a document was in has become common practice to refer to soch entirety ab into! This can 18540 (ri Nadoo come Bo eee ae wee}, ero v tr 19984) 54539 (0 ” Hotl20b4} Mund ccc Statement by the testator, is admisie te poner nine Provisions fection 23) ofthe Wis Act 701953 ty including vecourts have ranean with the formality equiremenis comvincea ete ind may therfore be condos ee iit terms of seer as as been complance withthe equrenscne et eo 20) in {erm of section 44(2)(a) ofthe Act the court her ont ene itn ofthe testator or teu of ste ne Of in his of herown handwriting, or the spouse of one of these persons," competent te nya ‘*tsconvinced thatno taudor undue in uence hereon a nay also declare a witness, a peroy 5.2. REVOCATION OF WiLLs:= 52.1 Introduction evocation of wis isnot regulated statutory betoe ns et" AValid wllcan lore is legal farce en revokes it legato et death” A wal that i ecdenty seca however, retains its meant: Awl thats st emains in force and hence may be proved by tear and errs niene® olde” Avil les etecteniyunen yee ofthe reveal cone Haale Wp tothe me ef te eave ene The ‘Secatin comes into eet immediately andthe vil hts ca legal Ways of evoking a wil are derived tena Ber saan Bee aca) AHN tn mero (Say nagan 2001 Gy saatorene (GNP Wat 012 ames Bee tos Nan 13 Defence vweporayo4 27002 89 nd Revocation of Wis oy Wisc — a he late wills validly executed or avai revocatory implies (a the intention to revoke (animus revcand) dent the revocation A wil ean aso be pataly rome esas evs = Fe spce 1992 the Wis Act does conan certain provisions dealing withthe revoca- iil: ; sn ‘to condone as valid certain acts ofthe Act ives the court the power to. He i resaton (rat vert econ commen and ton 2barthes i |a will under certain circumstan- ton 28f the Act provides forthe psing o jrceain Dente dere rarulment of tre margedt re tr Gagan Tare me, however two exceptions tothe gree ht tna ot forgo is or her power to revoke al (0) tn terms of a joint (usually mutual) will that effects a massing of estates, & pose of the masved aset, i Surviving testator loses the competence to dispose of the sta who aw. ntenuptial contract containing testamentary provi- 8 Spoures wo raw up an ant sions (on the disposal of assets atthe clisoltion ofthe mariage) are bound to ion cae i foe pete a st Be meer SE oncocamoraneroerrtr See a ey ny, sen "poet Stet c al Theart v Scheibert [2012] All SA 278 (SCA); sn ays a et te 3 subsequent confiting wi but upon the dear of te ee eae surviving party stil as the choice either to actepr ten Paty antenupia contactor those ofthe ont wis ‘cept the provisions of oe For the sake of convenience a distinctions made bet {acit revocation of willsin the discussion that follows mapa mci 522 Express revocation 522.1. Introduetion ‘Awill ay be expressly revoked in one of two ways (0) by the execution of a subsequer bsequent valid wil, cole, antenuptial contract op cherry doer vy {inkcontansnoprovionsexepthetesaorsintan es eee 5222 Execstonofa subs of a subsequent valid wit co my document eT The most ge not general way of revoking a wil ithe execu Contains a explicit evocatry clase (aul veteran ene at tor ges unequal notice of the revocation af soy hay a Jbsequent will must be a valid will and the m imo id wil and the revocat oan il mt cation must take place ani vocandt® equent wil i invalid, then the revocation is ineffective x subsequent willis valid, however, but fr one o other reason the neon in oF other reason the provisos cannot be carried out, the revocation cannot be " of the earlier wil nevertheless remains ci, antenuptial contractor revo elon 918 20212 pone Eat vans ook wae SB ao a a a aac Tapa ES sia baa a na seme aor eg RoW Waterss anne grax yr OEP Bon few ace Sones 198 TSAR230H and 5.22 Soca OMY AFSHE V4 Fr an 1 void Wi ond Revocation of Wis Hrs cocumen Ue does a ony wih the formality requirements iscondoned Geter of section 2(3)of the Act, 9 revocatry clause contained inthe document Gu) willaso revoke ror wil” Mel can aso be revoked by 2 codicP® of an antenuptsl contac. The Gneaon to revoke must be ceary expresed in the cod of the antenupt Horace" A wil can aso be revoked by a propery executed document that Kean o testamentary provisions except ha the document ives notice that an tier il sbeing evoce.