Have you ever wondered whether a simple hand written (last
minute) will may not do the thing instead of all the legal jargon
and formalities? The answer is yes it can perhaps but it comes with
a price. The Supreme Court of Appeal recently delivered a judgment
whereby the legal principles necessary for a valid will written in
her own handwriting by the wife of the deceased, was clearly
Two sisters whose father (the deceased) had married his second wife
out of community of property in a reconstructed family, approached
the Supreme Court of Appeal to have their father's will
In March 1995, the deceased executed a will (the first will), in
terms whereof he left to his second wife, his entire estate
(Comment- some will call it freedom of testation others will call
it declaration of war). In 2007, before embarking on a trip,
the deceased, led by a concern that something might happen to him
while away, expressed a wish to see the will made in March
1995. As it could not be located, he dictated a second will,
which his second wife wrote out in her own handwriting. The
deceased signed the will in the presence of his second wife and two
witnesses. In terms of his second will, he revoked all his
previous wills and once again bequeathed his entire estate to his
second wife. As it turned out, the now deceased did die
whilst on that trip.
In March 2008 the Master of the High Court wrote to the second wife
enquiring about the relationship between the writer of the will and
the witnesses to the signature of the testator. The second
wife was then informed that she was disqualified from benefiting
under the will by virtue of Section 4A of the Wills Act 7 of
1953. She consequently, and this is where the price tag
begins, approached the court for an order declaring her able to
benefit under the will. The first court decided that the wife
was entitled to the inheritance bequeathed to her in the will and
also granted her alternative relief.
Obviously the the two daughters were not happy with the
outcome of the first court (comment –this is the declaration
of war) and took the matter on appeal. In the Supreme Court
of Appeal the Judge closely examined the following sections:
Section 4A of the Wills Act 7 of 1953 confirms that any person who
attests and signs a will as a witness, or who signs a will in the
presence and by direction of the testator, or who writes out
the will or any part thereof in his own handwriting, and the
person who is the spouse of such person at the time of the
execution of the will, shall be disqualified from receiving any
benefit from that will.
Section 4A(1) seeks to achieve, consistent with the common law,
to permit a beneficiary who would otherwise be disqualified
from inheriting, to satisfy the court that he or she (or his or her
spouse) did not defraud or unduly influence the testator in the
execution of the will.
In this case, the Court of Appeal found that the second wife gained
no unfair advantage over anybody, and there was no room for any
falsity or fraud and therefor she ought to receive the benefits
reserved to her by the will.
Thus the second spouse won the war but most probably lost the
peace. All this unfortunately comes with a further price tag
usually to the losing part of the family of thousands of rand in
legal costs. This makes the hand written will a very expensive
option in order to prove the compliance with the formalities
required for the execution of a valid will. Moral of the
story: Do it right the first time, endure the legal jargon and the
formalities, it ultimately save costs, but unless provision is made
for a proper family relationship plan especially in reconstructed
families, it may not always bring peace in all families.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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My friend was married to a Muslim man and they had a daughter together before he divorced her. He recently passed away, leaving another daughter from his first wife, whom he divorced before marrying my friend.
The Recognition of Customary Marriages Act 120 of 1998 ("The Recognition Act") came into force on 15 November 2000.
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