Dit word deur rolspelers in die bedryf beweer dat tot 70% van Suid-Afrikaners nie oor 'n geldige testament beskik nie, waarin bepaal word hoe hul bates na hul afsterwe verdeel moet word. Baie artikels is oor die jare deur regslui geskryf oor hoe belangrik dit werklik is om oor 'n geldige testament te beskik en alhoewel daar baie lofwaardige inisiatiewe bestaan, soos die nasionale testament-week en testament-maand, waartydens prokureurs gratis testamente vir die publiek opstel, bly die meerderheid mense steeds sonder 'n testament (of intestaat). Dit beteken dat hul besittings na hul afsterwe waarskynlik kan (en dikwels sal) beland in die hande van persone wie die oorledene nooit bedoel het om van hom of haar te erf nie.
It is said that about 70% of South Africans don’t have a will directing how their assets should be distributed upon their death. Many articles have been written over the years by legal professionals about the importance of having a valid will and although there are great initiatives such as the national wills week and wills month where attorneys draft wills for the public free of charge the majority of people are still without a will. This means their belongings might end up (and often do) in the hands of someone they never intended to inherit.
In order for a will to be valid there is a list of formalities/requirements that must be complied with as stated in Sec 2(1) of the Wills Act of 1953, as amended. Some of these formalities are that:
- the will must be in writing (i.e. written by hand, typed or printed);
- the Testator must initial each page of the will and sign the last page;
- the will must be signed in the presence of two competent witnesses;
- the two witnesses must sign anywhere on the last page of the will, in the presence of the testator.
There is, however, an exception to this, namely, Sec 2(3) of the Wills Act which says the following: “If a court is satisfied that a document…..drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will…., the court shall order the Master to accept that document,….. for the purposes of the Administration of Estates Act, 1965 (Act 66 of 1965), as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1).”
For a successful court application condoning non-compliance with the formalities of a will there are certain requirements that must be met:
- There must be a document.
- The document must have been drafted or executed by the deceased.
In Bekker v Naude en Andere 2003 (5) SA 173 (SCA) the court held that the document must have been prepared personally by the deceased and a document could not be accepted as a will if it had been prepared by a third party.
- The deceased must have intended it to be his will.
When looking at court cases i.e. Case law it is clear that there is uncertainty in the application of section 2(3) especially with regard to the “intention” requirement which resulted in conflicting judgements. The courts also consider the surrounding circumstances of each case to determine whether the deceased intended the document to be his/her will. Recently in Estate Late Elaine Ilsia Williams and Others v Hendricks and Another [2021] ZAWCHC 66 the court held that there was no evidence that the deceased intended a signed pro forma document instructing a bank to draft her Last Will and Testament to be her will. Interestingly, even an electronic will stored on a computer hard drive which has not been printed or executed (signed) might be saved by Sec 2(3).
In closing: Even if there is no formal valid will, there might be a signed or unsigned document created by a deceased, stored on a laptop or at home which might be accepted by a court, if the Sec 2(3) requirements are met, as a valid will thereby giving effect to the last wishes of a testator/testatrix and ensuring that the intended, rightful heirs receive their inheritance.
Regards / Groete.
Hennie, Eberhard & Cheryl-Anne
