Formal validity of Will


(scarter) #1

I am having something of a brain freeze looking at a Will and trying to determine whether the execution is valid or not.

The Testator was a national of, habitually resident and domiciled in South Africa.

The Will is limited in scope to immovable and moveable property in the UK and declares that the law of England and Wales shall apply to it.

The Will was signed in 2017 in South Africa in the usual English fashion, i.e. testator has signed at the end of the Will in the presence of two witnesses who have also signed. There is a standard attestation clause.

I believe that to be a valid Will in South Africa, the Testator needs to have signed or initialled each of the pages. The Testator has not done so here.

Under the Wills Act 1963, I think this may mean that the Will is valid as far as the immovable property in the UK is concerned, but not the moveable property. What do others think please?

Steve Carter
Setfords Solicitors


(Simon James Northcott) #2

I agree-you will need advice in South Africa. An English Will for a foreign domiciliary should safely only deal with immovable assets in England, unless advice is taken from a foreign lawyer in the country of domicile.

Simon Northcott


(Peter Harris, Barrister, Overseas Chambers ) #3

I agree with Steve Carter that s. 2 (1) (b) Wills Act 1963 gives an exceptional validity to the Will to the extent that it addresses immovable property situated in the English jurisdiction. S. 3 is of no assistance as South African law does not apply.

I stress that the initialling of each page should not render it invalid in England and Wales.

Civilian initialling generally shows that the testator had read each page, or at least had the opportunity to read it before signing, rather than relying upon the sole draftsman to transcribe intention. The South African law derived in part from Dutch practice can be exceptional.

Whether the Will can be validly initialled in South Africa after its signature and dating and more importantly its witnessing is an issue for South African law - certainly were that law, for example, also to require that the witnesses initial as well at the same time as the testator signs it. I am not familiar with whether the witnesses merely attest that the testator has signed or are considered to have witnessed the testator’s initialling as well.

Might I suggest that any South African lawyers concerned be consulted on that civilian issue before taking any step such as post-signature / execution initialling be considered?

Peter Harris

www.overseschambers.com


(scarter) #4

Thank you for your helpful replies. My own research indicates that under South African law, the Testator must sign the last page and either sign or initial the other pages. The witnesses need sign only the last page of the Will. (I’m happy to be corrected on this by any South African lawyers out there.) I do intend to take local advice on the best course of action.

Steve Carter
Setfords Solicitors


(mnaidoo1) #5

I am a South African Attorney and can confirm that a Will signed in South Africa would need to be initialled on each page by both the witnesses and the testator. Who must sign in the presence of each other and be able to attest to the fact that the testator has signed and initialled as required in their presence.

You will at probate stage need to file an Affidavit of South African Law confirming that the Will has been validly executed in accordance with South African law - affidavit by a South African qualified attorney.

You can not I am afraid arrange for the witnesses and testator to initial post signing.

Hope this helps.

Mahendree Naidoo
Kingston Smith


(Peter Harris, Barrister, Overseas Chambers ) #6

This is a very helpful clarification, and displays a robust civil South African requirement that not only the body of the will be initialled as read by the testator but also that the witness initial to attest that he has in effect done so.

This is very distinct from the old English principle that the witness only needs to see, or have the possibility of seeing the testator signing it. There was a recent dashing thread on whether witnesses view, or potential view of the testator signing it through a window through to a stationary parked carriage was sufficient.

Whilst it may be the longstanding practice of the Probate Court to insist upon the affidavit of a South African qualified attorney, which will apparently not be obtainable as to the points raised by Mahandree as it stands, may it not still be that s.3 WA 1963 might provide a way past it if a South African Attorney can assist in stating that the will appears, notwithstanding the formal deficiency under South African law , to meet the requirements as to the exception set out in s.3. WA 1963 in an case of extreme need, say where the testator has died in the meanwhile? I think that might be unlikely. However, as the movables are situated in the English or British jurisdiction, the Probate Court may have a technical jurisdiction to decide whether it meets s.3 WA 1963 notwithstanding. Counsel’s opinion as to the exact scope of the term “testators answering a particular description” might therefore be an appropriate option. It doesn’t however appear to be a hopeful one. I understand that there are dual qualified Counsel in Lincoln’s Inn.

Given Mahadree’s point, It would obviously be better if the Will could be redrafted and re-executed in proper South African form were the testator still alive. If not looks like a South African intestacy or s.3 as to the movables.

Peter Harris

www.overseaschambers.com