Sources of testamentary succession

The Wills Act 7 of 1953 (“Wills Act”)

The Law of Succession Amendment Act 43 of 1992
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Wills, codicils and testamentary writing
Jamneck et al: 56-61 (book); 3.1- 3.2.3 (3ed e-book).
3.1 Introduction
 The testate law of succession comprises those legal rules or norms that regulate
the devolution of a deceased person's estate on one or more persons according to
the testator's wishes as expressed in a will.
 The law of testate succession, therefore, deals with wills

 A testator drafts and executes a will to regulate how his or her estate and other
affairs should be dealt with after his or her death.
 As soon as a person dies, his or her will is submitted to the Master of the High Court
and is scrutinised for validity.
 If it is accepted as validly executed, an executor is appointed to handle the liquidation
of the estate.' A will must therefore comply with a number of general requirements as
well as certain formalities stipulated in the Wills Act before it will be accepted as a
valid will.

 The complex system for executing wills that existed in South Africa prior: to 1954
was rationalised by the enactment of the Wills Act (effective from 1 January
1954).
 This Act abolished all Roman-Dutch common law wills and repealed; the separate
legislation that applied in each of the four provinces.
 The Wills Act was amended in 1992 and, since then,our law has permitted only one
kind of will often referred to as a staturotry will - making formalities are set out in
section 2(1)(a) of the Act and apply to all worlds executed after the 1st of January
1954 where the tesator died: after 1st October 1992
 these formalities apply only to the documents that are wills,
 any will that was properly executed at the time it was made in terms of the common
law or pre 1953 legislation remains valid until revoked by the testator

3.2 Wills, codicils and testamentary writings

3.2.1 Definition of a will
The Wills Act defines a will as follows: "will includes a codicil ich any other testamemany
writing.* The purpose of this definition is solely to indicate which forces of documents are
relevant to the Act and especially which types have to conform to unindicalities as
stipulated by section 2(1) of the Act. The Acts definition therefore does not indicate the
essence of a will.

Definition 1
Testament is 'n eensydige en vrywillige wilsuiting wat op'n regtens voorgeskrewe wyse
plaasgevind het en waardeur'n persoon bepaal wat met sy nalatenskap na sy dood moet
gebeur. [Loosely translated: A will is a unilateral and voluntary expression of one's
intention which is made in a legally prescribed manner and by which a person provides
what is to happen to his or her estate after his or her death.]

Definition 2
A will can be defined as a written document in which a testator voluntarily sets out his
instructions as to how his assets are to devolve following his death.

Definition 3
A will or testament may be defined as a declaration in a document executed in the
manner required by law by the person making it, the testator, in regard to the devolution
of the testator's property® after the testator's death.... Not every such document will
necessarily be the result of a valid testamentary act. In order to be valid the act of
testation must be free and voluntary.
Definition 4
A last will and testament, commonly called a will, is a document executed in the manner
prescribed by aw by a person, called the testator, concerning the disposition of property
and other matters within his control, ° to take effect after his death.

 Although all these definitions make it clear that the act of drawing up a will must
be voluntary, the last definition best describes all the elements of a valid will.
 a will must be freely made with the intention of providing for the devolution of the
testator's estate

 The basic prerequisites for the validity of any testamentary document that may
be
gathered from these definitions are:
1. the testator must have the free and serious intention to execute a will (he or she
must have animus testandi)
2. the testator must have made the declaration voluntarily.

Additional requirements for a valid will are prescribed in the Wills Act, namely:
1. the testator must have testamentary capacity 12
2. the will must comply with the formalities prescribed by section 2 of the Wills Act.
13

3.2.2 Basic requirements for a valid will

3.2.2.1 Animus testandi
 Animus testandi or the intention to make a will is a core requirement for the
validity of a will.
 The testator must clearly state his or her intention to make a will and the
language used must not simply express wishes.
 He or she must not only intend to provide for the devolution of his or her estate, but
must also have the intention of doing so in a will

Sim v The Master

In Sim v The Master,16 the Court decided that an unsigned document left by a testator
which provided for several charitable bequests was not a valid charitable will as it
appeared that the testator had intended to sign the document at a later stage. At that
stage, charitable wills were seen as privileged wills which did not have to comply with the
formalities required for other valid wills. The Court was of the opinion that the testator
could have changed his mind before signing the document and consequently he did not
have animus testandi towards that particular document.
In this case, the Court saw the completion of the formalities as the expression of the
deceased's animus testandi.

In re Leedham
In In re Leedham,17 the Court reasoned differently and held that the deceased'S
intention to provide for the devolution of his estate was sufficient, regardless of whether
he intended that the particular document should be his will.

