Contrary to popular belief, a document purporting to be a will can be regarded as a will even though the formalities required for the will to be signed as per the Wills Act, of 1953 have not been complied with.
The requirements for the valid execution of a will are:
- Signature by the testator in ink ( ie not electronically)
- On each page
- Witnessing the testator’s signature on the last page
If the Master of the High Court, to whom deceased estates are reported, is concerned about the validity of a document purporting to be a will due to non-compliance with the formalities, he may refuse to accept it for the purposes of the Administration Estates Act, 1965, until it’s validity, has been determined by the Court. An interested party (a nominated executor or a beneficiary) may in such a case approach the High Court for a ruling on the matter.
The Master’s acceptance of a will does not automatically mean that the will is valid. It would still be open to question by interested parties.
High court judgments that have been handed down on the issue of validity generally have a common thread running through them: if the document is intended to be a will and it is clear that that was the intention of the person signing it(the testator), it should be regarded as a will.
In LOGUE vs THE MASTER 1995(1) SA (N), it was held that failure to comply with the formalities should not frustrate the genuine intention of the testator. This judgment was applied in VD MERWE vs THE MASTER 2010(6) SA 544(SCA) where it was held that the true intention of the testator must be recognized notwithstanding noncompliance with the formalities if the document was self-evidently intended to be a will.
Such self-evident intention could be gleaned from the contents of the document. In SCHNETLER vs THE MASTER 1999(4) SA 1250 (C), it was held if the document contained a reference to the testator’s assets and provided for the devolution of those assets to specified beneficiaries, it should be treated as a will.
It is clear from the various judgements that have been handed down, that the courts will take a very restrictive stance in determining whether or not a purported will should be regarded as such. The circumstances surrounding the signature of the document are crucial in making this inquiry.