* Mra wil is revoted ina subsequent vil, cod rpely executed document, the revocation of fete ofthe excction ofthe revoking wil or other document In ths respec Corbett and others state antenuptal contract or other eater wl is efective ror the though the general ru that a wil takes effect only a morte estatorisit may have revocatory effect during the lifetime of the testator, not because is operative 3:2 wil, bit because its a document which shows the intention of the testator n regard tothe continued existence or otherwise ofa prir wil Thus revocation opzrates immediately upon the execution of a later wil revoking an eater wl and is ot deferred to the testator’s death 522.3 Revocation by destruction ‘All may be validly revoked ifthe testator or someone acting on his or her behal destroys the will” Thedestruction must take place withthe necessary intention to evoke. f the testator revokes the will while he o she i mental il for example, the testator cannot form the necesaty orimus revocandl>® Destruction can take two forms * hm i 1995 (1) SANS (Do Maser te Sapeme Cour [1996] 24 SA 161 Tiron ‘he mene 3001) A 1098 een Mav ts [208] ZAMCHE TT Cee eater all alot Sour), Meat Wagar 2011 ZAWCNC retaoi Tiae(ury Marr her 2OTZiAN AIBA) eoget ee cm in Mora» chaste (4) 3A 288 (0) 2916 Det) tte Yor hat mater, by ary writes ‘YN Von Nese (198) 135229, Clk estos Csr a Bel (1902)19SC48; Solve 975 (84372 (Mav Te Meter 9844) 88 0) 29 fot a004f 4a a 543 (0 Seb e006] 18540, ° i i. @ @ {eI however, the nal (Both pr os Lovo Sucst 3 Position to assess the factual basis of the presumptl on Imitation of Etats Act now provides the following, a DUAL 8(4A) in taking a decison concerning th Ottis Act the Master shall take intaccount here a will, but not the common-tan sumptions concen ne va my presumptions concerning the wena yet (AB) The Master may for is onghal eats the Purposes ofthis Act ako acce pt a duplicate eee mel ns or the office, including the wil, ther do testator did not intend nr deta he person must 10yshis or er will by wllby mistake, oF the wl ana and other documents, bu, lance of probebiles that ie 0 copy the contents ofthe 5225 Other possible mothods of express revocation is uncertainty about whether there are other methods iby other physical acts, then shout aso be abl tet ete 1998254751 (C Scoeman 1994 Dee ner St et mm sei oni eens mena a ara ee ulate maa eae sso Saran ae [pate ls and Revocation of Wis pans of a verbal declaration. Although Sonnekust* does not advocate oral Fiat, he does crise case law and writers who do not take account ofthe fil onimus revocandi ofthe testator. Paste tothe question of oral revocation isthe sue of whether, at common aw, Iritcan be revoked In writing by means of a les formal revocatory document feroepingsatte’) 2 By ths & meant that a testator does infact give notice in I iitng on for example, oose sheet of paper, the cover ofthe willor the back of thew that he or she wants to revoke a spect wil Such acts are not recognised Ercommon law as efective means of revocation # There is so authority thatthe odin South African av Sonnekusis in avouro such jeter view has been accept in writing, (2) the testator is clearly method of revocation, provided (a) Tdertfable and () the intention to revoke i clearly evident. In Marois v The Moser” the court referred obiter with approval to this method as a possibly tfiective way whereby a will could be revoked °2 522.6 Court's power of ondonation a evocation Problems with respect to the revocation of wils have now been obviated by Iegiltion that qves the court the power to condone certain acts not recognised as methods of revocation at common law. Section 2A ofthe Wils Act gives the court the poner to condone an act of revocation, i the court is convinced that the testator intended to revoke his or her will ra part of i,” even though the will was ot revoked in one of the ways recagnised at common law. The provisions of Section 2A, which are applicable to all cases where the testator died on or after 1 October 1992, read as follows: Alta courts satisfied that testator has: (@)_ made a written indication on his wil or before his death caused such Indication tobe made;>* (6) perlormed any other act with regard to his wl or before his death caused Ech act tobe performed which I apparent rom the face ofthe wil or © tomy Englecit 1979 (4) SA 841 (0) 84H, Nar Ranchad 1984 (3) 5A926(C) 9318; Moray 96 (© geated another document or before his death caused such document be drafted by which he intended to revoke his wil ora part of his wi i, the court shal