UNIT THREE: TESTATE SUCCESSION AND TESTAMENTARY CAPACITY (PG 48 – 54 & PG 59 – 64)
Terminology
Law of Testate Succession
o Legal rules and norms which regulate the devolution of a deceased estate upon one or more persons
according to the testator’s wishes as expressed in a will
Wills
o s1 of Wills Act = includes a codicil and any other testamentary writing
o More comprehensive definition = a last will and testament is a document executed by a person
(referred to as a testator) in a manner prescribed by law which concerns the disposition of property
and other matters within their control and which will take effect after their death
o Upon death = will is submitted to the Master of the HC to confirm validity
o If accepted = executor appointed by Master (unless stipulated in the will) to handle the liquidation of
the estate; NOTE: even if nominated in will, an official letter is still needed
o Requirements for validity in the Wills Act = (1) testamentary capacity (2) compliance with all
formalities as per s2 of the Wills Act
o 2 core prerequisites:
Animus testandi (free and serious intention to execute a will)
Before a will qualifies as such, there must be a conscious, serious and deliberate
statement of intention, not merely an indication, to show that the testator wanted
their will to become operative
Further, there must be a specific intention to do so in a will and not simply to
devolve their estate in some other form (Sim v The Master)
Lack of animus testandi = will is void ab initio (from the start)
o Evidence as to its existence may be led in court
o May be caused by mistake or force in some cases – examples:
If a person mistakenly signs a document without knowing it is a will
However, where there is mistaken motivation on behalf of
the testator then the will remains valid
If a person is under fear from duress or undue influence
Fraud or duress = always void ab initio
Undue influence = always ask whether or not the influence
was such that it caused the testator to no longer have
animus testandi or no longer expressed their own free will
Volition (voluntary declaration / choice)
Testator must have complete volition as to how the estate will be divided
Proof of lack of volition caused by coercion, fraud or undue influence = invalid will
Spies v Smith
o Not every single interference with a testator’s volition amounts to a ground
for invalidity and it is not forbidden to influence the testator by way of
flattery or humiliation
o However, where these take the form of fraud or a substitution of one’s will
then they are grounds f or invalidity
, o Factors to consider = relationship with the testator, testators emotional
state, capacity to withstand pressure and effluxion of time from influence to
execution of the will
Summary:
Animus testandi
o Intention to make a will
o Causes for lack of intention = force / coercion, mistake, fraud and duress
o Undue influence ONLY becomes relevant once animus testandi has been
established and it is now a matter of volition
Volition
o Testator’s own free will
o Influences on free will = force / coercion, fraud and undue influence
Codicils
o s1 of Wills Act = codicils included as part of ‘wills’
o Roman-Dutch Law = distinction between wills and codicils based on their formailities
o Modern law = codicil sometimes used to refer to an addendum to a will but is usually seen as a
separate will which now has to comply with the same formalities
o Example: different document, signed by the testator, which increases a certain bequest stated in the
main will
Testamentary Writings
o Also used in the Wills Act in order to indicate which documents must conform to the formalities
required by s2
o It is a document which describes any one of the 3 necessary elements of a bequest and must,
therefore, comply with the requirements of the Wills Act: (1) identity of the property bequeathed (2)
extent of the interest bequeathed i.e. ownership, usufruct or fideicommissum (3) beneficiary’s
identity (Ex parte Davies)
o This would also apply to sketch plans or photographs attached to the main will if they identify or list
the bequeathed property (Oosthuizen)
o A trust deed for an inter vivos trust (set up for the benefit of a third party which only comes into
operation upon the death of the a certain testator) which identifies the beneficiaries thereof and
receives assets from the testator’s deceased estate, does not have to comply with the formalities of
a will because it is a contract and not strictly a will
Joint and Mutual Wills
o Joint will = 2 or more testators create a will in a single document (NOT always a mutual will)
o Mutual will = one in which both testators of a joint will are beneficiaries (ALWAYS a joint will)
o Both joint and mutual wills only need to be executed once
o NOTE: such a document is seen as the separate will of each testator, both of whom may unilaterally
revoke or amend the will in relation to their OWN DISPOSITIONS, even without notifying the other
testator(s); validity is also dealt with separately for each testator
Testamentary Capacity (s4 of Wills Act) – relates to freedom of testation
Wills are unilateral legal acts which may, generally, be made by all persons capable of performing legal acts
Legal capacity (ability to perform legal acts) in SA = 18 years of age according to Children’s Act
However, wills may be made by any person over the age of 16 as long as they conform to all prescribed
