Basic Legal Principles of Testate-Succession

Law for Land Managers 1B Basic Legal Principles of Testate Succession

Unit 1Basic Legal Principles of

Testate Succession

Objectives

After studying this unit you should be able to:

• Define Testate Succession• Discuss the requirements for a valid will• Discuss the requirements in order to be competent to attest a will• Discuss the rebuttable presumption in respect of lost wills• Name the requirements for amending a will• Discuss Revocation of Wills • Name the Common Law Presumptions in respect of Revocation of Wills• Discuss Express Revocation of Wills • Name the requirements for the revival of a revoked will• Discuss the capacity to make a will• Name the people who are incapable of making wills• Name the people who may benefit under a will• Mention who may not benefit under a will• Mention who may inherit neither testate nor intestate

Sections:

1. Introduction 2. The requirements for a valid will 3. Lost Will4. Amendment to wills5. Revocation of wills6. Revival of a Revolved will7. The capacity to make a will8. The capacity to benefit under a will

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Section 1 Introduction

Testate Succession occurs where a testator/testatrix draw up a valid will which sets out how his/her estate should be divided amongst the beneficiaries. A will is of utmost importance, one can say the focal point of testate succession and its legal requirements are set out in the Wills Act, Act 7 of 1953. In terms of section 2(1) (a) of the Wills Act a will has certain formalities to comply with.

In Ex Parte Davies 1957 (3) SA 47 (N) the court decided that a testamentary writing is a document which defines any one of the three essential elements of a bequest: (a) The property bequeathed (b) The extent of the interest bequeathed(c) The beneficiaries

In Moses v Abinader 1951 (4) SA 537(A) it was stated that any document in the nature of a testamentary writing incorporated into a will by reference; must itself satisfy the formal requirements for a valid will.

Section 2 The Requirements for a valid will (Section 2 of the Wills Act)

1) The will must be in writing

The words sign and writing in section 2 of the Wills Act clearly indicates that a will cannot be oral.

2) The will must be signed by or on behalf of the testator.

The will may be signed in one of the following ways:

a) A Testator can sign with his own signature on every page of the will and especially at the end of the wording on the last page

b) The testator may also sign the will by making a mark.

There are certain formalities that need to be complied with where the testator signs the will by making a mark. The same formality with regards to witnesses where the testator signs his own signature applies to where the testator signs by the making of a mark. In addition, a Commissioner of Oaths should be present when the testator makes his or her mark. The Commissioner of oaths must append a certificate to the will in terms of section 2(1)(a)(v).

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A certificate need only be attached in two instances:i) Where the testator signs by the making of a mark.ii) When another person signs the will on behalf of the testator

In Radley v Stopforth 1977 (2) SA 516 (A) 528 H it was stated that the certifying officer must indicate his office as that of Commissioner of Oaths on the will failure to do so will render the will invalid. See also Jeffrey v The Master 1990(4) SA 759 (N)

The testators’ mark should be made in the presence of the Commissioner of Oaths. The Commissioner of Oaths is required to place the certificate at the end of the will and sign anywhere on all the other pages. See Volschenk v Die Meester 1958 (2) SA 363 (C).

The Commissioner of Oaths must append the certificate as soon as possible after the testator and the witnesses have signed the will in the Commissioner’s presence. The certificate should be made in one continuous operation. If the certificate is made after a long period of time has elapsed after the testator’s death, it will be invalid. It should be noted that the certifying officer can act as both witness and certifying officer, meaning only three persons are required to be present at the execution of the will namely the testator, one witness and the certifying officer. See Ex Parte Suknanan 1959 (2) SA 189 (D).

c) Where some other person signs the will on behalf of the testator.

There are certain formalities that have to be complied with when the testator directs some other person to sign his will on his behalf

i) The other person must sign the will or acknowledge the testator’s signature at the end of the will in the presence of the testator

ii) and two competent witnesses

iii) These same witnesses must in the presence of the testator, the person signing the will, and each others presence, sign and attest the will.

The person signing on the direction of the testator may not sign by the making of a mark.

