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A will or testament is a legal document that expresses a person's (testator) wishes as to how their property (estate) is to be distributed after their death and as to which person (executor) is to manage the property until its final distribution. For the distribution (devolution) of property not determined by a will, see inheritance and intestacy.
Wills have a lengthy history.
A holographic will, or olographic testament, is a will and testament which is a holographic document, i.e., it has been entirely handwritten and signed by the testator. Traditionally, a will had to be signed by witnesses attesting to the validity of the testator's signature and intent, but in many jurisdictions, holographic wills that have not been witnessed are treated equally to witnessed wills and need only to meet minimal requirements in order to be probated:
Knight v Knight (1840) 49 ER 58 is an English trusts law case, embodying a simple statement of the "three certainties" principle. This has the effect of determining whether assets can be disposed of in wills, or whether the wording of the will is too vague to allow beneficiaries to collect what appears on the face of the will to be theirs. The case has been followed in most common law jurisdictions.
The law of persons in South Africa regulates the birth, private-law status and the death of a natural person. It determines the requirements and qualifications for legal subjectivity in South Africa, and the rights and responsibilities that attach to it.
The South African law of succession prescribes the rules which determine the devolution of a person's estate after his death, and all matters incidental thereto. It identifies the beneficiaries who are entitled to succeed to the deceased's estate, and the extent of the benefits they are to receive, and determines the different rights and duties that persons may have in a deceased's estate. It forms part of private law.
Morice v Bishop of Durham [1805] EWHC Ch J80 is an English trusts law case, concerning the policy of the beneficiary principle.
In Theron v The Master (2001), an important case in the South African law of succession, Mr and Mrs Theron were married in community of property. Mr Theron died and left certain property to his grandson in a trust. Mr Theron's son was appointed as the trustee, and had signed the will as a witness. Mrs Theron sought an order declaring that their son could benefit from the will despite signing as a witness.
In Geldenhuys v Borman, an important case in the South African law of succession, the testator had executed a total of three wills, each revoking the previous one. For about three years the testator was a patient in Fort England, but he was released at a later stage. At the time the last will was executed, and although the testator was declared incapable of managing his affairs, there was no declaration that the testator was mentally incapable. Geldenhuys approached the court to declare all three wills invalid. The court noted that there is a presumption of competency, so that the onus of proof is on the person alleging incapacity. The court held that Geldenhuys had not discharged this onus, as incapacity to manage one's affairs is not the same as mental incapacity. The wills were accordingly declared valid.
In Spies v Smith, an important case in the South African law of succession, the testator was mentally retarded and epileptic, and had appointed the two daughters of his step-mother as his sole heirs. When the testator's father died, he went to live with his uncle. Thereafter, the testator made a new will appointing the sons of his uncle as his heirs.
In Ex Parte Estate Davies, an important case in South African succession law, the testator bequeathed £2000 in his will to a person who was not named in the will itself, but on a document which was in a sealed envelope given to his attorney. This document was not signed by witnesses.
In Liebenberg v The Master, an important case in South African succession law, the testator signed his will at the top of the page and not the bottom. The court held that the will was valid, as the Wills Act does not specify where on the page the signature must be- just that every page must be signed.
In Kidwell v The Master, an important case in the South African law of succession, the testator had signed right at the bottom of the will; there was about 17 centimetres (6.7 in) between the end of the will and the testator's signature. The question before the court was where the end of the will was. The court held that the will was invalid as it did not comply with section 2(1)(a)(i) of the Wills Act. The decision has been criticised as overly formalistic by some commentators, who believe the overriding criteria for the courts should be to give effect to the wishes of the testator, and this case did not do this over something seemingly insignificant.
In Senekal v Meyer, an important case in South African succession law, the testator had a valid will. On it he had written the word “gekanselleer” (cancelled) on both of the pages of the copy in his possession. The Master, however, accepted the testator's attorney’s copy as the deceased's valid will and testament.
In Marais v The Master, an important case in the South African law of succession, the testator, who had divorced from his wife in 1972, bequeathed his entire estate to her in 1977. Before his death, he wrote words on his copy of the will and on a letter from his attorney, attempting to revoke the will and direct that his mother was to be his sole heir. The court held that there had been a clear intention to revoke the will and to nominate his mother as sole beneficiary.
In Barrow v The Master, an important case in South African succession law, the testator had convinced his son to leave his job and take over the management and farming operations on the farm “Longridge” from him. To assist him, the testator bought another farm “Meldene” for his son to live on while managing Longridge. Because the son was finding it inconvenient and difficult to manage the farming operations on Longridge while living at Meldene the testator decided to sell 'Longridge' for a net price of £10,000 and undertook to give his son the sum of £262 which he calculated would be the amount of the selling agent's commission. The farm was sold and another smaller farm called “Patchwood” was purchased. In his will the testator had bequeathed Longridge to his two sons in equal shares. Thus when the testator died, his son claimed for his half share in the farm Patchwood. The claim to Patchwood is founded on a promise by the testator during his lifetime to donate to his son a farm to the value of at least £5,000. Alternatively, the son claimed that the bequest of a half-share of Longridge had not been adeemed. On the first argument, the court held that the testator had settled his promise by purchasing the farm Meldene for his son. Furthermore, the court held that the purchase of Patchwood was effected to replace the facilities for farming that his son would lose by the sale of Longridge, not that the farm was actually for him. On the second argument, the court rejected the contention that the testator felt obliged to sell the farm because his son was finding it difficult to manage it and it was thus not voluntary. The court held that involuntary alienations only arise out of necessity such as pressing debts. Thus the alienation was voluntary and the bequest had adeemed.
In Van Zyl v Esterhuyse, an important case in the law of succession in South Africa, the applicant applied for the rectification of a joint will executed by herself and her deceased husband. The will appointed her as the sole heir subject to the conditions
Ex parte Estate late McDonald 1945 NPD 348, sometimes called Ex Parte McDonald was an important case in the South African law of succession, in which the testator bequeathed his entire estate to a trust subject to the granting of a usufruct in favour of his wife, so long as she remained unmarried, in which she received the full use and enjoyment of the income of his estate. Her life interest was subject to the condition that she should provide for, maintain and educate the children during their respective minorities.
In Garfinkle v Estate Garfinkle 1936 1 PH G5 (C), an important case in the South African law of succession, the testator had a shop attached to his house and a large sum of money. The will stated that the shop was to be advertised for hire by tender and the minimum price acceptable was 30 shilling per month, plus a 500 pound security deposit. Furthermore, the will stated that the prospective lease was to provide three certificates, stating that he was of good character, from a teacher, magistrate and a priest.
Minshull v Minshull (1737) 26 ER 260 is an English trusts law case, concerning the principle of certainty for a will, known then as a "devise".
References
- Botha v The Master 1976 (3) SA 597 (E).
