The Wills Act sets out strict formalities for the valid execution of wills. These formalities relate to the signature by the testator and by witnesses and the competence of witnesses to act as such. The formalities relating to the execution of wills have been put in place to avoid fraud and to avoid disputes which might arise after the death of a testator.

When a will is found to be invalid, it may result in the deceased’s assets being distributed according to the law of intestate succession, rather than according to his/her wishes as set out in the will.

The intentions of a deceased could be thwarted due to non-compliance with the technical legal formalities provided for in the Wills Act.

Section 2(3) of the Wills Act provides a so-called “rescue provision” in respect of wills that do not comply with the formalities for the valid execution of wills.

In other words, if a will is executed but does not meet all the legal requirements for a will to be valid in South Africa, an application to court can be made in terms of this section for an order declaring that the invalid will be declared valid.

In its 2011 judgment in Hendrik van der Merwe v Master of the High Court and Another, the Supreme Court of Appeal stated that:

“By enacting section 2(3) of the Act the legislature was intent on ensuring that failure to comply with the formalities prescribed by the Act should not frustrate or defeat the genuine intention of testators …”

In terms of section 2(3), the court must be satisfied that:

1. a document was drafted or executed by a person;
2. who has since died;
3. and that person intended the document to be his/her will;

prior to ordering the Master to accept that document as a will, notwithstanding its lack of compliance with all the formalities for the execution of wills.

Despite the existence of this section 2(3), it is essential that a will be properly executed so as to avoid the lengthy delays and financial expense involved in obtaining a court order in terms of this section. It must also be borne in mind that the requirements for an application in terms of this section are very specific and a successful outcome can therefore not be guaranteed, as it may not always be possible to satisfy all the requirements for such an order.

It is important to seek proper legal advice when drafting your will to avoid unwanted consequences, such as dying intestate or the winding up of your estate being delayed pending the outcome of a court application or your estate being burdened with the cost of a court application.

SECTION 2(3) OF THE WILLS ACT