When is a Will a Will? It’s complicated.

by | May 14, 2020 | Advisory Services

By Francois De Jager, Senior Estates Practitioner, Sentinel International

South African law clearly stipulates what constitutes a Will. But these stipulations are also open to interpretation by the courts. Francois de Jager, Senior Estates Practitioner at our Cape Town office, unpacks the details of two recent cases which ended very differently…

Case #1: The importance of a witness

In a recent matter before the Western Cape High Court (Marshall v Baker NO), the interpretation and application of the Wills Act came under scrutiny. The life partner of a recently deceased man asked the Master of the High Court to accept a document drafted by the deceased in his own handwriting (signed and dated, but not witnessed) as a will, for the purposes of the Administration of Estates Act 66 of 1965. This document was rejected by the Master.

The dispute centered around a property jointly owned by the deceased and his life partner which could go one of two ways:

  1. The deceased’s life partner, would in terms of the unwitnessed document dated in 2018, inherit the half share of a property they jointly owned.
  2. BUT, in terms of a 2011 will, this property fell under the residue of his estate and would be inherited by his niece.

The onus was on the applicant (the deceased’s life partner) to satisfy the Court that this 2018 document drafted (prepared personally), by the deceased was intended to be his will and that it also revoked the 2011 will. He failed to achieve this.

The Court argued that ‘Written instructions to an attorney or other adviser so as to enable the recipient to draft the testator’s will are not intended by such testator to constitute his/her will albeit they record the author’s intended testamentary dispositions…’ referring to Letsekga v The Master and Anderson v Wagener NNO and Another.

Understanding the decision

The Court ruled that the 2018 document was nothing more than a recordal of the deceased’s testamentary intentions and not what he intended to be his will for the purposes of the Act. The Court came to this conclusion after carefully examining the document in the context of the surrounding facts and circumstances:

  • Being an educated and meticulous man, he devoted considerable thought when he executed previous wills in 1999 and 2011 and on each occasion discussed his intentions with his attorney who drafted them in accordance with his final instructions.
  • As in his previous wills, he consulted with his brother-in-law, an attorney, by sending him a photo of his proposed amendments for counsel.
  • In the 2018 document he did not nominate an executor, nor did he deal with all his assets.
  • His attorney raised issues which they would ‘finalise over Christmas’.

To further rub salt in his life partner’s wounds, the court ordered the applicant to bear the costs of both the application and the counterapplication.

Case #2: It can go either way

In another matter of Van der Merwe v Master of the High Court and Another, heard in 2010, an unsigned, electronic will, stored on a computer hard drive, which had not been printed was declared to be valid and thus accepted as the will of the deceased , because:

  • The document was drafted by the deceased.
  • The deceased intended it to be his will.
  • Proof was provided by the appellant that the document was sent to him by the deceased, giving the document an authentic quality.
  • The document still existed and had not been amended or deleted.
  • From the title of the document, the court held it to be clear that the deceased intended the document to be his will.

While this case ended well for the applicant, a properly prepared will would have saved them having to go to court in the first place.

The final word: You can never be too careful

After examining these two contrasting tales, it is clear that care should always be taken when a Last Will and Testament is created and signed. You must ensure that your wishes are recorded accurately, but also that the document will be accepted by the courts.

The Courts have clearly indicated that they place a significant amount of weight on the formal requirements and the onus will always be on the Applicant to convince the Court to accept a document which does not comply with these requirements. Success is not always guaranteed, and it could lead to a hefty legal bill without the desired outcome. It is always advisable to obtain proper advice when drafting or amending your Will to ensure its validity.

These two cases underscore the importance of doing things properly and removing all doubt about your last wishes. Sentinel can assist with the preparation and drafting of your Last Will and Testament and we’re also very happy to review your existing will to ensure all the legal requirements have been met.

Francois de Jager

Senior Estates Practitioner


Marshall v Baker NO and Others [2020] ZAWCHC 13

Letsekga v The Master (1995 (4) SA 731 (WLD) AT 735c-G) and others.

Anderson and Wagener NNO and Another v The Master and others (1996 (3) SA 779 (CPD) at 784G-785H).

Van der Merwe v Master of the High Court and Another [2010] JOL 26090 (SCA)