Section 2(3) of the Wills Act 7 of 1953: Condonation of Non-Compliant Wills in South African Law

 

Introduction

Section 2(3) of the Wills Act, 7 of 1953, provides a critical mechanism in South African law for courts to condone documents that do not meet the formal requirements for a valid will. This provision ensures that genuine testamentary intentions are not frustrated by technical non-compliance with legal formalities. Below is an in-depth analysis of this section, its key requirements, and its application through South African case law.

Key Requirements of Section 2(3)

Under Section 2(3), a court must order the Master of the High Court to accept a document as a valid will if the following conditions are met:

1. The document was drafted or executed by the deceased.
2. The deceased intended the document to serve as their last will or an amendment to it.

This provision is peremptory, meaning that once these requirements are satisfied, the court has no discretion to refuse condonation. However, courts must carefully evaluate whether these conditions are met, particularly regarding the deceased's intention.

Judicial Interpretation and Case Law

South African courts have grappled with various issues under Section 2(3), particularly around three key concepts: "document," "drafted or executed," and "intention." These elements have been interpreted and applied in numerous cases, demonstrating how courts balance testamentary freedom with legal safeguards.

1. Document Requirement

The term "document" is interpreted broadly under Section 2(3) but must still satisfy certain criteria. Courts generally require that a document has an "aura of authenticity" and is clearly linked to the deceased's testamentary intentions.

• In Van der Merwe v The Master (2010), the Supreme Court of Appeal emphasized that a document must demonstrate authenticity and reflect the deceased's intent to dispose of their estate.
• In Hassan v Mentor NO (2012), a copy of a lost will was accepted under Section 2(3).
• In Dryden v Harrison and Others (unreported) case number 11912/17 (2019), courts considered whether an email could qualify as a testamentary document, though it was ultimately rejected due to insufficient evidence of intention.

2. Drafted or Executed by the Deceased

The requirement that the document must have been drafted or executed by the deceased has led to disputes, particularly in cases involving informal or incomplete documents.

• In Mabika v Mabika (2011), an informal note was condoned as a will because it was clear from surrounding circumstances that the deceased intended it to represent her final wishes.
• Similarly, in Perumal v Janse Van Rensburg NO and Others [2025], an unsigned amended will drafted by the deceased on his laptop was condoned. The court found that repeated follow-ups by the deceased with his executor demonstrated his clear intention for the document to serve as his last will.

3. Intention

Intention is central to Section 2(3). Courts must determine whether the deceased intended for a specific document to serve as their last will or an amendment thereto. This determination often involves examining both the content of the document and surrounding circumstances.

Case Studies: Application of Section 2(3)

The cases below illustrate how courts approach this issue.

Case 1: Dryden v Harrison and Others (2019)

This case involved an email sent by the deceased containing testamentary language such as "This serves as my final will and testament." The court had to decide whether this email could be accepted as a valid will under Section 2(3).

Key Facts

• The deceased had executed a valid formal will in 2006 but did not revoke or amend it after his divorce in 2011.
• On January 4, 2016, he sent an email outlining new testamentary instructions but did not take further steps to formalize these changes.
• After his death in September 2016, the Master refused to accept the email due to its non-compliance with formalities.

Court’s Findings

The court concluded that:

1. While the email was drafted by the deceased, it lacked sufficient evidence of intention to serve as his last will.
2. The existence of a valid formal will (2006) suggested that he understood and adhered to formalities when creating testamentary documents.
3. The email appeared more likely to be a reassurance of future intentions rather than a binding testamentary instrument.

The application was dismissed with costs.

Case 2: Perumal v Janse Van Rensburg NO and Others [2025]

In contrast, Perumal involved an unsigned amended will drafted by the deceased on his laptop. The court had to decide whether this document should be condoned under Section 2(3).

Key Facts

• The deceased drafted amendments to his will in July 2022 after announcing his engagement to Perumal.
• He sent this amended document to his executor but passed away in April 2023 without signing it.
• Despite opposition from his former partner (C), who argued that non-signature indicated lack of intention, evidence showed that he followed up twice with his executor about finalizing the amended will.

