“I was recently bequeathed an inheritance from my neighbour who I was close to. My inheritance is based on a document which I drafted upon instruction of the neighbour shortly before his death. My neighbour called me and discussed the contents of the documents as well as the reasons why he intended to bequeath a part of his estate to me. I drafted the document had myself, my neighbour and his friend signed the document. Is this document a will and can I rely on this document in order to get the property so bequeathed?”

The first question to be asked in order to properly advise you is, who may make a will? A will can be made by every person of the age of sixteen or more unless at the time of making the will he is mentally incapable of appreciating the nature and effect of his act.

The second question to be asked is whether this document so signed by your neighbour complies with the requirement of a will? The document must consist of the following in order to be qualified as a will:

1. The testator or testatrix must be over the age of 16 years;
2. The will must be in writing, whether typed or handwritten and must not be drafted by any beneficiary of that specific will;
3. Each page of the will, including the last page, must be signed by the testator or testatrix and by two competent witnesses, who is over the age of 14 years or older.

The wills act provides further that the following persons may not benefit under a will and shall be disqualified from receiving any benefit from that will:

1. A person who attests and signs a will as a witness, or
2. Who signs a will in the presence and by direction of the testator, or
3. Who writes out the will or any part thereof in his own handwriting, and
4. The person who is the spouse (including the surviving partner of a registered civil union of such person at the time of the execution of the will.

The 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 that person or his spouse did not defraud or unduly influence the testator in the execution of the will;
2. A person or his spouse who in terms of the law relating to instate succession would have been entitled to inherit for the testator if that testator has died intestate shall not be this disqualified to receive a benefit from that will; provided that the value of the share to which the person concerned or his spouse receives, shall not exceed the value of the share to which that person or his spouse would have been entitled in terms of the law relating to intestate succession;
3. A person of his spouse who attested and signed a will as a witness shall not be thus disqualified from receiving a benefit from that will if the will concerned has been attested and signed by at least two other competent witnesses who will not receive any benefit by such person from that will.

When now considering the above and applying that to the set of facts above, it should be clear that you are disqualified from inheriting due to the following reasons:

1. You drafted the will;
2. You signed the will and you do not qualified to inherit as a result of the law of intestate succession as you are not family of the deceased;
3. The documents were also not signed by two other competent witnesses.

However as indicated above, the court may declare that you will still be able to inherit if you can proof to the court that when you signed the will or drafted the will your intention was never to defraud the deceased.

This is done by way of application, which application is lodged in the High Court with the necessary jurisdiction. It is important to remember that all interested parties must be added to the proceedings, which will include all the other beneficiaries in terms of the will and the master of the High Court as the master will have to be ordered to accept this document as a will.

Reference List:

• Meyerowitz chapter 4;
• Law of Succession in SA (Corbett)