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Law of Succession: Johannes Steyn Botha N.O. v Master of the High Court and Two Others: Acceptance of a codicil not conforming to the Wills Act

Section 2 (1) (b) (i) (ii) and (iii) of the Wills Act 7 OF 1932 stipulates that no amendment made in a will executed shall be valid unless:
1. The amendment is identified by the signature of the testator in the presence of two or more competent witnesses present at the same time;
2. The amendment is further identified by the signature of such witnesses made in the presence of the testator and of each other.

In the unreported judgment of Johannes Steyn Botha N.O. v The Master of the High Court, Cape Town and Two Others, the applicant, a director of Strauss Daly in his capacity as executor in the estate of the late H D B Van Rooyen, sought an order for an amendment drafted by the deceased shortly before his death to be declared as a valid codicil to his will for purposes of the Administration of Estates Act 66 of 1965. Secondly and an order an order directing the Master of the High Court to accept the codicil as an amendment of the deceased’s Will.

The deceased executed a valid Will on 4 April 2011, in which he bequeathed a considerable portion of his estate to his fiancé on the event of his death. On the termination of their relationship, he drafted an amendment (which he intended as a codicil) to his will disinheriting her in favour of their minor son. The codicil had taken the form of a document only signed by the deceased and sent to his sister via e-mail. The deceased subsequently passed away with the belief that he had executed a valid codicil.

The Master of the High Court registered the deceased’s codicil but declined to accept it as a codicil to the deceased’s will due to its non- compliance with S 2 (1) (b) (ii) and (iii) of the Wills Act. Two witnesses were not present when the deceased signed the codicil and had not co-signed the document.

An application for condonation of the codicil in terms of s 2(3) of the Wills Act was made to the High Court to resolve the matter.

Section 2 (3) of the Wills Act provides for a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof and which was intended to be his will or an amendment of his will to be accepted as such although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1). The applicant furnished testimony of the email communications between the testator and his sister before his death of his intentions at the time and confirmatory affidavits that the deceased’s codicil clearly reflected the true intention of the deceased.

With none of the respondents, including the testator’s former fiance, opposing the application and taking all the above into account, the court was satisfied that the deceased’s codicil reflected the true intentions of the deceased and accepted it as part of the deceased’s Will and ordered the Master of the High Court to do the same.

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