declare the wil or the part concemed, as tne case nage tobe revoked reantimum reuirement forthe aplication of section 2M) and (0) that ig omenee {must be evident ftom the appearance a the mil Section Pf) nee Brovsion forthe cate where the intention to revoke i eigen on orate Goaumert. The ai of section 2A sto get the courts not ofoeuson the gue athe anact sa evcatory act ecognised at commen aw, buton cinerea Lesion of wheter the testator intended to revoke hs or her wile” heat ‘evocation wil not be covered by any ofthe exceptions insect oA (©) The dlstinction between amendment and pata revocation ofa wi restien 2G), which has alteady been discussed” regulates condonation with ‘rag £0 execution and amendment of a wil where satutoy, relent apply. ale section 2A regulates the condonation of reweaton' or pay revocation ofthe wil the common aw pincils do not nd ape sate a fine dividing ine between amendment (section 2(3)) ord part Feeeaton (Section 2A) of wis. is aio possi tat there ean bea ose Peerage concepts, because an amendment (or example, semethingsdeleesh ‘an lead to arta evocation. An amendment normally rhea thet teen wines to change his or her existing wil. Partial ‘evocation would mews tra eo, pene doesnot want apart of his or her existing wil to be applicable ay es put where the specific uncertainty arses is when the patal revecaion Selene Ear ofthe wil is accompanied by insertion of new material The sige oso Ms atincton i sucha cases drecty related tthe fac that forse ees rent Pp Jor amendments, while there ae sometimes no formal eon ment fot Fevcation.®° The test should be whether the testatorinteea ta eg) an ateady executed wil, in which case section 2(1)(), and in cose oe Serllance with these formal requirements, section 23)of the Act wilbe open Here the testator fees that parts of his orher wil should no longe be nee thetestatorean partly revote such parsin oneat he ways recooriaedai ees, i 9 about whether thisis apart revocation at commen law, the ao. revoking those parts of te wl n one of Une ways mentioned i se a ¢ interpreted in Bright of section 23) and thatthe provisions of sec % 2) and 2Acon oly be ied wt ther ‘if the revocation envisaged in Al eo ecndnert ert 106 The intention of the testator is thus emphasis Petcimortasensaged an amennent (eestor shedto dete someting Belper someting or change someting), secon 2 omrectisa matter of contention 1” oped. But whether tis view is sctlons 2/3) and Jo, The application of section 2A and the interaction between 8 9) Fo tthe Master) can hear Seta wea ¢ applied in cases where the will has rot in iy Sn 2 wi ray ony ppd nce wee he thas oto ry event been revoked expressly or tain ways recog Sion thods of revocation at common law, «wy Seton 24 oes not abl the methoss of peciic ways in which revocar put elaborates on them by identiying three spec (Rites in ocDonld The Most” therewasonyasecton 2) apleation after his death contained the following provsion:""? eal wis, codiis and other testaren: 1 the undersigned, ... do hereby evoke al wil cts eae fu ereotore made by me and declare the follow andtestament : 97d) snase 8s. — Sein gona Crete 2001104 Now sear cy sato78C. 98 The court granted the condonation of the = ton application'*« ondonaton and the conseq ment alowed the revocatory clause quoted ast In contrast to this, in aan Although the bass (wer the court refused to of the Act seeing t aa ithad not mete seeng ota edocument could thusasongh application differ complete one another ten 2) a evident. In the case of 3) the testator a ined to be his or her will, and in the case no ust inte ‘evoke an existing wi,” "* C08" OF on bythe testator man tend the document concer, ton 2 the testator must ote 1p a document containing instrue,_ : fut the cout el se Principles of a section 2(3) sans tumed down, “ Sopone Cut ® the court id, however, 8 section 203) and asec li rasa pect the Back ese 7 Bekker v Naude'= too, the court a pasiten sectors 203) and 24 Scion 23 7 ete ino eh Foie her aeha. The scope of section oan section 26.18 Ec onect ton 2A application tp ahofolowedinsmuniey the COU emphassed the tery application of section the testator ory PA ts extends condersson the testator n 2A, on the ath neone else on his or further than that of ‘isting will. This was accepted as, xaonin en reson aco 98) SANSA 1 175, on o Wis * Jobe tsk v Moro the testator had given instructions oa person to ype 8 Gallon his Beal Butte section 23) aplication fr condonation id not Bo) inne ternative it was argued that clause 2 ofthe document. which povided that: ‘all other previous wills and of last testaments are to be nil [sic] and Bay soci hove been seen as a evocation. The cour suggests hats posse Mees camer with egned to wri asecton 2G) appletion does not succeed, Besjintoct be condoned as secion 20 document, proved the eqernent frding intention has been satisfied.’ The court found, however, that the Ferocaton was provisional and subect othe execution of valid new wil Jd) The meaning ofthe concept ‘Will in section 24 ection 24 distinguishes three posable ways in which the testator can make known Fis br her intention to revoke, Section 2A(a) refers to a written indication that is Jase onthe wil section 2A(b) refers to any other act performed with regard tothe jth s apparent rom the face fhe wil an section 2A(c) refers tote drafting of note document (thats apparenty notte wil tse). “he basic question that arises in this respects whether the word ‘wil inthe fist, wo subsections means only the original will or whether it also includes @ copy {pically a photocopy or an unsigred copy) ofthe wil ih Webster The Master the testator had deleted the name of his former spouse lend crossed out the bequests to his former spouse on a copy of a joint wil that he tnd his former spouse had executed (before their divorce) and that he had in his Possession. The court found that ection 2A(a) ofthe Act could not be applied since the testator carried out these actons on a copy of his will. On the other hand, however, the court found that section 2A(b) could be applied here seeing that an tation was caried outwith regardto the wil — which can then evidently include a copy. For the purposes of section 24(2) ‘wi’ does therefore not include a copy, but forthe purposes of ection 24(2) it oes, The cour’sultmate decision was tneelore thatthe testator had caried out an act with regard to his will with the intention of revoking his orginal wil” Corbett and others point outthat there ia fine distinction in the wording of the diferent paragraphs of sectien 2A. Section 2A(c) does not require that the document envisaged there needs 0 be submitted to the court Do paragraphs (2) section 2A require that tre will concerned shouldbe submitted? Such an intention does not appear from the wording of paragraph (a), butdoes appea the wording of paragraph (2), which refers to an act ‘which is apparent from the face ofthe will” As the authors remark, however, itis unlikely thatthe legislator Would have wanted to distinguist between the diferent paragraphs for this put = p96 hy saS4(0) #0 100 ne of Succes pose. In Mallu v Delarey'2 the view was 0 adoptedin the opp taken that a caret approach shou fon 2A and that th nent tal 2Aand thatthe section 24 camer ge sen neo ete oud infact be submit tot in »derstandable in the light of the fact that an attemp = ‘Prove that the testator had revoked her will oral nea As indicated above,!2° at common | awa will ea ked th re en destruction the wil cuenta oe estrcton Tremont wl should be submited tothe esc aes 1 x ony cach ar nated above aenatng mba de a AO 522 Tacttrevocation 5.2.3.1 Introduction tert 7 {eh hs method of evocation the testator’ intention to ree revocaton ee of she cae out! Cates that rege eee om revocation are those in which the t sa subsequent wip ac momen ete subsequent ulthatdocsoak 2 when he of she lentes beget {ogee the ea {econciled as far as possible.138 Af the wills contain. ote ae gic et tae 2 Ey $1927 3 Lane etre 197900 sana 101 Invalid WAls ond Revocation of Wis Inthe later wll compared to the frst wil, The court correctly found thatthe wis inustbe read together and that there had been partial tact evocation tothe extent dl. Where they dociffer, however, the ater will would apply. == thatthe wil dite sions ofthe earlier willand be efective asa wil the later jor to revoke the pr ll must be 3 vais wi there is uncertainty about which one isthe ater wil then oiunde evidence wil bbeadmissibie.° there are several wls that contain the same date, they wil be Fead together, but there are severalwill containing conlting provisions and itis nol posible to determine which isthe later wil, all of them wall be regarded as Impossible to carryout since the intention ofthe testator wil not be clear" The tales wil s regarded as revoked only in as fa ait is reconclabe with the later Wil The ater wil can thus revoke he earer wl ints entirety or paral. 