Wills Act, 1953

Act 7 of 1953

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Act 7 of 1953
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South Africa

Wills Act, 1953

Act 7 of 1953

  1. [Amended by General Law Amendment Act, 1964 (Act 80 of 1964) on 1 January 1954]
  2. [Amended by Wills Amendment Act, 1958 (Act 48 of 1958) on 3 October 1958]
  3. [Amended by General Law Amendment Act, 1964 (Act 80 of 1964) on 24 June 1964]
  4. [Amended by Wills Amendment Act, 1965 (Act 41 of 1965) on 4 December 1970]
  5. [Amended by Law of Succession Amendment Act, 1992 (Act 43 of 1992) on 1 October 1992]
  6. [Amended by General Law Amendment Act, 1996 (Act 49 of 1996) on 4 October 1996]
(English text signed by the Governor-General.)ACTTo consolidate and amend the law relating to the execution of wills.BE IT ENACTED by the Queen’s Most Excellent Majesty, the Senate and the House of Assembly of the Union of South Africa, as follows:—

1. Definitions

In this Act, unless the context otherwise indicates—"amendment" means a deletion, addition, alteration or interlineation;[definition of "amendment" inserted by section 2(a) of Act 43 of 1992]"competent witness" means a person of the age of fourteen years or over who at the time he witnesses a will is not incompetent to give evidence in a court of law;"Court" means a provincial or local division of the Supreme Court of South Africa or any judge thereof;[definition of "court" amended by Act 49 of 1996]"deletion" means a deletion, cancellation or obliteration in whatever manner effected, excluding a deletion, cancellation or obliteration that contemplates the revocation of the entire will;[definition of "deletion" inserted by section 2(b) of Act 43 of 1992]"internal law" means the law of a state or territory, excluding the rules of the international private law of that state or territory;[definition of "internal law" inserted by section 2(c) of Act 43 of 1992]"Master" means a Master, Deputy Master or Assistant Master of the Supreme Court appointed under section 2 of the Administration of Estates Act, 1965 (Act No. 66 of 1965);[definition of "Master" substituted by section 2(d) of Act 43 of 1992]"sign" includes the making of initials and, only in the case of a testator, the making of a mark, and 'signature' has a corresponding meaning;[definition of "sign" substituted by section 2(e) of Act 43 of 1992]"will" includes a codicil and any other testamentary writing.

