Succession

11/02/21014 The law of the distribution of assets to heirs and beneficiaries Includes testate and intestate Investing of a right the beneficiaries rights to property is vested (Chapter 1 of textbook) Textbook The Law of Succession by De Waal Testamentary Capacity The Wills Act 7 of 1953 Governs formalities of drawing a valid will and applies where such will was executed on or after the 1 January 1954 Before the act came into operation, various provinces had different laws governing wills The act repealed all of these laws The Laws of Succession Amendment Act No. 43 of 1992 Made a number of amendments and additions to the Wills Act It applies where the Will was executed on and or after 1 January 1954 and or after the testator dies 1 October 1992 the date of death determines which Act applies Pre 1954 Each province had its own laws and therefore nowadays it is very rare to have a case prior to 1954 A valid will requires for testamentary capacity if the testator lacks testamentary capacity at the time of executing the will then the will is invalid ab inicio The Wills Act governs the formal capacity of a testator to make a will however formal capacity does not mean that the will is invalid other factors may lead to invalidity ( there are other ways to lead to invalidity) Requirements for formal testamentary capacity Set out in s4 of the Wills Act These are 1. The testator must be of 16 years or more and must be mentally capable of understanding the nature and effect of his actions at the time of making his will 2. In a dispute, the onus of proving mental incapacity will rest on the person alleging it No person below 16 years is able to make a will (At all!!! Even with a guardian) What do we mean by mental incapacity? Mental incapacity can be caused by disease, drunkenness or the influence of drugs This list is not exhaustive each case must also be decided upon by its own merits The essential question is whether or not the person is mentally incapable of understanding the nature and effects of his acts as a consequence of the mental impairment The testator would be found to be more capable of understanding the nature and effects where he

1. Recognised that he was disposing of his property to identifiable beneficiaries after his death and was appointed an executor to oversee the process 2. He could distinguish between potential heirs and could make a rational decision as to the respective claims to the testators assets 3. He could appreciate the nature, extent and value of the estate The question often arises in court as to whether the deceased had mental capacity to make a will, despite old age or illness We look at if the person was making a will whilst intoxicated (on drugs etc) Essentially the mere fact that a person is of old age, does not mean that he does not have the mental capacity to make a valid will Harlow v Becker A 76 year old woman revoked all her previous wills, in which she left her assets to her daughter and grandchildren. In her new will she left her entire estate to her doctor It was argued that the will was invalid because the deceased did not have mental capacity facts show that she took painkillers regularly Court held when the deceased signed the document, she was in an enfeebled condition and was unable to appreciate the nature and effect of her act She lacked mental capacity and the will was invalid The testator must have mental capacity at the time she was making the will

17/02/2014 Factors which influence the validity of wills A will which has been duly executed by a testator with a sound mind might nevertheless be wholly or partly invalid if the testator lacked testamentary intention Testamentary intention might be lacking because of the effects of undue influence, duress or mistake In the case of Tregea v Godart It was held that if a will was complete and regular on the face of it, then the onus of proving testamentary intention was lacking, will rest on the person challenging the will

Undue influence A vulnerable testator might execute a will that does not express his or her true intentions because of pressure brought to bear on him by another It is necessary to prove that there has been a displacement of intention so that the will does not really contain the wishes of the testator but those of someone else The mental state of the testator his ability to resist instigation or prompting and the relationship between the persons concerned must be taken into account Spies v Smith The testator was mentally retarded and epileptic it was held that he was unduly influenced by his uncle into making a will that would benefit his uncles children the court found that a will would be invalid where the testator make a request which he would not otherwise have made, in that it expresses the will of another person In such an instance there has been a displacement of intention and the will does not reflect the authentic wishes of the testator In order to establish whether there was undue influence the court will look at factors in each individual case (must be determined) .. The factors are as follows and include

1. The relationship between the testator and the person exercising the alleged influence 2. The period between the execution of the will and the depth of the testator 3. Flattery 4. Professions of extraordinary love and respect 5. Meek tolerance of continual humiliation 6. Protracted subservience followed by direct requests or accusations Thirion v Die Meester The testator drew up a document in his own handwriting, in which he revoked a previous will which benefited his parents his new will left all his assets to his girlfriend two days later he committed suicide. The court had to determine whether he was unduly influenced by his girlfriend it considered the fact that the testator had consumed alcohol at the time the document was drawn up but the court found no further evidence to prove that his intention had been displaced the will was therefore valid

