Rescuing a formally Defective Will

defective will

The process of drafting and regulating someone’s Will is detailed and can be complex with much room for error. However, there is provision made where the Court is able to override certain errors. This is at the discretion of the Court and not obligatory.

Section 2(3) of the Wills Act is informally known as the “rescuing provision”.  In circumstances where there is not strict compliance with the formalities of drafting a valid Will, this section is used. In terms of this section, the High Court, with jurisdiction of the matter, can order the Master of the same jurisdiction to accept a document which has been drafted or executed but has not technically complied with the requirements of a valid Will. Note that the High Court must be satisfied that the deceased’s Will or amendment thereto reflects his / her true intention. The High Court’s discretion is thus not unfettered.

Logically it would be more difficult to prove the intention of a deceased in his / her Will or amendment if the deviation from the set formalities for drafting of a Will is greater. The following requirements are needed to be met in order for a High Court with jurisdiction to accept and “rescue” a Will which does not comply with formalities:

  • The Court must be satisfied that the document before it, was drafted or executed by the deceased;
  • Secondly, the person must be deceased or have since died; and
  • Thirdly, such an individual must have intended for the document, as mentioned, to be his / her Will. It cannot be instructions to amend the Will and how his estate will devolve, as noted in Ex Parte Maurice 1995 (2) SA 713 (C).

The above illustrates the basic position, where there is far more to be said about the topic. Various cases have arisen which differ in facts and context. If you need any assistance, do not hesitate to contact us to assist you.

 

 

Faure Swanepoel
faure@bbplaw.attorney
Candidate Attorney

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