The Intent to Revoke a Last Will and Testament

03 October 2023 ,  Jan van Zyl 870

The Western Cape High Court recently examined whether a person had the intent to revoke their existing will. The deceased, hospitalised with COVID-19, expressed a desire to revoke their will and draft a new one. However, the court found that the necessary intent to revoke was absent, emphasising the importance of complying with the Wills Act's requirements.

The question of whether a person had the intention to revoke an existing will was recently considered by the Western Cape High Court in the matter Roux NO and Another v Stemmet NO and Others. 

The late Mr Stemmet (“the deceased”) executed a will on 23 October 2018 in terms of which his entire estate was bequeathed to his children. In July 2021, the deceased contracted the COVID-19 virus and as a result, he was admitted to the Medi-Clinic in Worcester. On 25 July 2021, the deceased indicated to his farm manager, Gawie Willemse (“Mr Willemse”), that he wished to revoke his 2018 will and requested the latter’s assistance in this regard.

On 30 July 2021, assisted by Medi-Clinic personnel, the deceased contacted Mr Willemse via video call. During this video call, the deceased again expressed to Mr Willemse, his wish to revoke the 2018 will and that his final instructions regarding the disposal of his estate were that his entire estate was to be left to the Willemse Boerdery Trust. During the video call, the deceased requested Mr Willemse’s help to engage attorneys to draft a will reflecting his final wishes.

After the video call, the deceased was transferred to the intensive care unit of the hospital. In accordance with the deceased’s wishes, Mr Willemse conveyed the deceased’s instructions regarding the disposal of his estate to attorney Louis Benade (“Mr Benade”), to prepare a will in accordance with the deceased’s instructions, as expressed in the video call.

Mr Benade did as was requested and on 31 July 2021, provided Mr Willemse with a duly prepared will (“the draft will”). On the same day, Mr Willemse attended the Medi-Clinic to deliver the draft will to the deceased, but he was refused access to the ICU and prevented from delivering it personally to the deceased due to the COVID restrictions in place at the time. Mr Willemse’s request to the hospital personnel to deliver the draft will to the deceased, was refused.

Mr Willemse proceeded to leave the draft will in the care of the hospital personnel, with a request that it be delivered to the deceased as soon as possible. During the evening of 31 July 2021, Medi-Clinic personnel attempted to deliver the draft will personally to the deceased, but the latter was unable to receive the document as he had been induced into a coma for purposes of being intubated. The deceased never came out of the coma, never recovered, and died without signing the draft will.

The trustees of the trust instituted an action for the 2018 will to be declared revoked under sec 2A(c) of the Wills Act, 7 of 1953 (“the Act”), and the draft will to be his last will.
Section 2A of the Act provides that a court may declare a will to be revoked if it is satisfied that a testator, in this instance, the deceased: “...drafted another document or before his death caused such document to be drafted, by which he intended to revoke his will or part of his will and the court shall declare the will or the part concerned, as the case may be, to be revoked.”

The court found that the deceased did not personally draft the will, the document which the trustees rely upon as revoking the deceased’s 2018 will and that the drafter was the attorney, Mr Benade. The instruction to Mr Benade to draft the new will was given by Mr Willemse, and not the deceased.  
The court also found that the deceased never physically received the draft will, never perused it, never approved of its content, and never signed it in the presence of witnesses as required by section 2(1)(a) of the Act. Furthermore, accepting that he was in a coma at the time that the draft will was delivered to him by nursing personnel, it follows that the deceased was unaware of the content and was, at least objectively speaking, not in a position to confirm that the content of the draft will correctly expressed his intentions. 
Accordingly, the court found that the necessary animus revocandi, the intent to revoke or rescind, was absent. 

Courts are wary to declare documents that do not comply with the requirements of the Wills Act as valid wills. It is advisable to obtain assistance from an attorney or a fiduciary expert with the drafting or amendment of your last will and testament, as and when your circumstances or wishes change.

Reference list:
-Roux N.O and Another v Stemmet N.O and Others (17064/2022) [2023] ZAWCHC 222
-Wills Act, 7 of 1953

Jan Van Zyl is a Director at MBL Attorneys

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Related Expertise: Will and Trust