Duress If a testator executes a will or part of a will as a result of threats or violence this would amount to duress and would invalidate the will or the relevant part of the will As with undue influence such a will expresses the wishes of someone other than the testator Duress is easier to prove because it is less subtle than undue influence

Mistake Not all mistakes are relevant if the testator signs a will in the mistake belief that if there is a contract it will be invalid Where there is a mistake of motive then the will, will remain valid for example, where a mother disinherits a son because she thinks he stole from her

18/02/2014 Delegation of testamentary power The general rule is that the testator must exercise his testamentary power himself He cannot delegate someone else to do so, on his behalf however the following exceptions exist 1. Bequests to a charitable trust here the trustees and not the testator decide who will benefit from the trust 2. Conferment of power of appointment on 2.1 - a fiduciary 2.2 a usufructary A trustee in a non charitable trust, provided it is in terms of a specific power of appointment

The capacity to sign as a witness A testator must sign the will, in the presence of two competent witnesses The Wills Act describes a competent witness as 1. Over the age of 14 years 2. Who is not incompetent to give evidence in a court of law The aim of witnesses signing is to confirm the signature of the testator and the witnesses do not have to know the contents of the will The testator must sign in the presence of the witnesses or must acknowledge the signature as his signature where he has already signed the will The witnesses cannot sign before the testator signs or the will is invalid The witnesses may sign anywhere on the last page and can sign merely by initialling A witness to a will can inherit in terms of the will under the common law

However the Wills Act states that a witness to a will and his spouse, cannot take any benefit in terms of the will He also cannot be an executor, guardian, trustee or administrator of the estate there are exceptions If a witness is a beneficiary the will is not invalid, but the witness cannot inherit unless an exception applies The exceptions are 1. If the court is satisfied that the witness did not defraud or unduly influence the testator in the execution of the will 2. The witness would have been able to inherit in terms of intestate succession 3. If there are two other competent witnesses

Formalities of a will Section 2 (1) (A) of the Wills Act sets out the formalities required for the execution of a valid will the formalities are 1. The will must be signed at the end by the testator or by some other person in the presence of the testator and by his direction 2. If the will comprises of more than one page than every page must be signed anywhere on that page by the testator or by a person in his presence and by his direction 3. Signature by a testator or the other person must be made or acknowledged in the presence of two or more competent witnesses, present at the same time 4. Such witnesses must attest and sign the will in the presence of the testator and each other and where applicable, the other person 5. Special certification requirements apply where the testator uses a mark for another person to sign on his behalf

A will The act does not give any definition of a will but it may be described as a unilateral, voluntary expression of the wishes of the testator, in legally prescribed ways, that determine what must happen to his property, after death A will includes a codicil or any other testamentary writings In order for a valid testamentary disposition to take place there must be a disposition of the bequeathed assets and identification of the beneficiaries and an indication of the beneficiaries interests in the assets Accordingly each of these dispositions must be contained in a document which will comply with the will making formalities A will must be in writing although this is not an express formality it follows from the requirement that The will must be signed Writing includes handwriting, typing and printing

Ways of executing a valid will 1. The will is signed at the end by means of a signature in the presence of at least two competent witnesses 2. The will is signed by the person on behalf of or directed by the testator in the presence of the testator two competent witnesses and the commissioner of oaths and the will is certified by the commissioner of oaths

3. The testator acknowledges signature, previously placed on the will in the presence of two witnesses 4. The person who signs on behalf of the testator acknowledges the signature, in the presence of the testator two competent witnesses and the commissioner of oaths the commissioner of oaths will then sign the will In the case of Ricketts v Byrne & Another The court held that the first page of a two page will was the last will of the deceased. The first page had been signed by the testator, but he had printed his name on the second page. The witnesses had signed both the first and second pages of the document the court held that the printing by the testator of his name on the second page, did not confirm with the requirements of the Wills Act The testator or the person on his behalf, must place their signature at the end of the will In the case of Kidwell v The Master The court had to determine what constituted the end of the will. In this case, the testator signed the will, seventeen centimetres below the attestation clause and thirteen centimetres below the witnesses. The court found that the will was invalid because the signature was not as close as reasonably possible to the end of the written part of the will therefore, for the testator, the end of the will is where the written part ends and not the bottom of the page

