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Unit 1
Basic Legal Principles of
Testate Succession
Objectives
After studying this unit you should be able to:
Sections:
1. Introduction
2. The requirements for a valid will
3. Lost Will
4. Amendment to wills
5. Revocation of wills
6. Revival of a Revolved will
7. The capacity to make a will
8. The capacity to benefit under a will
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Law for Land Managers 1B Basic Legal Principles of Testate Succession
Section 1 Introduction
Testate Succession occurs where a testator/testatrix draw up a valid will which
sets out how his/her estate should be divided amongst the beneficiaries. A will is
of utmost importance, one can say the focal point of testate succession and its
legal requirements are set out in the Wills Act, Act 7 of 1953. In terms of section
2(1) (a) of the Wills Act a will has certain formalities to comply with.
In Ex Parte Davies 1957 (3) SA 47 (N) the court decided that a testamentary
writing is a document which defines any one of the three essential elements of a
bequest:
(a) The property bequeathed
(b) The extent of the interest bequeathed
(c) The beneficiaries
In Moses v Abinader 1951 (4) SA 537(A) it was stated that any document in the
nature of a testamentary writing incorporated into a will by reference; must itself
satisfy the formal requirements for a valid will.
The words sign and writing in section 2 of the Wills Act clearly indicates
that a will cannot be oral.
a) A Testator can sign with his own signature on every page of the will and
especially at the end of the wording on the last page
There are certain formalities that need to be complied with where the testator
signs the will by making a mark. The same formality with regards to witnesses
where the testator signs his own signature applies to where the testator signs by
the making of a mark. In addition, a Commissioner of Oaths should be present
when the testator makes his or her mark. The Commissioner of oaths must
append a certificate to the will in terms of section 2(1)(a)(v).
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Law for Land Managers 1B Basic Legal Principles of Testate Succession
In Radley v Stopforth 1977 (2) SA 516 (A) 528 H it was stated that the
certifying officer must indicate his office as that of Commissioner of Oaths on the
will failure to do so will render the will invalid. See also Jeffrey v The Master
1990(4) SA 759 (N)
c) Where some other person signs the will on behalf of the testator.
There are certain formalities that have to be complied with when the
testator directs some other person to sign his will on his behalf
i) The other person must sign the will or acknowledge the testator’s
signature at the end of the will in the presence of the testator
iii) These same witnesses must in the presence of the testator, the person
signing the will, and each others presence, sign and attest the will.
The person signing on the direction of the testator may not sign by the making of
a mark.
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Law for Land Managers 1B Basic Legal Principles of Testate Succession
4) Two or more competent witnesses must sign and attest the will in the
presence of one another and the testator/testatrix (Oosthuizen v Die
Weesheer 1974 (2) SA 434 (O)
A witness may not sign by the making of a mark and they need not know the
contents of the will. They only need to know that they are witnessing the
testator’s signature, mark or initials, which the testator has signed or
acknowledged in their presence. Sterban v Dixon 1968 (1) SA 325 (C). The
witnesses only attest to the signature of the testator, not the content of the will.
The two witnesses must be present at the same time and they must sign every
page of the will.
A competent witness is any person over the age of 14 years who is competent to
give evidence in a court of law.
With regards the difference between a mark and a signature See Ex Parte
Goldman and Kalmer 1965 (1) SA 464(W) where the court held that a narrow
meaning should be attributed to the word mark and a broad meaning to the word
signature. In this case the court held that the sign made by the testator was a
signature and not a mark, although it was no more than a feeble attempt to write
the initial letter of the testator’s Christian name on the ground that the testator
had probably intended to write a signature and not make a mark. See Dempers
v The Master 1977 (4) SA 44 (SWA); Jhajbhai v Master 1971 (2) SA 370 (D)
In terms of section 2 of the Wills Act, the testator is required to sign at the end of
the will. The end of the will is the end of the body of the will meaning directly
below the last writing of the will. See Philip v the Master 1980 (2) SA 734 (D);
Kidwell v The Master 1983 (1) SA 509 (E); here the testator signed the second
page of his will 17cm below the attestation clause. It was held that the will was
invalid because of the possibility of fraud.
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Law for Land Managers 1B Basic Legal Principles of Testate Succession
Thus the formalities for amending a will are the same as those for executing a
will.
In Kunz v Swart 1924 AD 618, it was held that a will which is complete and
regular on the face of it is presumed to be valid until the contrary is proved. It is
imperative to note that the onus rests on the party who maintains that the will is
invalid. Sterban v Dixon 1968 (1) SA 322 (C).
A) Change of Status
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Law for Land Managers 1B Basic Legal Principles of Testate Succession
B) Express Revocation
In Senekal v Meyer 1975 (3) SA 372 (T), it was held that the introduction
of the Wills Act of 1953 did not mean that the legislature intended to do
away with the common law rules regarding revocation of wills. In this case
the testator wrote the words “cancelled” on both pages of an original copy
of his will and confirmed it with his signature. The Court held that the will
was revoked. In the case of Marais v The Master 1984(4) SH 288(D), a
testator revoked a will on a copy of the will.
