Declaratory Applications.

01 July 2024 ,  Dries Knoetze 22

“My wife committed suicide and left a suicide note in terms of which she left her property to her new boyfriend. We were married in community of property and her new boyfriend now wants to approach the court to have the suicide note declared as a valid will and testament. What does this mean?”

In terms of Section 21 (1)(a) of the Superior Courts Act, 2013 a court may, at the instance of any interested party, enquire into any existing, future or contingent right or obligation, notwithstanding that no consequential relief may be or is claimed by the applicant.

This therefore grants a high court with jurisdiction to make a declaration of rights at the instance of an applicant where the applicant either cannot or does not seek or is not granted consequential substantive relief.

A court will not decide an abstract academic or hypothetical question and will exercise its discretion to grant a declaratory order where there is some tangible advantage to be obtained by the grant of such an order.

Examples of these instances where a declaration of rights would be appropriate are:

  1. Whether a contract is valid or invalid;
  2. The validity or interpretation of a will or trust;
  3. The validity or interpretation of a statutory instrument;

Suicide notes are generally not compliant with the statutory prescribes which govern wills. One frequent example of this is that the note is only signed by the deceased and not by any other witnesses as is required for a will.

The act (Wills Act) however makes provision for the following exceptions contained in Section 4A(2)(a) of the act:

Notwithstanding the provisions of subsection (1) –

  1. A court may declare a person, or his spouse referred to in subsection (1) to be competent to receive a benefit from a will if the court is satisfied that the person or his spouse did not defraud or unduly influence the testator in the execution of the will;

 Therefore, your wife’s new husband may approach a high court with jurisdiction to obtain a declaratory in terms of which he might attempt to have the suicide note declared as a will.

 

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