Study Unit 3.3 Formalities in the Execution of Wills
A will must be done in accordance with certain rules set out in Wills Act, these are
formalities
Execution of a will: process through which T and other parties comply with all the
formalities required to bring a valid will into existence.
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For a will to be validly executed certain formality requirements must be complied with,
otherwise the will shall be invalid and the T will die intestate unless the beneficiaries
bring a claim for condonation in terms of s2(3)
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S2(3) wont always be helpful, as one wont always obtain a court order, if possible the
process is time consuming and expensive
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Animus testandi: T must also have the necessary testamentary capacity and the will
must be a free expression of the wishes of T.
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Formality requirements contained in s2(1)(a) of the Wills Act
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A will complying with these requirements is known as a “statutory will” – only
recognised will in SA law
Formalities in the execution of wills (section 2(1)(a) of Wills Act)
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Purpose?
­ Aims at guarding against fraud and secures authenticity (protective function)
­ Warns T about the significance of their action to be undertaken (cautionary function)
­ Contributes to legal certainty and avoids disputes after death (evidentiary function)
Formalities? S2(1)(a)(i)-(v):
­ No will executed… shall be valid unlessi.
The will is signed at the end by T, or by someone else in their presence and by
their direction; and
ii.
Such signature is made by T or is acknowledged by T or such other person in the
presence of at least two competent witnesses, present at the same time; and
iii.
Such witnesses attest and sign the will in the presence of T and each other
(present at the same time) and if signed by someone else(other than T), then also
in their presence; and
iv.
If the will consists of more than one page, every other page other than the page
the will ends is also signed by T or such other person anywhere on the page; and
v.
If the will is signed by T by making a mark or, someone else signs on his behalf, a
Commissioner of Oaths certifies that they are satisfied himself as to the identity of
T and that the will so signed is the will of T and each page of the will excluding the
page on which the certificate appears, is also signed anywhere on the page, by the
commissioner of oaths
Formalities in the execution of wills
So how may a will be executed? – s2(1)(a)
1. Signed by T with his own signature in the presence of two competent witnesses
(s2(1)(a)(i)-(ii))
2. Signed by someone else on his behalf and by his direction (amanuensis) in the
presence of
 Two witnesses (s2(1)(a)(ii)); and
 The commissioner of oaths (s2(1)(a)(v)) – with necessary certification
3. T makes his signature in advance and later acknowledges such signature placed on
the will in the presence of two competent witnesses (s2(1)(a)(ii))
4. Person who signed on behalf of T can also later acknowledge such signature in the
presence of
 Two witnesses (s2(1)(a)(ii))
 The testator (s2(1)(a)(ii))
 Commissioner of oaths – with necessary certification (s2(1)(a)(v))
5. T signs by way of a mark in the presence of
 Two witnesses
 Commissioner of oaths – with necessary certification
Provided:
The Commissioner of Oaths is present when the will is signed by T with a mark, or another
person signs on T’s behalf; and
The certificate concerned is made as soon as possible after the will has been signed
If T dies before the certificate is made, it must be made as soon as possible thereafter
The certificate can be attached to any page of the will
If the will consists of more than one page, the Commissioner must also sign all the other
pages, other than where the certificate appear, anywhere on the page.
Method of execution
Testator signs with own signature
Persons present
Testator and two witnesses (s2(1)(a)(i)-(ii))
Testator signs with a mark
Testator, two witnesses and commissioner
of oaths
Testator, amanuensis, two witnesses and
commissioner of oaths
Amanuensis signs for testator
Formalities in the execution of wills
What is not required for the validity of a will?
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An attestation clause
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E.g. [Signed at ____________ on this day _____ of ______ in the presence of the
undersigned competent witnesses present at the same time…]
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In Thaker v Naran the court concluded that if the will appears at face value to have
been signed by T and 2 witnesses – then there is a presumption of validity (i.e. the
witnesses signed in each other presences). He who alleges the wills invalidity must
then prove so on a balance of probabilities.
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Date and place of execution don’t need to be mentioned
Does the will have to be a written document?
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Implied requirement: although s2(1)(a) does not expressly require a will to be
written or printed, the other requirements such as signing and the references to
pages implies that the will needs to be written
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Therefore; oral wills, DVDs, videos, audios, wills saved in electronic format on
a computer or Whatsapp or SMS’s will be considered as invalid forms as they
would be impossible to sign. (possible s2(3) condonation by court?)
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Therefore; Electronic Communications and Transactions Act is not applicable
to wills?