 Without the requisite animus testandi, a will created by a deceased is invalid ab

initio.
 This means that the will is invalid from the onset or beginning.
 It is possible that a lack of animus testandi is caused by mistake or force.
 For example, if a testator mistakenly signs a document not knowing that it is a will,
the necessary animus testandi to make a will is absent and the will is invalid ab initio
 in such a case the testators mistake leads to the total lack of animus testandi
 however where testator makes a will because of a mistake in the testators motivation
he or she still has animus testandi standard and the will is valid evidence may be led
in court to establish whether the deceased had the requisite animus testandi if the
issue is distributed a similar situation exists where testator executes a will in a state of
fear due to duress he or she does not have the requisite animus testandi day and the
will is also invalid ab initio

Duress, force and mistake

 The principles regarding duress, force and mistake are well known in the law of
contract and are discussed in BOE Bank Bpk v Van Zyl where the nature of duress
in the law of contract is considered.
 These principles may be extended to the law of succession.

 Circumstances where the will was made because of fraud or duress need to be
distinguished from those where the testator was under undue influence when the
will was made.
 In the case of fraud or duress: the will is always invalid because of a lack of
animus testandi.
 In the case of undue influence: the question is whether the influence was such
that the testator did not have animus testandi, or whether the influence was
such that the testator no longer expressed his or her own free will even if he
or she did have animus testandi.

3.2.2.2 Volition (or choice)

From the definitions of a will given in Table 3.1 above, it is clear that the expression of a
testator's own free will is an important element for establishing a valid will. 2 If a
document does not express a testator's own free will, the document does not comply
with the definition of a will and cannot be seen as valid. A testator must decide
completely of his or her own volition how his or her estate is to be divided. There are
various factors that can influence a testator's free will such as coercion, fraud or undue
influence. If it can be proven that a testator made a will as a result of one of these
factors, such a will is invalid because it expresses someone else's will or volition.

Freedom and capacity

 Factors that may play a role in the exercising of a testator's free will should not be
confused with factors that may influence a testator's testamentary capacity.
 A lack of free will and a lack of testamentary capacity are separate grounds for
invalidity of a will. A person may therefore have the freedom to make a will but may
nevertheless lack the capacity to do so.

Spies v Smith
 In Spies v Smith, the Court explained the role of undue influence and asserted
that not each and every interference with a testator's volition amounts to a
ground for invalidity.
 The Court indicated that there is nothing improper in convincing a testator by way of
flattery, declarations of love or even humiliation to make a will in a certain way.
However, when these actions take the form of fraud or when the testator's will is
substituted by the will of the person guilty of these improper actions, there is undue
influence which leads to invalidity of the will
 The mere fact that parties are in a particular relationship towards one another is also
not enough to indicate undue influence.
 It is, nevertheless, a factor to be taken into account along with other factors such as
the testator's emotional state, his or her capacity to withstand pressure and the
amount of time between the influence and the execution of the will.

Kirsten v Bailey
 From Kirsten v Bailey,29 it is also clear that testamentary capacity and lack of
volition are two separate grounds for invalidity, but that undue influence may play
a role when the testator is already no longer compos mentis. The Court declared:

"I am satisfied on all the evidence that the testatrix's supervening physical infirmity had
by then so diminished and enfeebled her congenitally limited intellectual faculties, and
had so disturbed and confused what remained of her mind and memory, that she was no
longer possessed of the disposing mind and memory required for testamentary capacity.
In my view the role which the first defendant played aggravated the confusion in the
mind of the testatrix."

The Court then continued:

"[l] am furthermore of the opinion that they [the wills] were in any event obtained as a
result of undue influence exerted upon the testatrix by the first defendant and that they
could, for this reason also, be set aside. "

Considering the discussion above, the differences between animus testandi and volition
are represented
Table 3.2 The differences between animus testandi and volition
Animus testandi Volition (or choice)

• the intention to make a will • the testator's own free will

• force or coercion, mistake, fraud or duress • force or coercion, fraud or

can invalidate a will because of a lack of undue influence can influence
animus testandi volition

• undue influence is only considered after it is • undue influence could affect

ascertained that testator did have animus volition so that the testator no
testandi, where the question then becomes longer expresses his or her own
one of volition free will

3.2.3. Definition of a codicil and a testamentary writing

 the definition of the term will contained in the Wills act does not attempt to be
comphrensive, but merely clarifies that a codicil and a testamentary writing also
qualify as wills
 the act thus equates these three kinds of documents, but does not say if there are
any difierences between them or if they are all the same.

 in Roman and Roman-Dutch law a difference existed between a will and a codicil,
especially with regard to the formalities.
 This differentiation has been eradicated in modem lav.
 Although the term codicil is often used to refer to an addendum to an existing will, a
codicil is a separate will that has to comply with the same formalities as a will.

