Delport v Le Roux and Others [2022] ZAKZDHC 51
The applicant (D) brought an application under section 2(3) of the Wills Act, 7 of 1953 (the Act), asking the court to declare a document allegedly signed by the deceased (LR) as his last will and testament. The first respondent, the deceased’s estranged wife, had passed away by the time the case came to court. The second and third respondents (BR and BS) are the deceased’s daughters from a previous marriage, while the fourth respondent is the first respondent’s grandson who was adopted by the deceased and the first respondent. BR and BS opposed the application, while the fourth respondent did not. The fifth and sixth respondents, the Masters of The High Court in KwaZulu-Natal and Gauteng indicated that they will abide the decision of the court.
An accountant (SR) alleged in his affidavit that he drafted the document on instructions of the deceased and took it to the deceased, who signed it. SR then took the document to T, the wife of his business partner, and N to sign as witnesses. T and N were not in each other’s presence when they signed and neither of them was in the deceased’s presence when they signed as witnesses. It was therefore common cause that the document did not comply with the formality requirements for a valid will as provided for in section 2(1)(a) of the Act.
The lesson for fiduciary practitioners is to ensure that at all times that will documents are executed in strict accordance with the prescripts of section 2(1) of the Act.
In terms of s 2(1) of the Act the signature of the testator must be made in the presence of two or more competent witnesses. The witnesses must attest and sign the will in the presence of the testator and each other; where the testator signs the will with a mark, a commissioner of oaths must be present and specific certification formalities apply.