The intention requirement of section 2(3) of the Wills Act 7 of 1953 after Van Wetten v Bosch 2004 1 SA 348 (SCA)

Abstract

A will is a document regulated by the Wills Act 7 of 1953 (hereafter Wills Act) that dictates how a person's assets are distributed after death. Situations often occur in which testators fail to comply with the formal requirements for executing or altering wills as provided in section 2(1), even though they genuinely intend the document to serve as their final will or as an amendment to it. Section 2(3) of the Wills Act empowers the court to order the Master of the High Court to accept such a non-compliant document if the court is satisfied that the deceased intended the document to be their will. This section faced significant challenges related to its interpretation and application, particularly concerning the intention requirement. The Supreme Court of Appeal (SCA) addressed this uncertainty in the case of Van Wetten v Bosch 2004 1 SA 348 (SCA) (hereafter the Van Wetten judgment/case), establishing principles for determining the deceased's intention in condonation applications. These principles mandate an examination of both the document itself and its context, allowing documents that do not formally appear as a will (such as a letter) to be accepted if evidence confirms that the deceased intended it to serve as their will. The purpose of this doctrinal study is to analyse court cases adjudicated subsequent to the Van Wetten judgment to examine the developments, inconsistencies, challenges, and criticisms in the interpretation of the intention requirement. The inquiry reveals that interpretive challenges pertaining to the intention requirement still prevail, particularly within the context of informal, irregular, and electronic documents. Crucially, divergent outcomes often arise from the highly subjective assessment of the surrounding circumstances and the difficulty in judicially establishing the finality of the document. To enhance the effectiveness of the condonation provision in fulfilling genuine testamentary intentions, it is crucial to apply the principles established in the Van Wetten case consistently, and to adopt a flexible approach when determining whether a person intended to make a will.