Article by: Umhlanga Attorney: Fawzia Khan

I was offered the opportunity to deliver a talk on a community radio station in Durban called Radio Al- Ansaar on 17 September 2017, with the focus being on wills. This was in keeping with the Law Society of South Africa’s campaign for educating and assisting the public during its Annual National Wills Week 2017.

One of the aspects discussed on the show was what made a will invalid. In particular, whether in the case where a person had issued a detailed instruction to an attorney or a bank to draw up a will and how the assets are to be distributed, but died before signing the will, could that will could be regarded as being his last will and testament. The Wills Act contains very stringent requirements for compliance for a valid will. Briefly these are as follows, a will must be in writing; it must be signed by the testator; two competent witnesses must witness the testator’s signature; if the will consists of more than one page then all the pages with the exception of the last page, must be signed by both the testator and the witnesses anywhere on page and the last page of the will must be signed by the testator and witnesses at the end of the will.

If any of these requirements are not met, the will is not valid. However there is a provision in the Wills Act, section 2 (3) which is commonly referred to as “the rescue provision” which allows the High Court to order the Master accept a will even where the document does not meet the strict compliance as stated above. The court will only be allowed to do so if the deceased himself drafted or executed the will. In the case of Bennett v The Master 1995 (19) the Court rejected a document, which was headed “Request to Draft a Will”, even though the document contained detailed instructions from the deceased to a financial institution. The man died before the will could be drafted. The court said that the man’s instruction to draft a will did not constitute his last will. In the case of Logue v The Master 1995 (1), the deceased made a will disinheriting his son.

About 2 years later he made another will in his handwriting in which he stated that he revoked all wills previously made by him and made all his children, including the son he disinherited, as equal heirs. He did not properly sign the will nor was the will witnessed and was found among his papers after he died. The court accepted this document and said it was satisfied that the document was drafted by the deceased and ordered the Master to accept it.

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