Will and Testament

Can your Will and Testament be in any other 'form' than in writing and signed by witnesses? We discover some interesting cases!

In March 2010 there was a suicide event!  The deceased, just prior to taking his own life, wrote a suicide note and in the note he wrote down specific instructions on how the assets were to be disposed of.  The Master of the High Court accepted the suicide note as the deceased's last will and testament and the deceased's wishes were acted upon.

In September 2010, a gentleman, one month after 'drafting' his will in an email to his close friend, passed away. However, the gentleman had not properly 'executed' the will before he passed away and the main concern was that this 'email' will was not signed by the deceased.   After some consideration and investigation - the Master of the High Court accepted the email will as the deceased's last will and testament!

Ok - now I have summarised both cases above and made it sound very simple - but it is not.

The Wills Act - section 2(1)(a) dictates formalities in the drafting and execution of a will, neither the above met with the formalities prescribed and hence the cases landed up in court for the Master to rule on.

Section 2(3) of the wills act is also a factor that needs to be considered - in summary ' the court has to be satisfied that a document drafted or executed by a person who has died since the drafting of his/her will was INTENDED to be his or her will - even though it does not comply with all the formalities as prescribed in Section 2(1).'

In both cases above, can you see the difficulty in trying to prove that the suicide note or the email was intended to be the deceased's last will?

In the suicide case, from the instructions given and the fact that the deceased made reference to his exising will and where it was kept, that the deaceased nearly 'spoke' in the note to his dependants - the courts ruled that it clearly was the deceased's intention to make the suicide note his last instructions.... but it could have gone the other way !  This person could have been lucid enough to instruct but, a person who is on the verge of suicide is going through many unimaginable emotions and, any note written may not be as clear - and may lead to 'not intended' to be his last will.

With the email case, it was two extremely close and long time friends who no longer had any dependants or immediate family members and they chose to leave their estates to one another. The deceased emailed the will to his friend asking whether he approved and his friend in return, as promised, went to his lawyer to immediately execute his will, leaving his estate to his friend. Not a month later, the one friend died without actually executing his will and signing it!

The friend however managed to proof certain events - he managed to clearly show that the email came from his friend, they managed to proof that the will was still on the friends computer which showed that it was drafted by the deceased and the fact that immediately after the email, the surviving friend executed a valid will leaving his estate to his friend... all this, plus the fact that the deceased did not have any dependants or immediate family showed some authenticity and the Courts ruled in favour.  

But what if this 'intention' could not be proved?  If the Courts did not rule in favour but declared the suicide note as well as the email not to be a valid will , then the deceaseds would be deemed to have died without a will and the laws of Intestate Succession would have to be followed.

Intestate means that we would first look for descendants [children, grandchildren, great grandchildren etc] if none then, we would look for ascendants [brothers, sisters, mother, father, cousins etc etc].... this may not be what the deceaseds would have wanted at all!!

This article is not to dissect 'intestate succession' - we can do this another time...but merely to point out to you that it is far more preferrable that you ensure that you have a properly executed and valid will to prevent your family and or dependants from having to approach the courts to rule it a valid them this trouble at least!



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