C) Tacit Revocation
Where a testator dies leaving various wills but do not expressly revoke the
former, it is possible that they will all prima facie (at first glance) be valid,
and they must all be read together and reconciled as far as possible in
order to give effect to the testator’s actual intention.
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Law for Land Managers 1B Basic Legal Principles of Testate Succession
The following are legal presumptions the court considers when deciding whether
a will has been revoked:
2) Where a will which was in the testator’s possession cannot be found after
his or her death, there is a rebuttable presumption that the testator has
destroyed the will with the intention of revoking it, however there is no
such rebuttable presumption if the will was in the safekeeping of a third
person.
The revoked will which is wholly or partially revived by the reviving will is
deemed to be revived by the reviving will from the moment at which the
reviving will, in which it is deemed to be incorporated, is executed. The
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Law for Land Managers 1B Basic Legal Principles of Testate Succession
onus of proving that a revoked will has been wholly or partially revived by
a reviving will rests with the person who alleges this.
a) The will that must be revived should have been properly executed in
accordance with the formalities applicable when it was made;
There are exceptions to this general rule as the following people may not make
wills,
a) Insane persons
b) Intoxicated persons;
because they are not in possession of all their facilities when making a will. A
person must be able to make a will if he or she is mentally capable of
appreciating the nature and effect of his/her testamentary act. To make a will one
must have the free and serous intention to dispose of his property by will, he/she
must have the animus testandi and must do so voluntary. [Spies v Smith 1957
(1) SA 539 (A) 546-547]
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Law for Land Managers 1B Basic Legal Principles of Testate Succession
This provision relates to the person who wrote the will in his own
handwriting but not to a person who merely dictated the contents of the
will or a person who is typing the will.
Smith v Clarkson 1925 AD 501 Van Rensburg v Van Rensburg 1963
(1) SA 305 (A)
Section 4A (1) of the Wills Act confirms the Common Law Rule.
B) The witnesses and the person who signed the will by direction of the
testator
Section 4 A (1) provides that a person who signs the will under the
direction of the testator, or who writes out the will or any part in his own
handwriting; or the person who is the spouse of such person at the time of
time of the execution of the will, is disqualified from receiving any benefit
under the will.
In terms of Section 4 A (2) the court may declare such person or his
spouse competent to receive a benefit under a will if the court is satisfied
that person or his spouse did not defraud or unduly influence the testator
in the execution of the will. A person or his spouse will not be disqualified
from receiving a benefit under the will if he would have inherited intestate
had the testator died intestate. However such person or spouse is not
entitled to receive more than he would have received intestate.
A witness or his spouse will not be disqualified from inheriting, under the
will if the will was signed by at least two other competent witnesses who
will not receive any benefit under the will.
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Law for Land Managers 1B Basic Legal Principles of Testate Succession
This comes from the principle in roman Dutch law which states that Die
Bloedige hand Erft Niet, meaning the bloody hand does not inherit. Ex
Parte Wessels and Lubbe 1954 (2) SA 225 (O) 230.
The murderer can however inherit from someone other than his victim.
E.g. A murders B (the testator) he cannot inherit from B. However if A
murders B he can still inherit from C.
Ex Parte Steenkamp and Steenkamp 1952 (1) SA 744 (T)
Common law dictates that a person who has negligently caused the death
of the testator is incompetent to inherit from him. (Casey v The Master
1992 (4) 505 (N) in this case a husband accidentally killed his wife with a
firearm whilst slightly under the influence of alcohol. The court held that
he could not inherit from his wife as his conduct was morally
reprehensible.
e) Extramarital children
Common law dictates that incestuous children could not inherit testate
from their parents since incest is a crime. Section 2 D (1) (b) of the Wills
Act now provides that children out of wedlock can inherit testate. This
also applies to incestuous children.
In Taylor v Fim (1903) 24 NLR 484, the beneficiary could not inherit from
the testator under her will since he had made her lead an immoral life by
having an adulterous relationship with her, allowed her to become
addicted to alcohol, (which eventually caused her death) and neglected to
give her medical attention.
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Law for Land Managers 1B Basic Legal Principles of Testate Succession
Common law dictates that a person who conceals a testator’s will cannot inherit
from him. There are no numerous clauses (closed list) when it comes to persons
who are not capable of inheriting.
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Law for Land Managers 1B Basic Legal Principles of Testate Succession
REVISION QUESTIONS
1. What is testate succession?
2. What are the requirements for a valid will?
3. Who can attest to a will?
4. Name the rebuttable presumptions in respect of Lost wills
5. What are the requirements for amending a will?
6. When is a will considered to be revoked?
7. Discuss the common law presumptions concerning revocation of wills
8. How is a revoked will revived?
9. Who can make a will?
10. Who is incapable of making a will?
11. Who can benefit under a will?
12. Who cannot benefit under a will?
13. Who cannot inherit?
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