In this blog, we explore the legal intricacies surrounding the use of instructions to draft a valid Will and discuss the implications of submitting such documents to the Master for estate administration.

INTRODUCTION

In this blog, we will explore a case study to determine whether instruction notes can serve as a valid last Will. We will then analyse the court's decision and provide recommendations on how to proceed.

CASE STUDY

"My husband and I have been married for 6 years. My husband recently passed away. A few months before his death, he consulted his attorney to make some amendments to his signed Will because he wanted me to inherit a greater portion of his estate, which was not the case with the existing originally signed Will. The amendments were discussed in detail with the attorney during the attorney’s visit to our home. The attorney took extensive notes. At my husband's request, I had asked the attorney numerous times to present the drafted Will, but it was never provided. The attorney eventually informed me that he had not had the opportunity to draft a new Will before my husband passed. However, he still has the notes he took during his consultation with my husband. Can these notes be considered as his valid wishes and instructions, and thus be treated as a valid Will?"

GENERAL LEGAL REQUIREMENTS

In South Africa, the Wills Act 7 of 1953 outlines specific criteria that must be followed for a Will to be deemed valid. One such criterion is that the testator, the individual creating the Will, must document their wishes and instructions on a paper document, which can be either typed or handwritten. Furthermore, the testator must sign each page, including the final one, in the presence of two witnesses, who must also sign each page of the Will in the testator's presence. The original signed paper document is the only one that will be regarded as a valid Will, and the Master's Office will ascertain whether all these conditions have been fulfilled.
If the conditions have not been fulfilled, the Master of the High Court will refuse to accept the Will as valid in terms of section 8(4) of the Estate Administration Act 66 of 1965. In this case, the surviving partner's only recourse is to approach the High Court to accept a document as a valid Will. The courts will consider each case's facts before granting such an order.

DIFFERENT COURT DECISIONS

Numerous court cases have dealt with similar issues, and the courts have held that a literal approach should be used when considering the word "drafted." The document must have been prepared directly by the deceased in their personal capacity and not by a third party. If the deceased has personally drafted a document, it can be seen as their final Will.

In the court case Osman and Others v Nana N.O and Another [2021] ZAGPJHC 47, the deceased wrote the document in his own hand and therefore drafted the document. However, the court found that there was no evidence that he intended the document to be his Will. The absence of a signature does not automatically invalidate a document as a Will. The court may still consider an unsigned document as a valid Will if it was personally drafted by the deceased and reflects their true intentions. For instance, in the court case SM & others v KNM & another [2011] JOL 27744 (GSJ), the court recognised the validity of an instruction given by a terminally ill person to their bank to draft a Will on their behalf, even though the Will was not properly executed before the person passed away. In this case as with other cases, the court examined the intentions of the deceased and the surrounding circumstances before making the decision.

Conversely, in another court case, Estate Late Elaine Ilsia Williams and Others v Hendricks and Another [2021] ZAWCHC 66, the court found that an instruction to draft a Will was not sufficient to constitute a valid Will. In this case, the document was signed by the deceased and was an instruction in the form of a Will application to the bank to draft a Will on their behalf. The referred "Will Application" was done the day before her death. The court considered the circumstances and refused to recognise the document as a valid Will.

Therefore, while the courts are willing to recognise documents that reflect the intentions of the deceased as valid Wills, each case is unique, and the court will scrutinise the circumstances surrounding the document to determine if it constitutes a valid Will. It can be challenging to ascertain what the court will decide, as there is no hard and fast rule.

RECOMMENDATION TO CASE STUDY

In accordance with section 8 of the Administration of Estates Act 66 of 1965, the Master will examine all documents submitted to their offices that are purported to be Wills, in order to determine if such a document is a valid Will that complies with the formality requirements of the Wills Act 7 of 1953.

The attorney's notes reflecting the late husband's wishes will not be accepted as a valid Will to replace the original signed Will. If the existing original signed Will complies with the Wills Act requirements, the Master will accept this Will as the valid Will in terms of section 5 of the Administration of Estates Act.

The surviving spouse has two options: First, the surviving spouse could bring an application in terms of section 2(3) of the Wills Act and ask the court to determine whether the instructions in the attorney's notes constituted a valid Will or not. However, court cases have shown that the court is less willing to accept notes made by a third party as a valid Will because the focus is on the document being drafted by the testator.

Alternatively, if the Master accepts the existing original signed Will, in which the surviving spouse is largely disinherited, the surviving spouse can submit a maintenance claim in terms of section 2(1) of the Maintenance of Surviving Spouses Act 27 of 1990 (MSSA), provided that the surviving spouse can prove that they do not have the means to support their reasonable financial expenses and needs. If such a maintenance claim is accepted by the executor, then in terms of section 2(3)(b) of the MSSA, the maintenance claim will be paid after the creditors have been paid, and whatever is left will go to the beneficiaries in the accepted Will.

CONCLUSION

It is crucial to properly draft and finalise a Will, including any necessary amendments or instructions, and have it signed by the testator and two competent witnesses in a timely manner. It should be noted that an attorney's notes recording a testator's wishes cannot replace the original signed Will. If a beneficiary wishes to challenge this, they may need to approach the High Court for an order, but this can be costly and uncertain in terms of success. 

Therefore, it is best to consult with a specialised attorney in Wills and deceased estate administration as soon as possible to ensure the proper execution of a Will. Taking these steps can prevent costly and time-consuming legal battles in the future.