Court’s Findings

The court held that:

1. It was undisputed that the deceased drafted the amended document.
2. His repeated follow-ups demonstrated clear intention for it to serve as his last will.
3. The amendments aligned with his changed circumstances and relationship with Perumal.

The court ordered the Master to accept the amended document as S’s last will and awarded costs against C due to her speculative and unreasonable opposition.

Broader Implications

These cases highlight how South African courts navigate Section 2(3) when dealing with non-compliant wills:

1. Intention is Paramount: Courts prioritize evidence demonstrating animus testandi (intention to make a will). Without clear evidence, as seen in Dryden, applications are unlikely to succeed.
2. Balancing Formalities and Testamentary Freedom: While Section 2(3) allows flexibility, courts remain cautious about overriding formal wills unless compelling evidence supports doing so.
3. Role of Evidence: Surrounding circumstances—such as follow-up actions (Perumal) or prior adherence to formalities (Dryden)—play a crucial role in determining whether intention exists.

Conclusion

Section 2(3) of the Wills Act provides flexibility for courts to recognize non-compliant wills while safeguarding against fraud or misinterpretation. Cases like Van der Merwe, Mabika, Dryden, and Perumal illustrate how courts carefully evaluate evidence of authenticity, drafting by the deceased, and intention. While decisions such as Dryden emphasize adherence to formalities where intention is unclear, cases like Perumal demonstrate how clear evidence can override technical defects. These judgments highlight how South African courts balance testamentary freedom with legal safeguards under Section 2(3), ensuring that genuine intentions are upheld while protecting against abuse or uncertainty in estate administration.

 

The Applicable Law of Succession to a South African Domiciled Individual

 A UK solicitor asked us to provide a certificate of applicable law regarding succession for a deceased individual domiciled in South Africa.

In the UK, when dealing with cross-border estates, it is often necessary to determine which country’s succession laws apply. A certificate of applicable law is typically a legal opinion or formal document confirming the relevant laws governing succession, particularly under private international law (conflict of laws) principles. This is often required for probate, estate administration, or litigation in UK courts when dealing with foreign estates.

South African Law Perspective:

South Africa follows the domicile principle for succession, meaning that:

• The deceased’s domicile at the time of death determines which succession laws apply to their estate.
• If the individual was domiciled in South Africa, then South African succession law (testate or intestate) will apply.
• A UK court or authority handling part of the deceased’s estate may need expert confirmation from a South African lawyer regarding which rules govern succession.

1. Applicable Law

South African private international law follows the doctrine of domicile in matters of succession. In terms of this doctrine, the succession to the estate of a deceased individual is governed by the law of their domicile at the time of death.

Accordingly, if the deceased was domiciled in South Africa at the time of their passing, the law applicable to their estate is South African succession law, irrespective of where the assets are situated.

2. Legal Framework

The primary legislative instruments governing succession in South Africa are:

• The Wills Act 7 of 1953, which prescribes the formal requirements for the execution of a valid will.
• The Intestate Succession Act 81 of 1987, which governs the distribution of estates where no valid will exists.
• The Administration of Estates Act 66 of 1965, which regulates the appointment of executors and the administration of deceased estates.
• The Maintenance of Surviving Spouses Act 27 of 1990, which allows surviving spouses to claim reasonable maintenance from the deceased’s estate if they are not adequately provided for.
• The Children's Act 38 of 2005, which affirms that minor children are entitled to inherit from a deceased parent under intestate succession.

South African courts have consistently upheld the domicile rule in succession matters. In Ex parte Spinazze and Another NNO 1985 (3) SA 650 (A), the court reaffirmed that South African law applies to the estates of South African domiciliaries, regardless of where their assets are located.