2. Formalities required in the execution of a will

(1)Subject to the provisions of section 3bis—
(a)no will executed on or after the first day of January, 1954, shall be valid unless—
(i)the will is signed at the end thereof by the testator or by some other person in his presence and by his direction; and
(ii)such signature is made by the testator or by such other person or is acknowledged by the testator and, if made by such other person, also by such other person, in the presence of two or more competent witnesses present at the same time; and
(iii)such witnesses attest and sign the will in the presence of the testator and of each other and, if the will is signed by such other person, in the presence also of such other person; and
(iv)if the will consists of more than one page, each page other than the page on which it ends, is also so signed by the testator or by such other person anywhere on the page; and[subparagraph (iv) amended by section 20(a) of Act 80 of 1964 and substituted by section 3(b) of Act 43 of 1992]
(v)if the will is signed by the testator by the making of a mark or by some other person in the presence and by the direction of the testator, a commissioner of oaths certifies that he has satisfied himself as to the identity of the testator and that the will so signed is the will of the testator, and each page of the will, excluding the page on which his certificate appears, is also signed, anywhere on the page, by the commissioner of oaths who so certifies: Provided that—
(aa)the will is signed in the presence of the commissioner of oaths in terms of subparagraphs (i), (iii) and (iv) and the certificate concerned is made as soon as possible after the will has been so signed; and
(bb)if the testator dies after the will has been signed in terms of subparagraphs (i), (iii) and (iv) but before the commissioner of oaths has made the certificate concerned, the commissioner of oaths shall as soon as possible thereafter make or complete his certificate, and sign each page of the will, excluding the page on which his certificate appears;
[subparagraph (v) amended by section 1(a) of Act 48 of 1958 and substituted by section 20 of Act 80 of 1964 and by section 3(c) of Act 43 of 1992]
(b)no amendment made in a will executed on or after the said date and made after the execution thereof shall be valid unless—
(i)the amendment is identified by the signature of the testator or by the signature of some other person made in his presence and by his direction; and
(ii)such signature is made by the testator or by such other person or is acknowledged by the testator and, if made by such other person, also by such other person, in the presence of two or more competent witnesses present at the same time; and
(iii)the amendment is further identified by the signatures of such witnesses made in the presence of the testator and of each other and, if the amendment has been identified by the signature of such other person, in the presence also of such other person; and
(iv)if the amendment is identified by the mark of the testator or the signature of some other person made in his presence and by his direction, a commissioner of oaths certifies on the will that he has satisfied himself as to the identity of the testator and that the amendment has been made by or at the request of the testator: Provided that—
(aa)the amendment is identified in the presence of the commissioner of oaths in terms of subparagraphs (i) and (iii) and the certificate concerned is made as soon as possible after the amendment has been so identified; and
(bb)if the testator dies after the amendment has been identified in terms of subparagraphs (i) and (iii) but before the commissioner of oaths has made the certificate concerned, the commissioner of oaths shall as soon as possible thereafter make or complete his certificate.[subparagraph (iv) amended by section 1(b) of Act 48 of 1958 and substituted by section 3(e) of Act 43 of 1992]
[paragraph (b) amended by section 3(d) of Act 43 of 1992]
[subsection (1) amended by section 1(a) of Act 48 of 1958, by section 20(a) of Act 80 of 1964, by section 1 of Act 41 of 1965 and by section 3(a) of Act 43 of 1992]
(2)Any amendment made in a will executed after the said date shall for the purposes of subsection (1) be presumed, unless the contrary is proved, to have been made after the will was executed.[subsection (2) substituted by section 3(f) of Act 43 of 1992]
(3)If a court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 1965 (Act No. 66 of 1965), as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1).[subsection (3) added by section 3(g) of Act 43 of 1992]
(4)The certificate of a commissioner of oaths referred to in subsection (1)(a)(v) or (b)(iv) may be in the form set out in Schedule 1 or 2, as the case may be.[subsection (4) added by section 3(g) of Act 43 of 1992]

2A. Power of court to declare a will to be revoked

If a court is satisfied that a testator has—
(a)made a written indication on his will or before his death caused such indication to be made;
(b)performed any other act with regard to his will or before his death caused such act to be performed which is apparent from the face of the will; or
(c)drafted another document or before his death caused such document to be drafted,
by which he intended to revoke his will or a part of his will, the court shall declare the will or the part concerned, as the case may be, to be revoked.[section 2A inserted by section 4 of Act 43 of 1992]

2B. Effect of divorce or annulment of marriage on will

If any person dies within three months after his marriage was dissolved by a divorce or annulment by a competent court and that person executed a will before the date of such dissolution, that will shall be implemented in the same manner as it would have been implemented if his previous spouse had died before the date of the dissolution concerned, unless it appears from the will that the testator intended to benefit his previous spouse notwithstanding the dissolution of his marriage.[section 2B inserted by section 4 of Act 43 of 1992]

2C Surviving spouse and descendants of certain persons entitled to benefits in terms of will

(1)If any descendant of a testator excluding a minor or a mentally ill descendant, who, together with the surviving spouse of the testator, is entitled to a benefit in terms of a will renounces his right to receive such a benefit, such benefit shall vest in the surviving spouse.
(2)If a descendant of the testator, whether as a member of a class or otherwise, would have been entitled to a benefit in terms of the provisions of a will if he had been alive at the time of death of the testator, or had not been disqualified from inheriting, or had not after the testator's death renounced his right to receive such a benefit, the descendants of that descendant shall, subject to the provisions of subsection (1), per stirpes be entitled to the benefit, unless the context of the will otherwise indicates.
[section 2C inserted by section 4 of Act 43 of 1992]