24/02/2014 If you want to start learning for the test start learning from section 2 testamentary capacity

Formalities of a Will (continued) Signature and signing The testator and the person signing on behalf of the testator must sign on the last page at the end of the will Each page other on the page on which the will ends, must be signed by the testator anywhere on the page Witnesses also need to sign the will although there is uncertainty as to whether or not witnesses need to sign at the end of the last page of the will Leibenberg v The Master The finding was that a will was valid where the witnesses sign at the last page of the will on the top the witnesses need to sign the only the last page If the testator signed by a mark or used someone to sign on his behalf and a certificate has been used the certificate may be appended on any page The commissioner of oaths must also sign every page, in addition to the page on which his certificate appears

What constitutes a signature? It is generally the persons first name and surname in full or their initials and surname It may also be a combination of first names with initials and surnames even if these are illegible The Wills Act states that the word sign, includes the making of initials and only in the case of the testator the making of a mark Harpur v Govindamall The court decided that if a testator has appended to a will that which cannot properly be classed as a signature then it is not a signature Intention alone cannot convert into a signature, that which is not a signature because of the certification formalities, which apply when a mark is used in order to combat fraud it is important to establish whether the device used by the testator is a mark or a signature

Ex Parte Goldman Kalmer The term mark was given a narrow meaning so that the device used by the testator could be regarded as a signature In this case the testator had signed the will with a mark that could possibly be identified as the first letter of her name The court decided that the concept of a mark, should be interpreted narrowly and special emphasis should be placed on whether the testator intended to make a signature A mark may be the making of a cross, a thumbprint, a rubber stamp, a sealed ring impression or something other than initialling

Certification requirements Apply where the testator uses a mark and a person signs on behalf of the testator The requirements are 1. The mark must be made or the person must sign, together with the witnesses in the presence of the commissioner of oaths 2. The commissioner must write a certificate on the wall, stating that he is satisfied as to the identity of the testator that the Will signed is the will of the testator and that he has acted in his capacity as commissioner of oaths 3. The commissioner must sign the certificate and each page of the Will, other than the page on which the certificate appears

Witnessing of a Will The Wills act requires that the testator or the person signing on behalf of the testator sign the will in the presence of two or more competent witnesses all present at the same time Such witnesses attest and sign the will in the presence of the testator and of each other and if the will is signed by another person on behalf of the testator then the witnesses must sign and attest to the Will in the presence of such person The Wills Act states that there are two aspects to witnessing a Will 1. Physical presence 2. Signature of the document The same two witnesses must be present throughout the signing of the entire Will failing which, the whole Will is invalid and not merely the defective pages Witnesses are only required to sign the age on which the Will ends The witnesses may sign anywhere on the last page Although the witnesses do not have to sign the earlier pages of a multiple page Will they must be present when the testator signs them Although the witnesses signatures can lie on the last page in a higher position on the page than the testators signature - if the witness signs before the testator in time, then the will is invalid

25/02/2015 The Courts Power To condone a formerly defective will There have been many cases, in which the courts have struck down, Wills on highly technical grounds of non-compliance with the strict formalities of the Wills Act The S.A law commission recommended that the courts be given the power to condone any failure to comply with the Will making formalities The power of condemnation was introduced by S2 (3) of The Wills Act The Wills Act has also provided S (2) A - which permits the court to revoke a Will which has not been effectively revoked by a testator