3) The testator/testatrix must sign the will or acknowledge his/her signature in the presence of two or more competent witnesses who are present at the same time. Bosch v Nel 1992 (3) SA 600 (T)

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4) Two or more competent witnesses must sign and attest the will in the presence of one another and the testator/testatrix (Oosthuizen v Die Weesheer 1974 (2) SA 434 (O)

A witness may not sign by the making of a mark and they need not know the contents of the will. They only need to know that they are witnessing the testator’s signature, mark or initials, which the testator has signed or acknowledged in their presence. Sterban v Dixon 1968 (1) SA 325 (C). The witnesses only attest to the signature of the testator, not the content of the will. The two witnesses must be present at the same time and they must sign every page of the will.

Competence to attest a will

A competent witness is any person over the age of 14 years who is competent to give evidence in a court of law.

There are 3 requirements a witness must comply with: a) Must be 14 years or olderb) Must be competent to give evidence in a court of Law. [Be of sound

mind]c) Must be able to write.

An attestation clause is a clause that appears at the end of a will in which it is declared that all the parties were present and signed the will in each others presence. An attestation clause is not required by law and as such only has evidential value in that the required formalities have been complied with (Brink v Brink 1927 CPD 214). It is however not of great significance. (Bosch v Nel 1992 (3) SA 600 (T).

With regards the difference between a mark and a signature See Ex Parte Goldman and Kalmer 1965 (1) SA 464(W) where the court held that a narrow meaning should be attributed to the word mark and a broad meaning to the word signature. In this case the court held that the sign made by the testator was a signature and not a mark, although it was no more than a feeble attempt to write the initial letter of the testator’s Christian name on the ground that the testator had probably intended to write a signature and not make a mark. See Dempers v The Master 1977 (4) SA 44 (SWA); Jhajbhai v Master 1971 (2) SA 370 (D)

In terms of section 2 of the Wills Act, the testator is required to sign at the end of the will. The end of the will is the end of the body of the will meaning directly below the last writing of the will. See Philip v the Master 1980 (2) SA 734 (D); Kidwell v The Master 1983 (1) SA 509 (E); here the testator signed the second page of his will 17cm below the attestation clause. It was held that the will was invalid because of the possibility of fraud.

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Section 3 Lost Wills

A lost will does not affect the fact that the testator left a will; its contents may be proved by means of documentary or oral evidence. Nell v Talbot 1971 (3) SA 207 (D) However if the will was last in the possession of the testator and cannot be found after his death there is a rebuttable presumption raised that he had it revoked. Le Roux v Le Roux 1963 (4) SA 273 (C)

A person, who steals, deliberately destroys, conceals, forges or damages a document purporting to be a will commits an offence punishable by a fine or imprisonment of 7 years. This is in terms of Section 102(1)(a)(i) of the Administration of Estates Act 66 of 1965.

Section 4 Amendments to Wills - Section 2(1) (b)

Amendments effected to a will before or during the completion of the will are governed by common law. All amendments must be signed or initialed by the testator and attested by the same witnesses. There is a rebuttable presumption that the amendments were made after the execution of the will.

Thus the formalities for amending a will are the same as those for executing a will.

Unauthorized alterations or amendments to a will are invalid. Van Niekerk v Van Niekerk (1898) 15 SC 229.

In Kunz v Swart 1924 AD 618, it was held that a will which is complete and regular on the face of it is presumed to be valid until the contrary is proved. It is imperative to note that the onus rests on the party who maintains that the will is invalid. Sterban v Dixon 1968 (1) SA 322 (C).

Section 5 Revocation of wills

A will is revocable at any stage before the death of the testator since it is a unilateral legal act which consists only of the testator’s declaration of intention. A will is regarded as being revoked if the testator revoked it animus revocandi, i.e. with the intention to revoke a will. A will may be revoked expressly or tacitly. A testator cannot revoke his will orally, not even in front of witnesses.

A) Change of Status

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A change in the status of a person does not necessarily revoke a person’s will. E.g. Marriage would not necessarily mean the revocation of a person’s will. Roman Dutch Law provided that when an unmarried person gets married and has children then his will was considered to be tacitly revoked. This was however changed in our law by the case of Shearer v Shearer’s Executors 1911 CPD 813, where it was stated that a testator’s marriage has no effect on his will.

