L9/08/201s

Formolilies

Condonolion

SECTION 2(l ) nol

Section 2(3)

NB!

o Court

o Only Court con

condone

n Even though no
complionce with 2(l

complied wilh?
sEcTroN 2(3)
srudy unir

ft.m I I dnd

oOnly when 2('l )not

) Document

complied with (i.e.

r Drofted or
executed by person
'.tr

formo lities)
D

lntention - will

Court connot condone

lock of lestomentory
copocity

3 2

Condonolion
Requiremenls:

Condonolion
Cose sludies

#I

tr Own hondwriting ond signoture

o Documenl (written form)

o Own hondwriting but no signolure

#2

o lnstructs onother, in writing, to droft o will

n Drofted or executed by person "lestotor"

tr

#3

lnstructs onother, e g. telephonicolly, to

droft o will

o lnstrucls onoiher to droft o will. Execution

is

initioted, but formolly defective

tr lntention to be his Will

Condonolion

.
.
.

ln visible form
On poper or other moteriol
. Not video!
. Not volcemoil!
Doto messoge (e.9. sms)

'
.
.
.

ECTA: Yes but

Wills Act: Ngl

E-moil, condoned (von der Merwe v the Mosler)

Compuler file: condoned (MocDonold v the Moster)

Documenl (wriling)

Document does not comply wilh "oll" the requirements of seciion

.
.

2(l

Not: "none" of the requlrements

Does this imply thot the documenl murl qf leost comply with
"some" of the requirements?

re/08/2ors

Condonotion
Documenl (writing)

Condonotion
'
.

Some cosesr No

writing is sufficient ond

'

"oll" wos inserted

unnecesso rily

' Documenl (writing)

Own hondwriting but no

'

signoture

lnstructs onother (in

writing) to droft o will

lnstructs onoiher
(telephone/sms/e-moil)
to droft o will

- ot
leost "some" formolities
must be complied with
"substontiol complionce"
Some coses: Yes

Condonotion

Own hondwriting ond

signoture
lnstructs onother to droft
o will. Execulion is
initiqted, but formolly

defective

Condonotion
ol

Documenl (writing)

person who hos died since

drofting

Will drofted by
bonk officiol
At the request of
deceosed
. Posted to deceosed
. Noi executed
(i.e. only writing)

Court:

.
.
.

Refused condonotion

Strlcl interpretotion
Also remember requi.emenl
number 2!

*+*Unsigned document
probobly requires personol

drofting!***

'
.

Person must hove died since drofting

Drofted OR executed (words used in the

olternotive)
***Person who died must hove drofted or
execuled the document*** i,e. Personol
involvement?

Condonqtion

Condonotion

Drofled or execuled by o
person who hos died since

Drofted or execuled by o
person who hos died since

drofling

drofti ng

"Droft"

formulote by

"testotor" or someone

Problem: Distinguish
between "droft" ond
"couse to droft"

.
.

else

Only o document, with

no formolities
Formulofe possibly
includes dictoted, stored
on computer

.
Complionce with
formolities initioted but
not completed

Exomple; Signed by

"testotor" but not

witnesses, or only one
witness

'

Thus

"portiol execution"

rs/08/201.s

Condonolion
Drofled or executed by o
person who hos died since

d;ofting

lf personolly drofted ond executed by "testotor"

usuolly no problem - if olso complies with
requirement #3 (intention)

Condonolion

Condonolion
or execuled by o
person who hos died since

drotli ng

Conf

or execuled by o
person who hos died since
drofti ng

Problem: when not

personolly drofted by
"testotor", but coused it io
be drofted by e.g.
ottorney

Hos the testotor seen

the droft
Wos there o

"personol
relolionship"

lictinq decisionsr

"Strict interpretotion of 2(3)"

. Webster v the Moster, Bekker v Noudd
. BUT' testotor hos NOT seen the droft!

between the testofor

ond document

Condonolion

Condonolion
lnlenlion to be his Will

Some Considerotions:

Problems:
lntention thot specific
document is Will?

lnlenlion to be his Will

.
.

When did the testotor

hove the intention

(drofting / execuiion)?
How is inlention

determined? Only

Document itself (Ex porte Mourice)

Courl refused drofl documenl under cover of letier contoining

wishes

Butr Romlol v Romdhoni's Estote

inlention with regord lo contenl of document

document or olso

!ql:

circumstonces?