Example of a codicil
A testator made a will on 1 August 2000 and, in clause 5, he left his daughter an amount
of R50 000. If he later wanted to increase this amount, he could write a simple codicil
along the following lines: I refer to my will of 1 August 2000 and direct that the amount of
the bequest in clause 5 shall be increased from R50 000 to R100 000, and I hereby
confirm my said will of 1 August 2000 in all other respects.'
 This simple codicil would constitute a will for the purposes of the Wills Act and
would have to be executed with the same formalities as any other will.
 Another term that is used by the Wills Act is' testamentary writing'.
 The Act refers to this term in order to indicate which documents have to conform to
the formalities required by section 2 of the Act.

Ex parte Davies
 In Ex parte Davies, the testator had bequeathed a sum of money 'to a certain
person who will not be named in this will but whose name will be disclosed by me
in a separate note of hand addressed to my executors'.
 When he executed his will, he handed his attorney a sealed envelope which was
opened after his death and which contained a letter identifying the secret beneficiary.
 One of the questions which the Court had to determine was whether this letter
was a valid identification of the beneficiary named therein.
 It was argued by counsel that the gift of the property itself was contained in the will
and that, therefore, the letter, which merely identified the recipient of the gift, was not
a testamentary writing.
 This argument was rejected because the identification of the beneficiary is one of the
essential components of a testamentary disposition.to comply with the formalities for
a valid will.

 the letter constituted a testamentary disposition which was invalid because of a

failure
 Although the Act does not define the meaning of testamentary writing, the Court
decided that it means a document which describes any one of the three
necessary elements of a bequest, namely:

1. the identity of the property bequeathed

2. the extent of the interest bequeathed, for example ownership, usufruct or
fideicommissum
3. the identity of the beneficiary.

A document which identifies any one of these three elements is consequently a

testamentary writing which has to comply with the requirements of the Wills Act.

Example of a testamentary writing

Thandi provides in her will that her jewellery, of which she attaches photographs, is to go
to her niece, Ayanda. The will itself is signed by the testator and two witnesses.

 The question is whether the attached photographs qualify as testamentary

writings and whether they should also be signed by the testator and the
witnesses.
 In this scenario, the photographs identify the jewellery to be inherited by the niece.
Because they describe the property bequeathed', the photographs qualify as
testamentary writings and therefore have to comply with the formalities required by
the Act.

Oosthuizen v Die Weesheer

 In Oosthuizen v Die Weesheer, the testator had attached a sketch plan of the
bequeathed property to the will.
 The Court decided that the sketch plan qualified as a testamentary writing and
therefore had to comply with the same formalities as the will. Consequently, a list of
assets for distribution, which are attached to a will, will have no effect if the list does
not comply with the same formalities required for a valid will.
 The reason is that such a list qualifies as a testamentary writing because it expresses
the testator's intention to bequeath the property described in such a list.
 Such a list therefore contains one of the elements of a testamentary writing and
consequently has to comply with the formalities required for a will to be valid.

 Another issue concerns the question whether a trust deed of an inter vivos trust
must comply with the testamentary formalities if the testator bequeaths further
assets to the trust in his or her will.
 an inter vivos trust is created in the following way -:the trust founder enters into an
agreement with another person (the trustee) in which the founder undertakes to
donate certain assets to the trustee on condition that the trustee uses the assets for
the benefit of a third person (the trust beneficiary), and the trustee undertakes to
receive and hold the assets on this basis.
 The setting up of an inter vivos trust is not done in compliance with the will-making
formalities because the inter vivos trust deed is a contract, not a will.

inter vivos trust =An inter vivos trust is a trust created during the life of the creator
thereof.
The issue is thus if such an inter vivos trust deed should comply with the
testamentary formalities when a testator bequeaths benefits to the trust in his
or her will.

Kohlberg v Burnett
 In Kohlberg v Burnett, the testator bequeathed assets in his will to a trust that he
had formed on the same day as he executed his will, but before he signed his will.
 A person who stood to benefit if the bequest was invalid challenged the formal validity
of this bequest.
 It was argued that the identity of the beneficiaries of the bequest was to be found in
the trust deed. The deed could not be regarded as part of the will as this would
constitute an unlawful incorporation by reference of the terms of the trust deed into
the testator's will because the trust deed was not executed as a will.
 The Court ruled, however, that the bequest of assets to a trust constitutes a bequest
to the trustee of the trust in his capacity as such, and that the trust beneficiaries
benefit in terms of the trust deed, not in terms of the will.
 Accordingly, the arrangement was acceptable.

Section 1 read with section 2D(2) of the Wills Act

Section 2D(2)

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