Abstract:
This article traces the history of s 2(3) of the Wills Act 7 of 1953 – the Act’s
so-called ‘condonation provision’. It examines the reasons for the legislature’s
introduction of a rescue provision in regard to formally irregular wills and
amendments of wills, and surveys the manner in which South African courts
have engaged with testamentary condonation to date. The article pays
particular attention to three matters regarding s 2(3) that still pose challenges to
courts in their engagement with testamentary rescue: the precise ambit of the
condonation provision’s document requirement; some difficulties associated
with the subsection’s intention requirement; and the question whether the
subsection demands substantial compliance with execution and/or amendment
formalities before condonation can occur. The authors submit that these
unresolved matters require further legislative attention.