B) Express Revocation

A will may be expressly revoked in the following ways:

a) Where a testator makes a new will with a revocatory clause, i.e. a clause in which he revokes expressly all previous wills. [Re Estate Whiting 1910 TPD 527 at 531-532] The revocation of a will takes effect when the revocation is made at the time of the death of the testator. [Wood v Estate Fawcus 1935 CPD 350]

b) Where an unmarried testator expressly revokes his or her will by means of a subsequent ante nuptial contract.

c) Common Law has made it possible for a testator to destroy his or her will, wholly or in part i.e. by burning it, tearing it up or deleting his/her signature from it [Fram v Fram’s Executrix 1947 (1) SA 787 (W) ]

In Senekal v Meyer 1975 (3) SA 372 (T), it was held that the introduction of the Wills Act of 1953 did not mean that the legislature intended to do away with the common law rules regarding revocation of wills. In this case the testator wrote the words “cancelled” on both pages of an original copy of his will and confirmed it with his signature. The Court held that the will was revoked. In the case of Marais v The Master 1984(4) SH 288(D), a testator revoked a will on a copy of the will.

It should be noted that there is a difference between revoking part of one’s will as opposed to deleting parts of one’s will. Where it is considered that the testator only intended to delete a part of his will then it should comply with all the formalities of amending a will, whilst this is not necessary in the case of a revocation.

C) Tacit RevocationWhere a testator dies leaving various wills but do not expressly revoke the former, it is possible that they will all prima facie (at first glance) be valid, and they must all be read together and reconciled as far as possible in order to give effect to the testator’s actual intention.

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Where a provision in a later will is in conflict with a provision in an earlier will than the effect must be given to the provision in the later will. Re Estate Whiting 1980 TPD 527, (Price v The Master 1982 (3) SA 301(N))

Common Law Presumptions – The Revocation of Wills

The following are legal presumptions the court considers when deciding whether a will has been revoked:

1) If a will was destroyed by the testator there is a rebuttable presumption that the testator revoked the will with the intention of revoking it. [Wynne v. Estate Wynne (1908) 25 SC 951 at 960]

2) Where a will which was in the testator’s possession cannot be found after his or her death, there is a rebuttable presumption that the testator has destroyed the will with the intention of revoking it, however there is no such rebuttable presumption if the will was in the safekeeping of a third person.

3) There is also a rebuttable presumption that a testator has destroyed his will with the animus revocandi ( intention to revoke) if the will was drawn up in duplicate and the copy or the duplicate which was in the testator’s keeping cannot be found after his or her death. This presumption falls away where it can be proved that the testator destroyed his will by mistake, in anger, drunkenness or insanity. The rebuttability of the presumption depends on the particular circumstances of each specific case. Ex Parte Lutchman 1951 (1) SA 125 (T)

Section 6 Revival of a Revoked Will

A testator may revive a revoked will wholly or partially as long as the revoked will is still available. A will cannot be revoked orally or by a non-testamentary act. [Fram v Fram’s Executrix 1947 (1) SA 787 (W) at 789] (Le Roux v Le Roux 1963 (4) SA 273(C)]

In the case of Van Reenen v Board of Executors 1876 Buch 44 it was held that a later will may indeed breathe life into an earlier will. See Moses v Abinader 1951 (4) SA 537 (A); Lourriero v The Master 1981 (4) SA 248 (W).

The revoked will which is wholly or partially revived by the reviving will is deemed to be revived by the reviving will from the moment at which the reviving will, in which it is deemed to be incorporated, is executed. The

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onus of proving that a revoked will has been wholly or partially revived by a reviving will rests with the person who alleges this.

The requirements for the revival of a revoked will

a) The will that must be revived should have been properly executed in accordance with the formalities applicable when it was made;

b) This will should still be in existence

c) It should be revived by a new will.

d) The reviving will must be properly executed in accordance with the formalities prescribed.

Section 7 The capacity to make a will

The General Rule is that: All persons of the age of 16 and above have testamentary capacity, i.e. are able to make wills.

There are exceptions to this general rule as the following people may not make wills,

a) Insane personsb) Intoxicated persons;

because they are not in possession of all their facilities when making a will. A person must be able to make a will if he or she is mentally capable of appreciating the nature and effect of his/her testamentary act. To make a will one must have the free and serous intention to dispose of his property by will, he/she must have the animus testandi and must do so voluntary. [Spies v Smith 1957 (1) SA 539 (A) 546-547]

Section 8 The Capacity to benefit under a will

The General Rule is that any person whether natural or juristic, born or unborn may be a beneficiary under a will. However Common Law and the Wills Act 7 of 1953 exclude certain persons from succession.