523. Alonation of bequeathed assets [testator can revoke a legacy that heor she has bequeathed in his or hee wilin any ofthe ways discussed above, However, ifthe tesator does not revoke the legacy i fone ofthese ways, but voluntary alenates the subject-matter of the legacy, the legacy is regarded as revoked." Thelegacy is then said to have lapsed by adem The testator can expressly declare that he or she is revoking the legacy by alienation and then this isnot an onl revocation seeing thatthe revocation has been manifested by the alienation. I the testator makes no declaration, then it Will be deduced from the alienation ofthe subject-matter ofthe legacy that hee she revokes the pro ; 120 of Success Seeryches the Provons ofthe wil that deal with the legacy.” . Pectn of and the tsar ata sos he beach etage Bor er eaanges his wil After the tstators death it will be assed tas mene lapsed through ademption. The question ao wei ne EES Bir ae teen wit raed had She hace ie telat sil wishes to eae the gary toa pean fae testator alienated the subject- matt again.19 If ts proved that prenaectated the subject-matter ofthe legacy voluntary, the atthe 5.2.4 Other posse methods of wil (oa provision in awa NOCatON and Cases to be considered h red here arecasesthat involve lve the so-called au the automatic lapsing of a thgarangement in the now repealed Seton 3(2) of the Wii Ac eee a Jat ils ard Revocation of Wl 103 Beiore 1 October 1992 a will (ora provision na wil) would also not have lapsed Ign the dvorce or annulment of the mariage ofthe testator. Section 28 ct the Mil Ac, however, now provides that a wil executed before the dvorce or annul ofthe marriage ofa testator who dies within three months ofthe divorce or mnt must come into operation as # the previous spouse were dead 01 the Gute of the divorce or annulment. The three-month qualification was probably aided because it could be argued that the testator had not amended the wilater three months the testator di in fact intend to benefit his or her previous spouse i the latter had been a beneficiary n terms of the wil However, the provison Tabject to the qualification that, If It emerges from the wil thatthe tstater stil wished to benefit his or her former spouse in spite othe divorce or annulment, then Ihe wil (or provision inthe wil shall not be regarded as having lapsed. Section 28 ofthe Act provides as folows: if any person dies within three months after his mariage was dissolved by 2 fdvorce or annulment by 3 competent court and that person executed 3 ill before the date o such dissolution, tha il shall be implemented as it would have been implemented it his previous spouse had died before the date ofthe {dzsolution concerned, unless it appears from the wil thatthe testator inten ded to bene his previous spouse notwithstanding the dissolution of his marriage |Athough no problems have been experienced to date in the interpetaton of section 28, Corbett and others! rightly point out that this provision does net help to deal with cases that had caused problems in te past fone looks at cases that have led to litigation, itis clear that divorced persons do notin practice take the teouble to amend their wil within three months after the divorce. In Webster The 2 Beer v Naud, Ndebele v The Masters and Henwick v The Master to name just a few examples, there was always a divorce at issue without proper provision having been made forthe new spouse. What tends tohappen very cltenis thatthe testator decides ata very late stage to benefit his or her new spouse and then does not execute a wall properly, This then leads typically to applications f "SB compare ces star ec Meer 1975) 5A 3720 and Muro The Master 1984 4) SA vl erncnd ncn ont eno i997 O)sa2stC) Law of Succesiag condonation in terms of section 2(3) ofthe Act." thus appears aif th 5.24 Conditional or supposed revocation's> Avil canbe revoked depending on the occurence (or not ofan uncer levert. This will be con nal evocation and the revocation willbe effective only the condition has been flied. For example, the testator can stipulate {revoke my wil executed in January 2015 itmy daughter gies bith woason seanional revocation usualy takes place by means of the execution ofa Sipauent wi! then accepted thatthe annus revocand ofthe eee nly conditional. The diference between normal uncon tional) and condition is