The Law of Succession in South Africa - (Chapter 8 Invalidity of Wills Generally Mistake Fraud Duress and Undue... )

Chapter 8 [*]
Invalidity of Wills Generally:

Mistake, Fraud, Duress and
Undue Influence; Revocation
and Revival
Section
1. Invalidity Generally
Grounds of invalidity
The presumption of validity
Estoppel and acquiescence
Admissibility of evidence
2. Mistake
The absence of animus testandi
Causa
Mistaken assumptions: Exceptions
3. Fraud, Duress and Undue Influence
4. Revocation
Introduction
Revocation by a subsequent will or codicil
Revocation by destruction
Copyright © 2023. Juta & Company, Limited. All rights reserved.
Repeal of Law 2 of 1868 (Natal) and the statutory

modification of the common law effected by s 2(1)(b)
of the Wills Act 7 of 1953
Presumption of destruction animo revocandi
Power of the court to declare a will revoked
Revocation by the subsequent marriage of the testator
Revocation resulting from divorce or annulment of a
marriage
Hofmeyr, G., and M. Palekar. The Law of Succession in South Africa, Juta & Company, Limited, 2023. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unisa1-ebooks/detail.action?docID=30532920.
Created from unisa1-ebooks on 2024-03-30 01:37:40.
Ademption of a legacy
Conditional revocation
5. The Revival of a Revoked Will
Page 158
1. Invalidity Generally
Grounds of invalidity
1.1 A will may be invalid in whole or in part at the date of
its execution, or it may subsequently become invalid either
in whole or in part. The invalidity of a will may arise in the
following circumstances:
(a) where the will is not executed with the required
formalities; [1]
(b) where the testator or witnesses do not have the
necessary capacity at the time of execution; [2]
(c) where the testator does not have the necessary
animus testandi at the time of execution, for
example, where the testator never intends the
document to operate as a will at all or the testator
signs the will under a mistaken belief as to its
nature; [3]
(d) where the act of testation is not free and voluntary
but is procured by fraud, duress or undue
influence; [4]
(e) where the will is made dependent upon a condition
which is not fulfilled; [5]

(f) where the will is revoked. [6]
1.2 A particular bequest or provision in a will is invalid
where the page on which it appears is not validly
executed [7] and the grounds of invalidity listed in (c) to (f)
above are equally applicable to a particular provision in a
will. [8] In addition, a particular bequest or provision is
invalid where it is a nudum praeceptum (a nude
prohibition), [9] illegal, or infringes constitutional rights or
values, or is against public policy generally, or is impossible,
too uncertain to be given effect
Page 159
to, or in some other manner legally defective, [10] or where

the beneficiary in question is in law disqualified from taking
the bequest [11] or does not adiate. [12]
The presumption of validity

1.3 A will which is complete and regular on its face is
presumed to be valid until its invalidity has been established
and the onus is on the person alleging invalidity to prove
such allegation. [13] Although the standard of proof is the
same as in all civil cases, that is, proof upon a balance of
probabilities, [14] the law seeks to uphold an instrument
which embodies the last wishes of a deceased, and a court
will not lightly set aside a will, and will require clear
evidence of invalidity. [15]
1.4 The presumption of validity is of general application
and extends to disputes in regard to whether or not the
prescribed formalities have been complied with. [16] A will is
complete and regular on the face of it when from the will
itself it appears that it has been properly signed and
witnessed and there are no circumstances ex facie the will
showing that it was not executed in accordance with the
formalities prescribed by law. The fact that a will does not

contain an attestation clause or contains an attestation
clause which is incomplete does not, however, mean that
the will is not complete and regular on its face. [17] On the
other hand, the
Page 160
presumption of validity does not apply in the case of a
document which is a copy of a will and not the original will
itself. [18]
Estoppel and acquiescence

1.5 Persons who have acted upon a will or acquiesced in it
may be estopped from thereafter attacking its validity, for
example, where a beneficiary with knowledge of patent
defects takes transfer of property bequeathed to him under
a will. [19] The lapse of time may afford proof of
acquiescence but is not conclusive where a reasonable and
satisfactory explanation is forthcoming. [20] Although, as a
rule, a beneficiary who has accepted a benefit under a will
is precluded from subsequently seeking to set aside that
will, such beneficiary will be permitted to do so where the
benefit was accepted under an excusable error and in
ignorance of the facts or the beneficiary’s legal rights. Thus,
where a beneficiary had knowledge of the circumstances
under which a will was executed and had adiated, but was
ignorant of the requirements of the Wills Act, [21] the
beneficiary’s ignorance was excused. The result was that
the will was, at the instance of the beneficiary, set aside on
the ground that the requirements of the Act had not been
complied with. [22] The court will act with great caution and
will not lightly set aside a will which has been accepted by
the Master and has been given effect to, especially where
Page 161
a considerable period of time has elapsed between the date

of the testator’s death and the date of the application to set
the will aside. [23]
Admissibility of evidence
1.6 In actions to set aside a will where the genuineness of
the will is in question, extrinsic evidence, including
statements made by the testator, is admissible. If the
validity of the will is attacked on the grounds of forgery, the
instructions given by a testator to his or her attorneys as
well as statements of the testator’s testamentary intentions
are admissible. [24] It is submitted that statements made by
the testator at the relevant time are admissible to support
or rebut the presumption of validity where it is sought to
impeach the will on other grounds, such as a failure to
observe the requirements for due execution. [25] The fact
that evidence of declarations by the testator or the
testator’s instructions may be admissible in some cases
does not mean that they will be admissible in all cases
where the validity of a will is impeached. Such evidence will
be excluded where it is irrelevant. [26]
2. Mistake
The absence of animus testandi
2.1 Where a testator signs a will under the mistaken belief
that it is some other document or where a provision is
introduced into a will by mistake, neither the will nor the
provision in question can have testamentary effect. In such
a case, there is no act of testation at all, as the testator did
not have the necessary intention (animus testandi) to make
a will or insert the provision. [27]
Page 162
Causa
2.2 The testator may be under a mistaken impression
regarding the reason or motive (causa) for including a
provision in his or her will. As a general rule (but subject
always to the testator’s contrary intention) causa is treated
as irrelevant, and a mistake (false assumption) in relation
to it (falsa causa) has no legal consequences [28] even if the
mistaken causa is recited in the will. [29] Thus, if the testator
is mistaken in a factual assumption which motivated a
disposition, the disposition will not on that account be
invalid. For example, [30] if Smith has two sons, A and B,
and institutes B as his sole heir under the erroneous
assumption that A stole from him, the bequest in B’s favour
is not necessarily invalid, and nor can A claim to share in
the bequest because of Smith’s erroneous assumption. As
Voet [31] states:
‘Cause is that which influences the testator to make a bequest. If it is false
it does not spoil the legacy although the testator did not know it to be
false.’
2.3 Voet refers, however, to an exception [32] to the general

rule that a falsa causa is legally irrelevant. In 35.1.9, after
stating that a falsa causa does not invalidate a bequest, he
continues:
Page 163
‘[N]evertheless if an heir can show that the testator would not have given
a legacy if he had known that the cause was false, . . . he can by an
exception of fraud debar the legatee when he sues.’ (Gane’s translation)
Thus, if the testator includes a provision in his or her will

which is expressly or impliedly made conditional upon the
existence of a certain fact, the provision fails if that fact
never existed or has ceased to exist. [33] The question of
whether or not a falsa causa has any effect on a disposition

is thus one of construction, namely, whether or not the
testator intended the provision to be conditional on the
correctness of the causa. Thus, the above general so-called
‘rules’ relating to falsa causa are subject to the overriding
principle that the testator’s intention is paramount, so much
so that the relevance of these rules has been
questioned. [34]
2.4 It is not only a provision in a will which confers a
benefit upon a beneficiary which may be conditional upon a
causa not being false; the disinheriting of a person may
similarly be conditional. [35]
2.5 If the testator is mistaken as to the legal effect of a
disposition this will not, it seems, invalidate the
disposition. [36]
2.6 The court’s power to correct errors generally and the
question whether, if a provision or an exclusion is invalid or
inoperative on the ground of falsa causa, the court can by
way of rectification substitute for the annulled provision or
exclusion the disposition which the testator would probably
have made, had the testator known the true facts, is dealt
with below. [37]
Page 164
2.7 While the testator’s motive for making a bequest is

generally legally irrelevant, it is submitted that motive may
be looked to as part of the surrounding circumstances which
may be adverted to in interpreting a will. [38]
Mistaken assumptions: Exceptions

2.8 There are exceptional cases where a mistake as to the
circumstances on which a testator based his or her

dispositions affects their validity despite the general falsa
causa rule. Where a testator bequeaths property in the
mistaken belief that it belongs to him or her, whereas in fact
it belongs to someone else, the bequest, as a general rule,
is void. [39] And if the testator disposes of property in the
belief that he or she wholly owns it, whereas in fact it is
owned in common with a third party, the presumption is, in
case of doubt, that the testator intended to dispose of only
his or her share and the legatee is entitled only to the
testator’s share. [40] Again, where a testator who is married
in community of property imposes a legacy on the joint
estate in the erroneous belief that he or she owns, or is
entitled to dispose of, the whole of the joint estate, the
legacy will be halved. [41]
3. Fraud, Duress and Undue

Influence
3.1 The expression of a testator’s last wishes must be the
result of the exercise of the testator’s own volition. Thus, a
will that is executed, or a provision which is inserted in it, or
deleted from it, as a result of fraud, duress or undue
influence, is invalid. [42] Undue influence has been described
as an influence which has,
‘caused the execution of a paper pretending to express a testator’s mind
but which really does not express his mind, but something else which he
did not really mean’. [43]
A will or a provision in a will may thus be declared invalid

where the testator is moved by artifices of a nature such as
to justify their being equated, by reason of their effect, to
the exercise of coercion or fraud, to make a bequest
Page 165
which the testator would otherwise not have made and

which, therefore, would express another person’s will rather
than the testator’s own will. Mere flattery, extraordinary
affection shown to the testator, accusations made against
proposed beneficiaries, and even direct requests and other
artes captatoriae (other ways of hunting for bequests) will
not necessarily constitute undue influence. In order to do
so, they must result in the substitution of the wishes of
another for the wishes of the testator. [44]
3.2 The onus of establishing undue influence rests upon
the party who alleges that undue influence was brought to
bear on the testator. [45] Whether or not there has been
undue influence is a question which must be determined
with reference to the facts and circumstances of each
particular case. The testator’s mental state and the
testator’s ability to resist instigation and prompting are all
factors to be considered. The relationship between the
parties may also be important. It may give rise to a metus
reverentialis, that is, the relationship might be such that a
request by the one party to the other might be regarded by
the latter as a command which must be obeyed. The mere
existence, however, of a relationship of a particular kind
does not give rise to a presumption that the will of another
has been substituted for the testator’s will, which
substitution must be proved. [46]
3.3 If, after the execution of a will, a period of time elapses
during which the testator could have altered the will should
the testator have wished to do so, the testator’s failure to
take advantage of this opportunity is a circumstance which,
together with the other circumstances, must be considered
and which may lead to the inference that the will was not
made against the testator’s wishes or that the testator had
subsequently voluntarily and tacitly confirmed it. [47]
Page 166
4. Revocation
Introduction
4.1 Under the common law a will that is initially valid can
be subsequently invalidated in whole or in part by an act of
revocation by the testator [48] at any time prior to his or her
death, as a will takes effect only on death (a morte
testatoris). This act, to be effective, must be accompanied
by an intention on the part of the testator to revoke
(animus revocandi). A revocation made by mistake, [49] or
made otherwise than by the exercise of the testator’s own
volition, or a revocation intended by the testator to be
conditional which is not fulfilled, is accordingly not effective.
Similarly, a revocation intended by the testator to be
conditional on the correctness of an assumption will not be
effective where the assumption is incorrect. [50] Revocation
may be express or tacit. Tacit revocation occurs where a
later will or provision in a will is inconsistent with an earlier
will or provision in an earlier will, or where the testator
voluntary alienates the subject of a bequest. [51]
4.2 The common law did not recognise an oral expression
of intention to revoke. [52] Any such expression had to be
accompanied by an act of destruction or ademption
Page 167
or had to be contained in a validly executed testamentary

instrument or, according to Voet, [53] in an antenuptial
contract, or possibly in some other document executed by
the testator. [54] Law 2 of 1868 (Natal) modified the common
law in certain respects but was repealed by the Wills Act. [55]
The latter Act leaves the common law relating to revocation

untouched, except that it requires the revocation of part of
a will by deletion or alteration to be effected with the
formalities required by the Act. [56] The Law of Succession
Amendment Act, [57] which came into operation on 1
October 1992, amended the Wills Act by the introduction of
a new s 2A which empowers the court to declare a will
revoked where the intention to revoke is apparent from the
face of the will, or from another document drafted by the
testator or which the testator caused to be drafted. The
provisions of the latter Act are, subject to s 7 of the Wills
Act, applicable only to wills in regard to which the testator
died on or after 1 October 1992. [58] In regard to wills
executed on or after 1 January 1954, in respect of which
the testator died before 1 October 1992, the applicable law
is that set out below, except that s 2A will have no
application. In regard to wills executed prior to 1 January
1954, reference is made to the first edition of this work and
the 1994 Supplement to it.
4.3 The testator may revoke a mutual or joint will insofar
as the testator’s own property is concerned, except where
the other party to the will has died and where the will
effects a massing and the surviving testator has adiated. [59]
4.4 The onus of proving that a will has been revoked is on
the party alleging that this is so. [60]
4.5 A contract in terms of which a person undertakes not
to revoke his or her will is invalid. [61]
Page 168
Revocation by a subsequent will or codicil

