An executor is handed a document that everyone in the family accepts was meant to be the deceased’s will. It reads like a will, it names beneficiaries, and it reflects what the deceased told the family they intended. The problem is that it was never signed, or it was signed by only one witness, or it exists only as a file on the deceased’s laptop. The Master refuses to accept it, or the executor suspects that the Master will refuse it.
That document is not automatically worthless. Section 2(3) of the Wills Act 7 of 1953 gives the High Court the power to order the Master to accept a document as a will even though it does not comply with the execution formalities. The relief is real, but it is narrow, and it is available only from a court. An unsigned will in South Africa is not validated by family agreement, by the Master’s discretion, or by the executor’s own view of what the deceased wanted.
For the executor or nominated executor holding the document, the decision is time-sensitive and carries personal exposure. Administering the estate on the earlier will, or on the basis of intestacy, when the later document is subsequently accepted by a court, is a costly error to unwind.
When a Document Fails the Section 2(1)(a) Formalities
Section 2(1)(a) of the Wills Act sets out what a valid will requires. Reduced to plain language, a will executed on or after 1 January 1954 is valid only if:
- it is signed at the end by the testator, or by another person in the testator’s presence and at the testator’s direction;
- that signature is made or acknowledged by the testator in the presence of two or more competent witnesses present at the same time;
- those witnesses attest and sign the will in the presence of the testator and of each other;
- if the will runs to more than one page, every page other than the page on which it ends is also signed by the testator, anywhere on that page; and
- where the testator signs by making a mark, or where another person signs on the testator’s behalf, a commissioner of oaths certifies that he or she is satisfied as to the testator’s identity and that the document is the will of the testator, and signs each page.
The Act defines a competent witness as a person of fourteen years or older who, at the time of witnessing, is not incompetent to give evidence in a court of law.
Four defects account for most of the documents that reach an executor in this condition.
The document was never signed at all. The deceased received the draft, intended to sign it, and died before doing so.
The document was signed by the testator but not properly witnessed. An incorrectly witnessed will is the most common defect in practice. One witness instead of two, witnesses who signed at different times rather than together, or witnesses who signed outside the testator’s presence, each defeats the formality requirement.
Only the last page was signed. Where a will runs to several pages, the intermediate pages must also be signed by the testator. A document signed only at the end fails subparagraph (iv).
The document was signed electronically. An electronic signature on a will does not satisfy section 2(1)(a). Wills are excluded from the operation of the Electronic Communications and Transactions Act 25 of 2002, so a document signed only by electronic means remains formally defective no matter how deliberate the deceased’s conduct was.
There is one point that admits of no qualification. A document that was defectively executed cannot be repaired after the testator’s death. Re-signing it, arranging fresh witnesses, or dating it as though it had been signed during the deceased’s lifetime is not a solution and is not lawful. The only route is a court order.
If you are holding a document in any of these conditions, contact our deceased estates litigation team before you take any step in the administration of the estate.
Section 2(3) of the Wills Act: What a Court May Order
Section 2(3) provides that where a court is satisfied that a document, or the amendment of a document, drafted or executed by a person who has died since the drafting or execution of it, was intended to be that person’s will or an amendment of his will, the court shall order the Master to accept that document for the purposes of the Administration of Estates Act 66 of 1965 as a will, although it does not comply with all the formalities.
Three elements must be established:
- There is a document, or an amendment of a document. The section applies to amendments as well as to whole wills.
- The document was drafted or executed by a person who has since died. The statutory wording is disjunctive. Drafting and execution are alternatives, not cumulative requirements.
- The deceased intended that document to be his or her will, or an amendment of it.
Each element must be proved on a balance of probabilities. The requirements are jurisdictional rather than discretionary, and the distinction matters practically. Where all three are established, the section says the court shall order the Master to accept the document. Where one is absent, the court has no power to condone at all, and the strength of the evidence on the other elements cannot compensate for it. Condonation of a will under this section is therefore not a weighing exercise in which good intention evidence outweighs a weak drafting connection.
Two further points follow from the wording. The court orders the Master to accept the document. The Master has no independent power to overlook a formality defect, and no discretion to accept a document that does not comply. Nor can the beneficiaries agree among themselves that the document should be treated as the will. The section directs that a court rule on the document, which means that this is a litigation issue from the outset.
Who Drafted the Document, and Why It Matters
The second element is where a large number of applications encounter difficulty, and it is the element most often misunderstood by the family holding the document.
South African courts have not applied the drafting requirement uniformly. One line of authority reads “drafted by” strictly, so that a document the deceased merely caused to be drafted, by instructing someone else to prepare it, falls outside the section. On that approach, a court that finds the deceased did not personally draft the document holds that it lacks jurisdiction to condone, and the intention evidence is never reached. A more permissive line of reasoning has treated the requirement as capable of being satisfied where the deceased’s own involvement in producing the document is sufficiently direct.
