The Western Cape High Court recently examined whether a person intended to revoke their will. The deceased, hospitalized with COVID-19, wanted to revoke his 2018 will and draft a new one. However, the court found the intent to revoke was absent, highlighting the importance of following the Wills Act’s requirements.
🔍 Case Overview:
The case in question is Roux NO and Another v Stemmet NO and Others. Mr. Stemmet executed a will on 23 October 2018, leaving his entire estate to his children. In July 2021, after contracting COVID-19, he informed his farm manager, Mr. Willemse, that he wanted to revoke his 2018 will and requested assistance.
On 30 July 2021, via video call, Mr. Stemmet reiterated his wish to leave his estate to the Willemse Boerdery Trust. He requested Mr. Willemse to engage an attorney to draft a new will. Attorney Mr. Benade prepared the draft will on 31 July 2021, but hospital staff couldn’t deliver it to the deceased due to COVID-19 restrictions.
The deceased was put into a coma and never regained consciousness. The unsigned draft will was never reviewed or approved by him.
📑 Court’s Decision:
The court found that:
- Mr. Stemmet never personally drafted or reviewed the draft will.
- The instruction to draft the new will came from Mr. Willemse, not Mr. Stemmet.
- The deceased never signed the draft will as required by Section 2(1)(a) of the Wills Act.
The court concluded that the necessary intent to revoke (animus revocandi) was absent.
📢 Importance of Compliance:
Courts are hesitant to declare documents that don’t meet the Wills Act’s requirements as valid wills. It is essential to seek legal advice when drafting or amending your will to ensure your wishes are legally recognized.
💡 Get Professional Assistance:
Ensure your will complies with the law. Contact a fiduciary expert or attorney to draft or amend your will when your circumstances change.
