Section 2(3) of the Wills Act 7 of 1953 : a retrospective and critical appraisal of some unresolved issues

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.