Drafting a Will can feel like a legal minefield. South African law has very strict rules—called “formalities”—that must be met for a Will to be valid. For example, it usually requires a physical printout, signed on every page by you and two witnesses, all in the same room at the same time.
If you make a technical mistake, your Will is technically “defective.” However, Section 2(3) of the Wills Act acts as a legal safety net (often called the “rescuing” or “condonation” provision).
Under this section, the High Court has the power to order the Master of the High Court to accept a flawed document as a valid Will.
It’s Mandatory, Not Optional (The Big Catch)
A common misconception is that the High Court has “free choice” or absolute discretion to approve or reject a broken Will. This is not the case. The law states that if you can prove to the court that the document meets specific legal requirements, the court must order the Master to accept it. The court’s job is not to decide if it wants to help, but rather to evaluate if the evidence is strong enough.
Naturally, the bigger the mistake (for instance, a completely unsigned document versus a document just missing a witness signature), the harder it will be to convince a judge.
The 3 Requirements to Rescue a Will
To successfully save a defective Will, you must prove three things to the High Court:
- There must be a document: It has to be a written document. In 2026, courts increasingly accept that this includes digital documents (like an unsigned draft saved on a laptop or a WhatsApp message), but a physical or digital “paper trail” must exist.
- The creator must have drafted or executed it: The document must have been created or signed by the person who has since passed away.
- There must be a final intention: This is the most critical hurdle. The deceased must have intended for that exact document to be their final Will.
What Cannot Be Saved?
The court will not rescue casual thoughts or half-baked ideas. As decided in the landmark case Ex Parte Maurice, if a document is just a list of instructions sent to an attorney to “please draft a Will based on this,” or a rough notebook entry planning a future change, it cannot be rescued. The court needs to see that you intended the document before them to be the final word on how your estate should devolve.
The above illustrates the primary 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.
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