Beware of non-compliance with the formalities for a valid Last Will
A Last Will may be defined as a document in which a person directs how their belongings should be distributed upon their death. An individual who drafts a Last Will (testator/testatrix) has by and large the freedom to choose what to include in their Will and the freedom to decide how and to who their assets should be distributed to (with some safeguards in place for maintenance claims of children and surviving spouses).
The Wills Act 7 of 1953 is the statute regulating the process of execution of Wills and related matters and in order for a Will to be valid, the requirements and formalities stipulated in the Act must be complied with.
At the outset, the testator/testatrix must have the capacity to execute a Will. According to South African law, any person of age 16 (sixteen) and older has the capacity to make a Will provided he/she is capable of understanding the nature and effect thereof.
Section 2(1) of the Wills Act provides for the following statutory requirements and formalities to be complied with for a Will to be valid:
- the Will must be reduced to writing (i.e. written by hand, typed or printed);
- the Will must be signed at the end of it by the testator/testatrix personally, or in the case of disability by the making of a mark, or the Will must be signed by some other person in the presence and by the direction of the testator/testatrix;
- the Will must be signed in the presence of two competent witnesses who can attest to the signature of the testator/testatrix, or the mark or signature of the other person signing on behalf of he testator/testatrix, in which case the mark or signature must be effected in the presence of two or more competent witnesses and a commissioner of oaths;
- the two witnesses must sign anywhere on the last page of the Will, in the presence of the testator/testatrix, or of such person who signed the Will on the testator/testatrix’s behalf;
- if the Will consists of more than one page, the testator/testatrix must initial each page except the page that she/he had signed with his/her signature (at the end) or by such other person anywhere on the page.
The requirements as set out above are peremptory and failure to comply with either one of the requirements will render the Will invalid.
There is, however, an exception to this rule, as Section 2(3) of the Wills Act empowers the Court to order the Master to accept an otherwise invalid Will, if the Court is satisfied that the Will was intended by the Testator/Testatrix to be his/her Last Will. This enables the courts to ensure that justice prevails in cases of non-compliance with the prescribed formalities. However, it is important to emphasize that this should not be substituted with properly executing a Will in terms of the requirements set out in Section 2(1) of the Act as the matter must otherwise go to the Courts with added costs for the Estate.
The Courts’ approach
In the recent case of Dryden v Harrison and Others, Western Cape Division, Cape Town (11912/17), the High Court was approached by the Applicant to order the Master of the High Court, in terms of Section 2(3) of the Wills Act, to accept an email as the Last Will and Testament of her deceased fiancé.
In 2006 the deceased had executed a proper Will, complying with all the Section 2 formalities, in which he bequeathed the whole residue of his estate to his then wife (whom he was divorced in 2011). In 2014, the deceased and the Applicant got engaged. The deceased, an accountant, after assisting the first respondent (his sister) with her mother-in law’s deceased estate, sent an email to his fiancé (Applicant) on 4 January 2016, under the subject line “Final Will.” The email read as follows:
This serves as my final will and testament.
If I die, all my assets and investments go to Natasha Dryden. If Natasha’s death precedes mine, the entire estate goes in equal portions to my brother and sister or their children if their deaths proceed me.
My life policies must all g to Natasha.
The deceased died in September 2016 and thereafter, the Deceased’s 2006 Will was submitted at the Master’s Office and was accepted as the deceased’s Last Will. The Master refused to accept the email as the deceased’s last Will, due to the email’s lack of requisite compliance with Section 2(1) of the Wills Act (not being signed and no witnesses having signed). Consequently, the Applicant approached the High Court for an order recognising the 2016 email as the true will, alternatively revoking the part of his 2006 Will leaving the estate to the deceased’s ex-wife.
On the facts, the Court accepted that the email was indeed drafted and sent by the deceased. The Court then turned to what became the central enquiry in terms of Section 2(3) of the Act – whether it was the deceased’s intention for the disputed Will to be his Last Will and Testament. Based on the deceased’s properly executed Will of 2006 (i.e. the deceased’s knowledge of the formalities), and on evidence finding the deceased to be a careful and meticulous person, who in fact created a to-do list where reference was made to the issue of the Will to be dealt with and further correspondence form a financial advisor casting doubts on the validity of the document, the Court found it unlikely that the deceased would have intended the disputed email to be his Last Will and Testament. The Court dismissed the application and held that the deceased’s email was “nothing more than an email in which he was assuring the Applicant that he will make her a beneficiary of his estate” but he never executed a Will to give effect to this.
It is clear that the deceased intended for his fiancé to be a beneficiary of his estate, but because he never properly executed a Will to give effect to this, he forfeited his right to choose how his estate should be distributed. The consequences of non-compliance with Section 2(1) of the Wills Act were drastic in that the ex-wife inherited everything, and the fiancé was left with nothing. It is thus imperative for one to not just express their intentions, but to enclose them in a properly executed Will, complying with the requirements of the Wills Act, to ensure that one’s intentions are honoured after death. In this regard we can only encourage the public to seek the advice of an attorney.
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Excerpt: The formalities for the execution of a valid Last Will are not mere guidelines and non-compliance will generally require a court application to show that the document in question intended to be the deceased’s last will and testament. Much heartache and substantial legal costs can be avoided if legal advice is obtained when drafting and executing a Last Will as the recent case of Dryden v Harrison and Others demonstrates.