Mr DC le Roux, the deceased, was married in community of property to Mrs ME le Roux.  The marriage foundered and the deceased relocated from Gauteng to Durban, where he moved in with his cousin, Ms Delport, the applicant in this case.  Together with her partner, she cared for and nursed the deceased through the three years preceding his death from severe diabetes.  The care included attending to his recovery from a leg amputation occasioned by the diabetes.

According to the applicant, the deceased wished to prepare his last will, and a neighbour introduced him to the accountant.  Acting on the deceased’s instructions, the accountant prepared the will and presented it to the deceased, who signed it.  The accountant then had the will signed as witnesses by his partner’s wife and the neighbour, neither of whom had been present when the deceased signed it. 

How the accountant saw fit to procure, let alone condone, this fatal breach of section 2(1) of the Act is a question only he could answer.

In terms of the will, 70% of the estate would devolve upon the applicant and 10% to each of the deceased’s two children and the applicant’s partner.  The applicant contended that this apportionment was fair, given that she and her partner had cared for the deceased, during which period he had no contact at all with his wife and their two children, an assertion the children denied.  (By the time the case came to court, the wife had died).  They pointed out that the deceased had not changed the beneficiaries on his policies, which had been divided according to his wishes stated in the policies

The requirements of section 2(1) of the Act are peremptory: the will must be signed by the testator or by some other person in the presence of and by the direction of the testator; in the presence of two or more competent witnesses present at the same time; the testator and the witnesses must sign in each other’s presence; and each page must be signed by all parties.

Section 2(3), on which counsel for the applicant relied in his argument, reads:  “If a court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 1965 (Act 66 of 1965), as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1).”

In Logue and another v The Master and others[2], the court stated that section 2(3) requires that, in order to have a defective will validated, the applicant “must demonstrate and persuade the court that the deceased intended the document to be his will”.  It did not mean that it was unnecessary to comply with the formalities, but that it was not necessary to comply with all the formalities.

In Webster v The Master and others[3] , the following passage appeared in the headnote of the judgment:

“…s 2(3) of the Act was in most peremptory terms: when the Legislature provided that a document which was sought to be declared to be the will of the deceased in terms of s 2(3) of the Act had to be ‘drafted or executed by a person who had died since the drafting or execution thereof’, it required that the document had to be drafted by such person personally’”.

In the present matter the deceased had not personally drafted the will.  There was no certainty that he had signed the will.  The accountant had drafted the will on the deceased’s instruction but was not a witness to the will.  The peremptory requirement in section 2(3), referred to in Webster, was therefore not met.  The applicant had failed to substantiate why the formalities had not been complied with.  Section 2(3) could not be relied upon “successfully to validate a document that was drafted by a professional person who ought to have complied with the formalities of a valid will but for no valid reason failed to do so”.

Accordingly, the court found that the will was invalid for want of compliance with the statutory requirements.  This had been the view of the Master, who had rejected the will.

[1] (D1703/2021) [2022] ZAKZDHC 51

[2]  1995 (1) SA 199 (N) at 203E-F

[3] 1996 (1) SA 34 (D)