that with conditional revocation the intention i quafec = ay Sree the aplication ofthe latter canbe seen in Olver vDe Mtstrsesn i viercase the tstators hada codicil drawn up according te which the provisions in fora il were to be replaced withthe proviions inthe codieh The eeee (oare hat the code envisaged both a paral revocation and an amendrvencan Fra rian the wil had to be deleted and ao replaces. Hones, wang peal ‘amendment could not be condoned in terms of section 2) o tne wa Chto a Masao not prepared to give tet to the revocation iretegs therefore the revocation was conditional and dependent on tre amenement. {ne Resckev Moras” the testator had cated a fist will 1999. He aterwards Suerte to revoke the 1999 will by ging instuctonstoone of serpin, {pbs anew concept wlan to request his attomey to draft wil frie tho sae found that it had not been the testator’ intent valicity of the on thatthe concept will should be Pe wil in the aterative it was argued that he had revoked the 1999 al th mew document. Moosa refered to Corbett and others'™ whostaes Wi 108 r ther will so far as fairl Phere the revocation is sufficiently connected with another will y ran otthe od ile the testator iitended the revocation ofthe old Bileesdieral upon te re new wil, if the new willis inoperative Pe pasa, ten rc revcason ats and the original wil emai ore forany reason, then terevoca a hat there had not been effective revocatioy here as the animus renaltod been concolor dependent (consnget) onthe way fhe era. the basis of a particular supposition (or assu mp A a ob recon he bso» pai pon (ors. Ths woul then be supposed revcaton an the re ibe = ih th 1pposition (assumption) is correct.”* The following examples c serve asilstrations: tomatically 1 a will the bei that an earlier wil thus aut {a) Ha testator revokes a wil reves his or her supposton ‘nol correct and the rerecation vil not be atest destroys a wil because he ose think his any event bee ed bya subsequent wll and this snot the ease because the later willis for the will under the eroneous supposition C) ivalid, he or she destraye example, invalid, he orshe destroy under he ones that ithad already been revoked, The revocation sth vi HO yet orshe doe rat cove, te tesatr has desoyed thew unre gto execire anew will and the erroneous supposition that he ar she was going to exec revocation isthus not ele 7p! The revocation may thus be dependent on the actual existence ofa wi Mponthetcthawelsiastobe eerie Conditional or supposed revacation is known CRA ga 30 Me aot 08 nerve sain stress Law of Succes ‘elative revocation. In Roabe v The Master® tye doctrine was defined as fol I oy au eh Yeas useless or invalid, or it had already been revoked” k would never vie enim rewound 5 not accompanied by any The words ‘conditional revocation’ can be int include supposed revocation.» mprees 50 widely that they Ea ‘As far as this issue isconcemed, it seems unnecessary to refer toa ‘doctrine ‘theory. The question of whether concltional or supposed revocation ‘Question of fat and must be answered ir the light ofthe circumstances ot each case." The question is whether it was the les will no mater what, or whether he or she intended to reve ene es, of unaol a include adulterine children andincestuous chien en” UMaied are Children of unmarried parents can be tee o terms of commen iy but could inherit hey rom theic thay berg ea heen bey se and estate succession as fara this ma terisconcemed, "Ne HW finest In terms of the law of intestate suc se 'er's intestate heirs.” An adopted child eth fiery of On can arise in benefiting the children of unmartied parents sooo For example, the testator sometimes refersin his or herwal tones oe cen, ofthe Vis Acts med at addresing these ads oot etn eficiay of his interpreta fo Inherit cops 720(1) Inthe interpretation ofa wil, unless the context otherwise indicates () en adopted child shall be regarded as being born from his adoptive pérent or parents and, in determining his lationship tothe testator br another person for the purposes of a wil, asthe child of his {adoptive patent or parent and not as the cil of his natural paren ‘or parent or any previous adoplive parent a parents, except the {ase ofe natural parent who fs also the adopive parent ofthe chlo Who was martied to the adaptive parent ofthe child concerned atthe time of the adoption (©) the act that any person was born out of wedlock shal be ignored in determining