Qn..

1 write a short note on the execution of a will Execution of a will is the process by which the testator and other parties comply with all the formalities required to bring a valid will into existence. A will that is not executed in accordance with these formalities is invalid and unenforceable, and its contents are ignored unless there is a court order that, in terms of s2(3) of the Wills Act, the will be given effect as if it had been validly executed.
Therequirementsforavalidwill,intermsofs2(1)oftheWillsActare o Thewillmustbesignedattheendbythetestator. o If the will is more than a page long, every page other than the last must be signed anywhereonthepagebythetestator o Thesignatureofthemustbemadeinthepresentoftwoormorecompetentwitnesses. o Such witnesses must attest and sign the will in the presence of the testator and each other Where the testator signs with a mark, a commissioner of oaths must be present and certification formalitiesapply

In Ex Parte Daviesl the testator had bequeathed 2000 to a person not named in the will, but named in
anotherdocument.Thecourtheldthatforatestamentarydispositionofpropertytobevalid, 1. 2. 3. Itmustidentifythepropertybequeathed Itmustidentifytheextentoftheinterestbequeathed. Itmustidentifythebeneficiary.

Iftheserequirementsaremet,thedocumentmustthencomplywiththestatutoryformalitiesoftheWills Act.Thecourtheldthatthewilldidnotidentifythebeneficiaryandithadnotsignedbythetestator henceinvalid. therearefivewaysofexecutingawill.theseare

1. Testatorsignsthewillinthepresenceoftwowitnesses. Inthenormalcourseofeventsatestatorisrequiredtosignthewillattheendand everyotherpageiflongerthan1page.Twocompetentwitnessesmustalsosign. 2. Thetestatoracknowledgesinthepresenceoftwowitnesseshissignaturepreviously placedonawillSection2(1)(a)(ii). 3. Someone else signs on behalf of the testator, in the presence of testator, two witnessesandthissignaturehastobecertifiedbyacommissionerofoaths thecommissionerofoathsmust:

 (iv) (v) (vi) Satisfyhimselfastotheidentityofthetestator. Satisfyhimselfthatthewillsosignedisthewillofthetestator. Make a certificate on the will itself in which certifies that he has satisfiedhimself. (vii) Record in that certificate that he has done so in his capacity as commissionerofoaths. (viii) All parties to the will (witnesses, testator and CoA) must be present Commissioner of oath is required to prevent any kind of fraud as if one cannot makehisownsignature,hemightnotknowthatheissigningawill.

4. A person signing on behalf of the testator acknowledges in the presence of the testator and two witnesses his or her signature previously placed on a will and it is certifiedbyacommissionerofoaths 5. The testator/testatrix signs by making a mark in the presence of two witnesses and certifiedbythecommissionerofoaths
Levin v Levin the disputed will was signed in 2002 in the presence of two witnesses.The court noted with interests that the disputed will purported to divide the assets among her family far more equitably the any of the previous wills, and this was in line with the witnesses testimony that she wanted peace within her family before she died. The court foundnoreasonfortheappealtosucceed.

Qn. Explain the formalities with respect to SigningandSignaturesinawill.

There is no a valid will unless it has been signed by the testator or by someone else on his hehalf. If the will consists of one page, it must be signed at the end by the testator. The testator must signthewilloracknowledgehissignatureinthepresenceoftwo,ormore,competentwitnesses whoarepresentatthesametime The testator is required to sign at the end of the last page of the will that is at the end of the bodyofthewill.InKidwellvTheMaster The same witnesses must sign and attest the will in the presence of one another and the testator.

Normally the witnesses will sign at the end of the last page of the will, but in Liebenberg v The Masterthecourtheldthatthewillwasvalidalthoughthewitnessessignedatthetopofthelast page.Awitnessmayhowevernotsignbymakingamark