3. Testate Succession (Where a Valid Will Exists)

Where the deceased left a valid will, the estate will be administered in terms of the will’s provisions, subject to South African legal requirements for validity, as set out in sections 2(1)(a) and 2A of the Wills Act 7 of 1953. These include:

• The testator must have been at least 16 years old and had testamentary capacity at the time of execution.
• The will must have been signed by the testator in the presence of two competent witnesses.
• Any amendments to the will must comply with the requirements of the Wills Act.

Where disputes arise regarding testamentary capacity, the burden of proof generally falls on the party challenging the validity of the will.

4. Intestate Succession (Where No Valid Will Exists)

If the deceased died without a valid will, their estate is distributed according to the Intestate Succession Act 81 of 1987, which provides for the following order of inheritance:

• Surviving spouse(s) – If there is a surviving spouse, they inherit a child’s share or R250,000, whichever is greater.
• Children – If there is no surviving spouse, the children inherit equally. Adopted and extramarital children have the same rights as biological children.
• Parents and other blood relatives – If there are no descendants or spouses, the estate passes to the deceased’s parents or, failing that, to their closest blood relatives.

5. Executor Appointment and Estate Administration

The Master of the High Court is responsible for overseeing the administration of deceased estates in South Africa, in accordance with the Administration of Estates Act 66 of 1965.

• A Letter of Executorship must be obtained before administering the estate.
• The executor is responsible for collecting assets, paying debts, and distributing the estate according to the will or intestate succession laws.
• If disputes arise, they may be adjudicated by the High Court of South Africa.

6. Conclusion

Based on the deceased’s South African domicile, the law applicable to the succession of their estate is South African law. This means:

• If a valid will exists, the estate will be administered according to the testator’s wishes, subject to the legal framework outlined above.
• If no valid will exists, the estate will be distributed in accordance with the Intestate Succession Act 81 of 1987.
• The estate will be administered under the supervision of the Master of the High Court, with an appointed executor responsible for compliance with South African estate laws.

 

South African Law on Foreign Marriages: Domicile, Property Regimes, and Legal Implications

 

Introduction

This article examines the legal implications of marriages solemnized outside South Africa, focusing on the determination of applicable law and property regimes. It explores key principles in South African matrimonial law, particularly concerning marriages where one or both parties are domiciled in South Africa.

Formal Validity and Governing Law

The formal validity of a marriage is determined by the lex loci celebrationis, the law of the place where the marriage is solemnized. However, this principle does not extend to governing the legal and proprietary consequences of the marriage.

South African Law on Matrimonial Property

According to the Matrimonial Property Act 88 of 1984, if the husband is domiciled in South Africa at the time of marriage, the union is automatically in community of property, unless a valid antenuptial contract exists. This principle applies even when the marriage is concluded outside South Africa, as established in Frankel's Estate and Another v The Master and Another (1950).

Concept of Domicile

Definition

Holland v Holland 1973 defined domicile as a particular territorial jurisdiction where a person intends to settle or is settled indefinitely. It is primarily a subjective determination based on the parties' intentions.

Legal Interpretation

The Frankel case established that the matrimonial regime is governed by the law of the husband's domicile at the time of marriage, not by any future domicile he intends to acquire. This principle has been reinforced by the Domicile Act of 1992 and the case of Esterhuizen v Esterhuizen 1999.

Antenuptial Contracts for Foreign-Domiciled Spouses

Spouses in a civil marriage, where the husband is domiciled in a foreign country, can enter into an antenuptial contract to regulate their marriage's consequences and register it in South Africa. This is supported by Johnson and Another v Registrar of Deeds 1931 and RCR 64 of 1961.

Important Distinction

It's crucial to note that entering into an antenuptial contract does not automatically make the marriage out of community of property. The marriage must still be described as "Married which marriage is governed by the laws of (name the country)".

Conclusion

The article highlights the complexity of determining the legal consequences of marriages concluded outside South Africa. It emphasizes the importance of the husband's domicile at the time of marriage in determining the applicable matrimonial property regime. While couples have some flexibility in regulating their marital property through antenuptial contracts, the underlying principle of the husband's domicile remains a key factor in South African matrimonial law.