4.6 The general rule is that if a testator leaves more than
one will, all the wills must be read together and reconciled
as far as possible. [62] However, a later will [63] may expressly

revoke a previous will or do so by necessary implication,
provided that the later will is itself valid. [64] Revocation by
implication will arise where the provisions of two wills are
inconsistent, and in this event, the later will prevails as it
represents the testator’s last wishes. [65] The earlier will is
deemed to be revoked only in so far as its provisions are
inconsistent with the provisions in the later will, [66] and the
earlier will may be revoked either in whole or in part,
depending upon the extent of the inconsistency. Thus,
where two wills are incapable of
Page 169
standing together, the first will must be regarded as

revoked in toto. For example, where a testator’s will
appointed X sole heir, the testator’s former will, in which the
testator had appointed his children as heirs, was held to
have been revoked by the subsequent will. [67] An
inconsistent later appointment of an executor has been held
to have the same effect. [68]
4.7 Where the testator leaves two wills bearing the same
date, they will be read together, but where they contradict
each other, and it cannot be established which will was the
later one, neither of the contradictory wills is valid, as it will
not be clear which represents the testator’s last wishes. [69]
Fortunately, extrinsic evidence is admissible to prove which
of a number of wills was executed last. [70]
4.8 The fact that a later will is described as a ‘last will’ may
be a circumstance which indicates that the testator intended
to revoke an earlier will, but this inference is by no means
conclusive. [71] Whether or not two wills can be reconciled,
or whether there has been a revocation by the subsequent
will, is a question of construction. Where a bequest has
been made in an earlier will it requires clear and
unambiguous language to justify a finding that the testator

intended to revoke the bequest. [72] But where the
subsequent will contains a new and different scheme of
devolution and not simply a later set of dispositions to be
superimposed on an earlier set of dispositions, the earlier
will cannot stand. Thus, where there are two wills, which to
some extent contain similar provisions, but which are
different, and each of the wills deals with the entire estate,
they cannot stand together and the later will must be
construed as having impliedly revoked the earlier will. [73]
Page 170
4.9 Extrinsic evidence is admissible to show that a

revocatory clause was inserted in a later will by mistake and
that the testator did not intend to revoke the earlier will. [74]
4.10 Although the general rule is that a will only takes
effect a morte testatoris, it may have revocatory effect
during the lifetime of the testator, not because it is
operative as a will, but because it is a document which
shows the intention of the testator in regard to the
continued existence or otherwise of a prior will. Thus
revocation operates immediately upon the execution of a
later will revoking a prior will, and is not deferred to the
testator’s death. [75]
4.11 Revocation can also be effected by means of a
subsequent codicil which has been properly executed. As a
codicil is normally intended to supplement a will, the prior
will or its provisions will not easily be taken to have been
revoked in the absence of clear language. [76] A will may
also be revoked by a subsequent antenuptial contract, [77]
and dispositions in an antenuptial contract may be revoked
by a subsequent will. [78]
4.12 As pointed out above, the common law did not
recognise the validity of oral revocation. [79] It had further

been held that a purported revocation by the testator in a
document that has not been executed with the formalities
required for the execution of a will does not serve to revoke
a will. [80] On the other hand, in Marais v The Master, [81]
Didcott J expressed the view that a written declaration of
revocation by the testator will suffice to revoke the
testator’s will notwithstanding that the declaration was not
contained in a duly executed will. [82] This difference
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has been resolved by s 2A(c) of the Wills Act, [83] which

empowers the court to declare a will executed after 1
January 1954 in respect of which the testator died on or
after 1 October 1992 to be revoked where the testator
drafts a document or causes a document to be drafted by
which the testator intended to revoke his or her will. The
document may thus serve to revoke a previous will either
expressly or by implication. [84]
Revocation by destruction [85]
4.13 A will may be revoked if it is destroyed by the

testator or some person authorised by the testator,
provided that the testator intended to revoke it. [86] A
person holding a general power of attorney may not destroy
a will on the testator’s behalf; such person must have
express authority to do so. [87] Where a third party effects
the destruction without the testator’s knowledge, there is
clearly no revocation. [88] However, if a will that is destroyed
is found among the testator’s effects after his death, the
presumption is that it was destroyed by the testator with
the intention of destroying it. [89]
4.14 Destruction would appear to include any act whereby
the whole of the will or a part of it is physically destroyed
(for example, by burning, tearing up or cutting out), or

defaced, erased, deleted or cancelled. If the testator cuts
out his or her signature [90] or in some other manner
destroys it, the whole will is thereby revoked. In addition,
revocation may be effected by the drawing of lines through
the body of the will or by writing the word ‘cancelled’ or
‘revoked’ across the face of the will. [91] The writing of these
words in the margin or at the top or bottom of a
Page 172
page would not appear to be an act destroying, erasing or

cancelling the body of the will itself, and the writing of such
words would not constitute destruction, but might be
effective as a revocation in terms of s 2A of the Wills
Act. [92] Destruction of a portion of a will does not invalidate
the remainder, [93] provided that the remainder can be read
as an intelligible whole, but if the remaining portion is
unintelligible without the destroyed part, the whole will
must be considered to have been revoked. [94]
4.15 Destruction of a duplicate original of a will executed
with all the required formalities may constitute a
revocation, [95] notwithstanding the existence of another
such duplicate original which is intact in the hands of a third
party, if the destruction took place animo revocandi. [96] The
destruction of a copy of a will does not, however, according
to Voet [97] and Van der Linden, [98] constitute a revocation.
While it is true that the destruction of a copy of a will does
not ordinarily give rise to the inference that the testator
intended to revoke his will, it would seem wrong to elevate
the views of the above authorities to a hard and fast rule.
The test is surely whether the act of destruction was
accompanied by an intention to revoke. There may be clear
evidence explaining why the original will was not destroyed
and why the testator destroyed the copy animo

revocandi. [99] In these circumstances,
Page 173
the destruction of the copy should result in an effective

revocation. [100] This view is supported by the decision in
Marais v The Master [101] where, after the testator had
executed his will, the attorney who had retained the original
sent the testator an unsigned copy in a cover together with
an accompanying letter. The testator subsequently wrote a
note on both the cover and the letter, recording that he
cancelled the will and appended his signature. Across each
page of the copy of the will lines were drawn and the word
‘cancelled’ was written. Again, the testator appended his
signature. The court held, without referring to either Voet or
Van der Linden, that this amounted to destruction and, so it
was held, showed how the testator would have dealt with
the original had it been in his possession. It was accordingly
held that the original will was effectively revoked.
4.16 As pointed out above, the destruction must be
accompanied by the testator’s intention to revoke the will.
Thus, where the testator destroys a will through
inadvertence or by mistake, [102] or where the testator’s
signature is erased without the testator’s knowledge, [103] or
is erased by the testator while mentally incapacitated, [104]
or where the testator tears up his or her will while
delirious, [105] drugged or hopelessly drunk, no revocation is
effected.
Repeal of Law 2 of 1868 (Natal) and the

statutory modification of the common law
effected by s 2(1)(b) of the Wills Act 7 of 1953
4.17 The Wills Act repealed Law 2 of 1868 (Natal), which
had modified the law in that province, and in respect of wills
executed on or after I January 1954, the common law

applies except to the extent modified by the Wills Act.
4.18 Section 2(l)(b) of the Act provides that no
amendment made in a will executed after 1 January 1954
and made after the execution of the will shall be valid
unless the formalities prescribed by s 2(1)(b) are complied
with. [106] Section 1 of the Act defines an amendment as a
deletion, addition, alteration or interlineation. This definition
was inserted in the Act by the Law of Succession
Page 174
Amendment Act. [107] Prior thereto it was held that s 2(1)(b)

was intended to apply to the deletion of words in an existing
will and not to the revocation of the whole of a will effected
by deletion, which would remain governed by the common
law. [108] Any doubt that may have existed in regard to the
meaning of the word ‘deletion’ was dispelled by the
definition of the word ‘deletion’ inserted into the Wills Act by
the Law of Succession Amendment Act, [109] which defined
that word as a deletion, cancellation or obliteration in
whatever manner effected, excluding deletion, cancellation
or obliteration that contemplates the revocation of the
entire will. (The above definition of the word ‘deletion’
makes it clear, it is submitted, that a deletion does not
include destruction by means of erasure, cutting out or
burning) [110]. Thus a deletion that would result in the
revocation of an entire will remains governed by the
common law and requires no formalities. On the other
hand, partial deletion now has to comply with the
formalities prescribed by s 2(1)(b), with the result that
whereas it was possible prior to the aforesaid legislation to
effect a revocation by deleting part of a will without any
formalities, this is no longer the case. [111]
Presumption of destruction animo revocandi

4.19 If a will is destroyed by the testator, the ordinary
inference or rebuttable presumption is that the testator did
so animo revocandi. [112]
4.20 Where a will is found destroyed (in the symbolic
sense referred to above) [113] amongst the testator’s effects
after the testator’s death, there is a rebuttable presumption
that the will was destroyed by the testator animo
revocandi. [114] Similarly, where a will, known to have been
in the testator’s possession, cannot
Page 175
be found after the testator’s death, there is a rebuttable

presumption that it was destroyed by the testator animo
revocandi. [115]
4.21 The latter presumption is based upon the general
probability that a testator will take proper steps to preserve
a last will and that, if it was lost or accidentally destroyed,
the testator would become aware of such loss or destruction
and would take the necessary steps to have the dispositions
restated in a new will. [116] It follows, therefore, that the
presumption will not arise in the case of the loss of a will in
the possession of a third party [117] or where a will which has
been destroyed (by being torn up, for example) is found in
the possession of a third party. [118] It makes no difference
to the applicability of the presumption whether or not, at
the time when the will kept by the testator in his or her
possession is found to be missing, a duplicate of the same
will is extant in the possession of a third party, even
although the latter will is identical to the former and is
validly executed. [119] However, the person who seeks to
rebut the presumption of revocation can rely on the
existence of a duplicate original in the possession of a third
party as a circumstance tending to rebut the

presumption. [120]
4.22 No general rule can be laid down as to the nature of
the evidence required to rebut the presumption of
destruction animo revocandi, and each case must be
Page 176
decided on the strength of the evidence placed before the
court. [121] This evidence may constitute direct evidence of
the testator’s conduct or intention or inferences from the
circumstances of the case. [122] Where the presumption is
rebutted, the contents of the will may be proved by
secondary evidence, such as a draft or copy or even oral
testimony. [123]
4.23 As pointed out above, if a will is executed in duplicate
and the testator retains one duplicate and this will cannot
be found, the presumption that the testator destroyed it
animo revocandi applies. [124] However, the presumption
would probably not arise where the testator retains both the
duplicates and destroys only one. The presumption will, of
course, not ordinarily arise merely because a copy known to
have been in the testator’s possession cannot be found. [125]
Power of the court to declare a will revoked

