26/08/21rs

SYLLABUS

THEME 4:
INVALI D

WILLS,/ REVOCATION

REVOCATION OF WILLs

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Freedom of testation
right to revoke L-

Anv time orior to death

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Revocation must not be

accidental I

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f loses its legal force

EXPRESS REVOCATION VS

TACIT REVOCATION

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"Will"

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26/08/201.s

EXPRESS REVOCATION
D Requirements

lntention to revoke (not

accidental

lf doubt whether
revoked - Section 24

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Phvsical

.
.
.

)!

Physical or symbolic

Symbollc

E.g, Tearing up

'
.
.

Burning

Cutting

(Entire document no longer exists

phvsicallv)

E.g, Defacing

Erasing signature

Cutting

(Document still exists phvsically)

EXPRESS REVOCATION
O Section 8(4A) & 8(48)
Administration of Estates Act

. Duplicate original
. original cannot be found
. Presumptionapplicable (revocation)
. 8Ul Master can accept duplicate original,
. l.e. lgnores common law presumptions!

despite presumption

Person relying on presumption bears onus proof

application to

court

EXPRESS REVOCATION
ls act of revocatlon recognised at
common law?

lf not: lhen Section 2Al

lf court is satisfied thatl

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Testator made

q!tsgqi!!]!qlg!

on his Will (or caused to be made); OR

Performed qlyg$gE!! which is apparent from the face of the Wlll(or

caused to perform); oR
Drafted angther document {or caused to be drafted)

by which he intended to revoke his Will or part

thereof

thrll declare the Will (or part thereof)

I Corrt
L__________

revoked
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26/08/2O7s

EXPRESS REVOCATION
t1
U Section 2A
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Revocation

Change existing Will

.:. E.g. deletion with

substitution

part of Will and insertion of new material

Amendment

or amendment
compliance with formalities

EXPRESS REVOCATION
i

t-

section

ia

@.n"rirtingwittr
2.
3

lf ves: it is an amendment and 2(1)(b) must be complied with

lf 2(1)(b) not complied with - 2(3)
!fug: Ask next question
Did the testator intend that part of his Will must no longer be
included?

4.

!!_yg!: it is a revocation and common law must be complied with

lf common law not complied with - 24

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- - - - - - - - - -i

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determine the testator's intentlon

.
.

24 and 2(3) reconciled only if

revocation is NOT an amendment
Emphasis on the intention of

testator

Questlon: iftestator lntended

amendment, 24 will never apply?

EXPRESS REVOCATION
Webster v the Master

.
.
.
.

Husband and wife had joint Will

Husband deleted his wife's name as

beneficiary on 99pI of the joint Will

lnstructed attorney to amend to

children, then fianceb
Section 2(3) failed, section 2A?

2A(a)? Nol
2A(b)? Yes I
Court was satisfied

.
.
.

anv other act with regard to his will

which indicated his intentlon-to revoke it

.
.

Existing Will, but testator drafted

document'Annexure C"

Annexure c could be amendment of

existing Will or revocation of parts of
existing Will?
2(3) failed
2A(c)

other 'document"

between operative wording of 2(3) vs 24

and requirements for condonation

26l08l2O1.s

EXPRESS REVOCATION

E Section

2A

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Seems Narrow?
Personal relationship between
testator and document

Seems Wide?
lncludes someone else

? Same "document" fails in 2(3) but is "document"

for purposes

of 24(c)
Yesl "Animus revocond

i"

F SECTION

2A OF THE WILLS ACT,

an amendment of a

Declare

31%

common law
of a Will (or part

Declare I Will (or part

to be revoked

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AN ACI'OF REVOCATION PERFORMED ON A COPY

OF THE TESTATOR'S WILL, MAY CAUSE THE COURT

11% t3%

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REQUIRES THE COURT TO BE

TO DECLARE THE WILL REVOKED...,...

25./. Zs% 23% 25%

A. True - Section 2A(a) and

common

Webster v the Master

B.

C. True

- Section
- Section

D.

True

2A(c)

referred
and (c)

2A(b) and
Webster v the Master
False

C.

the

The

referred

in subsection (a), (bl

or (c!

Section 2A(b) and

Letsekga v

performed a n act
in subsection (a), (b)

Master

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D.

