THE ‘FINAL’ ATTEMPT TO VALIDATE AN UNSIGNED AND UNDATED WILL.

This article discusses the significance of a recent Judgment handed down by the Eastern Cape Division of the High Court, which dismissed an application to hold an unsigned and undated Last Will and Testament valid. The matter of Ungerer v Ungerer highlights the importance of complying with the formalities of section 2(3) of the Wills Act, despite the presence of evidence which may provide an indication of the ‘intention’ of the deceased.

Read the case here:

https://www.saflii.org/za/cases/ZAECMKHC/2024/90.html

Ungerer vs Ungerer

The application was brought by the deceased’s husband, who approached the court to have the unsigned and undated Will be declared valid. The daughter, estranged from the parents and listed as the first respondent in the matter, was the only child born of their marriage and the sole heir in terms of the deceased’s Will signed in 1999, which was accepted by the Master.

2022 Will

The applicant and deceased instructed Capital Legacy to draft their wills in January 2022. These wills were to stipulate that their respective estates were to be bequeathed to each other and in the event of their demise, their daughter. This differed compared to the 1999 Will which bequeathed the entire estate of the deceased to her daughter. However, at the time of the intended signing of the 2022 Will, the deceased suffered from cancer and was on various medications. The applicant’s argument for the failure to sign was that in April 2022, the witnesses signed the Will and when it was time for the deceased to sign, she felt ill and decided to sign her Will at a later stage. The deceased passed away on 11 October 2022. The applicant provided no reason as to why the deceased had not signed her will from the time of April 2022 to October 2022.

1999 Will

The applicant’s main argument in bringing the application was that various circumstances had changed since the signing of the 1999 Will. At the time the first respondent was a minor and the main concern of the deceased was the financial well-being of her daughter in the event of her death. However, towards the end of the deceased’s life, the applicant had fallen into a dire financial situation, the applicant and the deceased had been unemployed while the daughter had been employed and a family feud had been in existence.

The main question which the court had to consider was whether the court may accept the Will as provided for in the Wills Act. Section 2(3) of the Act provides that a court ‘if satisfied that a document or amendment of a document drafted or executed by a person who has died since the drafting thereof, was intended to be his will, the court shall order the Master to accept that document for the purposes of the Administration of Estates Act 1965, as a will although it does not comply with the formalities for the execution of wills referred to in subsection (1)’.

When providing a legal analysis for section 2(3) of the Act, the court highlighted that sections 2(1) and (2) are legal safeguards to ensure the authenticity of one’s Will, and furthermore, to guard against any false or forged Wills. The court expressly noted that the legislature’s intention in section 2(3) is to ensure that any failure to comply with formalities does not frustrate or defeat the intention of testators.

Considering the omission of signatures

When considering the merits of the applicant’s case, the high court considered a number of judgments in respect of section 2(3) and the omission of various signatures. The first of such judgments being the matter of Grobler v Master of the High Court where the Supreme Court of Appeal (SCA) considered the question of whether an unsigned Will may be declared valid. In the matter of Grobler, the court considered a chain of email communications between the deceased and the person who was drafting his Last Will. Before his passing, the deceased requested final amendments to his draft Will which were to have been effected before a signing meeting took place. The deceased passed before the intended signing meeting took place.

An application was brought before the court to declare the unsigned Will valid on the basis of various emails between the deceased and the drafter, discussing amendments to the deceased’s draft Will. Parties to the dispute argued that the deceased’s unsigned Will should be accepted because of the deceased’s ‘active role’ in drafting and completing the Will. Justice Maya held that the purpose of section 2(3) is to ‘avoid thwarting the lawful wishes of the deceased would-be testator’, adding that the document must have been drafted or executed by the deceased whose Will it purports to be, and the court has to be satisfied, on a balance of probabilities, that the deceased intended it to be his/her will.

Will drafted by the deceased

With the above in mind, it is clear to see that the legal framework provided in the legislation and case law, provides that the court has to be satisfied that the document must have been drafted or executed by the deceased and lastly, that the court is satisfied that the deceased in fact intended that to be their last will. The court highlights this two-pronged nature to the enquiry of whether the Will should be accepted.

When applying the legal framework to the facts of the Ungerer matter, the court noted that the Will had clearly not been drafted by the deceased and there was no indication that the deceased had accepted the document as her final Will.

Will drafted by an agent

The high court further noted the Constitutional Court judgment in Anderson and Wagner v The Master and noted the difference between a Will drafted by the deceased and the expression of their intentions captured therein compared to a Will drafted by an agent or any other person on the instruction of the maker of the will and the interpretation of their intentions therein. The court noted that when a document is intended by the maker to be his will, the maker of the document intends it to constitute the final expression of his wishes in respect of the disposal of his estate. However, when an individual is instructed by the maker to draw up a will or an amendment thereto, the maker of the document does not vest with it the same intention of finality as the final document will be prepared and considered by him, upon which he may wish to amend, sign, or not sign once it is presented before him.

In addition to the Anderson matter, the high court considered the matter of Bekker v Naude en andere, where the appellant and deceased approached a bank to draft a joint Will, which was eventually ‘drafted’ by the bank’s head office. The SCA, in considering the matter, held that the legislature required a strict interpretation of drafting, one which amounts to personally drafting the Will in instances where the Will had not been signed.

Most importantly, the court in Sono and another v Master of the High Court confirmed that it is not possible for an unexecuted (unsigned) document to be rescued from invalidity using section 2(3) when drafted by an attorney or advisor.

In coming to its final decision, the high court drew on the authority of Grobler and concluded that in the absence of sufficient evidence which clearly shows the deceased’s approval of the contents of the draft Will to be her final Will, the court is unable to conclude that it was in fact intended to be the last Will of the deceased. The court further noted that because the Will was neither drafted nor executed by the deceased, the enquiry into intention does not arise.

Delay in signing the Will

Additionally, the court drew on a number of factual circumstances. The first being that the applicant provided no reason as to why the deceased failed to sign her will in the period from February 2022 to her date of passing on 11 October 2022. Secondly, that if the deceased in fact intended for the Will drawn up in 2022 to be her final Will, she would have signed it especially in respect of her terminal illness and inevitable demise. Thirdly, that the deceased probably changed her mind to avoid leaving her daughter with nothing in the event of her passing. In considering the relationship between the deceased and her daughter, the court noted various communications between the deceased and her daughter in respect of reconciliation. This adds weight to her failure or refusal to sign the disputed Will.

Does not permit judicial discretion

In conclusion, the court noted that the parameters of section 2(3) does not permit the court to exercise judicial discretion when the stipulated requirements are absent, highlighting the strict interpretation of section 2(3). The application was subsequently dismissed.

The present case provides a great example of the court’s efforts to protect the intention of the deceased, even when such intention is not clear to ascertain. It further provides an example of why one should comply with the formalities for a valid Will as stipulated in the Act. One can safely conclude that when drafting a Will or instructing someone to draft a Will, your wishes are best protected when all formalities are complied with.