testaments – Schnetler's Inc

Properly executing a will is extremely important

SRA — Tue, 12 Nov 2019 05:34:57 +0000

I gave instructions to my attorney to prepare a last will and testament for me as my will no longer reflected my wishes. At my request, my attorney emailed the will to me with clear instructions as to how I should go about signing it. I asked my neighbours to act and sign as witnesses. My neighbours signed the will on all the pages and left before I signed. I then signed the will on all the pages. I am now worried about the validity of my will as the email from my attorney states that I have to sign the will in the presence of two witnesses. Is my will valid?

The formalities for the valid execution of a will are set out in the Wills Act. Section 2 of the Wills Act, Act 7 of 1953, reads: “No will executed… shall be valid unless the will is signed at the end thereof by the testator… and such signature is made by the testator… in the presence of two or more competent witnesses present at the same time and such witnesses attest and sign the will in the presence of the testator and of each other…”. Therefore, in order for a will to be valid, it has to be signed in the presence of two independent witnesses, both witnesses being present when the will is signed by the testator. The two witnesses signed your will in the presence of each other, but not in your presence.

A similar set of facts presented itself in a court case recently heard by the Gauteng Local Division of the High Court. In this matter, the two daughters of the deceased, who lost out on their inheritance in terms of the will of their father, claimed that it was never their father’s intention for his much younger lover to inherit his total estate. The testator was 85 years old at the time of his death and he had been living with a woman 38 years his junior for 8 years.

The deceased executed two wills during his lifetime. One on 6 November 2011 (“the 2011 will”) and another on 7 January 2014 (“the 2014 will”). The 2014 will was signed shortly before his death leaving the bulk of his estate to his much younger lover. The daughters of the deceased claimed the 2014 will was invalid as there were “suspicious” circumstances. They claimed their father either did not sign the 2014 will himself or, if he did, that he lacked the mental capacity to execute a valid will by reason of dementia. The daughters of the deceased were not successful in proving that the deceased’s signature was a forgery despite the fact that three handwriting experts testified.

Another witness called to testify was a witness to the 2014 will. Her testimony focused on the circumstances surrounding the signing of the 2014 will. She signed the will as a witness. She testified that she and her husband met the deceased in the street. As they were acquainted they naturally engaged in social conversation. She and her husband were informed that the deceased was on his way to the police station to sign a will. She and her husband were asked if they would accompany the deceased in order to sign the will as witnesses. They were assured that the process would not take long so they agreed to assist.

She and her husband signed the will and immediately left. They were the first to sign the will. At the time they signed the will the deceased had not signed the will. They left before witnessing the deceased signing the will. Hence, the 2014 will was not signed by the deceased in their presence even though it reflects their respective signatures as witnesses.

The evidence assessed collectively established that the deceased signed the 2011 will and also that he signed the 2014 will. However, the 2014 will was signed by the deceased after the two witnesses to the will had already left and therefore was signed in their absence.

The court referred to Section 2 of the Wills Act in terms whereof no will is valid unless the signature made by the testator is made “in the presence of two or more competent witnesses present at the same time”. The court confirmed that this requirement is mandatory and, if not met, the will is not valid for want of compliance with a statutorily required formality.

The court therefore found the 2014 will to be invalid and, as there was no evidence that there was any irregularity in the execution of the 2011 will, the 2011 will was declared the will of the deceased.

This judgement of the High Court once again emphasizes the importance of complying with the Wills Act. Your will is invalid, and it is advisable for you to print the will again and to sign it in the presence of two competent witnesses or, even better, for you to make an appointment with your attorney in order to sign the will at his office.

Reference List:

Twine and Another v Naidoo and Another [2017] ZAGPJHC 288; [2018] 1 All SA 297 (GJ)
Wills Act, Act 7 of 1953

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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How do our courts interpret Wills and Testaments?

client-admin — Tue, 16 Jul 2019 14:00:40 +0000

It is trite that the law of succession aims to give effect to the wishes of the testator. Accordingly, when a person passes on and leaves a will or a testament, it is the duty of the court interpreting the will or testament to make an order that obeys the wishes of the testator as far as legally possible.

This article will look at the two competing approaches taken by courts in the interpretation of wills and testaments – namely the golden rule and the use of armchair and extrinsic evidence – and attempt to identify the current approach taken by our courts.

I The Golden Rule

The starting point for the interpretation of wills and testaments is the golden rule established in the case of Robertson v Robertson’s Executors 1914 AD 503. In this case, it was held that courts are to “ascertain the wishes of the testator from the language used. And, when these wishes are ascertained, the Court is bound to give effect to them, unless it is prevented by some rule or law from doing so”.

In other words, the golden rule holds that courts must ascertain the wishes or intentions of the testator by merely looking at the language used by the testator. Accordingly, this rule makes no provision for courts to have regard to external factors when interpreting the testator’s language.

The rationale for restricting courts to the words used by the testator in their will or testament is because the testator’s words are the primary indication of their intention. Therefore, the courts are often reluctant to depart from the ordinary or literal meaning of the words used by the testator.

However, there have been some significant developments in the approach of our courts to the interpretation of wills and testaments since the golden rule was established. One such development is the use of armchair and extrinsic evidence in the interpretation of wills and testaments.

II Armchair and Extrinsic Evidence

Armchair evidence sees a court placing itself in the position of the testator in order to determine their intention. In other words, a court puts itself in the armchair of the testator to understand their thought process in the creation of their will.

Extrinsic evidence is evidence that is obtained elsewhere, i.e. not from the will itself. Extrinsic evidence, therefore, refers to the surrounding circumstances or factors accompanying the will.

In Cuming v Cuming 1945 AD 201, it was held that armchair and extrinsic evidence may only be used if the wording of the will is ambiguous or uncertain, and the intention of the testator cannot be determined merely by examining the wording used in the will.

In other words, when armchair and extrinsic evidence is used in situations where the testator’s use of language is ambiguous, the courts can step into the shoes of the testator and investigate the surrounding circumstances of the creation of the will in order to determine the testator’s intention at the time of creating the will.

However, this line of reasoning has been challenged. In Allen v Estate Bloch 1970 (2) SA 376 (C), the court held armchair evidence to be admissible in cases where there is no ambiguity or uncertainty regarding the words that the testator used in their will. In this case, the court held that the correct approach is that a will should not be analysed in isolation. It is seen as a more practical approach to ascertain the intention of the testator, as it takes into account all the relevant factors surrounding the creation of the will.

III Conclusion: What is the Approach of Our Courts?

The case law regarding whether or not the golden rule is still adhered to by courts remains inconclusive. The magnitude of case law seems to suggest that, to a large extent, our courts do not follow the golden rule, but rather follow the reasoning of the Cuming case, which allows for the use of armchair and extrinsic evidence only where the wording used by the testator is ambiguous.

To summarise, it is evident that our courts still use the golden rule as the starting point for interpreting wills and testaments, but it is generally no longer used in isolation.

Reference List:

Robertson v Robertson’s Executors 1914 AD 503.
Jamneck, et al The Law of Succession in South Africa 2 ed (2012).
Cuming v Cuming 1945 AD 201.
Allen v Estate Bloch 1970 (2) SA 376 (C).

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