CAN HANDWRITTEN NOTES BE DECLARED TO BE YOUR LAST WILL AND TESTAMENT?

Preparing Your Last Will and Testament is one of the most important responsibilities that You need to fulfil, more especially now whilst living with the devastation of the COVID-19 pandemic.

Executing your Last Will and Testament correctly is equally important to ensure that your last wishes are given effect to and that Your Will is not rejected by our courts.  The recent judgment of Osman and Others v Nana N.O. and Another [2021] ZAGPJHC 47, unpacked the position where handwritten notes were made in a document by the deceased and argued to be his Last Will and Testament.

Summary of Case

• The deceased was a medical doctor, who died in April 2018 without leaving a valid Will.  His estate was therefore dealt with under the laws of Intestate Succession with one of his daughters being appointed as Executor of his estate by the Master of the High Court at the end of June 2018.
• Under Intestate Succession the deceased’s children would be the only heirs of the residue of the deceased’s estate.
• On 1 August 2018, the nephew who searched the former home of the deceased found a document titled “Notes on Will” dated 14 August 1990. The document was handwritten and unsigned.
• The sisters of the deceased (who did not qualify as heirs) brought an application to court to have the handwritten and unsigned document to be declared a valid Will under the provisions of section 2(3) of the Wills Act, 7 of 1953 (“the Wills Act”). The section 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 No. 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).”

Formalities Required for the Execution of a Valid Will in terms of Section 2 (1) of the Act

Set out hereunder is a summary of the formalities required to complete a valid Will, all of which must be complied with:

• The Will must be signed at the end by the Testator; and
• Signature must be made by the Testator in the presence of two or more competent witnesses present at the same time; and
• Such witnesses must attest and sign the Will in the presence of the testator and of each other; and
• If the Will consists of more than one page, each page is to be signed by the testator and by such witnesses; and
• If the Will is signed by the Testator by the making of a mark, or by some other person in the presence and by the direction of the testator, a magistrate, justice of the peace, commissioner of oaths or notary public must certify at the end thereof that the testator is known to him and that he has satisfied himself that the Will so signed is the Will of the testator, and if the Will consists of more than one page, each page is signed by the magistrate, justice of the peace, commissioner of oaths or notary public who so certified;
• No deletion, addition, alteration or interlineation made in a Will shall be valid unless:
  • The deletion, addition, alteration or interlineation is identified by the signature of the testator or by the signature of some other person made in his presence and by his direction; and
  • Such signature is made by the testator in the presence of two or more competent witnesses present at the same time; and
  • The deletion, addition, alteration or interlineation is further identified by the signature of such witnesses made in the presence of the testator and of each other; and
  • If the deletion, addition, alteration or interlineation is identified by the mark of the testator, a magistrate, justice of the peace, commissioner of oaths or notary public is to certify on the Will that the testator is known to him and that he has satisfied himself that the deletion, addition, alteration or interlineation has been made by or at the request of the testator.

Findings of the Court

• The court in reaching its decision on the handwritten notes found that there was no evidence to indicate or support the view that the handwritten document was intended to be the deceased’s Will as he had not discussed the written contents with anyone nor mentioned it to anyone during his lifetime.
• The purpose of Section 2(3) of the Act is to overcome non-compliance with the formal requirements required to complete a valid Will.  It does not empower the court to make a Will out of a document which was never intended by the deceased to be his Last Will and Testament.
• In the subject case, the court found that the handwritten document did not manifest to be a final testamentary intention of the deceased and therefore it did not meet the requirements of Section 2 (3).
• The argument that the handwritten notes purported to be the deceased’s Last Will and Testament was therefore rejected.

Learning Outcomes

This judgment re-enforces the requirement of a Will to be signed by a Testator and two competent witnesses at the same time.

It is of paramount importance for a Will to strictly comply with the formalities required in terms of the Wills Act in order for same to be accepted as a valid Will.