Wills Act (Chapter 6:06)

 

CHAPTER 6:06

Wills Act

Acts 13/1987, 2/1990, 21/1998, 22/2001 (s. 4).

ARRANGEMENT OF SECTIONS

Section

1. Short title.
3. Application of Act.
4. Capacity to make a will.
5. Power to make dispositions by will.
6. Capacity to benefit under a will.
7. Competent witnesses.
8. Formalities for making wills, other than soldiers wills, wills made during epidemics and oral wills.
9. Amendments to wills, other than soldiers wills, wills made during epidemics and oral wills.
10. Soldiers wills.
11. Wills made during epidemics.
12. Oral wills.
13. Signatures on wills.
14. Incorporation of documents in wills by reference.
15. Revocation of wills.

15A. Power of Master to declare a will to be revoked.

16. Effect of testator’s subsequent marriage on will.
17. Effect of dissolution or annulment of testator’s marriage on will.
18. Effect of subsequent birth, legitimation or adoption of children on will.
19. Revival of revoked or void wills.
20. Rectification of wills.
21. Admissibility of evidence in connection with rectification and interpretation of wills.
22. Conflict of laws: application of foreign laws in relation to wills.
23. Theft, concealment and destruction of wills.

AN ACT to consolidate and amend the law regarding the execution, validity, interpretation and protection of wills and the disposal of property by will; and to provide for matters connected with or incidental to the foregoing.

[Date of commencement: 11th December, 1987.]

1    Short title

This Act may be cited as the Wills Act [Chapter 6:06].

2 Interpretation In this Act—

“amendment”, in relation to a will, means a deletion, addition, alteration or interlineation in the will;

“appropriate court” means—

• the High Court, in relation to any will;
• a magistrates court, where such court has jurisdiction to determine any question relating to the validity, interpretation or effect of the will concerned;

“competent witness” means a person who in terms of section seven is competent to witness the signing of a will or the acknowledging of a signature on a will for the purposes of this Act;

“designated official” means any employee of the State, a statutory body or a local or like authority whom the Minister, by notice in a statutory instrument, declares to be a designated official for the purposes of this Act;

“estate”, in relation to any person, means such of his rights, privileges, interests, duties and liabilities, whether vested, contingent or future, as are not extinguished by law on the death of that person, and includes any such rights, privileges, interests, duties and liabilities held or incurred as the case may be, according to customary law;

“make”, in relation to a will, means to draw up a will and perform all the formalities necessary to give validity to the will;

“make a mark” includes to make a cross or to write or stamp initials on a will;

“marriage” includes a marriage solemnized in terms of the Customary Marriages Act [Chapter 5:07];

“Master” means the Master of the High Court referred to in subsection (2) of section 3 of the Administration of Estates Act [Chapter 6:01] and, in relation to a will to which customary law applies, includes a magistrate appointed in terms of section 68I of that Act;

Definition inserted by s.2 of Act 21 of 1998.

“oral will” means a declaration which is valid as a will in terms of section twelve;

“sign” has the meaning assigned to it in section thirteen;

“soldiers will” means a will made in terms of section ten; “testator” means a person who is making or has made a will;

“will” includes an oral will, a codicil and any testamentary writing but does not include a document evidencing an antenuptial contract or other transaction of a contractual nature;

“will made during an epidemic” means a will made in terms of section eleven.

                       3    Application of Act

• This Act shall apply in relation to wills made on or after the 1st January, 1988.
• In relation to wills made before the 1st January, 1988, this Act shall apply to—
• the power of the testator to make any provision. disposition or direction in any such will; and
• the amendment, revocation, revival, rectification, theft, concealment or destruction of any such will, where the amendment, revocation, revival, rectification, theft, concealment or destruction is done on or after the 1st January, 1988; and
• the acceptance in terms of section ten, eleven or twelve of any such will which, if it had been made on or after the 1st January, 1988, would have been valid as a soldiers will, a will made during an epidemic or an oral will; and
• the effect upon any such will of the testator’s marriage or of the dissolution or annulment of his marriage, where the marriage or the dissolution or annulment thereof, as the case may be, took place on or after the 1st January, 1988; and
• the effect upon any such will of the birth, legitimation or adoption of a child, where the birth, legitimation or adoption took place on or after the 1st January, 1988; and
• the application of foreign law to determine the formal validity of any such will, where the testator is alive on the 1st January, l988.

                       4    Capacity to make a will

• Subject to this Act, every person who is of or over the age of sixteen years may make a will unless at the time of making the will he is mentally incapable of appreciating the nature and effect of his act.
• The fact that a person has been interdicted as a prodigal shall not invalidate— (a) any will that he made before he was so interdicted; or

(b) any will that he makes whilst be is so interdicted, except to the extent that the will shows signs of prodigality in the disposition of his estate.