The practical consequence is significant, because a very large share of South African wills are drawn by financial advisers, bank consultants and brokers rather than by testators personally. Where a will was drawn by an adviser and then defectively executed, the application faces a real threshold difficulty, and the outcome depends on the facts and on the approach the court adopts.
There is still room to argue personal drafting in some circumstances. The deceased’s own handwritten notes or marked-up amendments on the document, a version the deceased typed personally, or dictated content recorded in the deceased’s own words may assist. Whether that is sufficient depends on the evidence available and on how the court approaches the requirement. Nothing about it is automatic, and no responsible assessment can be given without sight of the document and the surrounding correspondence.
Proving Testamentary Intention on Affidavit
The third element is intention. The question is not whether the document is a sensible or fair distribution of the estate. The question is whether the deceased intended that particular document to be his or her will.
Intention is proved on affidavit, supported by documentary evidence. The deceased’s own correspondence about the disputed document is generally the strongest evidence available. Enquiries by the deceased asking where the document was for signature, instructions confirming what the document should say, and messages confirming that the deceased regarded the document as settled all speak directly to the point.
Categories of evidence that commonly carry weight include:
- emails and messages between the deceased and the adviser or attorney who prepared the document;
- WhatsApp messages in which the deceased describes the document or its contents;
- adviser and attorney file notes recording the deceased’s instructions;
- follow-up enquiries by the deceased about signing arrangements; and
- contemporaneous life events consistent with the making of a new will, such as a marriage, a diagnosis, or the birth of a child.
What falls short is equally important. Family recollection of what the deceased is said to have wanted, unsupported by anything contemporaneous, is weak. Suspicion that the deceased would have signed had there been time is not evidence of intention regarding the specific document. The jurisdictional requirements are stringent, and the evidence must be solid rather than a matter of belief.
If the evidence on intention is thin, an application may not be justified. Litigation that is not supported by evidence exposes the applicant to costs and delays the estate without prospect of benefit.
The Executor’s Position While the Status Is Unresolved
An executor or nominated executor occupies a fiduciary position and acts in the interests of the beneficiaries of the estate. That shapes the decision about what position to take when the Master rejected the will or is likely to do so.
The appropriate course in most matters is for the executor to allow the interested party to seek judicial relief, to hold the administration of the estate in abeyance on that basis, and to abide by the decision of the court. The executor should not be personally or emotionally invested in which document prevails. Taking sides in a dispute between competing beneficiaries, where there is no fiduciary reason to do so, is where personal costs exposure arises.
While the status of the document is unresolved, an executor should not:
- lodge the defective document with the Master as though it were a valid will;
- advertise the Liquidation and Distribution Account;
- distribute any part of the estate;
- sell or transfer estate assets other than where preservation genuinely requires it; or
- take any step that would be difficult or expensive to reverse if the court accepts the document.
The practical reason is straightforward. Every one of those steps proceeds on an assumption about which testamentary document governs the estate. If that assumption is later displaced by a court order, the steps taken on the wrong basis must be undone.
The other pressure is time. An application under section 2(3) of the Wills Act holds up the administration of the estate until it is resolved. Where an application is going to be brought, it should be brought promptly. Delay does not improve the evidence, and it extends the period during which the estate cannot be finalised and the beneficiaries receive nothing.
Where an estate is already facing competing entitlements while the will’s status is unresolved, our article on disputed claims against a deceased estate sets out the executor’s parallel duty.
Evidence to Preserve Immediately
The evidence that decides these applications is usually electronic, and it is routinely lost before an attorney is instructed. Devices are wiped and given to family members, email accounts are closed, and adviser files are archived.
Preserve the following as soon as the problem is identified:
- the deceased’s laptop, desktop, tablet and phone, in their current state and without deletion;
- all versions and drafts of the document, including earlier versions showing changes;
- the full email chain with the adviser, broker, bank consultant or attorney who prepared it;
- WhatsApp and other message histories referring to the will or to signing;
- the adviser’s or attorney’s file, including notes of instructions and diary entries;
- the earlier will, if one exists, and any correspondence about replacing it; and
- medical records where the deceased’s health explains the timing.
Whoever currently holds the device or the correspondence should be told, in writing, not to delete anything. Metadata showing when a document was created and last modified is often decisive on the drafting question, and it is destroyed by ordinary handling.
Common Misconceptions About a Defective Will
Several assumptions recur, and each of them is capable of causing real loss.
“The Master can fix it.” The Master cannot condone a formality defect. Only a court can order the Master to accept the document.
