Drafting wills – what to consider

September 1st, 2019
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For most people, drafting a will is a very emotional process. Not only do you have to confront the notion that you will no longer be there for your loved ones, but you will also need to decide what will happen to all your earthly possessions after you pass on. When drafting a will, or giving a legal practitioner the instruction to do so, you are fairly confident that certain persons mentioned in your will will receive a certain benefit and will be, in some way, entitled to it. But, according to South African law, you will need to take certain factors into account to ensure just that.

Firstly, it is important to note that if a beneficiary is to receive a benefit from your will, the beneficiary cannot sign your will as a witness or write your will on your behalf, either wholly or partially. In terms of s 4A(1) of the Wills Act 7 of 1953 (the Wills Act), any person who signs a will as a witness, or writes it wholly/partially out in their handwriting, is disqualified from receiving any benefit from that will. Fortunately, as with most things in law, there are some exceptions listed in s 4A(2) of the Wills Act, which include:

  • A court can declare a person (or the testator’s spouse) who signed the will as a witness or who wrote out the will (or any part thereof) in their own handwriting to be competent to receive a benefit from that will, if the court is satisfied that there was no undue influence and/or fraud.
  • A spouse who would have inherited in terms of intestate succession laws will not be disqualified insofar that the benefit they would have received in terms of the will is not greater than that which they would have received in terms of intestate succession laws.
  • A person or spouse of the testator will not be disqualified if two other witnesses (who will not inherit from the testator) sign the will.

In the unreported case of Van Der Watt v Die Meester van die Hooggeregshof: Pretoria en Andere (T) (unreported case no 39934/05, 15-2-2007) (Dunn AJ) the applicant was not only an heir, but also a witness to the testator signing his will. She and the testator were not married but lived together for approximately 20 years. The testator’s daughter and son-in-law (the third and fourth respondents) objected to the applicant inheriting, although the Master of the High Court (the first respondent) and the executor of the will (the second respondent) did not object. The applicant’s legal team relied heavily on s 4A(2)(a) of the Wills Act for relief, but the third and fourth respondents contented that the applicant and testator had only lived together due to economic reasons and not as ‘husband and wife’, and that the applicant manipulated the testator. The third and fourth respondents did not succeed with their contentions. The court ruled that the testator and the applicant had lived together as husband and wife and that there was no undue influence and manipulation on the part of the applicant. The court ruled in favour of the applicant and she was not disqualified to inherit, even though she did sign the will as a witness.

In Opperman v Opperman and Others (FB) (unreported case no 3659/2015, 3-3-2016) (Van der Merwe J) the applicant –  this time the surviving spouse of the testator – signed the will as a witness and was to receive a benefit in that same will. The children of the testator’s previous marriage opposed the application in that the applicant should be disqualified in terms of s 4A(1) of the Wills Act. Again, the court declared in terms of s 4A(2)(a) of the Wills Act that the applicant was competent to receive a benefit from the will, as she did not defraud or unduly influence the testator in the execution of the will.

Secondly, there is the somewhat tricky concept of s 2B of the Wills Act. It provides that if you die within three months of becoming divorced, your ex-spouse will be deemed to have predeceased you. Thus, if you have bequeathed a benefit in terms of your will to your ex-spouse, for up to three months after the divorce, the will would be interpreted to exclude the ex-spouse, namely, the ex-spouse will not inherit. If the spouse is, however, a beneficiary after three months of your divorce, it will be interpreted that you intended for your ex-spouse to still receive a benefit from your will. The position of s 2B of the Wills Act was considered in Louw NO v Kock and Another 2017 (3) SA 62 (WCC). In that case, the husband and wife were married for almost 30 years before getting divorced in October 2014. The husband passed away of natural causes in January 2015 and the surviving ex-wife insisted on inheriting in terms of the joint will, in which she was the sole beneficiary. The court ruled that and as Professor JC Sonnekus states in his article ‘Die doodgewaande gade en die wil van die testateur’ (1996) 59 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 294 the legislature created a three month ‘grace period’ during which divorcees could draft new wills, which take proper account of their altered circumstances. Failure to alter a will during the three-month period would leave the will – and any bequests to the ex-spouse – intact, should the testator die after the three-month grace period. The operation of the section leaves the remainder of the will unaffected and, therefore, other beneficiaries will still be entitled to the benefits allotted to them by the testator. The court found that the ex-spouse could not sufficiently prove that the testator intended her to inherit and she was excluded from doing so in terms of the will.

Then there is the age-old concept of de bloedige hand er neemt geen erffenis (the bloody hand does not inherit), which broadly entails that if you are the cause of the testator’s death, you will be excluded from inheriting, even if you are mentioned in the testator’s will. In Danielz NO v De Wet and Another; De Wet v Danielz NO and Another [2008] 4 All SA 549 (C) the wife of the testator was set to inherit in terms of the testator’s will and hired two men to assault her husband, who they then killed. Mrs de Wet was married to the deceased in community of property. The applicant was the nominee of Old Mutual Trust Limited and the executor of the deceased’s estate and applied for a declaratory order that Mrs de Wet was not entitled to the proceeds of the policies taken out on the life of the deceased. The court found in the executor’s favour.

In certain instances, the testator will definitely not be able to foresee the possibility of a beneficiary in terms of their will being excluded, for example, if the beneficiary was the cause of the testator’s death. Certain precautions can be taken to avoid any potential disqualification, such as to regularly update your will, to let two independent witnesses sign the will and to type the will out instead of hand writing the will out or letting anyone else write your will out. Undue influence of the testator is also a tricky, and somewhat emotional subject, but luckily there is a safety net that the Wills Act makes provision to disqualify any such persons who make themselves guilty of such conduct.

  • National Wills Week will take place from 16 to 20 September 2019. Visit the Law Society of South Africa’s website at www.LSSA.org.za for more information.

Elli Bissett LLM (UP) is a candidate legal practitioner at Henk Kloppers Attorneys in Pretoria.

This article was first published in De Rebus in 2019 (September) DR 6.