4.24 Section 2A of the Wills Act, [126] inserted by s 4 of the
Law of Succession Amendment Act, [127] and applicable to a
will executed on or after 1 January 1954, in respect of
which the testator died on or after 1 October 1992, when
the latter Act came into operation, provides that; ‘if a
court [128] 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;
Page 177
(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.’
4.25 This section flows from the recommendation of the
South African Law Commission in its Report [129] that
provision be made for the court to be empowered to
declare, if the court is satisfied that the testator intended to
revoke his or her will in whole or in part, a revocation
apparent from the will or other document to be valid. It is
clear from the Report that the Commission considered that
the testator’s intention was paramount and should be given
effect to, provided that there was an act of revocation
apparent from the will or some other document. [130] The
Commission specifically adverted [131] to the uncertainty that
had existed with regard to the validity of certain methods of
revocation. The section has clarified this uncertainty by
providing what will constitute a valid revocation apart from
the recognised methods of revocation, that is, by
subsequent will, antenuptial contract, destruction or
ademption. The section, which supplements the common
law in important respects, is peremptory, and if its
requirements are met, the court is obliged to make an order
revoking the will. [132]
4.26 An oral revocation will clearly not constitute
compliance with the section. [133] In order to comply with the
section, the act of revocation must take the form of a
written indication on the testator’s will, or must constitute
an act apparent from the face of the will, or must be
contained in another document drafted or caused to be

drafted by the testator, which need not, of course, be a will.
Page 178
4.27 While it can be contended with some force that the

word ‘will’ in s 2A(a) comprehends a copy, [134] this was not
the view taken in Webster v The Master. [135] In that case,
the testator had deleted certain provisions in a copy of a
joint will. The court held that in enacting s 2A(a) the
legislature intended to refer to a written indication on the
original will and held that the deletions made on the copy
accordingly did not amount to a partial revocation in terms
of s 2A(a). [136] However, the court held that the deletions
constituted acts performed by the testator with regard to
his will indicative of his intention to revoke it [137] – a clear
reference to s 2A(b). This finding is not supported, as the
acts in question were not ‘apparent from the face of the will’
in terms of s 2A(b) if the word ‘will’ is interpreted to mean
the original will and not a copy. [138] If the court intended to
hold that that the copy in question was not included within
the meaning of the word ‘will’ in s 2A(a), but was included
within the meaning of the word ‘will’ in s 2A(b), this is
clearly untenable. It seems more likely that the court simply
overlooked the words ‘apparent from the face of the will’ in
s 2A(b).
4.28 While s 2A(a) refers to a ‘written indication’, s 2A(b)
refers to ‘any other act’, that is, some act other than a
written indication. Section 2A(b) is clearly
Page 179
intended to cover other acts of destruction, such as

deletions by drawing lines through words, or totally
obliterating or erasing words, or cutting out words or the
testator’s signature. [139]
4.29 In terms of s 2A(c), the testator must have drafted or

caused to be drafted another document by which the
testator intended to revoke his or her will in whole or in
part. The document itself must thus have been intended to
constitute an act of revocation. Where, for example, the
document simply constitutes a reminder to the testator of
what changes he or she wished to make to the will, or
constitutes notes to be discussed with an attorney or
instructions to an attorney as to the nature of the changes
the testator wished to make, the document cannot be said
to be one by which the testator intended to effect a
revocation. [140] Moreover, in Mdlulu v Delarey [141] it was
held that s 2A(c) could be successfully invoked only if the
document relied upon was produced to the court. Absent
such document, so it was held, the court would be provided
with no more than oral evidence which would not provide
the required degree of certainty. Thus, evidence of the
existence of a revoking document not produced would not
suffice. The correctness of this finding is debatable. [142]
Page 180
4.30 In Henwick v The Master [143] an application was

brought to declare a joint will to have been revoked in
terms of s 2A(c). In dismissing the application Foxcroft J (in
whose judgment Van Reenen J and Pincus J concurred)
prefaced his conclusion [144] by stating that he was applying
a strict construction to the section. Strictly speaking, what
had to be determined was whether the factual requirements
relating to the section’s application had been met. The
judge found that they had not been met. Reading the
judgment as a whole, it is submitted that what the judge
meant by requiring a strict construction to the section was
that when a court has to determine the question whether
the testator caused a document to be drafted, together with
the paramount question of the testator’s intention (whether
in terms of s 2(3) or s 2A), it should apply caution. [145] The

judge referred to the peremptory effect of s 2(3) which, like
s 2A, excludes any exercise of discretion by the court once
the requirements of the section are met. [146] This refutes
the criticism [147] that Foxcroft J failed to state why he
applied a strict construction. Henwick’s case has further
been criticised [148] on the basis that the finding [149] that ‘the
document itself did not indicate the testator’s agreement
with it’ introduces an element not required by the section –
evidence aliunde being sufficient for this purpose.
Page 181
However, it is submitted that the judgment does not reveal

that Foxcroft J intended to lay down that this was a
requirement nor that evidence aliunde would not be
admissible. [150] That such evidence would be admissible is,
it is submitted, clear.
4.31 The distinction between s 2(3) and s 2A of the Wills
Act is apparent from the wording of the sections. [151]
However, the possible application of both sections may arise
in relation to the same set of facts. The question may arise
as to whether the non-compliance with the statutory
formalities of a document purporting to revoke a previous
will can be ‘condoned’ in terms of s 2(3). If condonation is
granted, the document will be accepted as a will, and the
previous will’s revocation will take effect. But if condonation
is not granted, the question which remains is whether the
document can, in any event, serve to revoke the previous
will in terms of s 2A.
4.32 An amendment to a will may simply comprise the
deletion of an existing provision (constituting a revocation),
or it may comprise a deletion together with the substitution
of a new provision in place of the revoked provision. If a
document (such as a codicil) not complying with the
statutory requirements of the Act in relation to execution

provides for the deletion of a provision and the insertion of
a new provision in a will, the provisions of s 2(3) must be
complied with before a court will confer validity on the new
provision by ‘condoning’ the non-compliance with the
statutory requirements. The question which arises, however,
is whether, if condonation is not granted, the revocatory
element of the substitution, that is, the partial revocation
effected, for example, by the deletion, can be separately
adjudicated upon and given effect to if s 2A is complied
with.
Page 182
4.33 This issue was considered in Olivier v Die

Meester. [152] In that case, a codicil not complying with the
statutory requirements was drawn up by the testators’
accountant. In terms of this document, new clauses were
inserted in place of existing clauses in the testators’ will.
The survivor of the testators applied both for an order
declaring the codicil to be valid in terms of s 2(3) and for
certain provisions of the will to have been revoked in terms
of s 2A. It was held that the requirements of s 2(3) had not
been complied with. It was further held that the codicil
contemplated both a partial revocation and an amendment,
that the intention was that the revocation would take place
only if the amendment (the substituted clauses) took effect,
and that there was accordingly no room for the application
of s 2A. [153] This constituted a factual finding that the
testators intended that the revocation was to be conditional
on the validity of the substitution. This factual finding
disposed of the matter, and it was not necessary for the
judge to consider further the relationship between s 2(3)
and s 2A. The judge, however, did so and stated that the
provisions of s 2A had to be interpreted against the
background of the provisions of s 2(3), and that the only
way in which the sections could be reconciled was if the

revocation envisaged in s 2A was not an amendment as
such. The judge pointed out, however, that the revocation
of a part of a will would naturally result in an amendment,
and if the testator intended to amend his will, then the
provisions of s 2A would not be applicable, and the
requirements of s 2(3) would then have to be complied
with. It was held that if these requirements were not
complied with, the revocatory element of the substitution
could not be given effect to. [154]
4.34 It is the court’s duty to seek, if possible, a
construction which results in a viable reconciliation
regarding any potential conflict which may be thought to
arise with reference to the application of s 2(3) and s 2A
and which gives proper effect to both. The approach
adopted in Olivier v Die Meester severely limits the
operation of s 2A which is an essentially remedial provision
which, it is submitted, should accordingly not be limited in
this way. It is submitted that a construction of s 2(3) and
s 2A can be adopted which affords recognition to the policy
considerations behind both s 2(3) and s 2A and gives proper
effect to the latter’s remedial purpose. If a document
substitutes one provision for another in a will and the
document does not comply with the required formalities and
Page 183
cannot be rescued in terms of s 2(3), then the new

(substituted) provision cannot be given effect to. But if the
revocation of the existing provision complies with s 2A and
was not intended to be conditional upon the validity of the
new provision, it is submitted that it should be given effect
to. To decline to do so would frustrate the testator’s
intention in circumstances where the statutory requirements
for an effective revocation have been met. [155]
Revocation by the subsequent marriage of the

testator
4.35 In Natal, s 8 of Law 2 of 1868 made provision for the
revocation of a will by the testator’s subsequent marriage.
This constituted an exception to the general rule that the
testator’s subsequent marriage did not have this effect. [156]
The Wills Act [157] repealed this Law, and as a result it only
applies to wills executed in Natal prior to 1 January 1954
(the date of the commencement of the Wills Act). [158] With
regard to this Law and the relevant decided cases,
reference is made to the first edition of this book.
4.36 Thus, save as provided by Law 2, a will is not revoked
by the testator’s subsequent marriage. [159]
Page 184
Revocation resulting from divorce or annulment

of a marriage
4.37 Section 2B of the Wills Act [160] provides that if any
person dies within three months after such person’s
marriage was dissolved by a divorce or annulment by a
competent court and such person executed a will before the
date of such dissolution, that will must be implemented in
the same manner as it would have been implemented if
such person’s previous spouse had died before the date of
the dissolution concerned, unless it appears from the will
that the testator intended to benefit such previous spouse
notwithstanding the dissolution of the marriage. [161] The
application of the section leaves the operation of the will
Page 185
unaffected, and the other beneficiaries remain entitled to

the benefits allotted to them. [162] This section, which

reflects the South African Law Commission’s [163]
recommendation, represents the limits of the Law
Commission’s willingness to recommend legislation to
provide for the adjustment of a will to accommodate
changed circumstances. [164]
4.38 The section imposes what amounts to a prohibition
against the previous spouse taking a benefit under the will
unless it appears from the will that the testator intended to
benefit the spouse notwithstanding the dissolution of the
marriage. If the will was made at a time when dissolution of
the marriage was not contemplated by the testator – which
will no doubt often be the case – it seems most unlikely that
the intention in question will appear from the will. If the
testator dies after the three-month period, the question
remains one of construction, although the reason for the
three-month period is clearly that, if after the expiry of the
period the testator did not revoke the benefit in favour of
the erstwhile spouse, it was considered that the testator
had had ample opportunity to do so if the testator did not
intend that such spouse should benefit in terms of the will.
4.39 As pointed out above, our law does not provide that
marriage revokes previous wills. [165] It is submitted that, in
the absence of such a provision even where the testator
marries after a divorce and provided the three- month
period referred
Page 186
to in s 2B of the Act had expired prior to the testator’s

death, a testamentary disposition in favour of the former
spouse stands, unless and until it is revoked. [166]
4.40 In JW v Williams-Ashman [167] the court rejected the
argument that s 2B was inconsistent with the Constitution
and against public policy. It was held that the section serves
a legitimate and compelling social purpose, that the
deprivation which it effects when it applies is not arbitrary
in terms of s 25(1) of the Constitution, and that there is
sufficient reason for it. It was found, in addition, that it was
not procedurally unfair and did not constitute a limitation of
the applicant’s right of access to a court in breach of s 34 of
the Constitution.
Ademption of a legacy
4.41 The ademption of a legacy may be described as the
revocation of a legacy by the conduct of the testator. [168]
Where the testator voluntarily sells, donates or otherwise
alienates the subject-matter of the legacy with the intention
of revoking it, the legacy is said to be adeemed. [169]
Whether or not the legacy is adeemed by the alienation of
the subject of the bequest is thus a question of
intention, [170] and evidence of the surrounding
circumstances together with statements made by the
testator are admissible to prove or disprove the intention to
revoke. [171]
Page 187
4.42 The Roman-Dutch writers were not in agreement on

the question of whether a voluntary alienation by the
testator of the subject-matter of the legacy prior to the
testator’s death gave rise to a presumption that the testator
made the alienation with the intention of revoking the
legacy. Van Leeuwen [172] and Lybrecht [173] held the view
that in case of doubt the alienation was not presumed to
have been accompanied by this intention, as the testator’s
intention is presumed to have remained unchanged.
However, other writers [174] took the view that a voluntary
alienation raised the presumption that the testator intended

to revoke the bequest. In Lunn v Lunn’s Estate [175] Bale CJ
approved Van Leeuwen’s view and expressed the opinion
that the intention to revoke was not to be presumed from
the mere fact of a voluntary alienation. [176] On the other
hand, in Oelrich v Beck [177] McGregor J expressed doubts as
to the correctness of the view taken by Van Leeuwen and
Lybrecht. [178] Other decisions have accepted that a
voluntary alienation does raise the inference or presumption
that the legacy has been adeemed, [179] and it is submitted
that this view will prevail.
4.43 However, where the alienation is not voluntary but
the testator is forced to dispose of the subject-matter of the
legacy as a matter of necessity (for example, where the
testator has been forced to dispose of the property in
question to satisfy debts) the inference of ademption will
not arise. [180] Nor will the inference arise where the testator
merely pledges or mortgages the subject-matter of the
legacy. [181]
4.44 Ademption may also take place where the testator,
after executing a will, donates the subject-matter of a
legacy to the legatee, although the legatee would have a
claim for any balance not so donated. [182] A debt due to the
testator and
Page 188
bequeathed to a legatee may be adeemed where the