“An unsigned document is worthless.” Not necessarily. Section 2(3) exists precisely for documents that fail the formalities. Whether it assists depends on the three elements and the available evidence.
“Intestacy follows automatically.” It does not. A rejected document does not convert the estate into an intestate estate by itself. There may be an earlier valid will, and the status of the later document may still be determined by a court.
“The family can simply agree.” Beneficiaries cannot agree to treat a formally defective document as the will. The section requires a court order.
“Section 2(3) is a safety net.” It is a narrow exception. A defective will in South Africa is not routinely rescued, and an application that is not supported by evidence of both drafting and intention should not be brought.
“This is the same as contesting a will.” It is the opposite application. Contesting a will seeks to invalidate a document that complies formally, on grounds such as testamentary capacity, undue influence or fraud. Where the real dispute is about capacity or influence rather than formalities, see our article on contesting a will in South Africa, and on the grounds for challenging a will where the question is what the objecting party must prove.
When to Get Attorneys Involved
Involve attorneys at the point at which the defect is identified, not at the point at which the Master refuses the document. The condonation of a will requires an application to the High Court seeking declaratory relief, with the Master, the executor if one has been appointed, and the potentially interested parties cited as respondents. That is not a process an executor can prepare or manage without legal representation.
Attorney involvement is warranted immediately where:
- the Master has rejected the document, or has raised a query about its execution;
- the executor is being asked to administer on an earlier will while a later document exists;
- beneficiaries under the two documents differ;
- the document exists only in electronic form; or
- evidence is at risk because devices or accounts are about to be dealt with.
Where the estate has already been administered on the wrong testamentary document and the account is lying open for inspection, the downstream remedy is set out in our article on objecting to a liquidation and distribution account.
Our deceased estates litigation team advises executors, nominated executors, fiduciary practitioners and families on exactly these matters. Judgments in this area are available through SAFLII, and general estate resources are published by the Department of Justice and Constitutional Development.
Frequently Asked Questions
Is an unsigned will valid in South Africa?
An unsigned document is not a valid will, because it does not meet the requirements of section 2(1)(a) of the Wills Act 7 of 1953. It may still be accepted as the deceased’s will if a court orders the Master to accept it. The applicant must satisfy the court that the document was drafted or executed by the deceased and that the deceased intended it to be his or her will. An unsigned will in South Africa is therefore not automatically worthless, but it is also not automatically rescuable.
Can a will signed with an electronic signature be accepted by the Master?
No. Wills are excluded from the Electronic Communications and Transactions Act 25 of 2002, so an electronic signature on a will does not satisfy the execution formalities, and the Master cannot accept the document on that basis. The document may still be the subject of a court application, which is assessed on the same three elements as any other defective document.
What must an executor do if the Master refuses to accept a will?
Stop and take advice before any further administrative step. Where the Master rejected the will, the executor should generally hold the administration in abeyance, allow the interested party to approach the court, and abide by the court’s decision. Lodging, advertising the Liquidation and Distribution Account, or distributing while the position is unresolved creates personal exposure.
How long does an application under section 2(3) of the Wills Act take?
That depends on the court roll, on whether the application is opposed, and on how quickly the supporting evidence can be assembled. It should be launched promptly, because the estate cannot be finalised while the status of the document is unresolved. No reliable timeframe can be given at the outset, and any estimate depends on the facts of the matter.
What happens if a will was signed by only one witness?
The Act requires two or more competent witnesses present at the same time. An incorrectly witnessed will does not comply with section 2(1)(a) and cannot be accepted by the Master in that form. It may be placed before a court under section 2(3), where the same requirements of drafting and intention apply.
Who pays the costs of the application?
Costs in estate matters frequently come out of the estate, but that is not a fixed rule. A court may order a party who has opposed unreasonably to pay the costs. The position depends on the conduct of the parties and on the court’s discretion, and an executor who takes a partisan position without fiduciary justification may attract a personal costs order.
Does the earlier will still apply if the later document is rejected?
Where a court does not order the Master to accept the later document, the estate is generally administered on the last valid will, if one exists. Whether an earlier will remains operative depends on its own validity and on whether it was revoked. That assessment requires sight of both documents.
Speak to Us Before You Take the Next Step
The decision facing an executor holding a defective will in South Africa is whether to administer on an earlier will, to treat the estate as intestate, or to support an application to court. Getting that decision wrong reallocates an entire estate and creates personal exposure for the executor.
Vermeulen Attorneys assists executors, nominated executors, fiduciary practitioners, advisers and families with the assessment of defective testamentary documents and with applications under section 2(3) of the Wills Act. If you are holding a document that may not have been validly executed, arrange a consultation before lodging anything with the Master, before advertising the account, and before distributing any asset.
