LAW OF SUCCESSION ACT, PART 2

PART II – WILLS

Capacity

  1. Persons capable of making wills and freedom of testation
  • Subject to the provisions of this Part and Part III, every person who is of sound mind and not a minor may dispose of all or any of his free property by will, and may thereby make any disposition by reference to any secular or religious law that he chooses.
  • A female person, whether married or unmarried, has the same capacity to make a will as does a male person.
  • Any person making or purporting to make a will shall be deemed to be of sound mind for the purpose of this section unless he is at the time of executing the will, in such a state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he is doing.
  • The burden of proof that a testator was, at the time he made any will, not of sound mind, shall be upon the person who so alleges.

[Act No. 8 of 1976, s. 3.]

  1. Appointment by will or executor

A person may, by will, appoint an executor or executors.

  1. Wills caused by fraud, coercion, importunity or mistake

A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, or has been induced by mistake, is void.

Formalities

  1. Form of wills

A will may be made either orally or in writing.

  1. Oral wills
  • No oral will shall be valid unless—
  • it is made before two or more competent witnesses; and
  • the testator dies within a period of three months from the date of making the will:

Provided that an oral will made by a member of the armed forces or merchant marine during a period of active service shall be valid if the testator dies during the same period of active service notwithstanding the fact that he died more than three months after the date of making the will.

  • No oral will shall be valid if, and so far as, it is contrary to any written will which the testator has made, whether before or after the date of the oral will, and which has not been revoked as provided by sections 18 and 19.
  1. Proof of oral wills

If there is any conflict in evidence of witnesses as to what was said by the deceased in making an oral will, the oral will shall not be valid except so far as its contents are proved by a competent independent witness.

[Act No. 13 of 1978, Sch.]

  1. Written wills

No written will shall be valid unless—

  • the testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator;
  • the signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will;
  • the will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
  1. Incorporation of papers by reference

If a testator, in a will or codicil, refers to another document then actually written, and expressing any part of his intentions, that document, where it is clearly identified as the document to which the will refers, shall be considered as forming part of the will or codicil in which it is referred to.

  1. Effect of gift to attesting witness
  • A will shall not be considered as insufficiently attested by reason of any benefit thereby given, either by way of bequest or by way of appointment to any person attesting it, or to his or her spouse.
  • A bequest to an attesting witness (including any direction as to payment of costs or charges) or a bequest to his or her spouse shall be void, unless the will is also attested by at least two additional competent and independent witnesses, in which case the bequest shall be valid.

[Act No. 8 of 1976, s. 4.]

  1. Witness not disqualified by being executor

No person, by reason of his being an executor of a will, shall be disqualified as a witness to prove the execution of the will or to prove the validity or invalidity thereof.

  1. Existing wills

Notwithstanding the provisions of this Part, any written will executed before the commencement of this Act shall, whether the testator dies before or after the commencement of this Act, be treated as properly executed if it was executed according to the requirements of the law in force at the date of execution.

  1. Formal validity of other wills

Notwithstanding the provisions of this Part, every will, whether of movable or immovable property, and whether executed before or after the commencement of this Act, shall be treated as properly executed if its execution conformed, either at the time of execution or at the time of the testator’s death, to the law in force—

  • in the state where it was executed; or
  • in the state where the property is situated; or
  • in the state where, at the time of its execution or the testator’s death, he was domiciled; or
  • in a state of which the testator was a national either at the time of its execution or on his death.

Revocation, Alteration and Revival

  1. Will may be revoked or altered

A will may be revoked or altered by the maker of it at any time when he is competent to dispose of his free property by will.

  1. Revocation of will
  • Save as provided by section 19, no will or codicil, or any part thereof, shall be revoked otherwise than by another will or codicil declaring an intention to revoke it, or by the burning, tearing or otherwise destroying of the will with the intention of revoking it by the testator, or by some other person at his direction.
  • A written will shall not be revoked by an oral will.
  1. Revocation of will by testator’s marriage

A will shall be revoked by the marriage of the maker; but where a will expressed to be made in contemplation of marriage with a specified person, it shall not be revoked by the marriage so contemplated.

  1. Effect of obliteration, interlineation or alteration in will
  • No obliteration, interlineation or other alteration made in a written will after the execution thereof shall have any effect unless the alteration is signed and attested as a written will is required to be under section 11:

Provided that a will as so altered shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses is made in the margin or on some other part of the will opposite or near to the alteration, or is referred to in a memorandum written at the end or some other part of the will and so signed and attested.

  • Where a typewritten or printed will purports to have been executed by the filling in of any blank spaces, there shall be a presumption that the will has been duly executed.
  1. Revival of will
  • No will which has been in any manner wholly revoked shall be revived otherwise than by the re-execution thereof.
  • Where only part of a will has been revoked that part shall not be revived otherwise than by the re-execution thereof or by a subsequent will or codicil showing an intention to revive it.

Construction

  1. Construction of wills

Wills shall be construed in accordance with the provisions of the First Schedule to this Act.

Failure of Dispositions

  1. Failure of testamentary dispositions

Testamentary gifts and dispositions shall fail by way of lapse or ademption in the circumstances and manner and to the extent provided by the Second Schedule.

Election

  1. Election

Beneficiaries under testamentary gifts or dispositions shall be put to election in the circumstances and manner and to the extent provided by the Third Schedule.

Perpetuities, Remoteness and Accumulations

  1. Repealed by Act No. 6 of 1984, Sch.

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