'

De Reszke v Moros
Court refused becouse documenl did nol reflect
soecific docume nl must be Will

!ded!g!

thot

Le/08/21ts

Condonqtion
lnlention lo be his Will

lnlenlion to be his Will

Bul: Smilh v Porsons

Court condoned suicide nofe
Suicide note nol infenlion to be Will but
Becouse ieslotor hod intenllon to dispose of property in note

.
.
.

Horlow v Becker
At the time of drofting or execution

Kotze v ihe Mosrer (will in own hondwriting, slgned by wltness but

not by tesiolor)
. Not necessorily ot the time of drofiing
. But definitely not if testotor hod "conditionol" inlenllon
. i.e. thoi he gels morried
Von Weilen v Bosch / Smith v Porsoni
. When letter / suicide note wos drofted

Condonolion

Condonqtion

lnlenlion to be his Will

lnlenlion to be his Will

De Reszke v Moros (Appeol)

. "For the gront of relief under s 2(3) o court musl be sotisfied
thqt ihe deceosed person who drofled or execuled the
document lntended il to be hls will"
. "Thot iniention, ln my view, musl hove exirted concurrently wilh
the execution or drofting of the documenl"
The intention con therefore not be formed loter (i.e. ofler drofting
or execution)

.
.
'

Von Welien v Bosch

' Flrst look qt documenl, bul
. Also circumsionces ond conduct of the testolor

Condonqlion
lnlention to be his Will

lnlenlion lo be his Will

Monkelengone v Simon
. lntention of tesfotor
. Document drofied by ottorney ond
. signed by deceosed wif h mork
. lntention (#3) tied wilh execution requiremenl (#2)

mork" on lhe documenf

Circumstonces?

"the reol quesiion ... is not whot lhe documenl meons, but whelher
the deceosed inlended it to be his will ol oll. Thol enqulry of
necesslty enloils ond exominotion of the document itself ond olso
of lhe documenl in the context of the surrounding circums?onces"

Condonolion

"o porty indicoles his inlention by either slgning or plocing

Formol of document itself?

Schnetler v lhe Mosler

'
'
'
hls

Focto15l
E.g, document ond surrounding circumslonces

Deceosed should hove reconciled herself with the wording,

content ond effect of the document

This wos conflrmed in Smith v Porsons

& von der Merwe v the

Mqster
i.e. document ond surrounding circumslonces

t9/08/201,5

Clicker Test
lntenlion to be his Will

'

See olso:

.
.

|'
,
I
i

Nexl Leclure

Toylor v Toylor (document: cou.t refused to condone "wish

'
.

De Reszke v Moros

Detoil!

tirt")

tipchlck v the Mosler (circumsloncesr couil refused to occepl

codicil, docmenl: courl occepted will signed only by
deceosed)
Mobiko v Mobiko (document ond clrcumsionces)

Crillcisml!

The testotor wos of

Answer oll questions with reference to

De Reszke v Moros

r.

Germon

a,
c.

Russion

Czech

e.

Hungorion

ongrn
2A 20i6

Polish

20"Vo

2e6

20A6

il
il

The testotor bequeothed o

motor vehicle to his friend

The court confirmed thot the "intention"

must hove existed. . .

r,
a
c
o
r.

Mercedes

BMW
Hondo
Chevrolet
Toyoto

At the time the thot inslrucllolr

to droft the will wos givetr
Only in respect of the speclf tc
document

Concurrently with the execuiloll

or drofting of the docutrettt

o, ol the time the deceosed

25% 25% 25% 25%

Le/08/201.s

The "intention"

of the deceosed

is

The court held thot

determined ...
r

By exominotion of the
document ond surroundttrg

2s% 2s% 25%

25%

The deceosed did not

hove

so%

50%

circumstonces

By the content
document

of the specrfrc

By ihe confent

of the coverrrrg

letter

By the instructions givert to

the ottorney ot the time lhe .Jt .r"" ...."' .rrf,
existing will wos revoked ;s- .J ..' ..'
,

..l'
o""
s.a,r.rr'-.ir

**'

oJ'
\:,

'Annexure A'wos his wrllorrd

gronted 2(3) condonotrorl
J

,..
.n,o-

i!d,rril'.m3.r

J'

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