Study Unit 5: Formalities for the Execution and Amendment of Wills

Question 1

Where in Legislation are formalities for the execution of wills set out?

Answer 1

s2(1)(a) of the Wills Act 7 of 1953

• compliance with formalities is an absolute requirement for validity
• non-compliance with anything renders the will invalid

Question 2

What does s2(3) of the Wills Act permit?

Answer 2

the condonation of formally irregular wills

Question 3

What is the essence of execution formalities?

Answer 3

Signing of the will by:
- testator
- amanuensis
- witnesses
- commissioner of oaths

Question 4

s1 of the Wills Act

Answer 4

‘sign’ includes making of initials/mark (in case of Testator)
- initials and signatures count.

Question 5

Jhajbai v The Master 1971

Answer 5

Writing out initial and surname counts as a valid signature

Question 6

Rickets v Byrne 2004

Answer 6

Can’t sign on first page and write full name on the second.

Question 7

Smith v Parsons 2010

Answer 7

permitted ‘wally’ as a signature for condonation under s2(3) of the Wills Act

Question 8

Who can sign a will by making a mark?

Answer 8

Only a testator, usually an X or a thumbprint
- requires the compliance of another formality, namely a certification by a Commissioner of Oaths

Question 9

Where are execution formalities contained?

Answer 9

s2(1)(a) of the Wills Act

Question 10

s2(1)(a)(i) of the Wills Act

Answer 10

Will must be signed at the end by a testator/amanuensis
- amanuensis can sign by either making the testator’s signature, or their own.
– if using their own, put ‘p.p.’ in front

Amanuensis must be in the presence of the Testator when signing, and within sight/presumable sight

Commissioner needs to sign the will

Question 11

Kidwell v The Master 1983

Answer 11

Testator or Amanuensis must sign at the end of the will, as close as reasonably possible to the concluding words

Question 12

s2(1)(a)(ii) of the Wills Act

Answer 12

The signature referred to in s2(1)(a)(i) must be made/acknowledges by the testator/amanuensis in the presence of 2+ competent witnesses present at the same time

• either make signature, or later on acknowledge (i.e., state previously made sig belongs to T/A) that signature in witnesses presences.
• minimum 2 witnesses, can be more
• ‘in the presence of’: witnesses must have seen/been in the position to see if they wanted to see T/A sign the will
• ‘competent witness’: defined in s2 of Wills Act, must be 14+ at the time of signing, and be able to give evidence in court

Question 13

s2(1)(a)(iii) of the Wills Act

Answer 13

Witnesses must attest to sign will in the presence of the testator, amanuensis, and other witnesses.

• W’s must be same ones T/A acted in the presence of in s2(1)(a)(ii)
• attesting will = acting in the capacity of a witness
• only function W’s signature fulfils is to verify signature of the T/A
• only care about validity of the signature, don’t need to know its a will
• must sign on the last page, after T/A

Question 14

Liebenberg v The Master 1992

Answer 14

It isn’t justified by the Wills Act to make witnesses sign as the end of a will too

Question 15

s2(1)(a)(iv) of the Wills Act

Answer 15

If will is 1+ page, each page other than the last must be so signed by the T/A anywhere on the page
- customary to sign at end of page, but not expressly required to do this anywhere
- witnesses only need to sign the last page
needs to be in presence of witnesses

Question 16

s2(1)(a)(v) of the Wills Act

Answer 16

Certification of a Will
required if:
- T signs with a mark/amanuensis signs on T’s behalf.

Question 17

Who conducts the certification of a will?

Answer 17

Commissioner of oaths: certificate must express CoO’s capacity as such explicitly (if attorney, still needs to state that are a CoO)

Question 18

Radley v Stopforth 1977

Answer 18

Commissioner of Oaths certificate

Question 19

What must be certificate indicate?

Answer 19

stipulate that certifying officer is satisfied with ID of testator and that it is their will.
- doesn’t need specific format, as long as all aspects clear.
- is a standardised certificate in schedule 1 of Wills Act

Question 20

Where must the certificate be placed?

Answer 20

can appear anywhere
- commissioner must sign every page certificate isn’t on.
- signature can be anywhere on these pages

Question 21

When in the execution process can the certificate be placed on the will?

Answer 21

Certification must happen at the same time that other formalities are effected.

Question 22

s2(1)(a)(v)(aa) of the Wills Act

Answer 22

if certification of a will is required, will must be signed in the presence of the Commissioner of oaths by the T/A and witnesses and the certificate must be made as soon as possible after the will was so signed by the T,A and W’s.

Question 23

The exception in s2(1)(a)(v)(aa)

Answer 23

if certification of a will is required, but testator dies after the will was signed by themselves/A and witnesses, but before COO has made the required certificate:
- COO shall, as soon as possible after the T’s death make/complete the certificate and sign the will on all the pages other than that with the certificate.

Question 24

Amendment formalities

Answer 24

Testator can change their mind about their will after having made it, can decide to make different dispositions to those in the current will
- must comply with the amendment formalities in s2(1)(b) of the Wills Act

Question 25

Amendment

Answer 25

deletion, addition, alteration, interlineation

Question 26

Addition

Answer 26

adding words/paragraphs

Question 27

Alteration

Answer 27

changing words/numbers

Question 28

Interlineation

Answer 28

inserting new words between lines

Question 29

Deletion

Answer 29

deletion, cancellation, or obliteration in whatever manner effected, excluding a deletion, cancellation, or obliteration that contemplates the revocation of the entire will includes:

• cutting out, erasing, pasting over, tipexing out of words, numbers, provisions in a will
• if T effects a deletion that is intended to revoke the entire will, compliance with amendment formalities doesn’t need to happen. Revocation can happen formality free.

Question 30

s2(1)(b)(i) of the Wills Act

Answer 30

amendment must be identified by a signature of testator/amanuensis

Question 31

s2(1)(b)(ii) of the Wills Act

Answer 31

signature referred to in (i) must have requisite witnesses

Question 32

s2(1)(b)(iii) of the Wills Act

Answer 32

amendment needs to be signed by witnesses in presence of testator/amanuensis and other witnesses

Question 33

s2(1)(b)(iv) of the Wills Act

Answer 33

if amendment identified by the testator’s mark, it must be certified by a commissioner.
- same process as certifying original will re satisfaction of ID and will, and requirements for certificate. can use standard certificate from Schedule 2.

Question 34

s2(2) of the Wills Act

Answer 34

amendment formalities only apply to amendments made after a will’s execution
- amendments made during execution don’t need to comply with formalities of s2(1)(b)
- presumption that any amendments are effected after execution. (rebuttable with factual evidence)