Study Set Content:
Section 2(3) of the Will Act
If a court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept the document, or that document as amended… as a will, although it does not comply with all the formalities for the execution or amendment of wills
When will section 2(3) be applicable?:
For the noncompliance of s2(1)(a) (formalities) and s2(1)(b) (amendments)
No condonation of...
Testamentary Incapacity
Section 2(3) considered as...
rescue provision
Condonation of Wills
The courts power to declare a will that does not comply with the formalities valid
First Requirement for condonation of will?
There must be a written will
Condonation of oral wills?
Not Possible
A document is drafted by someone on instructions of T, where there is partial compliance with formalities..
Can be condoned.
A document is drafted personally but no formalities have been complied with?
Can be condoned.
A document is drafted by someone else and not T, but no formalities have been complied with?
Cannot be condoned S2(3)
Macdonald v The Master
Will existed only in the form of a computer file at the time of the would-be testator's death condoned.Document cannot be condoned unless it was written by testator personally
Van der Merwe v Master of the High Court
Will was drafted by testator but did not meet formality requirments, supreme court of appeal ruled that will is condoned.
Second requirement for condonation
The will was drafted or executed by a person who has since died after drafting/execution.
Drafted document
A document formulated or written down by T; or someone else on the instructions of T.
Usually draft is only a document..
Thus no formalities have been complied with.
If the testator has written the draft
Condonation is possible.
If somebody else has written the draft on behalf of testator and no formalities have been complied with
No condonation (Bekker v Naude)
What does it mean if a will has only been partially executed?
Process of compliance with the formalities in s2(1)(a) has started but not finished for example T signed but no witnesses signed i.e partial execution..
Document drafted by attorney (with partial execution/compliance with formalities)
Condoned.
Webster v The Master
Attorney drafted will without any formality requirements, T then asked for redraft. T did not write draft himself, and T did not intend for last draft to be his will therefore no condonation.
