n Stellenbosch Law Review = Stellenbosch Regstydskrif - Kondonering van vormgebrekkige testamente? Vergeet dit!




Since the enactment of section 2(3) of the Wills Act 7 of 1953 by the amending Act 43 of 1992 some uncertainty was encountered on the requirements to be met before a court could even consider a document as the last will of the deceased if the document did not comply with the formalities of execution. In some decisions the courts held that the legislator's wording only allowed for the court to consider condoning the non-conforming to the required formalities if the document was drafted or executed by the deceased personally. This excluded a document from condonation if it was drafted by an attorney, the bank or the insurance company. This purported preliminary requirement also prevented a court from considering the reasons for or the circumstances surrounding the non-conformity with all the formalities. This would also exclude a mutual will from condonation if the document was drafted by the surviving spouse in an accident. This perceived requirement is not explicitly stated in the Act, but a strict interpretation of the words used by the legislature leaves room for such a restricted interpretation. In other cases, it was held that the legislature never intended to restrict the court's discretion in this rather formalistic way. <BR>In <I>Bekker v Naude&lt;/I&gt; (unreported decision of the supreme court of appeal dated 31 March 2003) the court held that the restrictive interpretation is correct. Unless the deceased had personally drafted/executed the document, the court will not even consider whether the document was intended to be his will. On the facts of this case, it is submitted that it was not necessary to revert to this so-called preliminary requirement to decide that the document in casu was not condoneable. <BR>This decision does remove any uncertainty as to the interpretation of this section to be followed in future ± but at a very high price. The majority of testators do not personally draft their wills. If the strict interpretation is applied, even the word processor's spell check and phrase memory may be sufficiently "impersonal" or "removed from the draftsman" to disallow a court from considering the document as intended will because it was not "drafted personally". Such an interpretation will limit the application of the section severely. <BR>If it is found that this interpretation clashes with the real intention of the legislature, it is up to the law commission to recommend an amendment to the act to remedy the problem. <BR>It is suggested that the legislature may also consider introducing legislation to regulate for a form of central registration of wills before the demise of the testator. Such a requirement can open a window of opportunity to scrutinize the document and the circumstances surrounding the drafting and execution of a document at a stage where the testator may still be available to clarify any uncertainties and to remedy any defects. This will also safeguard drafters of wills, including the banks and financial advisors who are currently operating in this business albeit often only for the lucrative appointment as executor, against potentially costly claims founded on negligence with the drafting of the will. The potential to transplant these claims that are gaining in popularity in English law should not be ignored.


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