Problems?
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Many questions arise out of these formality requirements;
Where is the end?
Meaning of ‘sign’ and ‘signature’?
How must T, amanuensis, witnesses, commissioner sign?
Where on the will should the witnesses sign? Must they also sign each page if the
will consists of more than one page?
What does attest mean?
What is the wording of the certificate by commissioner?
Meaning of ‘sign’ , ‘signature’ & ‘mark’
Who signs?
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Definition of “sign” in terms of s1 of the Wills Act:
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Includes the making of initials and, only in the case of the T, the making of a mark
(doesn’t include making of a mark in the case of a witness)
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“signature’ has a corresponding meaning
Dictionary meaning of “signature”:
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A persons name written in a distinctive way as a form of identification
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In Jhajbhai v The Master the court held that a signature need not even be the full
name of the signatory – it may even be a pseudonym. As long as the signatory
intends the mode of writing to be their signature, it is effective as such.
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Signature and mark drew corresponding meanings with regards to the T, the
person might use a function as a signature (thumbprint)
Definition of “initializing”
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Act is silent
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Dictionary meaning: one or more of the first letters of a persons name or names
used without adding a surname (e.g. Sarah Jessica Parker will have the initials, SJP)
Printed letters
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E.g. SARAH JESSICA PARKER – In Ricketts v Byrne the court regarded this as invalid.
It might constitute a “mark” but then other requirements must be met
How should an amanuensis sign?
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Do they sign with their own name or with the name of the T?
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May do either way; if they sign with their own name, it is custom to use the
abbreviation p.p (per procurationem) to indicate that they sign in a representative
capacity
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What does the concept of a “mark” mean?
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The definition of “sign” in s1 of the Act only stipulates the T as the only one who may
sign by making a mark
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Mark is usually, but not always, made by making a cross ‘X’
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Can include a thumb print or rubber stamp
If T signs by making a mark then further requirements must be satisfied;
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The Com of oaths must be present and they must do the necessary certification
Where is the end of the will?
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In terms of s2(1)(a)(i) the T or person signing on their behalf… must sign at the end of
the will
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Interpreted literally
Kidwell v The Master
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The T signed 9cm away from the end of the written part of the will
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Declared invalid – the signature did not appear as reasonably close to the end
of the written part of the will
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Therefore: for T , the ‘end of the will’ is where the written portion of the
will ends and not the bottom of the page
Witnesses
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In terms of s2(1)(a)(ii), the signature of T must be made or acknowledged in the
presence of two or more competent witnesses present at the same time; and
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Who is a competent witness?
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In terms of s1, it means a person of the age of 14 or over who at the time of
witnessing a will is not incompetent to give evidence in a court of law
What does “attest” mean?
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(iii) such witnesses must attest and sign the will in the presence of T and each other
The act of witnessing T sign
What does “presence” mean?
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Seems sufficient where witness is in the same room as T and either actually saw
them sign or could or might have done so. Not essential that T should actually see
witnesses sign either – as long as they sign where they could have seen them.
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Karani v Karani the witnesses signed the will days after each other and not in each
others presence – held to be invalid
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Where should the witnesses sign on the last page?
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Liebenberg v The Master
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Not touched in s2(1)(a)(iii) – specific requirement for T but not for witnesses
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Court held that the witnesses may sign anywhere on the last page
Should witnesses sign every page?
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Karani v Karani; Contested
Attestation clause
“Thus signed at Pretoria on this 10th day of August 2019 by the Undersigned T and witnesses
in each others presence”
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Not specifically required by the Act, not needed for validity.
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Sterban v Dixon
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The attestation clause is at most a record of how T (and witnesses) intended to
sign
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Isn’t proof of that parties in fact executed the will in accordance with the
intention expressed in the clause
Other aspects regarding witnesses
They do not need to know that they are attesting and aligning a will
They do not need to have knowledge of the content of the will
May a witness also be a beneficiary of that will? (s4A)
Yes, the will shall be formally valid, but the witness cannot receive any benefit unless they
comply with certain exceptions.
Certificate by the Commissioner of Oaths
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When is this necessary?
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S2(1)(a)(v): when T signs by way of a mark, or when another person (amanuensis)
signs on their behalf – a commissioner of oaths must be satisfied as to the identity
of the T and that the will so signed is the will of T
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The Com. must then sign the will on each page (anywhere on the page),
excluding the page on which the certificate appears.
The Com. must be present when T signs by way of a mark
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But, the wording is not so clear when it comes to amanuensis.
