In South Africa, section 2(1)(a) of the Wills Act (the Act) lays down strict rules for the validity of a Will. Therefore, even a slip of the pen can bury your intentions, though section 2(3) might just dig them back up.
This article unpacks the scope of South African courts’ jurisdiction to give a non-compliant Will a second chance. The big question? Whether section 2(3) requires the testator to have actually drafted the document or whether it’s enough that they merely caused it to be drafted. That distinction matters.
Section 2(3) isn’t a free pass, and courts still need to be satisfied that specific jurisdictional and substantive thresholds are met before stepping in to rescue a flawed will.
A recent high court decision, Du Plessis v Reniers and Another, answers this very question.
Decided to execute a joint will
In 2021, Patrick Reniers (the deceased) and his wife of 15 years, Francina Reniers (the first respondent), contracted Covid-19. Fearing the worst, they decided to execute a joint will and approached LS Giorgio, a financial advisor at Liberty Group, to draft the document.
Giorgio provided the draft will and advised that both testators needed to sign it in the presence of two witnesses, who would also need to sign. This formality, however, was not properly observed.
The first respondent claimed she signed the will at home in the presence of B Macaulay, an Outsurance broker, who then delivered it to the deceased in hospital. The deceased, while on oxygen, signed all three pages without reading them. Macaulay then signed the last page, added the date and place and later had his wife sign as the second witness, although she had not been present during any of the earlier signings.
Mr Reniers passed away on 30 July 2021 and the document was subsequently submitted to the Master of the High Court, who accepted it as the deceased’s final will.
The deceased’s daughter from a previous marriage (the applicant) contested the Will’s validity, arguing that her father would not have excluded her and his other children, particularly given that his 1987 Will had included them.
She also questioned whether the deceased had even caused the final version of the document to be drafted, citing several errors:
- a misstatement of the marital regime;
- incorrect naming of a grandchild;
- a spelling error in another grandchild’s name; and
- the unexplained exclusion of a grandchild, Tyler.
The first respondent dismissed these as typographical mistakes.
Will void ab origine
Citing these inconsistencies and the procedural defects, the applicant asked the court to declare the Will void ab origine (invalid from the outset).
However, the first respondent opposed this and brought a counterapplication seeking condonation under section 2(3) of the Wills Act and an order declaring the Will valid. This raised the question of whether the Will, despite its non-compliance with section 2(1)(a) of the Act, could be condoned under section 2(3).
Loraine Strydom and Kaamilah Paulse 15 Jul 2025 The court accepted that the Will failed to comply with the formal requirements of section 2(1)(a), based on the undisputed facts concerning how the various parties signed the document incorrectly, as outlined above. It was therefore declared invalid.
The court then turned to section 2(3), which permits a non-compliant document to be accepted as a valid Will, provided that three requirements are met:
- The document is non-compliant with one or more formalities;
- It was drafted by the testator; and
- The testator intended it to be their Will.
These are jurisdictional requirements, meaning that if they are all met, the court is obliged to grant the order to condone the Will. However, if even one is absent, the court lacks the authority to do so.
Anelisa Zungu and Kaamilah Paulse 4 Jul 2025 Is caused to be drafted sufficient?
The crux of the case lies in the second requirement: must the Will be personally drafted by the testator, or is it enough that it was merely caused to be drafted?
The court adopted a strict interpretation, holding that “drafted by the testator” excludes documents simply caused to be drafted. It relied on Bekker v Naude, where the SCA drew a clear line between “drafting” and “causing to be drafted”.
This distinction, the court said, was intentional. Section 2A of the Act, introduced alongside section 2(3), explicitly refers to both documents which were “drafted” and “caused to be drafted” in the context of revoking a Will. The omission of that broader wording in section 2(3) was therefore deliberate.
As Olivier JA reasoned in Bekker, the drafters of the Act wanted to minimise fraud and posthumous disputes by limiting condonation to Wills personally drafted by the testator.
In this case, because the Will had been caused to be drafted by a financial advisor and not personally written by the deceased, the court held that section 2(3)’s second requirement had not been met. The court therefore lacked jurisdiction to condone the will and declared it invalid without addressing the remaining criteria.
Tebello Setleko 25 Jun 2025 Court’s power is limited
This case clarifies that the condonation power under section 2(3) of the Act is tightly constrained. While courts can condone a non-compliant Will, this power is limited.
A court can only condone a non-compliant Will when all jurisdictional requirements are met. In this case the jurisdictional requirement of the testator having to personally draft the Will had not been met.
The distinction between “drafted” and “caused to be drafted” is not mere semantics. It is a legislative safeguard designed to prevent fraud and disputes after death.
This case is a powerful reminder that section 2(3) is not a blanket remedy. It is a narrow exception, not a safety net. Testators should ensure their wills fully comply with the formalities in section 2(1)(a), because when it comes to your final wishes, the law may not offer you a second chance.
