The Court’s power to condone a document in terms of section 2(3) and section 2A of the Wills Act 7 of 1953 : a comparative analysis and recommendations

Abstract

Sections 2(3) and 2A of the Wills Act of 1953 were incorporated into the Wills Act in 1992. The purpose of the two sections was to give the court power to condone a document that did not comply with the formalities for making a will and to empower a court to condone a legally ineffective attempt by a testator to revoke his or her will. By introducing section 2(3) and 2A of the Wills Act, the Legislature intended to eliminate the injustice and inequities which frequently resulted from non-compliance with legal requirements. However, after the implementation of the two sections, problems arose with regard to the interpretation and application thereof. This dissertation identifies and analyses the sections to show the current issues which have been discussed in case law and writings by scholars. They are as follows: <ul> (a) Meaning of the word “document” in section 2(3). (b) Meaning of “drafted” by a person who has died since the……drafting thereof. (c) Meaning of “executed” by a person who has died since the….. execution thereof. (d) Should there already be partial compliance with some of the formalities? (e) How does the court conclude that the deceased intended the document to be his will? (f) When must the intention be present? (g) Is a subsequent change in intention (even though it was present at time of making a document) relevant? (h) Interpretation of section 2A. (i) Interaction between section 2(3) and 2A. </ul> Comparing and analysing section 2(3) with a similar provision in Canada and Australia, gives an insight into the problems they encounter and measures that are implemented to achieve the purpose of the provision. Finally, this dissertation will make recommendations regarding the possible alternative wording of the relevant section(s).