S (2) (3) = If a court is satisfied that a document or the amendment of a document, drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the master to accept the document, or that document as amended, for the purposes of the administration of the States Act 1965, as a will, although it does not comply with all the formalities, for the execution or amendment of Wills If the provision of S (2) (3) - are satisfied and the court is convinced that the testator intended the document to be a will, then the court must order the Master to accept the document as a Will The basic requirements for (2) (3) are that 1. There must be a written document 2. That has been drafted or executed 3 With the intention that the document must be the persons Will Once these requirements have been satisfied, the court must make a S(2) (3) order because the section is pre-emptory and does not allow the court a discretion on whether to make the order or not Unfortunately a number of difficulties have arisen from the interpretation of S(2) (3) Difficulties - A. Must the document comply with all the Will making formalities in order to be condoned In Webster v The Master - The court stated that at least some of the Will making formalities must be complied with therefore the courts are usually prepared to condone a document where there has been partial compliance with the formal requirements B. Must the document have been drafted or completed by the deceased himself attempts have been made to distinguish the words draft and execute to determine what is meant by the phrase drafted or executed by a person who has died since the drafting or execution thereof Typically the interpretation of this phrase has become a problem where the Will was prepared by an attorney or another advisor and was approved by the testator, who then died In Websters The testator had given instructions for certain amendments to be made his attorney had drawn up the Will - however the testator died before he could see the final Will. He also had not signed the Will The Court said that S (2) (3) contemplates a document drafted by the deceased personally and that accordingly an unsigned document prepared by the deceaseds attorney and approved by the deceased cannot be rescued This interpretation has been conclusively ruled in the SCA In the case of Bekker v Naude - In the case, a document had been drafted by a bank official in accordance with the instructions of the testator and his wife. The document was sent to them but they did not sign it before the death of the testator The court found that someone else cannot draw up a document, which later appears not signed, on behalf of the testator A distinction must be drawn, between a document that the testator drafted himself and one which he caused to be drafted by someone else Only if the testator had been personally involved, in the drafting will the court condone the document The problem with this decision is that not every person, can personally draft their Will For example illiterate people, will not be able to benefit from this provision as they cannot draft or execute their own Will Can the court condone a Will when the testator makes a request for another person to draft his will? De Reske v Maras The deceased gave instructions to an employee, in which he informed her that he wanted to draw up a new Will and indicated how he wanted his assets distributed. She typed it up he also instructed her to contact an attorney to draw u the will for him. He then repeatedly changed

the distribution of his assets. Once the employee typed up the final document, the deceased signed together with a witness. He then requested the attorney to draw up a new Will for him but he died before this could be done. The court refused to condone the document as a Will C. The intention that the document must be a Will It must be clear that the testator has reconciled with the content of this specific document whether or not the court should condone a document as a Will may depend on the intention of the testator The court is usually convinced of the testators intention, where he was personally involved in the drafting of the document or he had executed the document In Van Wetten v Bosch The court looked at the surrounding circumstances and the actions of the deceased in order to determine the testators intention However in De Reske v Maras - Evidence showed that whilst the deceased prepared and drafted the document, simply as an instruction to his attorney he later manifested a different intention, mainly an intention that the document should be his Will The court was not persuaded that he had intended the document to be his Will

Formalities in amending a Will Generally speaking a testator is free to alter his Will at any time and an agreement not to do so is invalid if someone amends the will without the consent of the testator the amendment is invalid

Amendments made before the execution of a Will A testator is free to make any amendments to a Will, prior to execution There are no statutory requirements to be met Provisions of the Will may be deleted or erased and would thereafter be ignored If new provisions were added with the knowledge of the testator then they become part of the Will However S(2) (2) of the Wills Act creates a rebuttable presumption that any amendments to a Will are regarded as having been made after execution Consequently it is necessary for practical purposes for amendments to be made before the execution stage In practice amendments made before execution are initialled by the testator and witnesses

Amendments made after the execution of a Will After the execution the testator is free to make amendments at any time These amendments of a Will are regulated by S (2) (1) (B) of the Wills Act the amendments must be identified by signatures of the testator and two witnesses and all three people must be present at the same time Provision is made for the use of a person to sign on behalf of the testator or the use of a mark by the testator and in both cases certification by a commissioner of oaths is required The signature of the testator and witnesses must appear as close as possible to the amendment The wording of the section indicates that amendments include additions, alterations, deletions, cancellations and words placed in-between the lines However it cannot include the revocation of the entire Will The testators intention will be decisive in determining whether he wished to amend or revoke the Will If he intended to revoke the Will then the rules according to the common law would apply I he intended to amend he Will then S (2) (1) (B) of the Wills Act would apply

