THE DRAWN-OUT BATTLE OVER EX-RUGBY PLAYER JOOST VAN DER WESTHUIZEN’S ESTATE SERVES AS A CAUTIONARY TALE ON ENSURING THAT YOUR WILL CORRECTLY OBSERVES ALL THE FORMALITIES.
My late father used to recount the proverb “Where there’s a will…” not with the time-worn ending “there’s a way” but with the more jaded version “there’s a fight”.
Unfortunately, practical experience does teach us that a fight is often the case when someone dies. Just at a time when you would hope that your family pulls together to support one another in their bereavement, the heady mixture of raw emotions and deep-rooted grievances can come to the fore to create complex family dynamics.
The last thing you want in an already difficult situation is for there to be any legal issues for your family to contend with on top of everything else. This is why it is so important that you have in place an up-to-date and appropriate Will that correctly observes all the rules and formalities, clearly setting out how and to whom you want your assets to devolve on your death.
As a case in point, many will remember the legal and family drama that followed former Springbok-player Joost Van der Westhuizen’s death, as the Master of the High Court initially refused to accept Van der Westhuizen’s Will on the basis that prior to his death from Motor Neuron Disease, he could not physically sign his last Will and Testament drawn up in 2015.
In a situation where someone is unable to sign their Will, either because they are physically unable to do so or because they are illiterate, they may execute the Will by making a mark or by directing someone else to sign it on their behalf in their presence. However, there are additional formalities set out in the Wills Act for the valid execution of the Will in such a situation, involving a Commissioner of Oaths having to participate in the execution. Notably, there was an allegation that the required procedures were not properly followed in the execution of Joost’s Will, which is what led to the subsequent dispute.
Finally, after a prolonged legal battle, the North Gauteng High Court upheld the 2015 Will, leaving Van der Westhuizen’s entire estate to his J9 trust (managed on behalf of his two children) and bequeathing his estranged wife Amor Vittone just a few minor assets.
ENSURING THE VALIDITY OF YOUR WILL
It is easy to appreciate why there are such strict formalities around the execution of a valid Will: the document is intended to evidence the wishes of a person regarding the devolution of their assets at a time when they are no longer able to do so. They are not present to explain their wishes and intentions and so it is of utmost importance that these wishes are clear, as well as undisputedly being their own. The basic rule around the dispute of the validity of a Will on the grounds of a lack of capacity or duress are that the person alleging the invalidity must lead evidence before the High Court to prove it on a balance of probabilities. This can be tricky.
There are several key factors to be taken into account when considering the validity of a Will:
- Whether the person signing the Will was mentally capable at the time of signing it – that they appreciated and understood the legal consequences of signing the document.
- Whether the person signing the Will did so freely, without duress or undue influence – they signed the document of their own free will.
- Whether the various formalities prescribed in the Wills Act (No. 7 of 1953) were complied with in the execution of the Will. This can get a bit technical, which is why we advise that you obtain qualified assistance to ensure that your Will is correctly executed or signed, in addition to your obtaining the assistance of a professional to actually take instructions and draft an appropriate Will.
Checking whether a Will complies with the prescribed formalities for execution is a fairly formulaic and less nebulous process. The Wills Act also recognises that we are human beings living in an imperfect world, and so contains various rescue provisions to cater for different scenarios.
For instance, as in the example of Van der Westhuizen’s estate, there is a rescue provision in the Wills Act in terms of which a court, if it is satisfied that the document was intended to be their last Will, can order the Master of the High Court to accept a Will as valid in spite of it not complying with the required formalities for execution. Bear in mind, though, that such an application to the High Court involves instructing an attorney, who in turn briefs an advocate to move the application in court. This comes at a cost in terms of time, money and unnecessary emotional distress for your family.
This case was a very sad and distressing situation for all involved, and our recommendation is that, if you have gone to the time and effort to draft a Will to ensure that your last wishes are carried out, you must also be certain that it is correctly executed. Dealing with a professional fiduciary specialist should give you and your family peace of mind.
Written by: Managing Director Citadel Fiduciary, Hilary Dudley