What are the requirements for a valid will if one cannot sign his/her name?

If you are unable to sign your Will, you may ask someone to sign the Will on your behalf or you can sign the Will by the making of a mark (a thumbprint or the making of a cross). When the Will is signed by someone on your behalf or by the making of a mark the requirements for a valid Will are as follow:

1. The testator/testatrix must sign the Will at the end thereof by the making of a mark, or the Will must be signed by some other person in the presence and by the direction of the testator/testatrix.
2. The mark or the signature of the other person signing on behalf of the testator/testatrix must be made in the presence of two or more competent witnesses and a commissioner of oaths.
3. The witnesses must attest and sign the Will in the presence of the testator/testatrix and of each other and if the Will is signed by the other person, also in the presence of such other person and a commissioner of oaths.
4. If the Will consists of more than one page, each page other than the page on which it ends must be signed by the testator/testatrix or by such other person anywhere on the page. (Although the testator / testatrix must sign all the pages of the Will it is only the page on which the Will ends, that needs to be signed at the end of the Will).
5. A commissioner of oaths must certify that he/she has satisfied himself/herself as to the identity of the testator and that the Will so signed is the Will of the testator.
6. The commissioner of oaths must sign his/her certificate and he/she must also sign each other page of the Will, anywhere on the page.

Is a copy of a will valid?

 

Because of Covid, my late father never signed his latest will. Will I have to wind up his estate based on his earlier signed will or can I rely on the later unsigned one?

A will is a document in which a person sets out how his or her belongings are distributed in accordance with their wishes after their death.

For a will to be valid it must comply with the formalities set out in the Wills Act 7 of 1953 (the Act).

The requirements for a valid Will are as follows:

• The “testator” or “testatrix” (the person who makes a will) must be over the age of 16 (sixteen) years and mentally competent.
• The Will must be in writing. This means that a will can by typed or handwritten. If the Will is handwritten by someone else for the testator, that person cannot be a beneficiary in the will
• Each page of the Will, including the last page, must be signed by the testator. The Will must also be signed by two competent witnesses. A person will qualify to be a competent witness if s/he is 14 (fourteen) years of age or older.
• The signature of the testator/testatrix must be made in the presence of two or more competent witnesses.
• The witnesses must attest and sign the Will in the presence of the testator/testatrix and of each other.

What happens if the will is lost, destroyed, or never signed?

Section 2(3) of the 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 that document, or that document as amended, for the purposes of the Administration of Estates Act, 1965 (Act 66 of 1965), as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1)’.

 

In terms of our law of succession, the Master of the High Court will only accept as valid a will that complies with all the formalities of the Wills Act. If an original will is lost or destroyed and only a copy of the original will available, a person that wishes to rely upon such will must apply to court for an order declaring that the copy of the original is valid for purposes of administering a deceased estate. The same principle will apply to an unsigned will.

 

An applicant will have to prove:

 

1.     That the will was lawfully executed.

2.     The circumstances in which the original will was lost or destroyed (or never signed) or that a diligent and sufficient search for the original will was made with no success.

3.     That the deceased had no intention of revoking the will.

4.     That the disputed testamentary document is a true copy of the missing original will and that it contains true wishes of the last will so executed.

 

Only if the court is satisfied that the copy of the will is valid and represents the intentions of the testator, may the court order the Master to accept the copy of the will as valid and to be used for purposes of administering the estate.

 

The court will require the applicant to set out all the facts in an affidavit, but it may also require oral testimony. The degree of proof required will depend on the circumstances of each particular case. The factors that the court would consider are: “Was the missing original will innocently lost? If so, has a diligent and sufficient search been made to trace it? This is the one scenario - innocent loss. Was the missing original will deliberately destroyed? If so, was it destroyed on purpose by the testator as an act of revocation or mischievously spirited away by a disgruntled potential beneficiary as an act of dishonesty or spitefully shredded by a third party with an ulterior motive? This is the other scenario - purposeful destruction”.

 

In every case the final outcome depends on the overall evidence presented to the court by the claimant who must, on a balance of probabilities, prove the case in order to be awarded judgment.

 

It is a good idea to sign three original copies of your will, one for you, one for a close family member and one for the person that helped you draft the will.

Amendment of your Antenuptial Contract

 

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

It is a general rule in our law that an ANC cannot be amended between the parties after the conclusion of marriage and only a court can amend it.

The High Court application is costly.  The parties can conclude an addendum to their ANC and agree that on the 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.

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”.

 

Procedural requirements relating to information sought from a public body regarding the Promotion of Access to Information Act 2 of 2000 (“PAIA”).

 

 

Section 32 of the Constitution of the Republic of South Africa, 1996  provides that everyone has the right of access to any information held by the state and any information that is held by another person that is required for the exercise or protection of any rights. 

