Study Set Content:
If T signs by mark..
Commissioner of oaths must be present and necessary certification must be done.
In terms of s2(1)(a)(i) the T or person signing on their behalf must sign at...
The end of the will
Kidwell v The Master
The T signed 9cm away from the end of the written part of the will
Declared invalid
For T , the ‘end of the will’ is where the written portion of the will ends and not the bottom of the page
In terms of s2(1)(a)(ii)
Signature of T must be made or acknowledged in the presence of two or more competent witnesses present at the same time.
Two witnesses must attest and sign the will in the presence of..
- T
- and each other
Who is a competent witness?
ITO s1 person aged 14+ or person who at the time of witnessing a will is not incompetent to give evidence in a court of law.
Attest?
The act of witnessing T sign
What does “presence” mean?
Sufficient where witness is in the same room as T and either actually saw them sign or could or might have done so. Not essential that T should actually see witnesses sign either – as long as they sign where they could have seen them.
Karani v Karani
Witnesses signed the will days after each other and not in each others presence – held to be invalid
Liebenberg v The Master
Court held that the witnesses may sign anywhere on the last page
Sterban v Dixon
The attestation clause is at most a record of how T (and witnesses) intended to sign
Isn’t proof of that parties in fact executed the will in accordance with the intention expressed in the clause
Witnesses do not.. 2 things
- Need to know that they are attesting and aligning a will.
- Need to have knowledge of the content of the will.
May a witness also be a beneficiary of will their signing? (s4A)
Yes, the will shall be formally valid, but the witness cannot receive any benefit unless they comply with certain exceptions.
Certificate by the Commissioner of Oaths S2(1)(a)(v)
- Must be present when T signs with mark.
- Must be present when someone signs on behalf of T.
- Must be satisfied with T's identity and that it is T's will.
- Must sign will on each page, anywhere. Excl certification page.
When is presence of C not required?
Where T signs using his signature and not a mark.
Who qualifies as a commissioner of oaths?
- attorneys,
- magistrates,
- advocates,
- police officers
Where on the will must the certificate appear?
Can be appended on any page
What is the nature of this certificate?
- Not a separate document
- It refers to a certain wording with a certain content that the commissioner either writes, types, prints or impresses with a rubber stamp.
The Commissioner must make it clear that they act in their capacity as..
commissioners of oaths and not as attorneys/advocates..
Radley v Stopforth
Administrative officer of a hospital, but also commissioner of oath, signed will as administrative officer
Court held the certificate as invalid as the Com must state they are acting as commissioner of oaths