DiscusstheformalitiesprescribedbySection2(1)(a)oftheWillsActwhichhavetobecompliedwithin orderforawilltobevalidifatestatorsignsawill,consistingofmorethanonepage. Ifthewillconsistsofmorethanonepage,thetestatormustsignattheendofthelastpage,and hemustfurthersignoracknowledgehissignatureoneveryprecedingpage. Hemustsigninthepresenceoftwoormore,witnesseswhoarepresentatthesametime. Thetestatorisrequiredtosignattheendofthelastpageofthewill,thatisattheendofthe bodyofthewill.InKidwellvTheMaster Thesamewitnessesmustsignandattestthewillinthepresenceofoneanotherandthe testator. Normallythewitnesseswillsignattheendofthelastpageofthewill,butinLiebenbergvThe Masterthecourtheldthatthewillwasvalidalthoughthewitnessessignedatthetopofthelast page. Awitnessmayhowevernotsignbymakingamark. Thewitnessesneednotknowthatcontentsofthewill.Itisnotevennecessaryforthemto knowthattheyaresigningawill. Theonlyrequirementisthattheyshouldknowthattheyarewitnessingthetestator'ssignature. Discusstheformalitiesprescribedbysection2(1)(a)oftheWillsAct7of1953whichhavetobe compliedwithinorderforawilltobevalidifatestatorsignsawill,consistingoftwopages,withhis orhermark.(20) Ifthewillconsistsoftwopagesandthetestatorsignswithamark,thefollowingformalitiesare prescribedbysection2(1)(a)oftheWillsAct Thetestatormustmakehismarkonthelastpageofthewillattheendofthewill,andonthe firstpage,anywhereonthatpage. TheendofthewillasarticulatedbythecourtinPhilipvTheMastermeansdirectlybelowthe lastwordsofthewill.thishasbeenconfirmedbythecourtinTshabalalavTshabalala

The testator must make his or her mark or acknowledge it (1) in the presence of two or more (1) competent witnesses. In order to qualify as a competent witness, the witness must be at least 14 years old or competent to give evidence in a court of law.

The same two witnesses must sign or attest the will (1) in the presence of one another and in the presence of the testator and the commissioner Oosthuizen v Die Weesheer

The commissioner of oaths cannot be counted as one of the two witnesses.

The witnesses may not sign by making a mark, but they may sign by writing their initials

The witnesses normally sign at the bottom of the last page of the will, but in Liebenberg v The Master the court held that the will was valid although the witnesses had signed at the top of the last page.

The witnesses need not sign the previous page of the will

The witnesses need not know the contents of the will. It is not even necessary for them to know that they are witnessing a will.

The only requirement is that they should know that they are witnessing the testator's signature. Where the testator signs with a mark, a commissioner of oaths must be present during the execution of the will and that he or she must attach a certificate to the will.

The commissioner of oaths may append the certificate anywhere to the will.

In the certificate it must be certified that the commissioner has satisfied as to the identity of the testator and that the will signed is the will of the testator.

In Radley v Stopforth it was held that the certifying officer must indicate his office as that of commissioner of oaths

Should the testator die after the will was been signed, but before the commissioner of oaths had appended the certificate, the commissioner must, as soon as possible thereafter, make or complete the certificate.

Tendais Will contain the following clause, I bequeath my entire estate to my daughter Unathi and if she should die childless after my death, the farm shall pass to the children of my son Jabu

(a) what type of a bequest is this

This clause is called the si sine liberis decesserit clause which denotes the existence of a tacit or implied fideicommissum in favour of Unathis Children. A fideicommissa is a legal institution in terms of which a testator bequeaths a benefit to a particular beneficiary (the fiduciary) subject to the proviso that after a certain time/subject to a certain condition/on the death of the fiduciary the benefit goes to a further beneficiary (the fideicommissary).

(b) who will inherit if Unathi dies with or without children and why ?

The effect of this clause is that, Unathi has been appointed as a fiduciary. if she dies childless after the death of the testator, Unathis children will succeed as fideicommissury.

It is also clear that Jabus children will succeed as fideicommissury if Unathi dies after the death of the testator but survived by the children. in this regard, the fideicommissum condition has not been fulfilled.

The question now to be addressed is that of whether whether where Unathi dies after the death of the testator but survived by the children, should a tacit f/c be inferred in favour of her children.

In this regard, our courts in Expate Odendaal held that no f/c in favour of the children can be implied. This has also been confirmed by the court in Exparte Botha.

However, the position seem to have changed following the case of Duplessis v Strauss in which Van Heerden JA held that in our law, a si sine liberis condition coupled to a conditional f/c gives rise to a presumption that the testator implicitly appointed the children as fidecomissary beneficiaries provided that they are the decendants of the testator. this presumption will falls away if the will as the whole indicates that the testatornever wished to create a fideicommissum tacitum

On the facts of this question, Unathis children are the descendants of the testator, there is nothing that indicates that that the testator never wished to create a fideicommissum tacitum. In this respect, the presumption operates in their favour the fideicommissary beneficiaries.

Father Paddy OReilly was a Catholic priest during his lifetime and for the past twenty years he was stationed at St Patricks Catholic Church in Grahamstown. He was born and raised in Ireland and inherited a vast fortune from his parents who ran a successful brewery. Father OReilly has died and he has bequeathed his entire fortune to Rhodes University to be used to educate black male Catholic students in financial need.

You are consulted by Rhodes University, who are of the view that the terms of Father OReillys Will may be unconstitutional. Advise Rhodes University with reference to authority.