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Unit5: Formalities fo Execution/Amendment of Wills Cheat Sheet by

Law of Succession UCT (PVL2003) Study Unit 5

Execution Formal­ities - Overview

Execution formal­ities outlines in s 2(1)(a) of the Wills Act 7 of 1953
Compliance is an absolute requir­ement - should they be faulted in anyway the will is declared invalid.
The essence of the execution formal­ities lies in the signing of a will by: testator, the person who signs the will on the testator’s behalf (amanuensis), witnesses and commis­sioner of oaths (COO)
What does signing of a will entail & what qualifies as a signature for purposes of s 1(1)(a) of the Wills Act?
- making of initials - unclear on writing out of full name and surname.
- making of mark (only testator) - typically X or thumbp­rint. Additional formality: COO needs to certify this.
- making of signature
Jhajbhai v The Master: Sign includes. usual signature as well as any other mode adopted by signer to write their name.
As such the following are examples: Abicha Tshaimala, actual signature, A.T.
amneck and Rautenbach (eds) The Law of Succession in South Africa (2009) 68: Anything besides name does not count (i.e. nickname doesnt count). however:
In Smith v Parsons nickname Wally was allowed for condon­ation of the document under s 2(3) of the Wills Act
-Unclear if same approach will be followed w signing of a will for the purpose of its execution in terms of s 1(1)(a) of the Wills Act
Ricketts v Bryne
Testator signed first page of will with regular signature but wrote out name & surname in full on second page
invalid: ‘Incon­cei­vable that testator in casu wrote names as signature, while on first page used normal signature
 

s 2(1)(a) of the Wills Act

S 2(1)(a)(i) - Five Issues:
1) Testator must sign Will in one of the four aforem­ent­ioned ways.
2) Amanuensis can sign on behalf of testator should they be incapa­citated
- Can sign the testators signature of any of the aforem­ent­ioned ways besides making a mark
- If they sign their name in block letters (Jhajbhai) they should follow it with p.p. (per procur­ati­onem)
3) Amanuensis must sign the will infront of the testator. The testator needs to be able to see the will or if they are blind they need to be in a position where they could if they werent blind.
4) If amanuensis signs will, the will needs to be certified by a commis­sioner of oaths
5) The will must be signed at the end thereof
- Kidwell v The Master: signature must appear as close as reasonably possible to the concluding words of the will
Examples on page 5 of notes
 
S 2(1)(a­)(ii): Four issues
1) Signature must be made in the presence of at least 2) two witnesses
- They can acknow­ledge a signature made without witnesses in the presence of witnesses
- Acknow­led­gement looks like the testat­or/­animus declaring that the signature is indeed theirs
3) "In the presence of" = witnesses must have seen the will being signed by amanue­nsi­s/t­estator or if blind.. etc.
4) Witness must be competent. Means they must be above 14 and competent enough to give evidence in a court of law.
 
S 2(1)(a­)(iii): 5 issues:
Witnesses must attest & sign will in presence of the testator, each other and amanuensis (if applic­able)
1) Witnesses who sign will must be the same in whose presense testat­or/­ama­nuensis signed the will
2) To attest means to act in the capacity of a witness
3) The witness's signatures serves to verify the authen­ticity of the testat­or/­ama­nue­nsis's signature only.
- They do not need to know the content of the will
4) In the presence of = meaning in S 2(1)(a­)(ii)
5) It is not expressly indicated where witnesses should sign.
- Generally accepted that they should sign the last page of the will - not indicated where on the last page
- They must sign after testat­or/­ama­nuensis sign in terms of time, so it makes sense that they sign after their signat­ures.
Liebenberg v The Master : Testator signed one-paged will at the end thereof but two witnesses signed at the top of the page above the wording of the will.
Found: It is sufficient guard against fraud if testator signed at the end of the will. Not justified to interpret the Wills Act so as to make it obligatory for the witnesses to also sign at the end of the will.
 
S 2(1)(a­)(iv): Four Issues
1) Each page other than the page on which the will ends, must be so signed by the testat­or/­ama­nuensis 2) anywhere on the page - customary to sign at the end.
3) Witnesses do not need to sign all pages - last page sufficient
4) So signed’ means that witnesses, when signing the will, must act in the presence of the parties stipulated in s 2(1)(a­)(iii)
 
S 2(1)(a­)(v): Deals with the certif­ication of a will
1) Which instances require certif­ication of a will? If (i) the testator signed it by the making of a mark & (ii) testator directed an amanuensis to sign the will on their behalf
2) Who must conduct the certif­ica­tion? A comiss­ioner of oaths.
- Radley v Stopforth: The certif­icate must express the commis­sioner of oaths’ capacity as such explicitly - even if they are an attorney.
3) What must the certif­icate indicate? That the COO has satisfied themselves w (i) the identity of the testator and (ii) that the will concerned is indeed that will of that testator
Example on page 9
4) Where must the certif­icate be placed on the will? Any page, however, the COO must sign each page other than the page on which the certif­icate appears. Can sign anywhere
5) When in the execution process must the certif­icate be placed on the will? At the same time compliance with the other formal­ities is effected.
- S 2(1)(a­)(v­)(aa): if certif­ication is required, it must be signed in the presence of the COO by the testat­or/­ama­nuensis & witnesses. It must be made asap after it was so signed by the testat­or/­ama­nuensis & witnesses.
- Exception s 2(1)(a­)(v­)(bb): if certif­ication required but testator dies after will signed by testat­or/­ama­nuensis & witnesses, but before the COO has made certif­icate, the commis­sioner shall asap after the death complete certif­icate & sign will on all pages other than certif­icate page
Examples pg10
 

Amendment formal­ities - 2(1)(b) of the Will Act

Amendment: Deletion, addition, alteration (changing words) , interl­ine­ation.
Interl­ine­ation: inserting new words between the lines of a will
Deletion: Deletion, cancel­ation or oblite­ration that does not intent to revoke the entire will
- If testator effects deletion that intends to revoke entire will, amendment formal­ities dont need to be complied with.
 
S 2(1)(b­)(i): The amendment must be identified by the signature of the testat­or/­ama­nuensis
S 2(1)(b­)(ii): The above signature must be made or acknow­ledged by signing parties in the presence of two competent witnesses
2(1)(b­)(iii); Amendment must be identified by the signatures of the witnesses & testat­or/­ama­nuensis
S 2(1)(b­)(iv): If the amendment is identified by the testator's mark or by the signature of an amanue­nsis, a COO must certify on will that they satisfied themselves w testator’s identity & that amendment has been made by/at request of the testator
- All parties must identify this in front of COO who must make certif­icate asap. If testator dies, they should make it asap after their death.
NB Example pg12 - 14
S 2(2):
-The amendment formal­ities apply only to amendments made after a will’s execution - if during no need for compli­ance.
- Because its not easy to determine whether amendments were made during or after a will’s execution, s 2(2) presumes that any amendment made in a will was effected after the will’s execution (and must, comply with amendment formal­ities)
- A rebuttable presum­ption & contrary can be proven by factual evidence. Here compliance need not occur
 

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