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 confirmed.

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 declared invalid. 

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.

 Article by Theresa Tannous, Willie van der Westhuizen (Millers inc)