testator either enforces payment of the debt or releases the
debtor. [183]
4.45 Voet [184] states that ademption holds good even
although the alienation is null and void as a matter of law.
4.46 Ademption may be partial where the testator
disposes of only part of the subject-matter of the

legacy. [185]
4.47 Ademption will operate only where the legacy was
intended to be specific. Thus, where the legatee is
bequeathed a sum of money out of a particular fund or the
income on a particular investment, the testator may have
intended the legatee to receive the sum or income in
question notwithstanding that the particular fund has been
disposed of or the nature of the investment changed, and
such disposal or change will not in these circumstances
adeem the legacy. [186]
4.48 Where a specific thing has been bequeathed by the
testator and cannot be found amongst the testator’s
possessions after the testator’s death, it is submitted that
where there is doubt as to the testator’s intention, it will be
presumed both that the testator voluntarily alienated the
thing during his lifetime and that the testator intended to
revoke the bequest. [187]
4.49 Once the legacy has been adeemed it is not revived if
the testator thereafter reacquires the subject-matter of the
legacy, unless the testator evinces an intention to revive the
legacy. [188]
4.50 Where the subject-matter of the legacy is alienated,
but the testator did not intend to revoke the bequest, the
legatee is entitled to the value of the legacy or, if the
executor can reacquire it, the bequest itself. [189]
Page 189
Conditional revocation
4.51 Revocation may be conditional, and if the revocation
was subject to a condition which is not fulfilled, the
revocation fails. [190] Moreover, a revocation may be
conditional in the sense that it was based on a particular

assumption, and if the assumption was erroneous, the
revocation similarly fails. [191]
4.52 The question whether or not the revocation was
unconditional or was dependent upon the fulfilment of some
condition (or the correctness of an assumption [192]) is a
question of fact which must be determined according to the
particular circumstances of each case. The inquiry is always
one of intention, [193] namely, whether the testator intended
the will or disposition to be revoked whatever happens, or
only conditionally. [194]
4.53 In cases of revocation by destruction, where it is
alleged that the revocation was conditional, [195] declarations
made by the testator at or about the time of the destruction
and forming part of the res gestae are admissible to show
the testator’s intention. [196] However, in cases of revocation
by subsequent will, the question is
Page 190
one of construction [197] and extrinsic evidence is admissible

only to the extent that such evidence is generally admissible
in the construction of wills. [198]
4.54 Revocation may be related to another will or
disposition which has already been made [199] or is about to
be made. [200] Where the revocation is sufficiently connected
with another will so as fairly to raise the inference that the
testator intended the revocation of the old will to be
conditional upon the efficacy of the new will, if the new will
is inoperative for any reason, or is in fact not made, then
the revocation fails and the original will remains in
force. [201] If the testator’s act can be interpreted thus:
‘Whatever else I do, I intend to cancel this as my will from
this time forth’, the will is revoked, but if the testator’s
meaning is: ‘As I have made a fresh will (or intend making
one) my old one may now be destroyed’, the old one is not
revoked if the new one is invalid or is not made. [202]
4.55 The application of the principle of conditional
revocation may arise not only where a will is destroyed as
part of the act of making a new will which is not in fact
made or is ineffectually made, but also where a provision in
a will is obliterated, and a different provision is substituted
for it, but the substitution is invalid because it was executed
without the necessary formalities. [203]
4.56 The principle of conditional revocation may be
applicable where a testator destroys a later will on the
erroneous supposition that an earlier will is thereby
revived. [204]
Page 191
4.57 Where revocation is not expressly stated to be

conditional, it may be difficult to determine whether the
revocation was intended to be conditional or not. Where a
testator after executing a new will permitted the destruction
of a former will and remarked: ‘I suppose there is no use in
keeping the old one, as I have made a new one’, or where a
testator a few days after the execution of a later will tears
up the earlier, saying: ‘It is of no use keeping this now I
have another’ or stated that the old will ‘is no good now’,
the revocation was held to be conditional. [205] But it is not
necessary that there should be proof of express words used
by the testator showing that the act of destruction was
performed conditionally; the testator’s intention may be
inferred from the surrounding circumstances [206] including,
as pointed out above, statements made by the testator. [207]
4.58 It has been pointed out in English law that the mere
revocation of a will, followed by a subsequent ineffectual
disposition, will not set up the original will if the two acts
are not so connected that it can be said that the
substitution of an effectual disposition was the condition of
the revocation of the original will. The point is not that a
revoked will is set up again if a subsequent disposition is
ineffectual, but that it was not the intention to revoke the
original will unless or until an effectual disposition was
made. Where the circumstances show that the testator did
not wish to die intestate, this may support the inference
that the revocation was intended to be conditional, [208] but
not necessarily so. The court may find that although the
testator had no intention of dying intestate (the result of
the revocation if not conditional), but nevertheless conclude
that the testator did not intend the revocation to be
conditional. [209] Again, a testator who revokes a will
intending to make a new will may not anticipate death in
the near future, in which case evidence that the testator did
not want to die intestate would have very little
relevance. [210] A testator may, moreover, have preferred
intestacy to the provisions of the earlier will, and the
revocation, although connected with the making of a
Page 192
new will, may not have been dependent on the efficacy of

the new will. Thus, the mere fact that the testator did not
intend to die intestate does not necessarily mean that the
revocation was conditional and whether it was or was not
conditional is dependent on the testator’s intention.
4.59 The overall onus is on the party alleging that a will
has been revoked to prove that allegation. [211] Where it is
alleged that revocation took place by destruction, in some
circumstances the party alleging revocation is assisted by a
rebuttable presumption that the will was destroyed by the
testator animo revocandi. [212] The effect of this presumption
is to cast the burden of adducing evidence that the

destruction was conditional or done by mistake on the party
alleging that this was the case. [213]
4.60 The common law relating to conditional revocation
will continue to apply in respect of wills executed after 1
January 1954 by a testator who died on or after 1 October
1992, taking cognisance of the amendment of the Wills Act
by the Law of Succession Amendment Act. [214] This is the
result of the provisions of the amendments to the Wills Act,
discussed in chapter 5 above, in regard to the court’s power
to condone a failure to observe the formalities for executing
or amending a will and which permit the court to declare a
will or part of a will to have been revoked by an act of
revocation appearing from a document or from the face of
the will, discussed in §§ 4.24ff above.
5. The Revival of a Revoked Will

5.1 Prior to the decision in Moses v Abinader, [215] the view
taken in the Cape [216] and the Transvaal [217] was that a
revoked will could be revived by a subsequent will which
evinced an intention to revive the earlier will either
expressly or by
Page 193
implication. [218] The subsequent will itself, of course, had to

be valid. [219] In Natal, Law 2 of 1868 (now repealed)
expressly provided that a revoked will could be revived
either by re-execution or by a subsequent will showing an
intention to revive. [220]
5.2 The revived will was treated as if it were a will
executed anew and as being operative from the date of the
execution of the testamentary instrument by which it was
revived. But in interpreting any specific provision in the
revived will regard was had to the date when the will was
executed. [221] Where a testator executed will A, revoked it
by will B, and finally executed will C reviving will A, the
mere fact of such revival did not operate as a revocation of
will B. In order to ascertain the testator’s intention, all the
wills had to be considered, but to the extent to which the
provisions of will A (revived by will C) conflicted with those
of will B the provisions of will A prevailed, and the
provisions of will B were treated as revoked to the extent of
such inconsistency. [222]
5.3 In Re Estate Marks [223] it was held that the revival of
an earlier will did not per se revive codicils to that will and
that the question whether such codicils were revived was
one of intention.
5.4 In Wood v Estate Fawcus [224] it was held that where a
will was revoked by a subsequent will, it was not tacitly
revived by the revocation of the subsequent will. For revival
to operate there had to be proof that the testator intended
to revive the earlier will, and such proof had to be contained
in a duly executed testamentary document. Thus, the mere
destruction of the revoking will, even if accompanied by a
clear intention to revive the first will, did not revive the first
will. A will revoked by destruction so that it no longer exists
could not be revived. [225]
Page 194
5.5 In 1951 the law relating to the revival of a revoked will

was considered for the first time by the Appellate Division in
Moses v Abinader. [226] The main question which exercised
the court’s mind was whether revival was possible in view of
the provincial legislation then in force, [227] which prescribed
the necessary formalities for the execution of wills, more
particularly the Transvaal Wills Ordinance. [228]
5.6 Greenberg JA, with whom Fagan JA concurred, found

on the facts that the intention to revive had not been
proved and therefore found it unnecessary to decide
whether the doctrine of revival applied to a will governed by
the Transvaal Ordinance. [229] Schreiner JA held that the
provincial legislation left the principles of revival untouched.
These statutes, it was held, only laid down the requirements
for the execution of testamentary instruments and did not
affect questions of revocation and revival. The judge
accordingly held that an earlier will which had been revoked
by a later will could be revived by a third testamentary
instrument, provided that the latter instrument was duly
executed, [230] but found on the facts that the onus of
proving an intention to revive the revoked will had not been
discharged. [231] Van den Heever JA held that the doctrine of
revival was inconsistent with our common law as amended
by statute. The judge held that the doctrine of incorporation
by reference could not be applied in view of the provisions
of the Transvaal Ordinance, that this applied equally to the
doctrine of revival, and that the only way in which a
revoked will could lawfully be revived was by re-execution
with observance of the statutory requirements. [232] Hoexter
JA held that the Transvaal Ordinance precluded the
operation of the doctrine of revival in the case of
testamentary documents governed by that ordinance. [233]
5.7 The result of this decision was that the law was in an
uncertain state insofar as the question of the revival of a
revoked will was concerned, except in regard to wills
executed in Natal prior to 1953 and governed by Natal Law
2 of 1868, which made specific provision for the manner in
which a revoked will could be
Page 195
revived. [234] The repeal of the provincial statutes by the

Wills Act [235] did not alter the position and the problem
remained, namely, whether the existence of the formalities
prescribed by the Wills Act preclude a revoked will being
revived by a duly executed testamentary document evincing
an intention to revive the revoked will. The approach
adopted by Schreiner J was followed in Estate Gonsalves v
Pataca [236] and Loureiro v The Master. [237] In that case a
will executed in March 1974 had been revoked by a will
executed in December 1974, but in January 1975 a codicil
had revoked the will of December 1974 and had purported
to reinstate the will executed in March 1974. Without
furnishing reasons, the court made an order declaring the
will executed in March 1974 to be a valid will. [238] It is
submitted that Schreiner JA’s view was correct, a view
shared by a number of writers. [239]
5.8 Uncertainty nevertheless remained until the decision of
the Supreme Court of Appeal in Wessels v Die Meester. [240]
In that case, it was held that the view taken by Schreiner JA
referred to in § 5.6 above was the correct one.
5.9 Prior to the enactment of s 2(3) of the Wills Act, [241]
there could be no revival of a revoked will by a subsequent
valid will if the revoked will had not been validly executed.
It is submitted that s 2(3) can be invoked in an appropriate
case and applied in respect of such a revoked will so as to
make its revival possible. [242] Similarly, if an invalidly
executed will purports to revive a previous validly executed
will which had been revoked, the effect of the successful
application of s 2(3) in relation to the invalidly executed will
could result in the previous validly executed will being
revived. [243]
[*] This chapter was originally contributed by Gys Hofmeyr, and revised by
him for the second and third editions.
[1] See chapter 5 above.