PAIA is the legislation envisaged in terms of section 32 (2) of the Constitution of the Republic of South Africa. 

From 1 July 2021, the Information Regulator takes over the oversight of PAIA in South Africa. PAIA has been in effect since 2002 but will now have a more significant impact with the appointment of a dedicated regulator to enforce it. 

S11 of PAIA firstly emphasises that it is peremptory for a requester of information to comply with all procedural requirements set out in PAIA when requesting information from a public body. 

A requester “must” be given access to the information on the condition that the procedural requirements are complied with and that the information requested is not protected from disclosure by one of the exemptions set out in the Act. 

What are some of the procedural requirements?

·         Public bodies must publish a Manual that provides guidelines to members of the public on how the information they hold is to be made available to requesters. 

·         Some public bodies have designed their unique form for the requesting of information. However, the prescribed form A, which applies to all public bodies, can be used and is attached as an annexure to the Regulations regarding the Promotion of Access to Information, promulgated in Government Notice 187, Government Gazette 23119 dated 15 February 2002. Therefore, it is essential to obtain the Manual of the public body in question and ensure that the guidelines contained therein are complied with, such as completing the correct form requesting information.  

·         The requester must send the prescribed form to the listed Information Officer and to the recorded email address. 

·         A required fee may be applicable if the information is not freely available. 

·         The requester must provide sufficient particulars to enable an official of the public body to identify the record or records requested. 

·         The requester must indicate which appropriate form of access is required and state whether the record concerned is preferred in a particular language. 

·         Details of a postal address or fax number of the requester in the Republic of South Africa. 

·         If in addition to a written reply, if the requester wishes to be informed of the decision on the request in any other manner, to state that manner and the necessary particulars to be so informed. 

·         If the request is made on behalf of a person, the requester must submit proof of their capacity to the reasonable satisfaction of the information officer must be submitted. 

It is therefore crucial that all the procedural requirements are adhered to by a requester. Failing compliance, a public body is not obliged to provide the information, and the requester is not entitled to the information.

 

 

The test for foreseeability of harm

 

The true criterion for determining negligence is whether in the particular circumstances of each specific case the conduct complained of fell short of the standard of the reasonable person. A court can’t seek guidance from the facts and results of other cases.

In Pick 'n Pay Retailers (Pty) Ltd v Pillay (900/2020) [2021] ZASCA 125 (29 September 2021) the Supreme Court of Appeal had to decide whether the appellant, Pick ’n Pay Retailers (Pty) Ltd (the defendant), was negligent in the operation of an automated Centurion Sector boom gate (the boom) controlling the exit of vehicles from a parking area for persons with special needs and parents with small children at Pick ’n Pay Hypermarket in Durban North. The plaintiff was injured when the boom struck on her head as it descended from a vertical position.

The plaintiff instituted proceedings against the defendant, alleging that the defendant should reasonably have foreseen the possibility that the boom could cause injury to persons frequenting the shopping centre, and failed to take steps to guard against such occurrence.

Although the risk of the boom descending and striking a person was reasonably foreseeable, counsel for the defendant submitted that the plaintiff had not proved that the defendant was negligent. 

The court cited various authorities and authors:

 In Kruger v Coetzee, Holmes JA formulated the test for negligence as follows:

‘For the purposes of liability culpa arises if:

(a)    A diligens paterfamilias in the position of the defendant-

(i)    would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

(ii)    would take reasonable steps to guard against such occurrence; and

(b)    the defendant failed to take such steps.’

In Sea Harvest Corporation, Scott JA stated that dividing the issue of negligence into various stages, however useful, was no more than an aid or guideline in resolving the issue: in the final analysis the true criterion for determining negligence was whether in the particular circumstances the conduct complained of fell short of the standard of the reasonable person. There is no universally applicable formula which would prove to be appropriate in every case.

In the light of recent authorities, J R Midgley and J C van der Walt in Lawsa have made the following observation:

‘When assessing negligence, the focus appears to have shifted from the foreseeability and preventability formulation of the test to the actual standard: conduct associated with a reasonable person. The Kruger v Coetzee test, or any modification thereof, has been relegated to a formula or guide that does not require strict adherence. It is merely a method for determining the reasonable person standard, which is why courts are free to assume foreseeability and focus on whether the defendant took the appropriate steps that were expected of him or her.’

Applied to the present case, the question is thus whether in the particular circumstances, the defendant took appropriate steps to avoid injury to pedestrians.

‘Whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable, must always depend upon the particular circumstances of each case. No hard and fast basis can be laid down. Hence the futility, in general, of seeking guidance from the facts and results of other cases.’

The SCA found that, in the particular circumstances, the defendant’s conduct fell short of the standard of the reasonable person. In the result the appeal was dismissed with costs.