Condonation confusion
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Date
2017
Authors
Schoeman-Malan, L.
Journal Title
Journal ISSN
Volume Title
Publisher
Faculty of Law, University of the Free State
Abstract
Some problems have arisen with the interpretation of the
formalities for the execution of wills in sec. 2(1) of the Wills Act 7
of 1953. The courts were given the power of condonation in sec.
2(3) of the Act to prevent wills from being declared invalid when
some of the formalities had not been complied with. The provisions
in sec. 2(3) appear to be controversial. The basic principles have
become the subject of continuing debate through case law. The
High Courts constantly disagree when they have to interpret the
basic principles for the condonation of non-compliance with
formalities. The reform envisaged by the legislator at the outset
has not resulted in a satisfactory solution. Sec. 2(3) has been
deliberated from every possible perspective. Despite Supreme
Court of Appeal judgements on the interpretation of concepts such
as ‘document’, ‘drafted or executed’ and ‘intention’, sec. 2(3), in
its current form, can never provide for all possibilities. The more
one analyses and discusses sec. 2(3), the more indistinguishable
the interaction between the applicable principles becomes. This
article discusses recent cases that have come before the Gauteng
High Court in Pretoria, in which two vastly different sets of facts
resulted in identical judgements on sec. 2(3). This inquiry reveals
that practical challenges remain for the courts and it is concluded
that urgent intervention by the legislature has become a necessity.
Description
Keywords
Wills Act, Testamentary condonation, Execution of wills
Citation
Schoeman-Malan, L. (2017). Condonation confusion. Journal for Juridical Science, 42(1), 77-99.