Testamentsformaliteite en die aanspreeklikheid van die testamentopsteller

Abstract

The formalities for the valid execution of a will of a testator are to be found in section 2(1)(a) of the Wills Act 7 of 1953. Non compliance of these rigid formalities in the past had the effect that a testator's last wishes were not respected and executed. As a result thereof, thousands of beneficiaries have not received the inheritance they would have been entitled to if the will of the testator was valid. For the above mentioned reason, section 2(3) of the Wills Act relaxed the strict approach of the past. If any of the formalities relating to the drafting or execution of a will have not been complied with, the court is empowered to order the Master of the High Court to accept, for the purpose of the Administration of Estates Act 66 of 1965, a document drafted or executed by a person who has since died, as a will. Only non-compliance of the formalities for drafting or executing a valid will can be condoned under this section and the court has no power to grant an order relating to the competency of a testator to draft a will. The court, furthermore, has no discretion to dismiss an order under this section if the court is satisfied that the document was drafted or executed by a person who has since passed away and it is clear that the testator's intention was that the invalid document be his/her last will and testament. If the court dismisses such an application then there is a possibility that certain of the beneficiaries nominated in the invalid will, will be entitled to a smaller portion (if any) of the deceased's estate under the rules of intestate succession than the portion he/she would have been entitled to as a testamentary beneficiary. If the invalid will is a direct result of the drafter failing to foresee to the valid drafting or execution thereof, then the disappointed beneficiary has a delictual claim against the guilty/negligent drafter. This quantum of this claim will be calculated using the difference of the portion that the disappointed beneficiary receives as an intestate heir and the portion he/she would have been entitled to as a testamentary beneficiary. There is no real contractual bond between the drafter and the beneficiaries under a will and, therefore, a contractual claim will only arise in rare circumstances. A delictual claim in these circumstances will be based on the basic principles of the South African delictual law namely, act/ommissio, unlawfulness, guilt, causality and damage. These five elements have to be present for the disappointed beneficiary to have a successful claim. The disappointed beneficiary must ie. prove that the drafter of the will had a legal duty to comply with the formalities when he assisted the testator with the drafting and execution of the invalid will and that the economic loss that the disappointed beneficiary suffered is a direct result of the negligent behaviour of the drafter. A disappointed beneficiary should only follow the litigation route if an application under section 2(3) was dismissed due to the costs and long waiting periods thereof. Practitioners assisting forthcoming testators should be aware that the action of a disappointed beneficiary has been acknowledged in the South African law. Practitioners should take extra care with each new instruction to avoid delictual liability of any kind.