Partial revocation is nothing other than an amendment for change to an existing Will S (2) does in fact grant the court the power to declare a Will partially revoked The difference between a partial revocation and an amendment is that the partial revocation occurs when a portion of a Will is deleted and not replaced with a new stipulation The test should be whether a testator wants to change an already existing Will in which case S (2) (1) (B) will be applicable If the testator feels that the stipulation should no longer be part of the Will and evoked and then can take place without any formalities If the Will has been amended without compliance of the formalities then the amendment would be ineffective and effect would be given to the original words The court may also condone non-compliance with the formalities in the amendments of the Will through S (2) (3) of the act In Webster v The Master - the testator deleted certain references to his wife on a copy of his Will the court was not willing to order condemnation in order of S (2) (3) but had found on the basis of S (2) (A) That the action did result in the revocation of the original Will Anderson v Wagner & The Master - The testator wanted to amend his will he wrote a letter to his attorney on how the Will was to be amended and to draw up a Will reflecting the amendments. The testator died before the Will was amended an application was made to have the letter accepted as the amendment of the testators will in terms of S(2) (3) the court found that the document should have been drafted with the intention that the specific document should serve as a Will or an amendment of the Will

04/03/2014 Express and Implied revocation by destruction Where a will is revoked because it is destroyed physically or in body

Presumptions upon destruction Common law presumptions come into operation upon revocation through destruction These presumptions are 1. The will is destroyed with intention 2. If the will was in the possession of the testator, before his death but cannot be traced after his death, it is presumed that it was revoked with intention 3. The presumption does not apply if the will was in the possession of a third party when it was destroyed 4. If the testator was in possession of a duplicate of the original and it cannot be found after his death it is presumed it was revoked with intention 5. The presumption does not apply if the testator was in possession of a duplicate and the original and only one of them is found after his death 6. The presumption does not apply if only a copy of the will was in the testators possession and it cannot be found after his death however in Marais v The Master - It was held that the presumption can be rebutted by evidence STOP LEARNING FOR THE TEST HERE!!!!!

The courts power of condonation at revocation The court is given the power to condone an act of revocation in S2 (A) If the court is convinced that the testator intended to revoke his will but the revocation is legally ineffective for certain reasons

The revocation must be apparent from the appearance of the will or should be evident from another document The court must determine whether the testator intended to revoke his will In terms of S (2) (A) the court can declare a will revoked, if it is satisfied that the testator has 1. Made a written indication on his will or before his death caused such indication to be made 2. The testator 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 3. The testator drafted another document or before his death caused such document to be drafted by which he intended to revoke his will or part of his will then the courts shall declare the will or part of the will to be revoked

Interaction between S2 (3) and S(2)(A) While S(2) (A) regulates the condonation of revocation where the common law principles are not clear S (2) (3) regulates condonation with regard to the execution and amendment of Wills, where statutory requirements apply S(2)(3) and S(2)(A) may overlap because an amendment can lead to partial revocation The intention of the testator is examined to determine if the testator intended to amend or partially revoke his will S(2)(A) will only be applied in cases where the will has not been revoked in ways recognised at common law S(2)(A) does not do away with the common law recognition of revocation but it elaborates on them by identifying ways in which revocation can take place If the court allows a S(2)(3) application for condonation and accepts a document as a will, then this new will, would expressly or tacitly revoke the previous will The S(2)(A) application is then unnecessary In MacDonald v The Master There was a S(2)(3) application before the court a document was found on the testators computer, containing a provision that revoked all previous wills the court condoned the document as a will this meant that the condonation of the document allowed the revocatory clause of the document to come into effect The application by the courts of S(2)(3) and S(2)(A) is confusing because 1. S(2)(3) Deals with the condonation of non compliance with the formal requirements for the execution and amendment of Wills 2. In terms of S(2)(A) The court must decide whether the testator revoked the Will with the necessary intention to revoke regardless of the fact, that not one of the methods of revocation, recognised at common law was used In Bekker v Naude The court made a distinction between S(2)(3) and S(2)(A) S(2)(3) requires an action in which the testator had to be involved himself S(2)(A) Can involve a document drawn by the testator himself or by someone else on his behalf therefore, S(2)(A) is broader In Webster v The Master The S(2)(3) application failed while the S(2)(A) application succeeded the testator had deleted certain words on a copy of his existing will this was accepted as a complete revocation in terms of S(2)(A) and therefore the testator died intestate S(2)(A) Sets out three ways in which the testator can show his intention to revoke a will S(2)(A)(a)Written indications made on the will S(2)(A)(b)Any other act performed with regard to the will that is apparent from the face of the Will S(2)(A)(c)The drafting of another document that is apparently not the will itself There has been a question as to whether the term Will refers to the original Will or a copy of the Will

