Solomon v Solomon and Another [2023] ZAWCHC 182
The applicant (J) brought an application that a will executed by his father (P) be declared unexecutable and that P’s estate should be distributed in accordance with the rules of intestate succession. This because the will appointed J’s brother S as the only heir and S’s spouse signed as one of the witnesses to the will. S brought a counter application that the document be accepted as a valid will under the provisions of section 2(3) of the Wills Act, 7 of 1953 (the Act), and that S be declared fit to inherit under section 4A(2)(a) of the Act.
Section 4A(1) and 4A(2)(a) read:
4A Competency of persons involved in execution of will
(1) Any person who attests and signs a will as a witness, or who signs a will in the presence and by direction of the testator, or who writes out the will or any part thereof in his own handwriting, and the person who is the spouse of such person at the time of the execution of the will, shall be disqualified from receiving any benefit from that will.
(2) Notwithstanding the provisions of subsection (1)-
(a) a court may declare a person or his spouse referred to in subsection (1) to be competent to receive a benefit from a will if the court is satisfied that that person or his spouse did not defraud or unduly influence the testator in the execution of the will;
The relationship between J and P deteriorated over years to the point where J did not want to have any contact with his father and stated to S that he did not want to hear anything about P except to be informed of his death. P notified S that he drafted a new will and asked S to arrange that S’s spouse and daughter sign the will as witnesses, as S could not sign as witness because he was an heir in the will. S did as his father asked, not knowing that he would still be disqualified under section 4A(1). S’s spouse and daughter signed the will as witnesses, and another person signed afterwards as another witness, but not in the presence of the first two. J’s application was based on the fact that S is disqualified to inherit under section 4A(1) because his spouse signed as witness to the will. S’s counter application was based on the fact that two other witnesses signed, albeit that one signed at a later stage and not in the presence of the first two. He asked for this failure to comply with the requirement that witnesses should sign in each other’s presence to be condoned under section 2(3) of the Act and that he be declared fit to inherit under section 4A(2)(a) of the Act as there was no undue influence on P when he executed the will.
The Western Cape High Court (Hofmeyr AJ) held that there was no doubt that P executed the document with the intention that it be his will and that the requirements for condonation under section 2(3) were therefore met. The document was declared P’s last will. The court also, with reference to Blom and Another v Brown and Others [2011] 3 All SA 223 (SCA); [2011] ZASCA 54, found that there was no undue influence on P and that S was therefore fit to inherit under section 4A(2)(a).
Comment:
It appears unnecessary for the court that have dealt with section 2(3) as it always has been beyond dispute that two competent witnesses signed the will in each other’s and in P’s presence. The fact that one witness was the spouse of the only heir in the will had no bearing on whether the formalities for valid execution were complied with. It did have the effect of disqualifying this only heir under section 4A(1). Therefore the only question that needed to be answered was whether S could convince the court that there was no undue influence on P. In the absence of any substantiating evidence over and above a blunt statement by J that P was unduly influenced, there was no reason for the court not to apply section 4A(2)(a).