ERF Chapter 3
Law of Testate Succession = those legal rules or norms that regulate the devolution of a
deceased person’s estate on one or more persons (beneficiaries) according to the testators
wishes as expressed in a will.
1. Testator (T) must draft their will.
 Draft = write down/formulate/dictate
2. After drafting, T must execute their will.
 Execute = process of complying with formalities in s2(1)(a) of Wills Act 7 of 1953
3. Sent to the Master of the High Court to check validity
What happens if will is invalid? (i.e. does not comply with s2(1)(a))
= Will is declared invalid and T dies intestate
BUT; beneficiaries can bring s2(3) application to ask the court to condone the document
intended to be a will (rescue provision)
The court must with regards to s 2(3) be satisfied that
1. The document was drafted or executed by a person
2. Who has since died
3. And that person intended the document to be his will.
SA law only recognizes a so called ‘statutory will’
Section 1 of Wills Act
Will: includes a codicil and any other testamentary writing
Common law definition = a unilateral and voluntary expression of the wishes of a T, in a
legally prescribed way that determines what must happen to his property after his death
Elements of a will?
1. Serious intention (animus testandi) to execute a will
2. The declaration must be voluntary
3. Ito s4 of the Wills Act, T must have testamentary capacity. Note: the fact that you
have animus testandi does not mean you the capacity to make a will.
4. S2(1)(a) formalities must be complied with
Animus testandi (intention to make a will)
Core requirement for validity of a will
Must intend to provide for devolution of assets, but must have the intention to do so by
means of a will. i.e. a document in a legally prescribed manner by which a person provides
what is to happen with their assets after their death.
No animus testandi = invalid ab initio (from outset)
Lack of animus testandi can be caused by mistake, force (coercion), fraud or duress.
Sim v Master
The court decided that a unsigned document left by T which provided for several charitable
bequests was not a valid charitable will as it appeared the testator intended to sign the
document at a later stage. At that stage, charitable wills were seen as privileged wills witch
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 toward the document. The court saw the
completion of the formalities as the expression of the deceased’s animus testandi
Volition (free choice; free will)
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Important that the will is an expression of the T’s own free will. Otherwise the will is
invalid.
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Volition/free will can be absent in the instance of undue influence, coercion and
fraud.
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Undue influence is only considered after the necessary animus testandi has been
determined. So, T has intention of make a will but has been unduly influenced to
the effect that the will is an expression of another persons wishes.
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Example: Making a terminally ill person believe that you are the only person
prepared to look after them and that they have been abandoned by everyone
else.
Spies v Smith
The court explained the role of undue influence and asserted that not each and every
interference with a testator 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 testators will is substituted by the will of the person guilty,
there is undue influence leading to invalidity of he will. The fact that parties are in a
particular relationship is also not enough to indicate undue influence. It is a factor to be
taken into account along with other factors, such as 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
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 (having full control of ones mind). The court declared
I am satisfied on all evidence that the testatrix supervening physical infirmity had by them
so diminished her congenitally limited intellectual faculties, and had so disturbed what
remained of her mind and memory, that she no longer possessed the mind required for
testamentary capacity. In my view the role which the first defendant played aggravated this
confusion with the mind.
I am furthermore of the opinion that 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.
Differences between animus testandi and volition
Animus Testandi
Volition (or choice)
The intention to make a will
Force or coercion, mistake, fraud or duress
can invalidate a will because of a lack of
animus testandi
Undue influence is only considered after it
is asserted that the testator did have
animus testandi, where the question then
becomes one of volition
The testators own free will
Force or coercion, fraud or undue influence
can influence volition
Undue influence could effect volition so
that the testator no longer expresses his
own free will
s1 of the Wills Act : “codicil and any other testamentary writing”
Because these fall within the definition of a will – they are the documents that must comply
with s2(1)(a) formalities. S2(1)(a) states that “no will shall be valid unless…”
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Codicil = any addendum or annexure attached to a will normally dealing with an
amendment of a will or additional bequests wrt newly acquired assets.