In Websters Case The testator deleted the name of a former spouse in a copy of the Will in his possession the court found that S(2)(a) could not apply because the deletions were made on a copy of the Will however S(2)(A)(b) apply because the testator performed an act with regard to his Will the testator therefore revoked his original Will

10/03/2014 Tacit/implied revocation Tacit revocation is indicated from the testators actions cases involving tacit revocation are usually those in which, the testator executed a subsequent Will, that does not expressly contain a revocatory clause Or - when he alienates bequeathed assets These methods of revocation amount to the lapsing of the prior Will Pienaar v The Master of the Free State High Court The testator had two wills, the later will did not revoke the earlier Will but the court held that there was implied revocation the testator dictated the new Will, to his second wife, which she wrote in manuscript the court said that where there are two Wills, which to some extent contained similar provisions but are in effect different and each of the Wills deal with the entire estate then they cannot stand together and the later Will must be construed as having complied the revoked the earlier Will the second Will was held to have impliedly revoked the earlier will

Execution of a subsequent conflicting Will If a testator dies leaving behind several Wills and the last Will does not expressly revoke a prior Will then the Wills must be read together and reconciled as far as possible If they contain conflicting provisions then the later Will is regarded as the valid Will The later Will must be a valid Will if a court condones a document in terms of S(2)(3) such a Will, containing conflicting provisions may revoke a prior Will If there are several Wills of the same date each Will with conflicting provisions then all the Wills are invalid because the intention of the testator is not clear

Alienation of bequeathed assets If a testator voluntarily alienates the subject matter of a legacy then the legacy is regarded as revoked The legacy is said to have been lapsed by ademption however ademption would still occur if the testator expressly revoked the legacy when he voluntarily disposed of the subject matter of the legacy - during his lifetime In determining whether ademption has occurred - regard must be had to the testators intention If the testator was forced to alienate the subject matter then the legacy will not be regarded as revoked If the testator requires the subject matter and still wishes to leave the legacy to a person he must once again bequeath it if it is proved that the testator alienated the subject matter of the legacy voluntarily there is a rebuttable presumption that the legacy has lapsed through ademption

Automatic revocation on divorce in terms of S (2)(B) of the Wills Act Reads as follows if any person dies within three months after his marriage was dissolved by divorce or annulment by a competent court and that person executed a Will before the date of such dissolution then that Will shall be implemented as if it would have been implemented if his

previous spouse had died before the date of dissolution concerned unless it appears from the Will that the testator intended to benefit his previous spouse notwithstanding the dissolution of his marriage This provision is intended to deal with the problematic situation where the testator makes a Will during his/her marriage appointing his spouse as a beneficiary Subsequently they are divorced but at the time of the testators death he has done nothing to revoke the bequest to his former spouse Previously no matter how much bad blood there was between the spouses if the testator omitted to revoke the bequest during his/her lifetime then his former spouse would inherit on his death in accordance with the Will S(2)(B) Gives partial belief in this situation when a Will confers a benefit it does not make the benefit conditional on the survival of a marriage For example if a testator bequeaths and asset to his wife Lindiwe The reference to the testators wife is merely descriptive accordingly, if they have divorced Lindiwe Would still be entitled to inherit unless S(2)(B) applied to deprive her of her inheritance S(2)(B) only applies to Wills executed before the divorce It also only applies if the testator dies, within three months after the dissolution of the marriage If the testator dies at a later stage the former spouse will inherit unless the testator has formerly revoked the bequest This means there must first be a Will then a divorce and then the depth of the testator, not later than three months after the divorce If the sequence of events is different Then S(2)(B) will not apply and the spouse will be entitled to whatever benefits are conferred on him/her, by the Will It is open to the spouse to prove that the testator intended her to benefit notwithstanding the divorce and if she can do so then she will inherit but this proof, must appear from the Will itself