WHAT CONSTITUTE A VALID WILL?
1. WHAT IS A WILL?
1.1 In Zimbabwe, wills are primarily governed by the provisions of the
Wills Act [Chapter 6:06] (hereafter the Act). A “will” is defined in section
2 of the Act as follows:
"Will” includes an oral will, a codicil and any testamentary writing
but does not include a document evidencing an antenuptial
contract or other transaction of a contractual nature.”
1.2
The purpose of this definition is solely to indicate which types of
documents are relevant to the Act and especially which types
have to conform to the formalities as stipulated by section 8 of
the Act. The Act’s definition, therefore, does not indicate the
essence of a will.
1.3
Several writers have, however, provided their own definitions. The
following two are worth noting:
a) A last will and testament, commonly called a will, is a document
executed in the manner prescribed by law by a person, called
the testator, concerning the disposition of property and other
matters within his control, to take effect after his death.1
b) A will is a declaration in writing made by a testator regarding the
devolution of his assets after his death which complies with the
law and is made animo testandi (with the intention of making a
will).2
1.4
The basic prerequisites for the validity of any testamentary
document that may be gathered from these definitions are:
a) the testator must have the free and serious intention to execute a
will (he or she must have animus testandi.
b) the testator must have made the declaration voluntarily.
1
J. Jamneck (Ed) et a tal, The Law of Succession in South Africa, 3 rd Edition, Oxford University Press, 2017.
63.
2
Ibid
1
Additional requirements for a valid will are prescribed in the Wills
Act, namely:
c) the testator must have testamentary capacity prescribed in
section 4 of the Act
d) the will must comply with the formalities prescribed by section 8 of
the Act.
2.
2.1
ESSENTIAL ELEMENTS FOR A VALID WILL
Animus testandi
2.1.1 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.
2.1.2 In the old South African case of Sim v The Master 1913 CPD 187,
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 thought 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.
2.1.3 Without the requisite animus testandi, a will created by a
deceased is void ab initio.
2.1.4 A lack of animus testandi may be 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 void ab initio. In such a case, the testator’s
2
mistake leads to a total lack of animus testandi. However, where
a testator makes a will because of a mistake in the testator’s
motivation, he or she still has animus testandi and the will is valid.
Evidence may be led in court to establish whether the deceased
had the requisite animus testandi if this issue is disputed.
2.1.5 A similar situation exists where a testator executes a will while in a
state of fear due to duress – he or she does not have the requisite
animus testandi and the will is also invalid ab initio.
2.1.6 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, however, 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.
2.2
Volition/ choice
2.2.1 From the definitions of a will supra, it is clear that the expression of
a testator’s own free will is an important element for establishing a
valid will. 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.
2.2.2 Justice Chirawu in Principles of the Law of Succession in
Zimbabwe: Incorporating the Women’s Rights Perspective, WLSA,
2015 at page 70 argues that the expression of a testator’s wishes
must be the result of the exercise of the testator’s own volition.
2.2.3 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.3 If it can be proven that a testator made a will
3
Spies v Smith 1957 (1) SA 539N(A)
3
as a result of one of these factors, such a will is invalid because it
expresses someone else’s will or volition.
2.2.4 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 the invalidity of
a will. A person may therefore have the freedom to make a will,
but may nevertheless lack the capacity to do so.
2.2.5 From Kirsten v Bailey 1976 (4) SA 108 (C) at 111A, 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:
“I 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.”
2.3
the testator must have testamentary capacity
2.3.1 Section 4(1) of the Act defines testamentary capacity as follows:
Subject to this Act, every person who is of or over the age of
sixteen years may make a will unless at the time of making the will
he is mentally incapable of appreciating the nature and effect of
his act.
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2.3.2 It is clear from the Act that a testator must be 16 years of age to
execute a valid will. As the making of a will is a unilateral legal act
that is dependent on the forming of one's own volition, a person
under the age of 16 is incapable of making a will, even with the
assistance of a parent or guardian.
2.3.3 Any document drawn up and executed by a person without
testamentary capacity cannot be valid even if it complies with
the other formalities required by the Wills Act. Consequently,
testamentary capacity is a prerequisite for making a will.
2.3.4 Justice Chirawu in Principles of the Law of Succession in
Zimbabwe: Incorporating The Women’s Rights Perspective, WLSA,
2015 at page 69, argues that lack of capacity is absolute at the
time and subsequent attainment of capacity does not
automatically validate the will. It must be properly executed.
2.3.5 The burden of proof that that person was mentally incapable at
that time shall rest on the person alleging the same.4
2.3.6 Section 4 of the Act makes it clear that, apart from the age
requirement, the only requirement for testamentary capacity is
that the testator, at the time of executing the will, should not be
‘mentally incapable of appreciating the nature and effect of his
act’.
2.3.7 The only test required to prove testamentary capacity is whether
or not the testator had all his or her wits about him or her (in other
words, was sane or compos mentis) when he or she executed the
will.
2.3.8 The courts have identified the following factors that need to be
considered when determining if a testator had testamentary
capacity at the time of executing a will:
a. general mental and physical condition.
b. general intelligence, memory and capacity to understand the
legal implications of their acts.
4
See, section 4(4) of the Wills Act
5
c. general conduct.5
NB. These factors should be distinguished from factors indicating that
the testator did not exercise his or her own free will in making the will.