NB: Presence of commissioner is not required where T signs using his signature and not a
mark
Who qualifies as a commissioner of oaths?
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attorneys, magistrates, advocates, police officers
Where on the will must the certificate appear?
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Can be appended on any page – commissioner must also sign all the other pages
anywhere on the page
What is the nature of this certificate?
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Not a separate document
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It refers to a certain wording with a certain content that the commissioner either
writes, types, prints or impresses with a rubber stamp
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Re Jennet 1976
Acting as Commissioner of Oaths?
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The Commissioner must make it clear that they act in their capacity as
commissioners of oaths and not as attorneys/advocates even though they might be.
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Radley v Stopforth
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Administrative officer of a hospital, but also commissioner of oath, signed will
as administrative officer
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Court held the certificate as invalid as the Com must state they are acting as
commissioner of oaths
Jeffrey v The Master
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Commissioner wrote; “Mr Jeffrey, practicing attorney…”
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Made for an invalid certificate and deceased died intestate
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However, today there is the possibility for condonation (s2(3)).
Can a Commissioner sign as a Commissioner and a witness?
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No – there must be a Commissioner AND two witnesses.
When must the certificate be appended?
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ASAP after T signed with a mark or someone signed on T’s behalf.
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If T dies before certificate is appended, it must be done ASAP thereafter
Condonation of Wills s2(3) of the Wills Act
Condonation
Section 2(3) of the Will Act reads;
“If a court is satisfied that a document or the amendment of a document drafted or
executed by a person who has died since the drafting or execution thereof, was intended
to be his will or an amendment of his will, the court shall order the Master to accept the
document, or that document as amended… as a will, although it does not comply with all
the formalities for the execution or amendment of wills…”
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Which court?
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Aim?
When will section 2(3) be applicable?: For the noncompliance of s2(1)(a) (formalities) and
s2(1)(b) (amendments)
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NO CONDONATION OF TESTAMENTARY INCAPACITY. i.e. cannot condone a will
executed by a person who had no testamentary capacity at time of execution.
NB: section peremptory.
S2(3) considered a rescue provision
Condonation
(1) First Requirement: there must be a written document
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Condonation of oral wills not possible.
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No definition of document but wide interpretation from case law (can include
email/letter/computer file/diary entry/WhatsApp).
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HOWEVER; 2 situations arise
1. A document is drafted by someone on instructions of T, where there is partial
compliance with formalities it can be condoned
2. A document is drafted but no formalities have been complied with;
- Personally drafted: can be condoned
- Drafted by someone else: cannot be condoned. Why? - interpretation of s2(3) from
case law (see Part 2).
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Macdonald v The Master; Van der Merwe v Master of the High Court (NB!!)
Macdonald v The Master
Deceased types his wil on office computer and saved without printing it. He committed
suicide and left a note alerting family to saved document. The security arrangements around
deceaseds computer made it clear the will was drafted by the deceased. An order in terms
of section 2(3) was granted. There was a document in existence in the everyday sense of the
word document.
Van der Merwe v Master of High Court
The deceased wrote an email containing his will and sent it to his friend who was going to
be his sole benificiary. There was no evidence he ever printed or executed the will before he
died. It existed merely as a data file. The SCA was convinced he intended the email to be his
will and it made an order in terms of section 2(3)
(2) Second requirement: drafted or executed (by a person who has died since the drafting or
execution thereof)
(i) Drafted:
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No definition of drafted in the Act
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What does this mean?
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A document formulated or written down by
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T; or
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Someone else on the instructions of T
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Usually a draft is only a document – thus no formalities have been complied with.
NOTE – INTERPRETATION OF DRAFTED BY A PERSON WHO HAS SINCE DIED IS
INTERPRETED VERY STRICTLY (SEE PART 2)
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With a draft, we look for the following;
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Did T draft the will themselves? If yes, condonation is possible
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If the will is drafted by someone else (attorney/bank/friend) on the
instructions of T and again, no formalities have been complied with –
condonation not possible. (Bekker v Naude)
(ii) OR (Partially) Executed:
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Process of compliance with the formalities in s2(1)(a) has started but not finished
e.g. T signed but no witnesses signed i.e partial execution.
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NOW: document drafted by attorney (with partial execution/compliance with
formalities) may be condoned ito s2(3)
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CONFLICTING CASE LAW; WEBSTER & BACK BUT NOW LEGAL POSITION STANDS
WITH CASE OF BEKKER V NAUDE