Example of codicil:
A testator made a will on 1 August 2000 and, in clause 5, he left his daughter R 50 000. 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 R 50 000 to R 100 000, and hereby confirm my said will of 1 August
2000 in all other respects”. The codicil would constitute a will for the purpose of the Wills
Act and would have to be executed with the same formalities as any other will.
Ex parte Davies
The testator 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
executor’. When executing his will he gave a envelope to his executor that was opened after
his death containing the identity of the secret beneficiary. The court had to question
whether this letter was a valid identification of the beneficiary. It was argued by counsel
that the gift of the property itself was contained in the will and that, therefor, 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. Accordingly, the letter constituted a
testamentary disposition which was invalid because of a failure to comply with the
formalities of a valid will.
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, e.g ownership, usufruct or fideicommissum
3. The identity of the beneficiary
Example of testamentary writing:
Thandi states in her will that her jewellery, of which she attaches photographs, is to go to
her niece, Cloe. The will itself is signed by the testator and two witnesses. The question is
whether the attached photographs qualify as testamentary writing 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 Cloe. Because they describe the property bequeathed, the
photographs qualify as testamentary writing and therefor have to comply with the
formalities of the act.
Oosthuizen v Die Weesheer
The testator has attached a sketch plan of the property bequeathed in the will. The court
decided the sketch qualified as testamentary writing and therefor had to comply with the
same formalities as the will. Consequently a list of assets for distribution, which are
attached to the will, will have no effect if the list doesn’t comply with the same formalities
required for a valid will. The reason is that such a list qualifies as testamentary writing
because it expresses the testators intention to bequeath the property described in such a
list. Such a list therefor complies with one of the requirements for testamentary writing and
consequently has to comply with the formalities for a will to be valid.
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Therefore no definition in Act, but courts have defined it as a document which describes
any of the 3 necessary elements of a bequest. For a bequest to be complete it must
indicate:
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The beneficiary
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The assets
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The extent of the benefit
Therefore: because the documents in Ex Parte Davies (identifying the beneficiary) and
Oosthuizen v Die Weesheer (indicating the extent of the benefit that must accrue to
specific beneficiary) were necessary to complete a bequest, those documents also had
to comply with s2(1)(a) formalities.
Any other testamentary writing cont.
What does this mean? If any document containing one of the elements above is
incorporated in a will by T referring to it, such document must also comply with the
formalities.
Note: English law of the Doctrine of Incorporation by Reference is NOT a part of SA law.
Single Will; Joint Will; Mutual Will
Single will:
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Document, drafted and executed as a will, containing an exposition of the testamentary
wishes of only one person
Joint will:
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More than one person stating their testamentary will on one (1) document.
Executed only once.
Each T can freely revoke/amend will without consent or knowledge of the other
Represents as many will as there are testators.
Example?
Mutual will:
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A mutual will is a joint will in which two or more T’s have mutually benefitted each
other.
Example?
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A mutual will is always a joint will, but a joint will isn’t necessarily a mutual will.
Examples of a joint will and a mutual will
Two sister, Catherine and Debbie, decide to creates their will’s in one document. Cathrine
decides to leave her entire estate to her niece, Joy. Debbie leaves her entire estate to her
cousin Bob. The will is therefor a joint will. However, if cathrine had left her entire estate to
Debbie, and Debbie had left her entire estate to cathrine then it would have been a mutual
will.
Adiation and Repudiation
A beneficiary is under no obligation to accept a benefit. When the estate ‘falls open’ they
have the choice to either adiate or repudiate
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Adiation:
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Acceptance of a benefit by a beneficiary
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Adiation is generally assumed
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No formalities required, it is inferred from conduct
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Exception: If there is an obligation attached to a benefit or in the event of Massing
of Estates, then adiation must be done in writing
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Referred to as Doctrine of Election
Repudiation
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No inferred from conduct, written proof of repudiation is required
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The beneficiary must give written proof, can’t do nothing – adiation is then assumed!