 

Amendment of Antenuptial Contracts in South Africa

Can married parties vary the terms of their existing antenuptial contract (ANC), without going to court?

Introduction to Legal Principles

ANCs are crucial legal documents that determine the financial and proprietary consequences of a marriage. In South African law, there are strict rules governing the amendment of these contracts after marriage.

As a general rule in our law, an antenuptial contract cannot be amended between the parties after the marriage has been concluded (Ex parte De Zwaan and Another 1909 TS 676). 

Such a contract can, however, be amended by the Court, but only in a very limited sense. In Ex parte Venter et Uxor 1948 (2) SA 175 (O), it was held that the court’s power to authorize the revocation or amendment of antenuptial contracts, is strictly limited to those cases where the marriage is dissolved or where the contents of the written contract did not give effect to the actual agreement between the parties. 

Key Legal Provisions

• Section 21 of the Matrimonial Property Act: Allows spouses to jointly apply to court for permission to change their matrimonial property system, provided there are sound reasons, sufficient notice to creditors, and no prejudice to other parties. The provisions of the Matrimonial Property Act can only be utilized to change the matrimonial property regime of spouses and not the terms of an antenuptial contract. 
• Section 88 of the Deeds Registries Act: Authorizes post-nuptial execution of a notarial contract with the effect of an antenuptial contract, if the terms were agreed upon before marriage.

Amendment Process

• Before Marriage: Parties can freely modify or revoke the ANC through a notarial deed.
• After Marriage: ANCs should only be amended through a court order.

The High Court application

The application is costly, and the parties can conclude an addendum to their ANC and agree that on dissolution of the marriage one party will not argue that the addendum is unenforceable.

However, an application to court is preferable. If the marriage ends in divorce and one party disputes the validity of the addendum, it is likely that a court will declare it void and unenforceable.

Court Order:

The High Court order would read something like this:

Having read the papers filed of record and having heard Counsel for the Applicants, it is ordered that:

1. First and Second Applicants are hereby granted leave to conclude a notarially executed amendment to the antenuptial contract concluded between them on ….
2. The Registrar of Deeds be and hereby is authorised, subject to his/her requirements, to attend to the registration of such amendment in the form annexed hereto marked ‘A’.”

The new Antenuptial Contract would normally start off with terms reading as follows:

“AND THE APPEARERS DECLARED THAT WHEREAS:

1. the parties are married in terms of a duly registered antenuptial contract with reference H….. (‘the existing antenuptial contract’).
2. they wish to amend the terms of the existing antenuptial contract by the supplementation thereof in the manner set out below.
3. the parties are authorised to do so in terms of an order dated ………………. in the South Gauteng High Court, Johannesburg, under case number …..  

4.        the parties have agreed to be bound by the following provisions as if these provisions formed part of the existing antenuptial contract”. 

Conclusion

Amending an ANC after marriage in South Africa is a complex legal process requiring court intervention. While alternatives like addendums exist, they carry risks of being declared unenforceable. The safest approach is to seek a High Court order for any post-marriage ANC amendments.

 

Actio Communi Dividundo - Resolving Property Disputes Between Co-Owners: Mediation, Legal Notices, and High Court Applications

Introduction

Co-owning property can be a beneficial arrangement, whether between business partners, family members, or former spouses. However, when disagreements arise over the use, management, or sale of the property, the situation can become unmanageable. One owner may wish to sell, while the other refuses, leading to a deadlock. When this happens, the South African legal system provides a remedy known as the actio communi dividundo, which allows co-owners to apply to the High Court for an order terminating the joint ownership.

However, before resorting to litigation, it is advisable to explore mediation and, if necessary, issue a formal legal notice before filing a court application. This article outlines the steps involved in resolving property disputes amicably and, if necessary, through legal action.

Step 1: Mediation as a First Resort

The first step in resolving a property dispute between co-owners should be mediation. Mediation is a structured negotiation process where a neutral third party facilitates discussions between the parties to help them reach an agreement. It is a cost-effective, confidential, and less adversarial alternative to litigation.

