In the recent legal court battle of Solomon v Solomon, two brothers fought over their father’s estate.
Percival had two sons, Jean-Paul and Shane. Percival died, leaving a document purporting to be his will. The document did not comply with the Wills Act.
Jean-Paul had been disinherited by his father in terms of the will, and applied to have Percival’s will declared invalid. If he was successful, he would be entitled to inherit intestate.
Shane was the beneficiary under the will. He launched a counterclaim to have the will accepted by the Master, even though it did not meet all the legal requirements under section 2(1) of the Wills Act; and to be declared competent to inherit, even though he was disqualified from inheriting, under Section 4A(1) of the Act, in that his wife signed the will as a witness.
The Court had two questions to answer:
- whether the document purporting to be the will of Percival was intended to be his will; and
- whether the first respondent should be disqualified from inheriting under the will?
In answering the first question, the Court applied Section 2(3) of the Wills Act, which directs that if a Court is satisfied that a document is drafted by a person who has died after drafting the document, then the Court shall order the Master to accept that document as a will, although it does not comply with the requirements for a valid will.
On the facts provided, the Court was convinced that the document had been drafted by Percival and that it was intended to be his will.
In answering the second question, the Court applied Section 4A(2)(a) of the Wills Act which directs that a Court may declare a person or his spouse competent to benefit under a will if it is satisfied that a person or his spouse did not defraud or unduly influence the testator in the execution of the will.
On the facts provided, the Court was convinced that neither Shane nor his wife unduly influenced Percival.
The Court therefore ordered that the Master accept the document as the will of Percival and that Shane be competent to inherit under the will.
This case serves as a cautionary tale about the potential consequences of not complying with the requirements for a valid will. The failure to comply with the requirements for a valid will may lead to your estate not being distributed in accordance with your wishes or causing friction between your loved ones.