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If repudiate part of the benefit, cannot receive any other benefit given to them ito will.
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Effect of repudiation? Varies depending on provisions in will and on circumstances
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Will might make provision for a substitute (s1(7) in the event of intestate
succession)
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If will is silent: Statutory substitution ito s2C(2) of the Wills Act
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If statutory substitution is not possible, then Common Law Accrual
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If no Accrual, then it forms part of residue
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If T did not make provision for residue then intestate succession as a last resort
Formal Testamentary Capacity
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Required for a will to be valid
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Just because you have animus testandi does not mean that you have testamentary
capacity to make a will
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s4 of the Wills Act states:
“Every person of the age 16 or more 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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The Master of the High Court will accept that the will received was executed with the
necessary testamentary capacity.
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The issue of a testator’s testamentary capacity will only arise if someone approaches
the court with an application contesting the validity of the will based of a testators
lack of testamentary capacity. Why? Rest of s4….
“… and the burden of proof that he was mentally incapable at that time shall rest on the
person alleging the same.”
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Masters office is therefore, only concerned with whether the formality requirements
have been met. Does not check for testamentary capacity.
2 aspects:
1. Age
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Person under 16 years of age is absolutely disabled to make a will, even if assisted by
parents
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Ratification, by a court, of a will made by a 15 year old after they turn 16 is not
possible
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Person of age 16 can make a will without the assistance of their parent/guardian
2. Mental capacity (must be mentally capable)
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T must be mentally capable of understanding the nature and effect of their act.
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When? At what stage must they be mentally capable?
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At the time of making of the will – meaning time of execution i.e. time of signing by
the T
Because of the explicit wording in s4, there is a rebuttable presumption that a will was
made/executed by a competent T i.e. a T who understood the nature and effect of their
actions (when making the will).
Therefore: person must challenge validity by alleging lack of testamentary capacity and
must prove such on a balance of probabilities
Factors that can give rise to mental incapacity
1. Mental illness
2. Consumption of alcohol/other drugs
3. Advanced age, illness, medication or a combination of these factors.
1. Mental Illness
­ Whether a person is mentally ill to such an extent that they are mentally incapable of
making a will is a question of fact i.e. it depends on the facts and circumstances of
each individual case
­ Question to ask: was the mental condition/impairment such that it lead to the mental
incapacity to make a will?
­ What factors have to be proven in order to prove that T was mentally incapable of
executing a will?
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Smith v Strydom
1. T did not understand the nature and consequences of the testamentary act performed
2. T did not know or could not remember that they owned bequeathable assets
3. T did not have the mental capacity to distinguish between the entitlements of persons
to whom they should bequeath property nor were they able to judge between these
entitlements.
Factors in Smith v Strydom confirmed in Spies v Smith and turned into a test for mental
incapacity (ito testamentary capacity)
Note: mental illness can naturally have a variety of causes, but the emphasis here is on cases
where the mental illness was such that it impacted the T’s ability to perform the act of
testation. Therefore: mental illness must not be interpreted too widely (Spies v Smith)
Spies v Smith
Court confirmed factors in Smith v Strydom and further articulated the test for mental
incapacity as being:
1. Whether T understood the nature and effect of the testamentary act
2. Whether T was able to distinguish between possible heirs
3. Whether T was able to understand the nature, extent and value of his assets
Court held that mere fact that someone has a mental disability does not mean that they are
mentally incapable of appreciating the nature and consequences of their act.
Held further, the mere fact that someone is placed under curatorship in so far as their assets
are concerned does not mean they are mentally incapable of making a will per se.
Can a person who has been declared mentally ill by a court make a will?
Differing opinions by academics
2. Consumption of alcohol/other drugs
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A person who is so intoxicated or under the influence of drugs that he is not in
possession of all his faculties, is incapable of making a will
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BUT; mere fact that alcohol/drugs have been consumed prior to making a will is not
sufficient to show absence of testamentary capacity – depends on facts and
circumstances. Remember test and what must be proved.