his elationshp to the testator or another person forthe purposes of wil (0. any benefit allocated tothe children ofa peson, orto the members ‘facass of persons, mentioned in the willhall vest inthe children of that person or those members ofthe class oF persons who ae alive at the tme of the devolution ofthe benefit, 0: who have already been | conceived a that time and who ae later bam alive. | (2) in the application of this section ‘wil’ means any writing by a person whereby he spore of his property or any part thereof aftr his death These provisions wil have the effec that, unles the contrany should be evident from the contents of a wil children of unmarried parerts and adopted children are ior grand included when a provision in wil refers, for example, othe Jon. In the case of class bequests too adopted children and children of ofa linmaried parents ae incided. The clear indication inthe section that a testa an sil decide in his oF her wil on benefiting children ths category means that this section should not be viewed as restriction on the principle of freedom of 6.23 Class bequests In te case of class bequest it may not be dear which persons from the class may inert and when the class should be closed. As indicred above, section 20(1)(0) also regulates the postion in respect of cass bequeds. It often happens that testator designates, for example, his or her brother's chen his or her nephews o his or her grandchildren as beneficiaries.” In Es v Es? where the testator let a third of his asets to his grandehilren (the children of his son, the court decided nat the class would close only when the son can ne longer conceive chien. Section 2D(1)(¢) did not apply to the facts in the Es case. In terms of section 20(1)(0), fa bequest to a clas i at issue, only thse persons will inherit who are ave (or wha have already been conceived and are later born alive) at mn ofthe benef. According tothe provision te class wil accordingly lose 4 the tne of te a 4 log open of he ext. The lo 200) wil py ony tra set Soest Rec Nothing thus prevents a testator from making expr class who will be conceived or born at slater si later stage. 8.24 Stanor representation ( Representation in the context of y discussed.?s But representation ¢: tees an aso occur inthe context ofthe law of teste cen cing representation in the iv of testate son contain ra in Section 2C(2) of the Wills Act.2¢ This section is applicable to a hee the testator dls on or after 1 October 1992." As he noo no on, representation takes plaeln the aw of teste succenion cna {ed beneficiary (a) had predeceased the testator, (b) is disqualifi od fr hein tebe is dsqualfied rom inher succession. The rues regan Seeing, however, that it sometimes happens in prac e a, practice that descendants rep Presentation is quaifed in the ease of POuse ae together entitled to an intestate or Pudiation by the descendant would be that the avour ofthe surviving spouse, re fepudiation. Ifa descendant and a 3 testamentary benefit, the efecto re descendants benefit vests in the a form of statutory ac 4 “rual"For the purposes oft conto UpOSS ofthis provision, hows 10 uration doesnot include repulation by a minor or mental peon ok lant repudiates a benefit to which he or she and the spouse wore nat intent, then ths pena sd fhe or she were predeceased or disqualified fr 7 ieaceD of the Wis et reads lon ‘om inheriting. Section 2C(1) and (2) 2C(1) If any descendant of a testator, © descendant ho together with ne suring ore hey ented toa benehtin terms ofa wi recuas eee a benett, sich beneft shal vein thesurng ne eee such Se ko Cavalera 1952 (4)SA0 (1) 46 sen Low of Sues terpretation in sectgn ring when the class closes) re provision for members of ready been apocitytotnhert us {2} fa descendant ofthe testator, whether as a member of a class or ‘terwise, would have been ented to a benefit in terms of the provisions of a wil ihe had been alve atthe time of death ofthe festator,orhad not been diqualifed from inhetting, or had not after the testator’s death renounced his ight to receive such a benefit, the descendants of that descendant shal, subject to the provisions of subsection (1), per stipes be entitled to the beneii, unless the Context ofthe will otherwise indicates, Representation ofa descendant ofthe testator wilthusbe possible in cases where descendant is predeceased, but alo ifthe descendant is for any eason disquai Jed from inheriting