[2] See chapter 6 above.
[3] See chapter 4 § 2.3 above.
[4] See § 3 below.
[5] See chapter 10 below on conditions generally.
[6] See § 4 below.
[7] Chapter 5 § 2.28 and the immediately preceding note above.
[8] For a case where a particular provision in a will was regarded as
inoperative because the testator never intended to include it, see Ex parte
Lutchman 1951 (1) SA 125 (T).
[9] See chapter 16 §§ 5.6ff below.
[10] Chapter 10 § 1.8 below.
[11] Chapter 7 above.
[12] Chapter 2 § 3 above.
[13] Kunz v Swart 1924 AD 618 at 651; Tregea v Godart 1939 AD 16 at 56;
Sterban v Dixon 1968 (1) SA 322 (C) at 325F–in fine; Bowes v Friedlander
1982 (2) SA 504 (C) at 509C–E; Thaker v Naran 1993 (4) SA 665 (N) at
667F–G; Mdlulu v Delarey [1998] 1 All SA 434 (W) at 439d–g; Gabavana v
Mbete [2000] 3 All SA 561 (Tk) at 567i–j; Levin v Levin [2011] JOL 27306
(SCA); M v Master of the High Court [2014] ZAFSHC 141.
[14] The dicta in Smith v Strydom 1953 (2) SA 799 (T) at 805C–D and Ex
parte Tracy 1960 (1) SA 34 (W) at 35B–C to the effect that a different test is
applicable to actions seeking to set aside wills on the ground of invalidity are
not correct. See Ley v Ley’s Executors 1951 (3) SA 186 (A) at 192–3; Hepner
v Roodepoort-Maraisburg Town Council 1962 (4) SA 772 (A) at 778H; Yassen
v Yassen 1965 (1) SA 438 (N) at 441H–442C; Bowes v Friedlander 1982 (2)
SA 504 (C) at 509C–E.
[15] Kunz v Swart 1924 AD 618 at 692, 696; Tregea v Godart 1939 AD 16
at 56; Goosen v Wiehahn 2020 (2) SA 341 (SCA) para [9]. See also Mellville v
De Villiers’ Executors (1899) 16 SC 557.
[16] Thaker v Naran 1993 (4) SA 665 (N) at 669D–F.
[17] Brink v Brink 1927 CPD 214 at 217; Sterban v Dixon 1968 (1) SA 322
(C); Thaker v Naran 1993 (4) SA 665 (N). In the first of these decisions, it
was held (in the context of the question of whether the testator had signed
the will in the presence of two witnesses present at the same time) that
although the presumption of validity only applied in regard to a will regular on
the face of it, the presumption applied notwithstanding the absence of an
attestation clause. However, it was further held that the presence of such a
clause added strength to the case for validity, and the fact that the testator,
by carefully preserving the will, showed that he regarded it as his valid will
similarly strengthened the case for validity.
[18] Ex parte Ford and Langham: In re Estate Boediker 1953 (4) SA 338
(N) at 343.
[19] Roche Blanche v The Widow of JJ Pas (1838) 2 Menzies 453; Van
Reenen v Executor of Neethling (1839) 2 Menzies 470; Oosthuysen Wessels v
Executors of Rensburg (1840) 2 Menzies 425; Ferreira v Otto (1884) 3 SC
193; De Beer v Coetzer 1914 TPD 308 at 314–15; Weyer v Weyer’s Estate
1938 EDL 242, 1939 AD 126; Van der Merwe v Die Meester 1967 (2) SA 714
(SWA) at 722E–725B. The result of giving effect to waiver or estoppel and
thus precluding the validity of the will being challenged may result in legal
effect being given to a will notwithstanding a clear non-compliance with the
peremptory provisions of a statute. See Van der Walt (1967) 30 THRHR 385
who maintains that the validity or invalidity of a will is not dependent on the
conduct of the beneficiaries.
[20] Van der Byl and Haupt v Scholtz (1897) 14 SC 483. Compare Grobler v
Dorfling’s Estate 1938 EDL 199.
[21] Act 7 of 1953.
[22] Van der Merwe v Die Meester 1967 (2) SA 714 (SWA).
[23] Van der Byl and Haupt v Scholtz (1897) 14 SC 483.
[24] Kunz v Swart 1924 AD 618 at 637; De Lange v Rudman 1928 EDL
439; R v Foreman 1952 (1) SA 423 (R) at 424–5; R v Basson 1965 (1) SA
697 (C) at 699B–701G. In Pillay v Nagan 2001 (1) SA 410 (D) at 417E–H this
sentence was cited with approval.
[25] Compare LAWSA 2 ed vol 31 para 285, citing Brink v Brink 1927 CPD
214.
[26] Dukada v Dukada’s Estate 1937 EDL 372.
[27] Chapter 4 § 2.3 above. Note the situation that exists where, due to a
mistake, a will does not correctly represent what the testator intended should
be included in it, giving rise to a claim for the rectification of the will: see
chapter 20 § 9 below. For the case where spouses each sign each other’s wills
in error, see chapter 20 § 9.13 below.
[28] Grotius 2.23.7; Voet 35.1.9; Schliemann v Goldblatt 1931 SWA 73;
Millward v Glaser 1949 (4) SA 931 (A) at 941–2.
[29] See Abdoola Abdool v Chotanbhai (1918) 39 NLR 279; Johnstone’s
Executrix v The Master 1919 TPD 112. It is true that the mere fact that the
mistaken causa is recited in the will is not necessarily decisive of the testator’s
intention. However, this could be a factor favouring the view that the testator
intended the provision in question to be conditional on the correctness of his
or her assumption. In Abdoola’s case, the testator stated in his will that he
had disposed of certain assets to his son during his lifetime. In fact, he had
not done so. The son claimed that this resulted in an implied bequest in his
favour. The full bench dismissed this claim on the grounds that there could be
no such implication because the testator did not intend those assets to form
part of his estate. However, the testator excluded the assets from his estate
only because he thought he had disposed of them during his lifetime.
Regardless of the correctness or otherwise of the decision, the court never
addressed the essential enquiry, namely, whether the testator would have
intended to exclude the assets from his estate regardless of the assumption or
whether the exclusion was conditional on his assumption being correct. Nor
was the presumption against partial intestacy considered.
[30] This example is given in De Waal and Schoeman-Malan Succession 46.
[31] Voet 35.1.9.
[32] The further exception referred to by Voet at 35.1.10 relates specifically
to conditional revocation. See §§ 4.51ff below.
[33] See also Grotius 2.23.8 and the further authorities cited in Van Zyl v
Esterhuyse 1985 (4) SA 726 (C) at 732C–G.
[34] See De Waal and Schoeman-Malan Succession § 3.2.3.4. It would
seem that the only relevance of the falsa causa rules is that unless it appears
from the application of the ordinary principles of construction that the testator
intended the disposition to take effect only if his or her assumption was
correct, the ordinary rule that the mistaken assumption has no effect on the
disposition will be applied.
[35] Joubert (1970) 33 THRHR 1, 167, 268, 402; (1971) 34 THRHR 387;
see the summary of these articles in the latter article at 397–8.
[36] See Rowland in Van der Merwe and Rowland Erfreg 487–94. See,
however, the submission in the first note to chapter 20 § 9.3 below.
[37] Chapter 20 § 9 below.
[38] Chapter 20 § 6.10 below.
[39] But not necessarily; see chapter 13 § 2.4 below where this aspect is
dealt with more fully.
[40] See further chapter 13 § 2.8 below.
[41] See further chapter 13 § 2 below.
[42] Spies v Smith 1957 (1) SA 539 (A).
[43] Craig v Lamoureux [1920] AC 349 at 357, cited with approval in
Finucane v MacDonald 1942 CPD 19 at 34. See also Spies v Smith 1957 (1)
SA 539 (AD) at 547C–D.
[44] Executors of Cerfonteyn v O’Haire 1873 Buch 47; Spies v Smith 1957
(1) SA 539 (A) at 546A–547D.
[45] Executors of Cerfonteyn v O’Haire 1873 Buch 47; Thirion v Die Meester
2001 (4) SA 1078 (T) at 1091D–E. In the latter case, it was pointed out (at
1095E–G) that what was required to prove undue influence was not the
existence of a general influence over a period of time but an inducement to do
something specific, namely, to cause the testator to make a provision in a will
which he would not otherwise have made. See further Netshituka v Netshituka
2011 (5) SA 453 (SCA) at 458G–H.
[46] Spies v Smith 1957 (1) SA 539 (A) at 547E–H. See also Kirsten v
Bailey 1976 (4) SA 108 (C) at 111F–112 and Katz v Katz [2004] All SA 545
(C) para [114]. On metus reverentialis and undue influence, see Scholtens
1960 Acta Juridica 276 and Joubert (1970) 87 SALJ 94.
[47] Spies v Smith 1957 (1) SA 539 (A) at 547H–548A.
[48] Anyone who has the capacity to make a will has the capacity to revoke
a will: Van der Merwe and Rowland Erfreg 187.

