The short answer is yes, you can. However, certain conditions must be met for the new will to be valid. A recent case, “Roux N.O and Another v Stemmet N.O and Others”, highlights some of these key considerations.
In this case, the Western Cape High Court examined whether a person intended to revoke their existing will. The deceased, hospitalized with COVID-19, expressed a desire to revoke their will and create a new one. However, the court found that the necessary intent to revoke was absent, stressing the importance of complying with the requirements of the Wills Act. For more detail, see “Roux N.O and Another v Stemmet N.O and Others.” (17064/2022) [2023] ZAWCHC 222.
The Legal Framework
Section 2A of the Wills Act allows a court to declare a will revoked if the testator, in this case, the deceased: “drafted another document or before his death caused such a 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.” (Wills Act, 7 of 1953).
In this case, the court determined that the deceased did not personally draft the document upon which the trustees relied to revoke the 2018 will. Instead, it was drafted by the attorney, based on instructions from Mr. Willemse, not the deceased.
Additionally, the court found that the deceased never physically received, reviewed, approved, or signed the draft will in the presence of witnesses, as required by Section 2(1)(a) of the Wills Act. At the time the draft will was delivered by nursing staff, the deceased was in a coma, unaware of the document’s content and unable to confirm whether it accurately reflected his intentions.
As a result, the court concluded that the necessary “animus revocandi”—the intent to revoke—was absent.
Key Takeaways
Courts are generally cautious about declaring documents that do not meet the Wills Act’s requirements as valid wills. It is always advisable to seek assistance from an attorney or fiduciary expert when drafting or amending your last will and testament, especially as your circumstances or wishes change.
Update Your Will Regularly
It's essential to revise both your financial plan and will regularly. Any significant life event, such as the birth of a child, marriage, divorce, or the death of a family member, should prompt you to update your will.
For example, consider the case of Mr. X, who divorced his wife but never updated his will. He later remarried and had two children with his new wife. When Mr. X died 17 years after his divorce, his will had not been changed. This meant that his new wife and children could not inherit anything, as the original will, made before the divorce, remained valid.
Don’t Delay
Ensure your will is up to date and reflects your current wishes regarding your estate. Contact me today to avoid any potential issues or delays in obtaining your free will.