2D. Interpretation of wills

(1)In the inter relation of a will unless the context otherwise indicates—
(a)an adopted child shall be regarded as being born from his adoptive parent or parents and, in determining his relationship to the testator or another person for the purposes of a will, as the child of his adoptive parent or parents and not as the child of his natural parent or parents or any previous adoptive parent or parents, except in the case of a natural parent who is also the adoptive parent of the child concerned or who was married to the adoptive parent of the child concerned at the time of the adoption;
(b)the fact that any person was born out of wedlock shall be ignored in determining his relationship to the testator or another person for the purposes of a will;
(c)any benefit allocated to the children of a person, or to the members of a class of persons, mentioned in the will shall vest in the children of that person or those members of the class of persons who are alive at the time of the devolution of the benefit, or who have already been conceived at that time and who are later born alive.
(2)In the application of this section 'will' means any writing by a person whereby he disposes of his property or any part thereof after his death.
[section 2D inserted by section 4 of Act 43 of 1992]

3. ***

[section 3 repealed by section 5 of Act 43 of 1992]

3bis. Validity of certain wills executed in accordance with the internal law of certain other states

(1)A will, whether executed before or after the commencement of this section, shall—
(a)not be invalid merely be reason of the form complies with the internal law of the state of territory—
(i)in which the will was exucuted;
(ii)in which the testator was, at the time of the execution of the will or at the time of his death, domiciled or habitually resident; or
(iii)of which the testator was, at the time of the execution of the will or at the time of his death, a citizen;
(b)so far as immovable property is disposed of therein, not be invalid merely by reason of the form thereof, if such form complies with the internal law of the state or territory in which that property is situate;
(c)so far as therein a power conferred by any instrument is exercised or a duty imposed by any instrument is performed, not be invalid merely by reason of the form thereof, if such form complies with the internal law of the. state or territory in which such instrument was executed;
(d)so far as it revokes a will or a portion of a will which by virtue of the provisions of paragraph (a), (b) or (c) is not invalid, not be invalid merely by reason of the form thereof, if such form complies with the internal law referred to in the paragraph in terms of which the revoked will or portion is not invalid;
(e)not be invalid merely by reason of the form thereof, if it was executed on board a vessel or aircraft and such form complies with the internal law of the state or territory in which such vessel or aircraft was registered at the time of such execution, or with which it was otherwise most closely connected at that time.
(2)Any requirement of the internal law of any other state or territory in terms of which a testator of a particular age or nationality or having any other personal qualification is to observe special formalities in the execution of a will, or a witness to a will is to possess certain qualifications, shall be construed as a requirement relating to form only.
(3)If there are in force in any state or territory two or more systems of internal law relating to the form of wills, the internal law to be applied for the purposes of this section shall be the internal law determined in accordance with any relevant rule in force in the state or territory in question or, if there is no such rule in force therein, the internal law with which the testator was most closely connected at the time of his death, if the matter is to be determined by reference to the circumstances prevailing at his death, or at the time of the execution of the will in any other case.
(4)The provisions of this section shall not apply in respect of—
(a)a will made by a South African citizen otherwise than in writing; and
(b)a will made by a person who died before the commencement of this section.
(5)The provisions of this section shall not affect the validity of a will which but for such provisions would be valid.
[section 3bis inserted by section 2 of Act 41 of 1965 and amended by section 6 of Act 43 of 1992]

4. Competency to make a will

Every person of the age of sixteen years or more may make a will unless at the time of making the will he is mentally incapable of appreciating the nature and effect of his act, and the burden of proof that he was mentally incapable at that time shall rest on the person alleging the same.

