Olivia Rose Meltzer is currently a Candidate Attorney at the Claremont branch, embarking on her second rotation in the litigation department. She commenced her studies at the University of Cape Town in 2016 and graduated with an LLB in 2019. Whilst completing her degree, Olivia worked at non-profit organisations such as the UCT Law Clinic and LAWCO. Her community work opened her eyes to the overwhelming number of people who have neither the means nor access to legal representation. Working under the supervision of qualified attorneys, she was able to provide underprivileged and vulnerable members of society with pro bono legal services. She hopes one day to meaningfully contribute to increasing access to justice in South Africa. When she is outside the office, Olivia enjoys spending her time cooking, reading, trail running, and socializing with friends. She absolutely adores animals and works part-time for both African Tails and EARS.

Thought of the Week | A Testator’s intention: Is it enough for a valid Will?

The Wills Act 7 of 1953 sets out clear requirements for the drafting of a valid Will, including that it must have a signature or mark of the testator and must be witnessed. However, what happens if the wishes of the deceased are seemingly clear, but the document does not otherwise meet the requirements of a valid Will?

This was the issue at the heart of the matter in the recent Western Cape High Court judgment in Late Elaine Ilsia Williams and Others v Hendricks. In this case, the deceased instructed her bank a day before her death to draft a Will on her behalf bequeathing her estate to her minor son. Unfortunately, no such Will was drafted or signed before she died.

An instruction to draft a Will, no matter how detailed, does not itself constitute a valid Will. However, section 2(3) of the Wills Act could offer some relief to this rule. It states that if a court is satisfied that a document (or the amendment of a document) was intended to be a Will but does not satisfy the requirements of a valid Will, the court may order the Master to accept the document as a Will.

The applicants in this instance tried to persuade the Court to take a liberal approach and relied, amongst other things, on the judgment of the Supreme Court of Appeal in Van Wetten v Bosch.

In Van Wetten, although the instruction was addressed to his attorney, the deceased had entrusted a letter containing detailed instructions for the administration of his deceased estate to a friend for safekeeping as if it were, in fact, his Will. The deceased committed suicide days later. In deciding that the letter qualified to be recognised as having been intended by the deceased to be his Will, the Appeal Court was persuaded by particular surrounding circumstances. By contrast, in the current case, there was nothing to indicate that the deceased intended the instruction to be anything other than what it appeared to be – an instruction to the bank to prepare a (draft) Will.

Courts are wary to declare documents that do not comply with the requirements of the Wills Act as valid Wills, for fear of endorsing a draft document as a final embodiment of a person’s last wishes.  Where a document is a clear embodiment of a testator’s last wishes, a court may exercise its discretion to declare it a valid Will. However, if such intention is not apparent, a court will not cloak a document with validity, in the absence of compliance with the requirements for a valid Will, for fear of guessing the intention of a deceased person with regards to their estate.  Many policy considerations support this reluctance.

It is best to avoid uncertainty and obtain professional assistance with the drafting of your Will. Contact us at estates@stbb.co.za for assistance with wills and trusts and deceased estates.

 

 

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