or repudiates his or her benefit. Not ony can the children ofthe {children and further descendants, festatr be represented, but also the gran 63 UNWORTHY PERSONS 631. General The mere fact that a person has a weak or doubtful character does not as such squall him or her from inheriting. But there are certain people who are Adsqualiied trom inheriting onthe ground of socalled unworthiness» Corbett and V others summarise the matter a oll The basis ofthe grounds of unworthiness mentioned by the authorities s that Iosallow the beneficiary to take the benefit would offend against public policy and the general principle that no one should be allowed to bene from his OF Fherown wrongful actor derive bene fram conduct which s punishable, In Ploy v Nagan’® the court proceeded from the view that our courts are not limited to the grounds of unworthiness mentioned specially in the common law sources, but that they could be expanded on the bai of public policy to analogous cases.» This approach was aso confirmed inthe later case of Danielz v De Wet,” where the cout stated>* 6 Many ofthe common tow] grounds wal rund upon whch the cura mous eae at OY. T et osc | sho fs MPH The ground ar tay oy to | law should be develope fen teveloped to include those grounds tae pad er ofounds that presently offend the Despite ti h approach that appears fom enon eo Bec instances of unworhinas tare ees Mee to attention incase law At mofo tae eon fr that a bre! station wl fll of fe ea Principle has been applied outside of the law of succession aoa 832 Specitic cases of unworthiness 832.1 The ioody hand’ rule Sons Who are unworthy in terms of intestacy include those who uniawtany deceased or a deceased's conjunction, ‘common law fo inherit under awl oro and intentionally caused the death of the tors dag 28" Chee hand oat eee ree tN de comma tlhe homie thereon dows ot ance ely aed mits of prvate defence isnot unworthy rere Posen wit iret a uerthy. An example of sucha ces cra ent wnat thet ya st deed his te and wo of sco na et» Kan arson eee the man was mental ane oe ud tha a «thus not accountable for his he decent century oinherfom ha deena ae deceased, namely only his of her pore iy his or h WS, spouse and children, Grandchildren Foros seo ih eS aah Gapacty Inherit u7 brothers or sisters and grandparents are thus not included.’ The principle that applies here is tha, ifthe perpetrator had murdered someone so closely related t0 the deceased such asthe laters spouse, child or parent, the murderer has wronged the deceased and is unworthy of inheriting from the latter I the deceased and the victim ae thus conjunctisiy, then the person wino caused the victim's death wil also not be able to inherit from the deceased. Yet there fs nota enefal unworth ess attached to a murderer that disqualifies him or her from inherting'© and nothing prevents the person who caused the deceased's death rom inheriting from the ceases heirs” /Atcommon aw somebody who has negligently caused the death ofa deceased s also unworthy of inheriting from his or hee vietim.** In Casey v The Moster® the court found that the rule sil applies and that it has not Become obsolete by isuse.® But itis not clear whether causing the death of someone negligently lsqualtfies the perpetrator in all ces from inheriting from the victim. Ithas been Submitted that the person's actions in cases of death resulting trom negligence Should also be morally blameworty in order to result in a disqualification.” For example, nota single case has been reported in which the diver ofa car who Deglgently caused someone's death was unworthy of inheriting Irom the person Tiss probably because such an acs not regarded as morally blameworthy forthe Purposes of forfeiting succession benefits.» It appears that our law will not regard the negligent causing ofthe death ofa conjunctsimus ofthe deceased asa ground for dsqualtying a person from inheriting © In Donilz v De Wet the court obiter* confirmed the view that causing death he application ofthe “bloody hand rule. In Intentionally is not a requirement this case the perpetrators conspiracy to assault her husband led to hs death, But she was not found guity of murdet or culpable homicide, but of conspiracy to assault and of assault with the intent to do grievous bodlly harm. As indicated above,** however, the cox = 0m considerations sr eth rate ln ues eat

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