Have you ever wondered whether a diary entry of your wishes post-death was sufficient to constitute a last will and testament (“Will”)?
In terms of the Wills Act 7 of 1953, the requirements for a valid Will are as follow:
a person must be over the age of 16 (sixteen) years;
the Will must be in writing; either typed or handwritten; &
each page of the Will, including the last page, must be signed by the testator together with two competent witnesses. A person will qualify to be a competent witness if s/he is 14 (fourteen) years of age or older.
In the matter of Qhali NO v Rikhotso [2022] ZAGPJHC 699, the deceased died in 2016 without leaving a Will which complied with the formalities prescribed above. In court however, it was motivated that the journal of the deceased detailed her wishes in respect of her estate comprised a Will. This journal was originally rejected by the Master’s Office as constituting a Will as it did not comply with the said formalities hence the executor, relatives and her fiancé having approached the court.
The deceased’s mother opposed the matter & contended that on a reading of the journal:
it was unclear as to whether the deceased wrote the journal;
if proven that the journal was written by the deceased, it was not clear as to whether the deceased intended for it to be her Will; &
pages had been ripped out of the journal which thus could not be considered.
The court found that the amount of information and the detail in which the journal had been written pointed to the deceased as the source thereof. It was clear that the deceased was trying to sort out her affairs whilst she was alive and expressed what should happen not only to her estate when she died but also what should happen for instance to her Facebook account. Her journal contained instructions about matters apart from, and in addition to, the disposal of her estate. She was very specific about who should receive what. These were decisions on the disposal of her estate after her death. The conclusion on all the probabilities was that the journal constituted the deceased’s final instructions regarding the disposal of her assets.
The court ordered the Master to accept the journal as the Will of the deceased; for purposes of the Administration of Estates Act 66 of 1965.
This is not the first time that the Master has been ordered to accept a writing not conforming to the prescribed formalities, to be accepted as a Will and it will most certainly not be the last, however these interpretation disputes tend to become acrimonious and costly for the family members involved.
In one instance, a lady wrote her will on the back of a painting which writing was ordered to be accepted as her Will notwithstanding it not conforming to the prescribed formalities.
If you need assistance in making sure that you have a valid Will that won’t necessitate legal steps by family and/or friends to get a court order that same should be accepted by the Master, please contact us for assistance.
We should all ensure these safeguards no matter how well we believe our family members to be getting along.
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