Estate Laws - Estate Flaws

What the will drafter and the executor of a deceased estate should take into account

When assisting testators in drafting their wills, and undertaking the eventual administration of their estates, you require a knowledge of two disciplines,
namely -

  • the law of succession on the one hand; and
  • the law governing the administration of estates on the other.

The drafting of a will and the administration of an estate are

no longer the simple, straightforward matter they used to be,

as can be seen from a number of controversial court cases recently.

The problems the executor could encounter

arise only after the death of the testator

if the will drafter has not complied with the legal requirements.

This seminar, developed by Linda-Schoeman Malan, will show you

how to avoid the most frequent errors and a number of less common pitfalls

in performing your professional duties. These pertain to both the drafting of the will and the administration of the estate.

Linda Schoeman-Malan is an Emeritus Professor of Law from the University of Pretoria. She is the co-author of two well-known textbooks, Law of Succession and Deceased Estates, and has lectured in both these fields for most of her career.

The following topics will be dealt with in the seminar:

(The sections below refer to the Wills Act 7 of 1953.)

  1. Testamentary capacity and the role drafters of wills should play

    • Section 4 - what exactly is the meaning of the “nature and effect of his act” that a testator should understand?
    • Test to establish capacity - (the elderly, vulnerable, physically disabled or ailing testator)
    • Undue influence
  2. Statutory requirements for assisting the ailing testator

    • Section 2(1)(a)(v) - Joost van der Westhuizen’s case
    • Non-compliance with formalities - Section 2(3) - Van der Westhuizen
    • Section 2(3) - The flight from formalities to no formalities
    • Electronic devices and wills
  3. Revocation of a will and the Wills Act

    • Section 2A - Common law versus statutory law
    • Section 2B - Automatic lapsing of a will
  4. The truth about simultaneous deaths

    • Commorientes = common law principles
    • Smith v Pretorius
  5. Statutory representation and the administration of an estate

    • Section 2D - unworthy, repudiation or predeceased
    • Section 2C(1) - Surviving spouse (almost everyone is regarded as a spouse)
    • Case law
    • Unworthiness to inherit - Steenkamp


By attending this seminar you will learn more about –

  • Recent family disputes dealing with the testamentary capacity of an elderly, vulnerable (dementia/ Alzheimer’s disease), physically disabled or ailing testator - with reference to Van der Westhuizen.
  • The role of a will drafter in establishing whether a potential testator has the required testamentary capacity with reference to several modern tests which have been developed to establish capacity.
  • The statutory provisions of automatic lapsing of a will in the event of death after divorce and the power of the court to condone actions of revocation.
  • The “bloody hand principle” and how an executor should deal with an unworthy beneficiary’s proportional share, with reference to recent cases involving family murders.
  • The controversial “flight from (strict) formalities to (almost) no formalities” and the “condonation power” of the courts to excuse non-compliance with the prescribed formalities for making a will.
  • The truth about mass fatalities (due to recent acts of terrorism), presumption of death orders and simultaneous deaths.