Study Unit 6 Flashcards
Condonation of wills/ amendments (32 cards)
What does S 2(1)(a) and S 2(1)(b) of the Wills Act 7 of 1953 determine about non-compliance with execution and amendment formalities?
Non-compliance renders the purported will invalid for execution and the purported amendment invalid for amendment.
What was imported into the Wills Act in 1992 to remedy strict formalism in will execution?
S 2(3) was imported to provide for the condonation of formally irregular wills or amendments.
What does S 2(3) of the Wills Act provide for?
It provides for the condonation of a formally irregular will or amendment to preserve a testator’s wishes despite non-compliance with execution or amendment formalities.
What must be lodged with the Master of the High Court upon a deceased’s death?
The original will of the deceased must be lodged.
What happens if the Master of the High Court finds that a will does not comply with formalities?
The Master will reject the will or the amendment thereof.
What can someone do if they wish to challenge the Master’s decision to reject a will?
They can bring an application against the Master’s rejection to the High Court.
What must a court be satisfied of to issue an order under S 2(3)?
The court must be satisfied that the document was intended to be the deceased’s will or an amendment, despite non-compliance with formalities.
List the three requirements that must be met for a court to issue a condonation order under S 2(3).
- There must be a document before the court
- The document must have been drafted or executed by the deceased
- The deceased must have intended the document to be his/her will or an amendment
What type of document qualifies for condonation under S 2(3)?
The document must be a written document of the paper variety.
True or False: Words spoken by the deceased before death can be condoned under S 2(3).
False.
What was the outcome in Macdonald v The Master regarding a computer file containing a will?
The court condoned the paper print-out of the will stored on the deceased’s computer, not the computer file itself.
What does the term ‘executed’ mean for purposes of S 2(3)?
A document is ‘executed’ if it contains at least a single signature of the deceased.
What was the conflicting interpretation regarding the drafting requirement in S 2(3)?
Whether the document must be drafted personally by the deceased or if it could be drafted by someone else.
What did the Supreme Court of Appeal decide in Bekker v Naude regarding drafted documents?
The document must have been drafted personally by the deceased for condonation to occur.
What must a court determine about the deceased’s intention for a document to be condoned under S 2(3)?
The court must determine that the deceased intended the specific document as his/her will.
What is the significance of the case Ex parte Maurice regarding S 2(3)?
The case established that a document intended merely as a draft or instructions cannot be condoned.
Fill in the blank: For a document to be condoned under S 2(3), it must not merely convey the deceased’s _______ intention.
disposition
In Smith v Parsons, what was the legal question regarding testamentary directives in a suicide note?
Whether they could be condoned as amendments to the deceased’s existing will.
What is the legal question in Smith v Parsons 2010 regarding testamentary directives?
Can testamentary directives contained in a suicide note be condoned as amendments to the deceased’s existing will?
The SCA answered affirmatively, considering the handwritten nature of the note and the deceased’s circumstances.
What was the ruling in Van der Merwe v The Master 2010 about testamentary directives in an email?
Can testamentary directives contained in an email be condoned as the deceased’s last will?
The SCA answered affirmatively, focusing on the circumstances and appearance of the document.
What was the legal question in Ex parte Porter 2010 regarding a lost codicil?
Can a properly executed codicil that was lost after execution be condoned as an amendment to the deceased’s existing will?
The WCC answered negatively, stating that s 2(3) of the Wills Act was not designed to provide a remedy in this scenario.
What did the court hold in Ex parte Porter 2010 regarding lost testamentary documents?
The appropriate remedy lies in the common law that permits the Master to accept a reconstruction of a lost testamentary document.
What was the legal question addressed in Taylor v Taylor 2012?
Did the deceased intend to amend his will through a ‘wish list’ compiled prior to his death?
The ECP answered negatively, citing lack of requisite testamentary intention.
What was the court’s ruling in Estate Late Elaine Ilsia Williams v Hendricks regarding a bank application form?
Can a bank application form for drafting a will be condoned as the deceased’s last will?
The court answered negatively, stating it could not have been intended as a will.
