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n South African Law Journal - The implied revocation of a will : : notes

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Abstract

It is not often that the Supreme Court of Appeal ('SCA') is called upon to pronounce on the revocation of a will. One such case is 2011 (6) SA 338 (SCA) in which that court had to decide whether a later will made by a testator was intended to revoke an earlier will even though the later will contained no express statement of revocation.


In what follows the facts of will be set out in so far as is necessary and the principles relating to revocation of wills, and in particular implied revocation, will be summarised, with factual illustrations from the cases. Thereafter, the facts of will be analysed to determine the possible competing interpretations thereof. The conclusions by the Master of the High Court and court a quo (on the one hand) will be compared and contrasted with the different conclusion that was reached by the SCA, with a view to highlighting how the SCA differed from the Master and the court a quo in the application of the relevant principles. The judgment will then be evaluated, particularly in light of the previous decisions on the issue. Thereafter, the treatment of implied revocation in similar circumstances in English law will be explored with a view to highlighting an important point of difference between English and South African law relating to implied revocation. This is relevant because our courts from time to time refer to English cases as persuasive authority in the context of wills, owing to the considerable overlap between the two systems. Sonnekus has referred to the influence of English wills legislation on our 'wills-formalities' as substantial or fundamental. (J C Sonnekus 'Vereistes vir testamentsherroeping' 1982 110. The translation is mine. The term actually used by him in this context is 'wesenlik'.) Finally, some conclusions will be drawn on lessons to be learned from .

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/content/ju_salj/131/3/EJC159838
2014-01-01
2016-12-07
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