The
his Will

rr intended to revoke...)' ..J'

partthereof

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26/08/201s

THE SAME ''DOCUMENT" CAN BE USED FOR

BOTH A SECTTON 2(3) AND 24 AppLtCATtON

A. True
B. False

REVOCATION OF WILLS

Execution of subsequent

NB dates to determine

later Will
lf no dates

oliunde

evidence as to which is

later Will

lf many Wills with same

date - read together

lf many conflicting Wills

and not possible to
determine later Will - all
Wills regarded as invalid

Properly executed

lf not valid

forma lities

revocation is invalid

Unless later Will is condoned 2(3)

TACIT REVOCATION

will

as heirs

Will f2 : brothershares

WillS2 appointed onlv

Respondent at heir

Will #2 did not contain

revocation clause

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Will f 2 did not contain

revocation clause

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Will #1 and Will #2 cannot be

reconclled (all children w only

Will

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appointed all children

brother R10 000

O Will f

1 and Will #2 could

possibly have been reconciled

But court:Will #2 revoked Will

both Wills
testatrix disposed of entire
H1, because in

heir)

Court: Will{2 revoked

H1 :

Willfl

estate

O lntentlon!

Sectlon 2B Requirements

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of

Automatic lapse
soldier's Will - no longer

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applicable

Automatic lapse divorce

Section

28

lO

lftestator's marrlage is
dissolved by dirc or

annulment

And the testator dies within 3

months of disgolution

Ihe wlll!9!E_l!r!ll!l!U

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Divorce:

Death;

(onlv)

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Former spouse

is

deemed to

Dred4eased
the Will contains a
provlslon to the @ntEry
lf tesbtor di6s qtg!:lEgllh!
Will is valld ln all respecte
be

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O I bequeath

an amount o{
to my wife

R10 000 000

Mary

in

resred of forher spouse

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Exampte

L.rnless

Section 28
The testator ied within 3 months of dissolution
not contain a provision to the contrary
His Wlll
Will is valid
respect of other heirs, but loses it validity in
respect of
Mary will
as predeceased and will not inherit

IACIT REVOCATION
wiil
O I bequeath

an amount of
R10 000 000 to my wife

Mary

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Section 2B is NOT applicablel

The testator died after 3 months of dissolution
Marv will inherit

lD Example
I J Divorce:
r !J Death:2
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I bequeath an amount of R10

000 000 to Mary Smith

I bequeath an amount of R10

oo0 0oo to my wife MarV to
which she shall be entitled

zors

irrespective of whether the

marriage subsists at the time
of my death

within 3 months of dissolution

a provision to the effect that the Will
lapse in terms of sectlon 28

26/081201s

CON DITIONAL OR SUPPOSED

CON DITIONAL OR SUPPOSED

REVOCATION

REVOCATION

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Conditional:
J Uncertain Future event
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J Usually - execution of a
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further Will
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is a University graduate

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Deletes bequest in Will #1 and

substitutes it with new provision

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{i.e revocationand amendment)

codicil does not complywith

#2

I hereby revoke Will #1, if

my daughter Mary obtains
her LL.B degree cum laude.
Then my entlre estate will
devolve upon myson and
daughter in equal shares

formalities

2(3) failed

El

Revocation

- also failed, because

'tonditionEl rewcation" i.e.
dependent on Elidity of codicil

CON DITIONAL OR SUPPOSED

CON DITIONAL OR SUPPOSED

REVOCATION

REVOCATION

Bequest

codlcll

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I bequeath my entire estate

to my son Peter because he

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De Reszke v Maras

Bequest

will flz
E Employee types letter with
instructions to attorney

O i.e. revocation of Will

Testator revokes Willi2 because

he assumes that Will d1 will
automatically revive

Supposed:

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Revocation based on

assumption

lf assumption is incorrect,
revocation is not valid

El

Revocation

will f 2 nill effedive

Assumption incorrect

notvalid

#2

2(3) failed

Revocation - also failed,

because "conditional

Testator destrovs Will#1 because

he assumes that Will {2 in anV
event revoked it

revocation" i e dependent
on validity of Will#2

TEnspires that will f2 is invalld

El Assumption

is

incorrect

Revocation not

efftrtive

lld - Will f1 still

CONDITIONAL OR SUPPOSED
REVIVAL OF A REVOKED WILL

REVOCATION

J
:

Conditional or supposed
revocation =
Doctrine of dependent
relative revocation

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by
or
! Re-execution?
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D Method of reasoning
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To assist

to determine the

true intention of the

testator

E Animus

.
.
.

revocandi

(immediately effective) or
conditional

lncorporation

Reference?

Will #1 revoked six months later

Codicil- contained amendments to {revoked) Will #1
Did codicil "revive" Will#1?

iye-llsi!ry
:

"

WilHl

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Formalities not relevant

Properly executed revival
document and intention to

,"vived through

||

""t by reference
incorporation
g_l"-qy,I"jj9j1"_.r_tiol_
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- _ _ _i II

revive

26/08/20Ls

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U lncorporation

by

Reference? or

Joint Will - former husband and wife

Wife died, husband only heir (i.e joint Will lapsed)
Husband then executed series of Codicils referring to the
(lapsed) Joint Will
Lapsed Will = revoked Will