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PERSONS WHO MAY NOT INHERIT TESTATE

A) The writer of a will Common law dictates that the person who wrote the will of another person is not able to receive a benefit therefrom unless the testator confirms the bequest to the writer immediately after the completion of the will Ex Parte Thole 1968 (1) SA 155 (N)

This provision relates to the person who wrote the will in his own handwriting but not to a person who merely dictated the contents of the will or a person who is typing the will.Smith v Clarkson 1925 AD 501 Van Rensburg v Van Rensburg 1963 (1) SA 305 (A)

Section 4A (1) of the Wills Act confirms the Common Law Rule.

B) The witnesses and the person who signed the will by direction of the testator

Section 4 A (1) provides that a person who signs the will under the direction of the testator, or who writes out the will or any part in his own handwriting; or the person who is the spouse of such person at the time of time of the execution of the will, is disqualified from receiving any benefit under the will.

In terms of Section 4 A (2) the court may declare such person or his spouse competent to receive a benefit under a will if the court is satisfied that person or his spouse did not defraud or unduly influence the testator in the execution of the will. A person or his spouse will not be disqualified from receiving a benefit under the will if he would have inherited intestate had the testator died intestate. However such person or spouse is not entitled to receive more than he would have received intestate.

A witness or his spouse will not be disqualified from inheriting, under the will if the will was signed by at least two other competent witnesses who will not receive any benefit under the will.

In terms of Section 4A (3) – the nomination in a will of person as executor, trustee or guardian is regarded as a benefit to be received by such person under that will. Thus if such person signs as a witness, writes out the will or signs by direction of the testator, the nomination will not be valid.

PERSONS WHO MAY INHERIT NEITHER TESTATE NOR INTESTATE

a) The person who murdered the testator .

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This comes from the principle in roman Dutch law which states that Die Bloedige hand Erft Niet, meaning the bloody hand does not inherit. Ex Parte Wessels and Lubbe 1954 (2) SA 225 (O) 230.

The murderer can however inherit from someone other than his victim. E.g. A murders B (the testator) he cannot inherit from B. However if A murders B he can still inherit from C.Ex Parte Steenkamp and Steenkamp 1952 (1) SA 744 (T)

b) The person who negligently caused the deceased’s death.

Common law dictates that a person who has negligently caused the death of the testator is incompetent to inherit from him. (Casey v The Master 1992 (4) 505 (N) in this case a husband accidentally killed his wife with a firearm whilst slightly under the influence of alcohol. The court held that he could not inherit from his wife as his conduct was morally reprehensible.

c) The blameless killer of the Testator

Insane persons have the capacity to inherit as they cannot be held accountable for their wrongdoings. (Gavin v Kavin 1980 (3) SA 1104 (W)

d) A spouse, married in community of property, who murdered the other spouse.

A husband who kills his wife, to whom he is married in community of property, only receives half of the estate by virtue of the marriage in community of property and is not entitled to inherit from his spouse’s half share. Nell v Nell 1976(3) SA 700 (T)

e) Extramarital children

Common law dictates that incestuous children could not inherit testate from their parents since incest is a crime. Section 2 D (1) (b) of the Wills Act now provides that children out of wedlock can inherit testate. This also applies to incestuous children.

In Taylor v Fim (1903) 24 NLR 484, the beneficiary could not inherit from the testator under her will since he had made her lead an immoral life by having an adulterous relationship with her, allowed her to become addicted to alcohol, (which eventually caused her death) and neglected to give her medical attention.

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Common law dictates that a person who conceals a testator’s will cannot inherit from him. There are no numerous clauses (closed list) when it comes to persons who are not capable of inheriting.



REVISION QUESTIONS

1. What is testate succession?2. What are the requirements for a valid will?3. Who can attest to a will?4. Name the rebuttable presumptions in respect of Lost wills 5. What are the requirements for amending a will? 6. When is a will considered to be revoked?7. Discuss the common law presumptions concerning revocation of wills8. How is a revoked will revived?9. Who can make a will?10.Who is incapable of making a will?11. Who can benefit under a will?12.Who cannot benefit under a will?13.Who cannot inherit?


Documents

Basic Legal Principles of Testate-Succession