4A. Competency of persons involved in execution of will

(1)Any person who attests and signs a will as a witness or who signs a will in the presence and by direction of the testator, or who writes out the will or any part thereof in his own handwriting, and the person who is the spouse of such person at the time of the execution of the will, shall be disqualified from receiving any benefit from that will.
(2)Notwithstanding the provisions of subsection (1)—
(a)a court may declare a person or his spouse referred to in subsection (1) to be competent to receive a benefit from a will if the court is satisfied that that person or his spouse did not defraud or unduly influence the testator in the execution of the will;
(b)a person or his spouse who in terms of the law relating to intestate succession would have been entitled to inherit from the testator if that testator has died intestate shall not be thus disqualified to receive a benefit from that will: Provided that the value of the benefit which the person concerned or his spouse receives, shall not exceed the value of the share to which that person or his spouse would have been entitled in terms of the law relating to intestate succession;
(c)a person or his spouse who attested and signed a will as a witness shall not be thus disqualified from receiving a benefit from that will if the will concerned has been attested and signed by at least two other competent witnesses who will not receive any benefit from the will concerned.
(3)For the purposes of subsections (1), and (2)(a) and (c), the nomination in a will of a person as executor, trustee or guardian shall be regarded as a benefit to be received by such person from that will.
[section 4A inserted by section 7 of Act 43 of 1992]

5. ***

[section 5 repealed by section 8 of Act 43 of 1992]

6. ***

[section 6 repealed by section 8 of Act 43 of 1992]

7. Repeal of laws

The laws specified in Schedule 3 are hereby repealed to the extent set forth in the fourth column of the Schedule: Provided that the laws so repealed shall continue to apply in respect of any will executed before the first day of January, 1954.[section 7 substituted by section 9 of Act 43 of 1992]

8. ***

[section 8 substituted by section 21(1) of Act 80 of 1964 and repealed by section 10 of Act 43 of 1992]

9. Short title and date of commencement

This Act shall be called the Wills Act, 1953, and shall come operation on the first day of January, 1954.

Schedule 1

Certificate in terms of section 2(1)(a)(v)

[Schedule 1 inserted by section 11 of Act 43 of 1992][Editorial note: The form has not been reproduced.]

Schedule 2

Certificate in terms of section 2(1)(b)(iv)

[Schedule 2 inserted by section 11 of Act 43 of 1992][Editorial note: The form has not been reproduced.]

Schedule 3

Laws repealed

[Schedule 3, previously Schedule 1, renumbered by section 11 of Act 43 of 1992]
Province or UnionNo. and year of lawTitle or subject of lawExtent of repeal
Cape of Good HopeOrdinance No. 15 of 1845.Execution of WillsSo much as is unrepealed.
Do.Act No. 22 of 1876.Attesting Witnesses Act, 1876.The whole, excepting section two insofar as it applies to powers of attorney.
Do.Act No. 3 of 1878.Wills Attestation Amendment Act, 1878.The whole.
NatalOrdinance No. 1 of 1856.Testamentary dispositions of Natal-born subjects of Great Britain and Ireland.The whole.
Do.Law No. 2 of 1868.Execution of Wills and Codicils.The whole.
Orange Free StateOrdinance No. 11 of 1904.Execution of Wills and other Testamentary Instruments Ordinance, 1904.Sections one to five inclusive and sections seven and ten insofar as the two last mentioned sections apply to wills.
South - West Africa.Proclamation No. 23 of 1920.Wills Proclamation, 1920.The whole.
TransvaalOrdinance No. 14 of 1903.Wills Ordinance, 1903.The whole.
UnionAct No. 14 of 1920.Wills Ordinance, 1903 (Transvaal) Amendment Act, 1920.The whole.
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History of this document

04 October 1996 this version
01 October 1992
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04 December 1970
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24 June 1964
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03 October 1958
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01 January 1954
Commenced

Note: See section 9

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04 March 1953
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25 February 1953
Assented to

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