Study Unit 5

Question 1

What is the section of the Wills Act that contains the formalities for the execution of a valid will?

Answer 1

s 2(1)(a) of the Wills Act 7 of 1953

This section outlines the absolute requirements for the validity of a will.

Question 2

What happens if there is non-compliance with the formalities of a will?

Answer 2

The will is invalid from the outset.

Question 3

Since when does s 2(3) of the Wills Act allow for the condonation of a formally irregular will?

Answer 3

Since 1992.

Question 4

Who must sign a will according to the execution formalities?

Answer 4

• The testator
• The amanuensis
• The witnesses
• The commissioner of oaths

Question 5

What does the term ‘sign’ include according to s 1 of the Wills Act?

Answer 5

‘[S]ign’ includes the making of initials and, only in the case of a testator, the making of a mark.

Question 6

In what case was it determined that a will could be validly signed by witnesses who wrote their initials and surnames?

Answer 6

Jhajbhai v The Master 1971 (2) SA 370 (D).

Question 7

What did the court find in Ricketts v Byrne regarding the signing of a will?

Answer 7

The will was found invalid because the testator did not sign the second page.

Question 8

What is required if a testator cannot sign the will?

Answer 8

They can request another person (the amanuensis) to sign on their behalf.

Question 9

What must the amanuensis do when signing the will?

Answer 9

The amanuensis must sign in the presence of the testator.

Question 10

What is the significance of the term ‘p.p.’ when used by the amanuensis?

Answer 10

It indicates that the amanuensis signed in a representative capacity on behalf of the testator.

Question 11

In what case is the testator’s signature required to be placed?

Answer 11

As close as reasonably possible to the concluding words of the will (Kidwell v The Master 1983 (1) SA 509 (E)).

Question 12

What does ‘in the presence of’ mean for witnesses when signing a will?

Answer 12

Witnesses must have seen the testator or amanuensis sign the will or must have been able to see it if they wanted to.

Question 13

What is the minimum number of witnesses required for the execution of a will?

Answer 13

Two witnesses.

Question 14

What is required of witnesses when attesting a will?

Answer 14

Witnesses must sign in the testator’s presence, each other’s presence, and in the amanuensis’ presence if applicable.

Question 15

What does it mean for witnesses to attest a will?

Answer 15

To act in respect thereof in the capacity of witnesses.

Question 16

What does ‘so signed’ mean in the context of a multiple-paged will?

Answer 16

The testator or amanuensis must sign each page other than the final page.

Question 17

What is required for certification of a will?

Answer 17

A will must be certified if the testator signed it by making a mark or directed an amanuensis to sign on their behalf.

Question 18

Who must conduct the certification of a will?

Answer 18

A commissioner of oaths.

Question 19

What must a certificate indicate when certifying a will?

Answer 19

• The identity of the testator
• That the will is indeed that will of the testator

Question 20

Where must the certificate be placed on the will?

Answer 20

The certificate can appear anywhere on the will.

Question 21

When must certification of a will occur?

Answer 21

At the same time that compliance with the other formalities is effected.

Question 22

What happens if the testator dies after signing but before the certification is completed?

Answer 22

The commissioner shall complete the certificate as soon as possible after the testator’s death.

Question 23

What must a commissioner of oaths do if certification of a will is required but the testator dies before the certificate is made?

Answer 23

The commissioner shall as soon as possible after the testator’s death make or complete the certificate and sign the will on all pages other than the page that contains the certificate.

Question 24

What is an attestation clause in a will?

Answer 24

It is a standard provision in wills but is not a formal requirement for the validity of a will.

Question 25

In the example of Jeremy Jacobs' will, how is the testator's signature represented?

Answer 25

The testator signed the will with the making of a mark (X).

Question 26

What is required for a commissioner of oaths to certify an amendment in a will?

Answer 26

The commissioner must certify on the will that he/she has satisfied him-/herself as to the testator’s identity and that the amendment has been made by or at the request of the testator.

Question 27

Define 'amendment' as per the Wills Act.

Answer 27

'Amendment' is defined as a deletion, addition, alteration or interlineation.

Question 28

What does 'addition' refer to in the context of amending a will?

Answer 28

'Addition' refers to the adding of words or paragraphs to a will.

Question 29

What is 'deletion' in the context of the Wills Act?

Answer 29

'Deletion' is defined as a deletion, cancellation or obliteration in whatever manner effected, excluding a deletion that contemplates the revocation of the entire will.

Question 30

True or False: Revocation of a will requires compliance with amendment formalities.

Answer 30

False.

Question 31

What must be done for an amendment to be valid according to the amendment formalities?

Answer 31

The amendment must be identified by the signature of the testator or amanuensis made in his/her presence and by his/her direction.

Question 32

What is the presumption regarding amendments made in a will?

Answer 32

There is a presumption that any amendment made in a will was effected after the will’s execution.

Question 33

Fill in the blank: An alteration must be identified by the signatures of the __________ and two witnesses.

Answer 33

[testator]

Question 34

What is the role of witnesses in the amendment formalities?

Answer 34

Witnesses must identify the amendment with their signatures in the testator’s presence and, if applicable, in the presence of the amanuensis.

Question 35

What happens if a testator makes a deletion intended to revoke the entire will?

Answer 35

Compliance with the amendment formalities need not occur.

Question 36

What does 'interlineation' refer to in the context of amending a will?

Answer 36

'Interlineation' refers to inserting new words between the lines of a will.

Question 37

What information is included in the standardised certificate used by a commissioner of oaths?

Answer 37

It includes the full names and address of the commissioner, satisfaction of identity of the testator, and that the amendment was made by/at the request of the testator.

Question 38

What is required for a signature made by an amanuensis?

Answer 38

It must be acknowledged by the testator or amanuensis in the presence of two or more competent witnesses present at the same time.

Question 39

What is the significance of the date in the certificate of the commissioner of oaths?

Answer 39

It indicates when the certification was made concerning the will and its amendments.

Question 40

What are the consequences if the witnesses who sign to identify the amendment are different from those who signed at the will’s execution?

Answer 40

The witnesses who sign to identify the amendment need not be the same witnesses who signed at the will’s execution.

Question 41

True or False: Amendments made during a will's execution must comply with the amendment formalities.

Answer 41

False.

Question 42

What is the first step a testator can take if they want to change the provisions of an existing will?

Answer 42

The testator can decide to make amendments (changes) to the provisions in the existing will.