2.3.9 In Spies v Smith 1957 (1) SA 539 (A), the Court separated the
grounds for invalidity argued before it in favour of a finding that
Spies had no testamentary capacity. The Court indicated that it
was argued as the first ground for invalidity of the will that Spies,
because of his mental disabilities, did not understand the nature
and effect of his actions. This, however, was not proved and the
will was not held to be invalid due to a lack of testamentary
capacity. As the second ground, it was argued that the will was
invalid because of the undue influence that was exercised on the
testator. On this ground, the Court held that the influence was not
of such a nature that the will no longer contain the free will of the
testator. Consequently, the will was also not invalid on this
ground.
2.3.10
The testator’s testamentary capacity should be established
at the time of execution of the will. Section 4 Act specifically
requires the testator to have had the necessary testamentary
capacity at the time the will was executed. This means that the
testator must be of sound mind when he or she and the witnesses
sign the will. The testator’s mental condition at the time of giving
the instructions for the drafting of the will is therefore irrelevant.6
2.3.11
It is a general principle of our law that there is a
presumption that a will that is complete and regular on the face
of it is valid. (See Thaker & Ors v Naran & Ors 1993 (4) SA 665) It is
also trite that the onus of proving the capacity of a testator rests
on the person who alleges it.
2.3.12
Further, in the case of Ngwenya v Ngwenya & Ors 2000 (1)
ZLR 117 the court stressed the need for medical evidence in cases
where a will is being challenged on the basis of mental
incapacity.
5
6
See, Tregea v Godart 1939 AD 16.
Essop v Mustapha and Essop 1988 (4) SA 213 (D) at 222.
6
2.4
the will must comply with the formalities prescribed by section 8
of the Wills Act
2.4.1 When a testator executes his or her will, it has to be done in
accordance with certain rules set out in the Wills Act. Lawyers
refer to these rules as the formalities for the execution of a will.
2.4.2 A will that is not executed in accordance with the formalities
required by the Wills Act is invalid. In other words, it is of no force
or effect, and its contents are ignored unless there is a court order
that, in terms of section 10(5) of the Act, they will be accepted as
if it had been validly executed. In this way, the law attempts to
ensure that there is reliable and permanent evidence of the
testator’s testamentary intentions.
2.4.3 It is important to note that even if a will is formally valid, it is
possible that the contents of the will do not comply with the law
in some way. For example, if a testator bequeathed his or her
entire estate to an international terrorist organisation for the
purposes of advancing its unlawful aims, the will would be
formally valid if it was properly executed. However, its contents
would be unlawful and invalid, and would not be implemented.
Such a will is said to be substantively invalid.
2.4.4 Further, section 5(3)(a) of the Act provides that the testator must
not include in the disposition by will property belonging to the
other spouse except with his or her consent. Disposition of
property belonging to someone through a will render such a will
invalid.
2.4.5 Formal validity and substantive validity are entirely different
concepts – formal validity refers to whether or not the will
complies with the formalities, while substantive validity refers to
whether or not the contents of the will are lawful.
2.4.6 The execution formalities required by section 8(1) of the Wills Act
may be summarised as follows:
a. The will must be in writing
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b. It must be signed at the end thereof by the testator himself or
herself, or an amanuensis7 on each page of the will as closely as
may be to the end of the writing on the page concerned.
c. If the will comprises more than one page, every page other than
the last must be signed anywhere on the page by the testator or
the amanuensis.
d. Note that the last page of the will must always be signed at the
end as explained above. The signature of the testator or the
amanuensis must be made (or acknowledged) in the presence of
two or more competent witnesses. Such witnesses must attest and
sign the will in the presence of the testator and each other, and
(where applicable) of the amanuensis.
e. Where the testator signs with a mark, or amanuensis signs for the
testator, a commissioner of oaths, a magistrate, presiding officer
of a community court, justice of the peace, commissioner of
oaths or designated official, must be present and certification
formalities apply. His or her duty is to certify on the will that he/she
has satisfied himself/herself as to the identity of the testator and
that the will is the testator’s will; and signs each page of the will.
IMPORTANT TO NOTE!!!!!!!!!
2.4.7 It suffices to note that an appropriate court, on being satisfied
that the will is the testator’s will and that it was duly made by the
testator, declares the will to be a valid will.
2.4.8 Section 8(4) of the Act makes it clear that a will shall remain valid
despite the fact that the competent witnesses who sign it were
unaware of the contents of the will or were not aware that the
document they were signing was a will.
2.4.9 The testator’s signature is usually followed by a formal attestation
clause in which the witnesses declare that the testator signed (or
acknowledged signature) in the presence of the witnesses, then
7
someone who signs the will on behalf of the testator
8
present at the same time who in the presence of the testator
have subscribed their names as witnesses.
2.4.10
2.4.11
A will need not be dated though it is preferable to do so.
More interesting, it is now settled position that disinheritance
of a surviving spouse has no effect on the validity of a will. A
surviving spouse can be a subject of disinheritance by a will
complying with the formalities of a valid will.8 Thus, the
requirements for the essential validity of the will are not to the
effect that the testator must leave his or her estate to the
surviving spouse.
END………………………………………………..
8
Chigwada v Chigwada and Ors SC 188/20
9