Where there’s a will…

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By Hilary Dudley, Managing Director, Citadel Fiduciary (Pty) Ltd

My late father used to recount the proverb “Where there’s a will…” not with the time-worn ending “there’s a way” but with the more jaded version “there’s a fight”.

You may have seen an article published on News24 on 29 May headlined “Joost’s unsigned will causes legal drama”. The story continues “Joost van der Westhuizen’s lawyer will be launching an urgent court application that his last will be declared valid. That is after the Master of the High Court refused to accept Van der Westhuizen’s will…”. It is not surprising to learn that, given how he openly shared the practicalities of the effect of Motor Neuron Disease prior to his death, Joost could not physically sign his last Will and Testament.

Unfortunately, practical experience has taught us that a fight is often the case when someone dies. Just at a time when you would hope that your family pulls together to support one another in their bereavement, the fact is that the heady mixture of raw emotions, the overwhelming sense of loss and deep-rooted grievances and squabbles can come to the fore to create complex family dynamics. These are often exacerbated by the involvement of in-laws who add their views and opinions to the mix. The last thing you want in this difficult situation is for there to be any legal issues for your family to contend with on top of everything else. This is why it is so important that you have in place an up-to-date and appropriate Will, clearly setting out how and to whom you want your assets to devolve on your death.

It is just as important to ensure that your Will is valid. There are several factors to be taken into account when considering the validity of a Will:

  1. Whether the person signing the Will was mentally capable at the time of signing it – that they appreciated and understood the legal consequences of signing the document.
  2. Whether the person signing the Will did so freely, without duress or undue influence – they signed the document of their own free will.
  3. Whether the various formalities prescribed in the Wills Act (No. 7 of 1953) were complied with in the execution of the Will – this can get a bit technical, which is why we advise that you obtain qualified assistance to ensure that your Will is correctly executed or signed, in addition to your obtaining the assistance of a professional to actually take instructions and draft an appropriate Will.

It is easy to appreciate why there are such strict formalities around the execution of a valid Will: the document is intended to evidence the wishes of a person regarding the devolution of their assets at a time when they are no longer able to do so. They are not present to explain their wishes and intentions and so it is of utmost importance that these are clear, as well as undisputedly being theirs. The basic rule around the dispute of the validity of a Will on the grounds of a lack of capacity or duress are that the person alleging the invalidity must lead evidence before the High Court to prove it on a balance of probabilities. This can be tricky.

Checking whether a Will complies with the prescribed formalities for execution is a more formulaic and less nebulous process.  The Wills Act also recognises that we are human beings living in an imperfect world and so contains various rescue provisions to cater for different scenarios.

In a situation where someone is unable to sign their Will, either because they are physically unable to do so or because they are illiterate, they may execute the Will by making a mark or by directing someone else to sign it on their behalf in their presence. However, there are additional formalities set out in the Wills Act for the valid execution of the Will in such a situation, involving a Commissioner of Oaths having to participate in the execution. There is an allegation that the required procedures were not properly followed in the execution of Joost’s Will and that it is accordingly invalid.

Luckily, there is a rescue provision in the Wills Act in terms of which a court, if it is satisfied that the document was intended to be their last Will, can order the Master of the High Court to accept a Will as valid in spite of it not complying with the required formalities for execution. Bear in mind, though, that such an application to the High Court involves instructing an attorney, who in turn briefs an advocate to move the application in court. This comes at a cost in terms of time, money and unnecessary emotional distress for your family.

If Joost’s Will is declared invalid, there are two possible outcomes:

  • A previous valid Will could be revived;
  • If there is no previous valid Will, then Joost’s estate will devolve intestate. The Intestate Succession Act sets out clear rules for determining the heirs of his estate. In his case, as he was not legally divorced, his wife and their children will share in his assets. This was ostensibly not his intention, given that the disputed Will apparently did not benefit his wife.  A further article published in the YOU magazine on 23 June refers to a “bitter battle” over his Will.

This is a very sad and distressing situation for all involved, including Joost’s attorneys who were in all likelihood trying to do the very best for their client in the most challenging of circumstances.

Our recommendation is that, if you have gone to the time and effort to draft a Will to ensure that your last wishes are carried out, you must also be certain that it is correctly executed. Dealing with a professional fiduciary specialist should give you and your family peace of mind