[49] Ex parte Lutchman 1951 (1) SA 125 (T).
[50] See §§ 4.51ff below.
[51] See §§ 4.41ff below; Van der Merwe and Rowland Erfreg 193; De Waal
and Schoeman-Malan Succession 100; Schoeman-Malan and Van Sittert
(2012) 45 De Jure 209.
[52] Louw v Engelbrecht 1979 (4) SA 841 (O) at 848G–850C; Marais v The
Master 1984 (4) SA 288 (D) at 292B; Ferreira v Bybelgenootskap van Suid-
Afrika (unreported, case no 1652/93 (CPD) 21 October 1993); Mdlulu v
Delarey [1998] 1 All SA 434 (W) at 450a–451f (compare the earlier decisions
in Ludwig v Ludwig’s Executors (1848) 2 Menzies 449 and Mayekiso v
Hermanus 1908 EDC 53). The Roman law and the views of the Roman-Dutch
writers are set out in Louw and Ferreira. Van der Merwe in Van der Merwe and
Rowland Erfreg 189 argues that there is no logical reason why an oral
declaration of revocation, if it can be satisfactorily proved, should not suffice.
On the other hand, the law regards the execution of a will as an important
act, and the authorities referred to above have clearly been influenced by the
view that to allow an act of testation to be undone in too informal a manner
would militate against certainty and encourage fraud. (With the exclusion of
the first four words, the first sentence above appeared in the first edition of
this book and was quoted with apparent approval in Mdlulu v Delarey [1998]
1 All SA 434 (W) at 451b–c.) The South African Law Commission in its Report
on Project 22 Review of the Law of Succession (June 1991) § 3.34 concluded
that a rule permitting oral revocation would lead to confusion and uncertainty.
Sonnekus 1982 TSAR 110, 230 recommended recognising an informal written
revocation if the testator could be identified ex facie the paper, presaging s 2A
of the Wills Act 7 of 1953 added by the Law of Succession Amendment Act 43
of 1992. In regard to this amendment of the Wills Act, see §§ 4.24ff below.
[53] Voet 23.4.6. Voet’s view has been endorsed by Van der Merwe in Van
der Merwe and Rowland Erfreg 188 and by De Waal and Schoeman-Malan
Succession § 5.2.2.2.
[54] See further § 4.12 below.
[55] Act 7 of 1953.
[56] Section 2(1)(b).
[57] Act 43 of 1992.
[58] Section 15 of the Law of Succession Amendment Act 43 of 1992.
[59] Chapter 19 §§ 2.1ff below.
[60] De Reszke v Maras 2003 (6) SA 676 (C) at 689F. See also § 1.3 above.
[61] See chapter 4 § 5 above.
[62] Hutchinson v Brooks 1936 SR 81 at 85–6; Re Estate Whiting 1910 TPD
527 at 531; Steffensen v Estate Atkinson 1914 CPD 471; Re Estate Marks
1921 TPD 180; Ex parte Keay 1944 SR 132; Ex parte Estate Adams 1946 CPD
267; Estate Watkins-Pitchford v CIR 1955 (2) SA 437 (A) at 448D–E; Price v
The Master 1982 (3) SA 301 (N) at 303G–in fine; Pienaar v The Master 2011
(6) SA 338 (SCA) at 341A–B. The latter case is discussed by Schoeman-Malan
and Van Sittert (2012) 45 De Jure 209. For further examples of the
application of this principle, see chapter 20 § 5.4 below.
[63] Or, according to the obiter view of Didcott J in Marais v The Master
1984 (4) SA 288 (D) at 291G, by any written instrument which, though
neither a will nor a codicil, is executed by the testator with the formalities
prescribed for their execution. See in this regard the views of Sonnekus 1982
TSAR 110, 230. However, see now § 4.12 below.
[64] Roodt’s Heirs v Roodt’s Estate 1911 SR 87; Ex parte Mathers 1932 CPD
149; Ex parte Serralha 1939 CPD 417; Ex parte Tracy 1960 (1) SA 34 (W);
Oosthuizen v Die Weesheer 1974 (2) SA 434 (O) at 436F–G; Narshi v
Ranchod 1984 (3) SA 926 (C) at 930H–931. It will make no difference that
the beneficiaries under the later will are disqualified from taking the benefits
bequeathed to them or that the executor is disqualified from acting; if the will
is valid, the revocatory clause must be given effect to (compare Re Estate
Whiting 1910 TPD 527 at 531). The South African Law Commission in its
Report on Project 22 Review of the Law of Succession §§ 3.2–3.8, while
acknowledging that revocation by implication can lead to difficult problems of
interpretation, rejected the contention that express revocation by a later will
should be the only permissible method of revocation. The Report emphasised
the importance of giving effect to the testator’s wishes.
[65] Voet 28.3.8. See authorities cited in the preceding two notes above
and Louw v Engelbrecht 1979 (4) SA 841 (O) at 848B–D. The inconsistency
may be said to give rise to an implied intention to revoke the previous
inconsistent provision. In this regard see De Waal and Schoeman-Malan
Succession 100 n 132.
[66] See, for example, Gentle v Ebden’s Executors 1913 AD 119; Ex parte
Scheuble 1918 TPD 158; Ex parte Franck 1920 WLD 70; Ex parte Marks’
Executors 1921 TPD 284 at 285; Price v The Master 1982 (3) SA 301 (N) at
303G–H; Pienaar v The Master 2011 (6) SA 338 (SCA) para [11], considered
in 2011 Annual Survey 1043–7. See generally Greeff (1991) 24 De Jure 127
who points to the problems flowing from the failure to date a will. See further
Wood-Bodley (2014) 131 SALJ 509.
[67] Vimpany v Attridge 1927 CPD 113.
[68] Bredenkamp v The Master & Bredenkamp 1947 (1) SA 388 (T).
[69] Voet 28.3.9. For a case where it was held that there was no conflict,
see Wren v The Master [2014] ZAECP 98.
[70] Moskowitz v The Master 1976 (1) SA 22 (C). See further Greeff (1991)
24 De Jure 127 at 128–9.
[71] Ex parte Tarr 1941 CPD 104 at 110.
[72] Ex parte Adams 1946 CPD 267 at 268; Pienaar v The Master 2011 (6)
SA 338 (SCA) at 442A–B.
[73] Price v The Master 1982 (3) SA 301 (N) at 340E–F; Pienaar v The
Master 2011 (6) SA 338 (SCA) at 341D–E.
[74] Ex parte Lutchman 1951 (1) SA 125 (T); Ex parte Olfsen 1976 (1) SA
205 (W). This is, of course, true of any provision inserted in a will by mistake.
[75] Wood v Estate Fawcus 1935 CPD 350; Raabe v The Master 1971 (1)
SA 780 (T) at 781G–H.
[76] Board of Executors and Grewer v Morgan (1890) 6 HCG 25; Gentle v
Ebden’s Executors 1913 AD 119; Kleyn v Estate Kleyn 1915 AD 527 at 537;
Ex parte Estate Cooper 1943 NPD 217.
[77] See § 4.2 above.
[78] Ladies’ Christian Home v SA Association 1915 CPD 467; Union
Government v Larkan 1916 AD 212; Ex parte Executors Estate Everard 1938
TPD 190.
[79] See § 4.2 above.
[80] See § 4.2 above.
[81] 1984 (4) SA 288 (D).
[82] At 292I–293F. In this regard, the judge’s view is obiter as the judge
found that by writing the word ‘cancelled’ on an unsigned copy of the will, the
testator had revoked the will by destruction. See Sonnekus 1985 TSAR 92 for
a discussion of this case.
[83] Act 7 of 1953.
[84] See Smith v Parsons 2010 (4) SA 378 (SCA), discussed by De Waal
2010 Annual Survey 1170 at 1174; Wren v the Master [2014] ZAECPEHC 98.
[85] See generally Schoeman (1990) 23 De Jure 216; Schoeman-Malan
(2013) 46 De Jure 684 at 693ff.
[86] Voet 28.4.1; Grotius 2.24.15; Marais v The Master 1984 (4) SA 288
(D) at 291G–H.
[87] Clarke v Executors of Castray and Beale (1902) 19 SC 498 at 501.
[88] Compare Van Niekerk v Van Niekerk (1898) 15 SC 229; Oosthuizen v
Sharp 1935 WLD 22.
[89] Fram v Fram’s Executrix 1947 (1) SA 787 (W) at 789. See further §§
4.20ff below.
[90] Fram v Fram’s Executrix 1947 (1) SA 787 (W) at 789. The destruction
of a witness’s signature, if the number of witnesses is thereby reduced to less
than the number required by law, would presumably be equally effective as a
revocation.
[91] In re Nortje 1956 (4) SA 180 (C). De Waal and Schoeman-Malan
Succession § 5.2.2.3 distinguish between physical destruction and symbolic
destruction, the latter embracing cases where the document continues to exist
but the will or part of it has been defaced, erased, or cancelled. See further
Schoeman (1990) 23 De Jure 216.
[92] Act 7 of 1953.
[93] Gow v The Master 1936 CPD 296 at 298 and the authorities cited.
[94] Compare In re Lloyd (1895) 12 SC 117; Robb v Mealey’s Executor
(1899) 16 SC 133.
[95] Nelson v Currey (1886) 4 SC 355; Senekal v Meyer 1975 (3) SA 372
(T).
[96] Senekal v Meyer 1975 (3) SA 372 (T).

[97] Voet 28.4.1.
[98] Van der Linden 1.9.11.
[99] The following constitutes an example: the original will is in the
possession of the testator’s attorney, and the testator destroys the copy in his
or her possession; the testator writes to the attorney stating that he or she
wishes to revoke the will and that he has destroyed the copy in his possession
and the attorney is instructed to destroy the original. If the attorney fails to
carry out this instruction, it is submitted that there has nevertheless been an
effective revocation. Support for this view is to be found in Van der Keessel Th
330, who states that destruction of a copy of a will does not revoke the
original unless it is proved that the testator destroyed the copy with the
intention of dying intestate. This view can be reconciled with the obiter dictum
in In re Herron (1840) 2 Menzies 423 at 425 to the effect that destruction of
the grosse (copy) of a notarial will is not per se sufficient to revoke the
original, but suggesting that such destruction could, in appropriate
circumstances, constitute revocation of the original.
[100] The three sentences immediately preceding this note were cited with
approval in Marais v The Master 1984 (4) SA 288 (D) at 294H–I.
[101] 1984 (4) SA 288 (D).
[102] See Raabe v The Master 1971 (1) SA 780 (T) at 786A.
[103] Van Niekerk v Van Niekerk (1898) 15 SC 229.
[104] In re Odendaal (1899) 16 SC 271.
[105] In re Bain (1912) 33 NLR 258.
[106] These formalities are dealt with in chapter 5 above.
[107] Act 43 of 1992, which came into operation on 1 October 1992.
[108] Senekal v Meyer 1975 (3) SA 372 (T) at 378–9, citing with approval
Beinart (1953) 70 SALJ 280 at 293–4.
[109] Act 43 of 1992.
[110] Even prior to the insertion of this definition into the Act it had been
suggested that this was the meaning of the word ‘deletion’ in the section. See
Beinart (1953) 70 SALJ 280 at 292–3.
[111] See generally Schoeman (1996) 29 De Jure 336.
[112] Voet 28.4.4. Compare Ex parte Currie and May 1966 (2) SA 184 (R)
at 189C–F.
[113] See the second note to § 4.14 above.
[114] Fram v Fram’s Executrix 1947 (1) SA 787 (W) at 789.
[115] Theart v Scheibert [2012] 4 All SA 278 (SCA) para [25] and the
authorities quoted. See further Nelson v Currey (1886) 4 SC 355 at 356;
Wynne v Estate Wynne (1908) 25 SC 951 at 960; Ex parte Slade 1922 TPD
220; Ex parte Serralha 1939 CPD 417 at 419; Ex parte Estate Redgrave 1941
(2) PH G50 (N); Fram v Fram’s Executrix 1947 (1) SA 787 (W) at 788; Davis
v Steel and Eriksen 1949 (3) SA 177 (W) at 183; Le Roux v Le Roux 1963 (4)
SA 273 (C) at 277C–F; De Swardt v Karsten 2011 JDR 0662 (GNP). In Davis v
Steel and Eriksen Millin J pointed out that the presumption was twofold,
namely, (1) that there was an act of destruction; and (2) that there was an
intention to revoke. In fact, the presumption is threefold and includes the
presumption that the act of destruction was performed by the testator. See
further Wood-Bodley (2006) 123 SALJ 3–4.
[116] Ex parte Warren 1955 (4) SA 326 (W) at 327C. See further
Schoeman-Malan (2013) 46 De Jure 684 at 692.
[117] Ex parte Warren 1955 (4) SA 326 (W) at 327B.
[118] Voet 28.4.4; Prinsloo v The Master 1960 (3) SA 882 (O). According to
Voet 28.4.4, if a will which has been destroyed is found in the hands of a third
party the presumption is that it was destroyed undesignedly, and Voet’s view
in this regard was adopted in Prinsloo at 884E–H. By referring to a will
destroyed ‘undesignedly’ (Gane’s translation), it appears from the context that
Voet was referring to a will destroyed against the testator’s wishes.
[119] Nelson v Currey (1886) 4 SC 355; Ex parte Warren 1955 (4) SA 326
(W) at 327D.
[120] Ex parte Warren 1955 (4) SA 326 (W) at 327E.
[121] Ex parte Slade 1922 TPD 220 at 222.
[122] Davis v Steel and Eriksen 1949 (3) SA 177 (W) at 183.
[123] In re Beresford (1883) 2 SC 303; Ex parte Slade 1922 TPD 220; Ex
parte Bremont 1930 WLD 127.
[124] Nelson v Currey (1886) 4 SC 355; Ex parte Warren 1955 (4) SA 326
(W) at 327D.
[125] In re Herron (1840) 2 Menzies 423. See further Wood-Bodley (2006)
123 SALJ 1 and the author’s discussion of Sansole v Ncube [2003] JOL 10695
(ZS) where a copy of a will which had been in the testator’s possession could
not be found after his death, but the testator believed the copy in his
possession to have been his original will. The court held that the presumption
as to missing wills was in these circumstances applicable although the testator
had destroyed only a copy of his will.
[126] Act 7 of 1953.
[127] Act 43 of 1992.
[128] The suggestion in Ex parte De Swardt 1998 (2) SA 204 (C) at 205H–I
that the Master can accept a document as a revocation in terms of s 2A is
clearly not correct. Compare Logue v The Master 1995 (1) SA 199 (N) at
204E.
[129] Report on Project 22 Review of the Law of Succession.
[130] Report § 3.38.
[131] Report § 3.37.
[132] Compare Henwick v The Master 1997 (2) SA 326 (C) at 335A–B.
[133] Mdlulu v Delarey [1998] 1 All SA 434 (W) at 454a–d. The obiter
dictum to the contrary by Olivier J (with whom Tebbutt J and Brand J
concurred) in Ferreira v Bybelgenootskap van Suid-Afrika (unreported, case
no 1652/93 (CPD) 21 October 1993) at 10 of the typescript is incorrect. The