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Thirion v Meester
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It was alleged that the T drank heavily during the period that the will was made
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Court emphasized that in the absence of specific evidence that could indicate the effect
of the alleged alcohol consumption on the T during the testamentary act, the court was
not prepared to find that the T did not have the capacity to make a will.
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Consumption of alcohol cannot in itself invalidate juristic acts
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The question to ask is whether the T did not understand the nature and extent of their
actions, due to the consumption of alcohol/drugs?
3. Old age, illness and/or a combination of these factors
Essop v Musthapa and Essop
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Facts?
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Court: the mere fact that the mental capabilities of a testator are reduced below
that which they were, either because of disease/old age/illness or for some other
reason, does not mean that he is thereby incapable of appreciating the effect of the
will he is executing
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Depends one again on the facts and circumstances of each case
Katz v Katz
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Facts?
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Court: an applicant must show a lack of appreciation by T of the nature of the
transaction itself, the act of disposing of ones property after one’s death to named
beneficiaries; the ability to distinguish between potential heirs and to make a
rational and reasoned decision as to their respective claims to the assets; and finally
the ability to appreciate in broad terms the nature, extent and value of his assets.
Harlow v Becker
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Facts?
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Court decided that when the deceased signed the disputed document she was,
because of her enfeebled condition, unable to form a rational appreciation of the
claims of those who were her heirs under her previous will and unable to form an
intelligent purpose of depriving them of their inheritance.
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BUT everything depends on the facts and circumstances. In all 3 cases above , the
same combination of circumstances were present. However, applications for the will
to be invalid failed in both Essop and Katz although it succeeded in Harlow based on
the overwhelming evidence
Factors influencing free testamentary expression
(Remember) one of the requirements for a valid will is that the T must have made the
declaration of his last wishes voluntarily (expressed his wishes freely) – must constitute a T’s
free will
NOTE: lack of testamentary capacity and lack of volition are two separate grounds for
invalidity (normally put in the alternative)
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See Spies v Smith and Kirsten v Bailey
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When can it be said that the T lacked volition?
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Usually in cases of undue influence
Undue Influence
Spies v Smith
Defined undue influence (in a testamentary context):
“Where the T is moved by artifices of such a nature that they may be equated by reason of
their effect to the exercise of coercion or fraud to make a bequest which he would not
otherwise have made and which therefore expresses another person’s will rather than his
own”
= displacement of volition
BUT, there is a rebuttable presumption – the will reflects the T’s intention.
Onus of proof? Again, on person who alleges that there was no free expression of T’s
wishes.
Note: not every undue interference will constitute undue influence. In other words, forms of
flattery, professions of extraordinary love or respect, even direct requests will not
necessarily amount to undue influence.
Special relationship? Not necessarily.
E.g. Katz (husband/wife), Harlow (doctor/patient), Spies/Geldenhuys (curator bonis) Kirsten
v Bailey (close friend) etc.
Factors considered in determining whether there was undue influence
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Relationship
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Mental state of T
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Ability to resist
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Period between execution and death (possible time to change mind?)
Sometimes there is an interaction between T’s mental capacity (s4) and undue influence:
Kirsten v Bailey
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Facts?
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Evidence was brought by the medical doctor treating her as well as family members
etc. that the T, ill and lonely, had formed the delusion that she had been deserted by
everyone save the 1st defendant, that he was the only person who cared for her and
that he was going to marry her.
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Court: her physical weakness had by the time so diminished and enfeebled her
limited intellectual faculties, and had so disturbed and confused what remained of
her mind and memory, that she no longer had the disposing mind and memory
required for testamentary capacity
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HELD FURTHER: the role the first defendant played (in unduly influencing her)
aggravated the confusion in her mind – THEREFORE, will is also invalid based on
undue influence alone. Her enfeebled physical and mental state, AND inability to
resist influence made her susceptible to undue influence. In other words, the undue
influence contributed to her mental incapacity