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Court cases on validity of wills

Two recent judgements of the South Gauteng High Court dealt with the requirements for a valid will. In one the view was expressed that witnesses must sign every page of the will document. In the other the witnesses signed before the testator and was not present when he signed. Both cases stress the need for strict adherence to the provisions of section 2(1)(a) of the Wills Act, 7 of 1953.

Karani v Karani NO and Others [2017] ZAGPJHC 318; [2018] 1 All SA 156 (GJ). Click here.

The testatrix made several wills over the years.  Her last purported will was the subject of a dispute between family members.  The document was drafted by a family member in Canada, sent by e-mail to another family member in South Africa, who allegedly gave it to the testatrix to sign.  Two witnesses signed at the end of the document, but it was common cause that the first witness did not sign the will in the presence of either the testatrix or the second witness.  The plaintiff alleged that the signature on each page and at the end of the will document, purporting to be that of the testatrix, was a forgery.  Based on the evidence of a handwriting expert the court found it to be a forgery and declared the will invalid.  The court made a remark, which appears to be an obiter dictum and therefore probably not binding, that section 2(1)(a) of the Wills Act, 7 of 1953, should be interpreted to require that the witnesses to a will must sign each page of the will document.  However, binding or not, it remains good practice to have witnesses sign each page of a will document to remove all room for disputes about any of the pages of a will document.

Click here for the judgement.

 

Twine and Another v Naidoo and Another [2017] ZAGPJHC 288; [2018] 1 All SA 297 (GJ). Click here.

The testator was 85 years old at the time of his death and had been living with the first defendant in a long term relationship for 8 years.  She was 38 years younger than him.  Shortly before his death he allegedly signed a will leaving the bulk of his estate to her.  The plaintiffs (the daughters of the testator) could not succeed in proving that his signature was a forgery.  Three handwriting experts testified.  The court rejected the evidence of two of these on the basis that the court found them to be biased in favour of the party who called them to testify and found that the third’s evidence, although candid and unbiased, did not take the matter further.  The undisputed evidence of the witnesses to the will was that they signed the will before the testator and was not present when he signed.  As a result, the will was declared invalid.

Click here for the judgement.

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