South African Law Commission, referring to its draft s 2A, which was taken
over in the Law of Succession Amendment Act 43 of 1992, to all intents and
purposes intact, stated in terms that the section does not provide for oral
revocation (see Report on Project 22 Review of the Law of Succession § 3.34).
This view is clearly correct. See generally Sonnekus 1992 TSAR 159 at 167–8;
Schoeman (1990) 23 De Jure 216 at 222ff and unpublished LLD thesis
University of Pretoria 1990; Wood-Bodley (1998) 115 SALJ 202; Jamneck et al
(1998) 61 THRHR 600 at 603.
[134] This contention derives some support from the Commission’s
emphasis on the importance of the testator’s intention to revoke. Take the
case where the testator no longer possessed his or her original will but was in
possession of a copy, and made a written indication on the copy by which he
or she clearly intended to revoke his or her will in whole or in part (for
example, by writing the word ‘revoked’ across each page and appending his or
her signature). In these circumstances, it can be contended that there is no
reason why this should not suffice to constitute a valid revocation of the
original will. There would be no doubt as to the testator’s intention, which
intention would appear from a document and would not give rise to the
confusion and uncertainty in relation to a revocation ‘that does not require a
written document’ referred to by the South African Law Commission in § 3.34
of its Report. Further support for this contention may be found in those
authorities supporting the view that destruction of a copy of a will may in
certain circumstances constitute a valid revocation of the original (see § 4.15
above). Similarly, it may be contended that where a testator performs some
other act apparent from the face of a copy of a will by which it is clear that
the testator intended to revoke the will (for example, by drawing lines through
every line of the copy of will), this should likewise constitute a valid revocation
in terms of s 2A(b). In regard to the question whether either s 2A(a) or
s 2A(b) can be successfully invoked where no will at all can be produced, see
Mdlulu v Delarey [1998] 1 All SA 434 (W) at 453a–454g and § 4.29 below.
[135] 1996 (1) SA 34 (D) at 40C–D.
[136] It seems, however, that s 2A(a) was in any event not applicable, as
the court was dealing with a ‘deletion’, which would not, it is submitted,
constitute a ‘written indication’.
[137] At 40D–E.
[138] Compare Wood-Bodley (1998) 115 SALJ 202 at 205.
[139] The testator’s act of revocation may of course constitute both a
written indication and some other act, for example, where the testator draws
lines across a page and writes the words ‘revoked’ or ‘cancelled’.
[140] Letsekga v The Master 1995 (4) SA 731 (W) at 737C–F read with
736G–I.
[141] [1998] 1 All SA 434 (W) at 454.
[142] The judge apparently saw no difference between the case where the
witness says ‘the testator said I revoke my will’ and where the witness says ‘I
saw a document in which the testator revoked his will’. It is true that if the
judge’s view is correct it would avoid the uncertainty which is adverted to in §
3.34 of the Commission’s Report and there is thus a policy reason in support
of the judge’s view. There is, however, a distinction between the two
situations postulated by the judge. Recognition of the first situation as
sufficient would be to recognise the validity of oral revocation; recognition of
the second would not. Section 2A(c) does not expressly require the production
of the document referred to. What it requires is that the court must be
satisfied that the testator drafted or caused to be drafted another document
by which he or she intended to revoke his or her will in whole or in part. If
there is clear evidence that such a document was drafted and was never itself
revoked, it is at least arguable that the requirements of the section have been
met and that a valid revocation has occurred. The related question is whether
either s 2A(a) or s 2A(b) requires the production of the will. As evidence is
admissible to prove the existence of a lost will, it is arguable that it would be
anomalous not to admit evidence to show that the testator had written the
word ‘revoked’ across each page of a will which could not be produced and
that s 2A(a) was accordingly applicable. Section 2A(b), however, refers to an
act ‘which is apparent from the face of the will’, necessitating, it may be
suggested, the production of the will. If this suggestion is sound, it may,
however, be considered unlikely that the legislature intended that the will
must be produced for the purposes of s 2A(b) but that neither the will nor the
document need be produced for the purposes of s 2A(a) or s 2A(c). Having
regard to the fact that s 2A provides for three separate and self-contained
sets of circumstances which can give rise to an order in terms of the section,
this argument is not entirely convincing. If this argument does not succeed,
even if production of the will is required in the case of s 2A(b) because of the
particular language employed in s 2A(b), it does not follow that, despite the
absence of that language in s 2A(a) and s 2A(c), production is a requirement
in these paragraphs. See further the comments of Keightley 1998 Annual
Survey at 403 in regard to the obiter statement of Satchwell J in Mdlulu v
Delarey [1998] 1 All SA 434 (W) at 455f that ‘I envisage that a document
may include a video or film of the testator’.
[143] 1997 (2) SA 326 (C).
[144] At 335H–I.
[145] It is submitted that this approach is correct. In Mdlulu v Delarey
[1948] 1 All SA 434 (W) at 447b–448i it was similarly held that a cautious
approach should be adopted in determining whether the testator had the
intention required by s 2A.
[146] At 334J–335A.
[147] By Wood-Bodley (1998) 115 SALJ 202 at 210, where the author
further expresses the view that a flexible construction is to be preferred.
[148] By Wood-Bodley (1998) 115 SALJ 202 at 210.
[149] At 335G.
[150] The judge held in effect that neither the document itself nor the
evidence aliunde established a sufficient connection between the testator and
the document to result in compliance with the section.

[151] Section 2(3) deals with the ‘condonation’ of the failure to comply with
the statutory requirements for execution. Section 2A deals with three
separate circumstances, supplementing the common law, in terms of which
revocation can be effected. In both sections the intention of the testator is
crucial. In the former case, the document in question must be drafted or
executed by the would-be testator; in the latter case, the act or document in
question can have been performed or drafted by someone on behalf of the
testator. In Letsekga v The Master 1995 (4) SA 731 (W) the application failed
because of the absence of either the intention referred to in s 2(3) or the
intention referred to in s 2A. A successful application in terms of s 2(3) will
have the result that a clause in the document in question revoking previous
wills becomes effective. Even in the absence of such a clause in the
document, to the extent to which its provisions are inconsistent with
provisions in a previous will or wills, the latter provisions will be revoked. See
§ 4.6 above.
[152] 1997 (1) SA 836 (T).
[153] At 841I–842C.
[154] See 845B–D. The judge appears to have treated the intention of the
testator as the crucial factor in determining whether the revocation could be
dealt with separately from that part of the substitution which sought to add
words to the will. See the criticism of Nortje (1998) 115 SALJ 1 at 6–7.
[155] See Nortje (1998) 115 SALJ 1, who points out that the common law
did not treat substitution as a whole as an additive variation (that is, a
variation adding matter to a will) and that different norms apply to revocatory
and additive variations under the common law. The legislature has preserved
this distinction and there is thus no reason, she argues, not to give effect to
this distinction by excluding the revocatory element of a substitution from
s 2A. See further the comments of Wood-Bodley on Olivier in Jamneck et al
Succession 103–4. In a number of cases, it has been implicitly recognised that
the failure of an application pursuant to s 2(3) does not preclude the success
of an application pursuant to s 2A: see, for example, Letsekga v The Master
1995 (4) SA 731 (W) at 737E–F; Webster v The Master 1996 (1) SA 34 (D) at
40D–E; De Reszke v Maras 2003 (6) SA 676 (C) at 689D–690C. See further
Wood-Bodley (1998) 115 SALJ 202 at 211–13, De Waal (2004) 121 SALJ 529.
On the distinction between amendment and partial revocation, see Schoeman
(1996) 29 De Jure 336.
[156] Ludwig v Ludwig’s Executors (1848) 2 Menzies 449; Shearer v
Shearer’s Executors 1911 CPD 813.
[157] Act 7 of 1953. Legislation in Southern Rhodesia also provided for the
revocation of a will by subsequent marriage. See the first edition of this book
for cases which considered this legislation.
[158] Section 9.
[159] For the case in favour of retaining revocation by subsequent marriage
and the introduction of legislation providing for the revocation of provisions in
favour of a spouse on divorce, see Hahlo (1964) 81 SALJ 381. The South
African Law Commission in its Report on Project 22 Review of the Law of

Succession §§ 3.43–3.50, 3.56 concluded that a rule to the contrary was not
justified because it would significantly restrict a testator’s testamentary
freedom. As it cannot be predicted what the testator would have provided in a
will had he or she intended to provide for a spouse, a statutory rule providing
for revocation of the testator’s will on marriage could imperil the testator’s
true wishes. The Commission drew attention to a child’s claim for support
from the estate of a deceased parent and the benefit afforded by the
Maintenance of Surviving Spouses Act 27 of 1990. See the criticism of the
views of the Commission by Schoeman (1991) 24 De Jure 268 at 274–5 and
Sonnekus 1992 TSAR 159 at 168 and (1996) 59 THRHR 294.
[160] Act 7 of 1953. This section was inserted into the Act by s 4 of the Law
of Succession Amendment Act 43 of 1992. For comment on the section, see
chapter 22 § 5.6 below and Sonnekus (1996) 59 THRHR 294.
[161] Since 1977, with the sharp increase worldwide in the incidence of
divorce, various countries have passed legislation providing for the revocation
of a will on the divorce of the testator, or for the divorce of a testator having a
certain effect on the dispositions in his or her will. The South African Law
Commission in its Report on Project 22 Review of the Law of Succession §§
3.51–3.63 found the case for legislation of this type in South Africa to be
strong, quite unlike legislation providing that marriage revokes a will wholly or
in part. On divorce, a final distribution of property is made, and an additional
testamentary benefit to the divorced spouse would normally be an unintended
overprovision; ignorance or emotional stress could cause the divorced testator
to fail to alter his or her will. Unlike the position with a marriage, it was
reasoned, once it is accepted that a testator no longer intends to benefit his
or her former spouse it is normally possible to determine the changes the
testator would probably make to the will. But the Commission was not
prepared to recommend a permanent disinheriting of the quondam spouse,
and took the view that disinheriting should last for only three months after the
marriage was dissolved, for if the testator had not changed a will by then it
could be argued that he or she still intended to benefit his or her former
spouse – a most debatable contention. (See Sonnekus 1992 TSAR 159 at
169.) The three months’ limitation would not have prevented a case such as
Senekal v Meyer 1975 (3) SA 372 (T) from going to litigation. There the
testator in his will of 1968 provided for substantial bequests to his then wife.
She and the testator were divorced in 1972, but, although he was thereafter
engaged in bitter legal proceedings against her, he did not alter his will or
execute a new one. A year later, he died, after marrying another woman. On
the evidence, said Marais J, it was obvious that he had no intention of
benefiting his first wife. (The will collapsed, however, because the court held
that it had been revoked through the testator’s having written ‘cancelled’ on
the pages of a duplicate original of the will, accompanied by his signature.)
Compare De Waal and Schoeman-Malan Succession 103–4, where the authors
point out with reference to decided cases that the section has enjoyed limited
application in the past. See JW v Williams-Ashman 2020 (4) SA 567 (WCC)
paras [27]–[35] for a history of the section and paras [36]–[50] for a
discussion of the justification for its enactment. See further chapter 22 § 5.6
below.
[162] Louw v Kock 2017 (3) SA 62 (WCC) para [13]; JW v Williams-Ashman
2020 (4) SA 567 (WCC) para [109]. See the further comments on the section
in chapter 22 § 5.6 below.
[163] In its Report on Project 22 Review of the Law of Succession (June
1991) § 3.63.
[164] The Commission was not prepared to recommend that the birth of
children should affect a will, as in certain legal systems today, let alone cause
the lapse of a will as in Roman law. See Sonnekus (1982) TSAR 110 at 111.
The rule of Roman-Dutch law is not clear. See Shearer v Shearer’s Executors
1911 CPD 813 at 821 and Schoeman (1991) 24 De Jure 44 at 46 n 12.
Compare the proposals of Schoeman (1991) 24 De Jure 268 at 275–6. To
cater for such a change in the state of affairs of the testator could, so the
Commission reasoned, lead to unacceptable uncertainty. Compare Schoeman’s
proposals in (1991) 24 De Jure 268 at 275–6.
[165] See § 4.35 above.
[166] Compare Ex parte Mackintosh: in re Estate Barton 1963 (3) SA 51
(N).
[167] 2020 (4) SA 567 (WCC).
[168] In Roman-Dutch law ‘ademptio’ covered all the methods, express and
implied, by which a legacy could be revoked and included, for instance, the
failure of a legacy because of deadly enmity between testator and legatee:
Voet 34.4. In Oelrich v Beck 1920 OPD 209 at 211 McGregor J described
ademption as ‘the revocation or recall of a legacy by some act of the testator,
other than testamentary revocation’. Today the term ‘ademption’ is used in a
restricted sense to denote the recall or revocation of a legacy as a result of
the voluntary alienation of the subject-matter of the legacy by the testator
before his or her death. To describe ademption as an implied or tacit
revocation may be misleading, as the testator when alienating the subject-
matter of the legacy may expressly state that he or she is revoking the
legacy. Such statement will not constitute an oral revocation as it is
accompanied by an act of revocation constituted by the alienation: De Waal
and Schoeman-Malan Succession 101.
[169] Voet 34.4.6. For examples of ademption, see Steyn v Steyn (1904)
21 SC 528; Estate Le Roux v Le Roux 1918 CPD 417; Oelrich v Beck 1920
OPD 209.
[170] See Barrow v The Master 1960 (3) SA 253 (E) at 256G–H and the
authorities cited.
[171] Lunn v Lunn’s Estate (1908) 29 NLR 349 at 363; Oelrich v Beck 1920
OPD 209 at 212–13; Ex parte Estate Marks 1927 WLD 316 at 317; Dove’s
Minor Children v Estate Dove 1937 NPD 402 at 410–11.
[172] CF 1.2.8.41.
[173] Redeneerend vertoog over ’t notaris ampt 1 xxi.

