LJU4804
ASSIGNMENT 1 SEMESTER 2 2025
UNIQUE NO.
DUE DATE: 29 AUGUST 2025
, Private International Law
Question 1.1
Mrs Musonga executed two wills: the first in Malawi (2006) while domiciled in Zambia,
and the second in Germany (2011) while domiciled in South Africa. The second will
purported to revoke the first and appointed her mother as heir. However, it is stated that
the second will is formally invalid under all the possible testing systems listed in s 3 bis
(1)(a) of the Wills Act 7 of 1953, but valid under Malawian law.
Section 3 bis (1) of the Wills Act provides that a will shall be valid if it complies with the
internal law of one of several systems, namely:
the law of the place where it was executed;
the law of the testator’s nationality, domicile, or habitual residence, either at
execution or at death.
Additionally, s 3 bis (1)(d) adds that a will is valid if it complies with the internal law of a
country in which immovable property is situated, insofar as the will disposes of such
property. This provision is intended to broaden the chances of upholding testamentary
documents in cross-border contexts, thereby giving effect to the principle of favor
testamenti.
In this case, the second will is invalid under all systems listed in s 3 bis (1)(a), but valid
under Malawian law. Since Malawian law is not one of the testing systems expressly
recognized in subsection (a), the will cannot be upheld via that route. Section 3 bis
(1)(d) could only apply if the immovable property were in Malawi, but the properties are
in South Africa. Therefore, the second will cannot be saved under this provision either.
Consequently, the first will, though formally valid under Malawian law (the lex loci
actus), remains operative because the second will failed. Since Mrs Musonga divorced
her husband in 2010, the operation of South African law must also be considered.
ASSIGNMENT 1 SEMESTER 2 2025
UNIQUE NO.
DUE DATE: 29 AUGUST 2025
, Private International Law
Question 1.1
Mrs Musonga executed two wills: the first in Malawi (2006) while domiciled in Zambia,
and the second in Germany (2011) while domiciled in South Africa. The second will
purported to revoke the first and appointed her mother as heir. However, it is stated that
the second will is formally invalid under all the possible testing systems listed in s 3 bis
(1)(a) of the Wills Act 7 of 1953, but valid under Malawian law.
Section 3 bis (1) of the Wills Act provides that a will shall be valid if it complies with the
internal law of one of several systems, namely:
the law of the place where it was executed;
the law of the testator’s nationality, domicile, or habitual residence, either at
execution or at death.
Additionally, s 3 bis (1)(d) adds that a will is valid if it complies with the internal law of a
country in which immovable property is situated, insofar as the will disposes of such
property. This provision is intended to broaden the chances of upholding testamentary
documents in cross-border contexts, thereby giving effect to the principle of favor
testamenti.
In this case, the second will is invalid under all systems listed in s 3 bis (1)(a), but valid
under Malawian law. Since Malawian law is not one of the testing systems expressly
recognized in subsection (a), the will cannot be upheld via that route. Section 3 bis
(1)(d) could only apply if the immovable property were in Malawi, but the properties are
in South Africa. Therefore, the second will cannot be saved under this provision either.
Consequently, the first will, though formally valid under Malawian law (the lex loci
actus), remains operative because the second will failed. Since Mrs Musonga divorced
her husband in 2010, the operation of South African law must also be considered.