formalities in the Wills Act, one of which is testamentary capacity
Terminology
Law of Testate Succession
o Legal rules and norms which regulate the devolution of a deceased estate upon one or more persons
according to the testator’s wishes as expressed in a will
Wills
o s1 of Wills Act = includes a codicil and any other testamentary writing
o More comprehensive definition = a last will and testament is a document executed by a person
(referred to as a testator) in a manner prescribed by law which concerns the disposition of property
and other matters within their control and which will take effect after their death
o Upon death = will is submitted to the Master of the HC to confirm validity
o If accepted = executor appointed by Master (unless stipulated in the will) to handle the liquidation of
the estate; NOTE: even if nominated in will, an official letter is still needed
o Requirements for validity in the Wills Act = (1) testamentary capacity (2) compliance with all
formalities as per s2 of the Wills Act
o 2 core prerequisites:
Animus testandi (free and serious intention to execute a will)
Before a will qualifies as such, there must be a conscious, serious and deliberate
statement of intention, not merely an indication, to show that the testator wanted
their will to become operative
Further, there must be a specific intention to do so in a will and not simply to
devolve their estate in some other form (Sim v The Master)
Lack of animus testandi = will is void ab initio (from the start)
o Evidence as to its existence may be led in court
o May be caused by mistake or force in some cases – examples:
If a person mistakenly signs a document without knowing it is a will
However, where there is mistaken motivation on behalf of
the testator then the will remains valid
If a person is under fear from duress or undue influence
Fraud or duress = always void ab initio
Undue influence = always ask whether or not the influence
was such that it caused the testator to no longer have
animus testandi or no longer expressed their own free will
Volition (voluntary declaration / choice)
Testator must have complete volition as to how the estate will be divided
Proof of lack of volition caused by coercion, fraud or undue influence = invalid will
Spies v Smith
o Not every single interference with a testator’s volition amounts to a ground
for invalidity and it is not forbidden to influence the testator by way of
flattery or humiliation
o However, where these take the form of fraud or a substitution of one’s will
then they are grounds f or invalidity
, o Factors to consider = relationship with the testator, testators emotional
state, capacity to withstand pressure and effluxion of time from influence to
execution of the will
Summary:
Animus testandi
o Intention to make a will
o Causes for lack of intention = force / coercion, mistake, fraud and duress
o Undue influence ONLY becomes relevant once animus testandi has been
established and it is now a matter of volition
Volition
o Testator’s own free will
o Influences on free will = force / coercion, fraud and undue influence
Codicils
o s1 of Wills Act = codicils included as part of ‘wills’
o Roman-Dutch Law = distinction between wills and codicils based on their formailities
o Modern law = codicil sometimes used to refer to an addendum to a will but is usually seen as a
separate will which now has to comply with the same formalities
o Example: different document, signed by the testator, which increases a certain bequest stated in the
main will
Testamentary Writings
o Also used in the Wills Act in order to indicate which documents must conform to the formalities
required by s2
o It is a document which describes any one of the 3 necessary elements of a bequest and must,
therefore, comply with the requirements of the Wills Act: (1) identity of the property bequeathed (2)
extent of the interest bequeathed i.e. ownership, usufruct or fideicommissum (3) beneficiary’s
identity (Ex parte Davies)
o This would also apply to sketch plans or photographs attached to the main will if they identify or list
the bequeathed property (Oosthuizen)
o A trust deed for an inter vivos trust (set up for the benefit of a third party which only comes into
operation upon the death of the a certain testator) which identifies the beneficiaries thereof and
receives assets from the testator’s deceased estate, does not have to comply with the formalities of
a will because it is a contract and not strictly a will
Joint and Mutual Wills
o Joint will = 2 or more testators create a will in a single document (NOT always a mutual will)
o Mutual will = one in which both testators of a joint will are beneficiaries (ALWAYS a joint will)
o Both joint and mutual wills only need to be executed once
o NOTE: such a document is seen as the separate will of each testator, both of whom may unilaterally
revoke or amend the will in relation to their OWN DISPOSITIONS, even without notifying the other
testator(s); validity is also dealt with separately for each testator
Testamentary Capacity (s4 of Wills Act) – relates to freedom of testation
Wills are unilateral legal acts which may, generally, be made by all persons capable of performing legal acts
Legal capacity (ability to perform legal acts) in SA = 18 years of age according to Children’s Act
However, wills may be made by any person over the age of 16 as long as they conform to all prescribed
formalities in the Wills Act, one of which is testamentary capacity
