If the court is satisfied that the document was

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If the court is satisfied that the document was intended by a person to be his will – the court must order the master to accept the document = it has no discretion. The person’s capacity to act (mental illness) may be raised at a subsequent court action. (Horn v Horn, Ex Parte Maurice, Back v The master)
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CLS cc © Succession Notes 36 Critical Law Studies cc © S2(3): was welcome, as in the past many wills were declared invalid because of non-compliance with the formal requirements, even if the non-compliance was only in a minor respect. This was because S2 (1) of the wills act was essential and the court had no option but to declare the will invalid, if the requirements weren’t complied with. NOW the court is empowered to declare a document as a valid will even though it doesn’t meet all the formal requirements of wills. Section 2(3) can today be used to remedy will’s defective like in Kidwell . Thus, any document may be accepted as a will without complying with formalities if requirements were complied with: Requirements in S2 (3) summarized in Ex parte Maurice: 1) The court has to be satisfied that the document was executed by a person, 2) Who has since died and who 3) Intended the document to be his will The power of the court to order the Master to accept a document as a valid will: Section 2(3) = court empowered to order the Master to accept a document as a valid will if court satisfied that the document was drafted or executed by a person who has since died and who INTENDED that document to be his will – although it does not comply with the formalities. This section only applies if the formalities for creating a valid will have not been complied with, it can’t be used to remedy the lack of capacity to make a will. If court satisfied document intended to be a person’s will – must order master to accept the document – it has NO discretion. REQUIREMENTS 1) The court has to be satisfied that the document concerned must have been drafted or executed BY A PERSON who has since died: ξ Literally interpreted this means that the deceased should have PERSONALLY drafted the document. ξ Number of cases said that s2 (3) had nothing in it saying that the testator should have personally drafted the document – Back and Williams . ξ According to these cases the court accepted a will drawn up by someone else on behalf of the testator. ξ But in March 2003 the SCA delivered a judgement dealing with s2 (3) – Bekker v Naude . The SCA preferred the narrow interpretation of the word “drafted” in this case – to mean that the testator must have drafted the document himself (the wider
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CLS cc © Succession Notes 37 Critical Law Studies cc © approach to “drafted” was used in Back and Williams to include someone drafting it for the testator).
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