• A minor or other person under a legal disability who is competent to make a will shall not require the authority or assistance of any other person in doing so.
• The burden of proving that—
• at the time of making a will, the testator was mentally incapable of appreciating the nature and effect of his act; or
• a will made while the testator was an interdicted prodigal shows signs of prodigality in the disposition of his estate;

shall rest on the person alleging it.

                       5     Power to make dispositions by will

(1) Subject to this Act and any other enactment, any person who has capacity in terms of section four to make a will may in his will—

• make provision for the transfer, disposal or disposition of the whole or any part of his estate; and
• make provision for the custody or guardianship after his death of any of his minor children; and
• make any other lawful provision, disposition or direction, whether in respect of his own or any other property or in respect of any other matter.
• Subject to this Act and any other enactment, a will shall not be invalid solely because the testator has disinherited or omitted to mention any parent, child, descendant or other relative or because he has not assigned any reason for such disinheritance or omission.
• No provision, disposition or direction made by a testator in his will shall operate so as to vary or prejudice the rights of—
• any person to whom the deceased was married to a share in the deceased’s estate or in the spouses’ joint estate in terms of any law governing the property rights of married persons; or
• any person to receive any property, maintenance or benefit from the testator’s estate in terms of any law or any award or order of court; or
• any creditor in respect of any debt or liability payable from or attaching to the testator’s estate; except in so far as such variation or prejudice is brought about with the consent of the person or creditor concerned or through the exercise by him of a right of election.

                       6    Capacity to benefit under a will

• Subject to this section, any person, whether born or unborn, natural or juristic and whatever his legal capacity, may receive a benefit conferred by or in terms of a will.
• Subject to this section and to any other enactment, the following persons shall not be capable of receiving any benefit conferred by or in terms of a will—
• any person who signs the will as a witness to the making thereof or as a witness to the making of any amendment in the will;
• any person who, in accordance with paragraph (b) of subsection (1) of section eight or paragraph (a) of subsection (2) of section nine, signs the will or any amendment in the will in the testator’s presence and at his direction;
• any person who, on behalf of the testator or at his direction, personally writes out the will or any part of it that confers a benefit upon him;
• any magistrate, presiding officer of a community court, justice of the peace, commissioner of oaths or designated official who has certified the will in terms of subsection (2) of section eight or who has certified any amendment in the will in terms of subsection (3) of section nine;
• where the testator was a minor or under a legal disability at the time the will was made, any person who at that time was—
  • a guardian of the testator, other than a parent; or
  • a curator, trustee or administrator of the testator; as the case may be;
• any person who, when the will was made or amended, as the case may be, was a spouse or child of a person incapable of receiving a benefit under the will by virtue of paragraph (a), (b), (c), (d) or (e);
• any person who claims the benefit through a person incapable of receiving the benefit under the will by virtue of paragraph (a), (b), (c), (d), (e) or (f);
• any person who, through fraud, duress or undue influence, has—
• caused the testator to make the will or to insert therein the provision conferring the benefit upon him; or

(ii)   prevented or attempted to prevent the testator from altering the will or making a new will;

(i) any person who unlawfully destroys or conceals a will made by the testator or a copy of such a will; (j) any person who has unlawfullyand intentionally killed—

• the testator; or
• any person from whom the testator has inherited the benefit concerned, where such other person and the testator were married to each other or were parent and child; or
• any other person through whom his claim to the benefit derives;

(k) any person who, in some way other than by causing the death of a person, has by his unlawful and intentional act or omission directly caused the benefit to be conferred upon him.

• A person referred to in paragraph (a), (b), (c), (e), (f) or (g) of subsection (2) may receive a benefit conferred by or in terms of a will to the extent that the benefit does not exceed in value any benefit he would have received had the testator died intestate.
• A person who—
• is referred to in paragraph (a), (b) or (c) of subsection (2); or
• when the will concerned was made or amended, as the case may be, was a spouse or child of a person referred to in paragraph (a), (b) or (c) of subsection (2); or
• claims through a person, spouse or child referred to in paragraph (a) or (b) of this subsection; may receive a benefit conferred by or in terms of a will if after the will has been made the testator confirms the benefit, whether by written endorsement upon the will or in a codicil or orally or in any other manner that clearly shows the testator’s intention to confer the benefit.
• The burden of proving that any person is incapable in terms of this section of receiving any benefit conferred by or in terms of a will shall rest on the person alleging it.
• Except in relation to a person referred to in paragraph (e) or (g) of subsection (2), appointment under a will as executor, administrator, trustee or guardian shall constitute a benefit for the purposes of that subsection.
• Nothing in this section shall be construed as entitling a body corporate to receive a benefit conferred by or in terms of a will if the body corporate is incapable of receiving such a benefit under its constitution or under the law by which the body corporate is constituted or established.

7    Competent witnesses Any person who—

• is of or over the age of sixteen years; and
• is competent to give evidence in a court of law; and
• is physically capable of seeing a testator sign his will or acknowledge his signature on a will; shall be competent to witness the signing of a will or the acknowledging of a signature on a will for the purposes of this Act.