Why Mediation?

• Saves Time and Costs: Litigation can be expensive and time-consuming, often taking months or even years to conclude. Mediation allows the parties to reach a solution more quickly and at a lower cost.
• Preserves Relationships: Property disputes often arise between family members or business partners. Mediation helps maintain relationships by finding a fair resolution without the hostility of court proceedings.
• Flexible Solutions: Mediation allows for creative solutions, such as one party buying out the other’s share, setting a timeline for sale, or even structuring a joint rental agreement until a marketable sale can be arranged.

If mediation is successful, the terms of the agreement should be documented in a legally binding settlement agreement to ensure both parties comply with the agreed terms.

Step 2: Issuing a Strongly Worded Letter

If mediation fails or one party refuses to participate, the next step is to send a formal legal letter inviting the co-owner to agree to an auction or private sale. This letter should set out:

1. The reasons why the property should be sold (e.g., financial strain, inability to agree on management, or one party wanting to liquidate their investment).
2. A proposal for the method of sale, such as:
• A private sale through a mutually agreed real estate agent.
• A public auction conducted by a court-appointed auctioneer.
3. A deadline for the co-owner to respond (e.g., 7 to 14 days).
4. A warning that failure to agree will result in a High Court application, where the applicant will seek an order terminating co-ownership, appointing a liquidator to oversee the sale, and asking the court to order the uncooperative party to pay wasted costs.

This letter should be drafted by a lawyer and sent by hand or email to ensure proof of delivery. If the co-owner fails to respond or refuses to cooperate, the next step is legal action.

Step 3: The High Court Application – Actio Communi Dividundo

When all attempts to reach an agreement have failed, the last resort is filing an application in the High Court for an actio communi dividundo. This is a common law remedy that allows for the termination of co-ownership when co-owners cannot agree on the division or sale of the property.

Legal Grounds for the Application

The applicant must show that:

1. They are a co-owner of the property.
2. There is an irreconcilable deadlock between the co-owners.
3. Efforts to reach an amicable resolution have failed.
4. The proposed method of division (sale or auction) is fair and reasonable.

Relief Sought from the High Court

The application will ask the court for:

• An order terminating co-ownership of the property.
• An order compelling the sale of the property through a public auction or private treaty.
• Appointment of a receiver and liquidator, who will handle the sale and ensure fair distribution of proceeds.
• A directive that the net proceeds be distributed according to the ownership shares, after deducting costs and any financial contributions made by either party.
• An order compelling the uncooperative party to sign transfer documents, failing which the Sheriff of the Court is authorised to sign on their behalf.
• An order for costs, requiring the uncooperative party to pay the legal costs of the application.

Court Process and Next Steps

The High Court application is brought by way of motion proceedings, consisting of:

1. A Notice of Motion – outlining the relief sought.
2. A Founding Affidavit – explaining the facts of the case, the history of the dispute, and why court intervention is necessary.
3. Service of the Application – the court papers are formally served on the respondent.
4. Respondent’s Answering Papers – the co-owner may file an affidavit opposing the relief sought.
5. Replying Affidavit – the applicant can respond to any issues raised by the respondent.
6. Court Hearing – the matter is argued before a judge, who will make a ruling.

If the court grants the order, the property is sold, and the proceeds are fairly distributed. The court may also order cost penalties against the uncooperative party.

Conclusion

Property disputes between co-owners can be stressful and financially draining, but there are structured legal remedies available. The best approach is always to attempt mediation first, as this can result in a mutually beneficial resolution. If mediation fails, a formal legal notice should be sent, urging the co-owner to cooperate in selling the property. If they still refuse, a High Court application under the actio communi dividundo is the final step, ensuring the property is sold, and the proceeds are fairly divided.

For co-owners facing such disputes, seeking legal advice early can prevent unnecessary delays and expenses. Taking the correct legal steps ensures a fair resolution while holding uncooperative parties accountable.