[174] See the authorities collected in Oelrich v Beck 1920 OPD 209 at 212–
13.
[175] (1908) 29 NLR 349.
[176] At 360, 363.
[177] 1920 OPD 209.
[178] At 213–14.
[179] Sorge v Estate Preuss 1933 CPD 61 at 65; Barrow v The Master 1960
(3) SA 253 (E) at 256–7.
[180] Grotius 2.24.28; Voet 34.4.6; Lunn v Lunn’s Estate (1908) 29 NLR
349 at 359–60; Oelrich v Beck 1920 OPD 209 at 212; Barrow v The Master
1960 (3) SA 253 (E) at 257A–B. Inconvenience is not necessity: Barrow at
257B.
[181] Voet 34.4.6; Sorge v Estate Preuss 1933 CPD 61 at 65.
[182] Voet 34.4.6. Voet speaks of a ‘making good or making over’ (Gane’s
translation) of the legacy. This comprehends both the payment to the
beneficiary of the value of the bequest or the delivery of the bequest itself to
the beneficiary. Voet does not deal with the situation where the testator sells
the subject of the bequest to the beneficiary during the testator’s lifetime. It
does not appear that there is any reason to treat a sale to the beneficiary any
differently to a donation.
[183] Voet 30.22; 34.4.5.
[184] Voet 34.4.6.
[185] Voet 34.4.2.
[186] Compare Lunn v Lunn’s Estate (1908) 29 NLR 349 at 359. As always,
the intention of the testator will be decisive.
[187] See the note on ademption in (1961) 74 Harvard LR 741.
[188] Voet 34.4.6; Cronje and Roos Casebook 256.
[189] Compare the final note to chapter 13 § 2.4 below.
[190] Very little attention is given to this topic by the Roman-Dutch writers
(Voet 28.3.7 was interpreted as dealing with this topic in Hutchinson v Brooks
1936 SR 81 at 84; see also Voet 35.1.10). It is, however, quite clear from the
cases cited below that the principle is firmly established as part of our law.
See generally Van der Merwe in Van der Merwe and Rowland Erfreg 195; De
Waal and Schoeman-Malan Succession § 5.2.4; Schoeman-Malan (2005) 69
THRHR 107. The description of conditional revocation as ‘dependent relative
revocation’ has, it is submitted, been rightly criticised; see Davis v Steel &
Eriksen 1949 (3) SA 177 (W) at 188. Whether described simply as ‘conditional
revocation’ or as ‘dependent relative revocation’ the doctrine is not a
statement of legal rules and principles. In the ultimate analysis, the question
of whether a revocation was conditional is one of intention: Raabe v The
Master 1971 (1) SA 780 (T) at 785G–786C.
[191] See, for example, Le Roux v Le Roux 1963 (4) SA 273 (C); Ex parte
Currie and May 1966 (2) SA 184 (R); Davis v Steel and Eriksen 1949 (3) SA
177 (W). See further Van der Merwe in Van der Merwe and Rowland Erfreg
195–6; De Waal and Schoeman-Malan Succession 104–5. See further Murray
1996 Annual Survey 316 but see Cronje and Roos Casebook 121–2.
[192] See § 2.8 above.
[193] Raabe v The Master 1971 (1) SA 780 (T) at 785G–786C.
[194] Donald v Donald 1990 (1) SA 1011 (ZSC) at 1014A–C.
[195] For a case where this allegation was made in relation to partial
destruction, see Gow v The Master 1936 CPD 296.
[196] Davis v Steel and Eriksen 1949 (3) 177 (W); Ex parte Ford and
Langham: In re Estate Boediker 1953 (4) SA 338 (N) at 348H; Le Roux v Le
Roux 1963 (4) SA 273 (C) at 283D–E; Ex parte Currie & May 1966 (2) SA 184
(R) at 187.
[197] De Reszke v Maras 2003 (6) SA 676 (C) at 689F–G; Halsbury 5 ed vol
102 para 107.
[198] As to the admissibility generally of extrinsic evidence, see chapter 20
§ 6 below. See further Cronje and Roos Casebook 121–2; Schoeman-Malan
(2013) 46 De Jure 684 at 693.
[199] As in Ex parte Mathers 1932 CPD 149; Davis v Steel & Eriksen 1949
(3) SA 177 (W) and In re Nortje 1956 (4) SA 180 (C).
[200] As in Prinsloo v The Master 1960 (3) SA 882 (O).
[201] This sentence, which appeared in the second edition, was quoted with
apparent approval in De Reszke v Maras 2003 (6) SA 676 (C) at 689H. The
case proceeded on appeal – see 2006 (1) SA 401 (C) and 2006 (2) SA 277
(SCA) – but the question of revocation was not in issue in either of the cases
on appeal.
[202] Compare Dancer v Crabb (1873) LR 3 P & D 98 at 104, cited with
approval in Davis v Steel & Eriksen 1949 (3) SA 177 (W) at 186–7. Compare
further Olivier v Die Meester 1997 (1) SA 836 (T) at 842A–B.
[203] This sentence was cited with approval in Donald v Donald 1990 (1) SA
1011 (ZSC) at 1014B–C. See further §§ 4.32ff above in relation to s 2(3) and
s 2A inserted into the Wills Act 7 of 1953 by the Law of Succession
Amendment Act 43 of 1992.
[204] Le Roux v Le Roux 1963 (4) SA 273 (C); Ex parte Currie and May
1966 (2) SA 184 (R); Wessels v Die Meester [2007] JOL 19501 (SCA) para
[26].
[205] Scott v Scott (1859) 1 Sw & Tr 259, 164 ER 719; Clarkson v Clarkson
(1862) 2 Sw & Tr 497, 164 ER 1090; Re Bunn, Durber v Bunn [1926] All ER
626, all cited with approval in Davis v Steel & Eriksen 1949 (3) SA 177 (W) at
184–7. Compare Clarke v Executors of Castray & Beale (1902) 19 SC 498.
[206] Davis v Steel & Eriksen 1949 (3) SA 177 (W) at 185.
[207] See § 4.53 above.
[208] Le Roux v Le Roux 1963 (4) SA 273 (C) at 284B–C. Murray 1963
Annual Survey 316 at 318 questions whether in Le Roux evidence was
correctly admitted of the conduct and declarations of the testator to show
whether, when the testator destroyed his later will, he intended to set up his
earlier will or whether he wished to die intestate.
[209] Raabe v The Master 1971 (1) SA 780 (T) at 786H–787D.
[210] Ex parte Ford and Langham: In re Estate Boediker 1953 (4) SA 338
(N) at 348H–349F.
[211] De Reszke v Maras 2003 (6) SA 676 (C) at 689F.
[212] See §§ 4.19ff above.
[213] Compare, however, Ex parte Moffat 1946 SR 134 at 137, where it was
held that the burden of proving that revocation was conditional ‘must remain
throughout on the petitioner’.
[214] Act 43 of 1992.
[215] 1951 (4) SA 537 (A). This decision reversed the decision of the
Transvaal full bench in Abinader v Alam 1951 (3) SA 103 (T).
[216] Wynne v Estate Wynne (1908) 25 SC 951; Wood v Estate Fawcus
1935 CPD 350; Ex parte Estate Gillespie 1943 CPD 58.
[217] Re Estate Marks 1921 TPD 180; Fram v Fram’s Executrix 1947 (1) SA
787 (W).
[218] Re Estate Marks 1921 TPD 180 at 187; Moses v Abinader 1951 (4) SA
537 (A) at 544B–F; Estate Gonsalves v Pataca 1957 (4) SA 585 (T) at 590H–
591A. The determination of this intention would thus have been a question of
construction.
[219] Fram v Fram’s Executrix 1947 (1) SA 787 (W) at 789.
[220] Section 11. This law was repealed by the Wills Act 7 of 1953 and does
not apply to wills executed on or after 1 January 1954, the date upon which
that Act (in terms of s 9) came into operation.
[221] Re Estate Marks 1921 TPD 180 at 191.
[222] Re Estate Marks 1921 TPD 180 at 192.
[223] 1921 TPD 180 at 193.
[224] 1935 CPD 350 at 356.
[225] Compare Re Estate Marks 1921 TPD 180 at 185. See De Waal and
Schoeman-Malan Succession 5 ed 107. See also Wood-Bodley in Jamneck et
al Succession 90–1 as to when a will can be considered to be completely
destroyed so as to no longer to exist.
[226] 1951 (4) SA 537 (A).
[227] Ordinance 15 of 1845 (Cape); Wills Ordinance 14 of 1903
(Transvaal); Wills Ordinance 11 of 1904 (Orange Free State); Proclamation 23
of 1920 (SWA). As pointed out above, the Natal legislation (Law 2 of 1868)
contained express provisions relating to revival.
[228] Ordinance 14 of 1903 (T).
[229] At 542A–C.
[230] At 544pr–C.
[231] At 546G–in fine.
[232] At 552A–C.
[233] At 553H–554A.
[234] Section 11.
[235] Act 7 of 1953.
[236] 1957 (4) SA 585 (T) at 590H–591A.
[237] 1981 (4) SA 248 (N).
[238] See the comments of Sonnekus 1981 TSAR 284 and Wiechers (1982)
45 THRHR 80.
[239] See Beinart (1953) 70 SALJ 159 at 297–8; Van der Merwe in Van der
Merwe and Rowland Erfreg 204; Sonnekus 1981 TSAR 284; Wiechers (1982)
45 THRHR 80.
[240] [2007] JOL 19501 (SCA). See the comments on this case by Wood-
Bodley (2009) 126 SALJ 50.
[241] Act 7 of 1953. Section 2(3) was inserted by s 3 of the Law of
Succession Amendment Act 43 of 1992.
[242] Compare De Waal and Schoeman-Malan Law of Succession 109; Du
Toit (1997) 60 THRHR 101 at 104; Roos (2009) 72 THRHR 149 at 154.
[243] See further Du Toit (1997) 60 THRHR 101 at 104; Roos (2009) 72
THRHR 149 at 154–5. See also De Waal and Schoeman-Malan Law of
Succession 109.
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Chapter 8 [*]

Invalidity of Wills Generally:

Repeal of Law 2 of 1868 (Natal) and the statutory

which is not fulfilled; [5]

to, or in some other manner legally defective, [10] or where

The presumption of validity

formalities prescribed by law. The fact that a will does not

Estoppel and acquiescence

a considerable period of time has elapsed between the date

2.3 Voet refers, however, to an exception [32] to the general

Thus, if the testator includes a provision in his or her will

whether or not a falsa causa has any effect on a disposition

2.7 While the testator’s motive for making a bequest is

Mistaken assumptions: Exceptions

circumstances on which a testator based his or her

3. Fraud, Duress and Undue

A will or a provision in a will may thus be declared invalid

which the testator would otherwise not have made and

or had to be contained in a validly executed testamentary

The latter Act leaves the common law relating to revocation

Revocation by a subsequent will or codicil

as far as possible. [62] However, a later will [63] may expressly

standing together, the first will must be regarded as

unambiguous language to justify a finding that the testator

4.9 Extrinsic evidence is admissible to show that a

recognise the validity of oral revocation. [79] It had further

has been resolved by s 2A(c) of the Wills Act, [83] which

Revocation by destruction [85]

4.13 A will may be revoked if it is destroyed by the

(for example, by burning, tearing up or cutting out), or

page would not appear to be an act destroying, erasing or

and why the testator destroyed the copy animo

the destruction of the copy should result in an effective

Repeal of Law 2 of 1868 (Natal) and the

executed on or after I January 1954, the common law

Amendment Act. [107] Prior thereto it was held that s 2(1)(b)

Presumption of destruction animo revocandi

be found after the testator’s death, there is a rebuttable

party as a circumstance tending to rebut the

Power of the court to declare a will revoked

which is apparent from the face of the will;

(c) drafted another document or before his death

contained in another document drafted or caused to be

4.27 While it can be contended with some force that the

intended to cover other acts of destruction, such as

4.29 In terms of s 2A(c), the testator must have drafted or

4.30 In Henwick v The Master [143] an application was

in terms of s 2(3) or s 2A), it should apply caution. [145] The

However, it is submitted that the judgment does not reveal

statutory requirements of the Act in relation to execution

4.33 This issue was considered in Olivier v Die

way in which the sections could be reconciled was if the

cannot be rescued in terms of s 2(3), then the new

Revocation by the subsequent marriage of the

Revocation resulting from divorce or annulment

unaffected, and the other beneficiaries remain entitled to

the benefits allotted to them. [162] This section, which

to in s 2B of the Act had expired prior to the testator’s

4.42 The Roman-Dutch writers were not in agreement on

alienation raised the presumption that the testator intended

bequeathed to a legatee may be adeemed where the

disposes of only part of the subject-matter of the

conditional in the sense that it was based on a particular