Wills Act, 1953

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Jurisdiction
South Africa
Citation
Act 7 of 1953
Date
Language
English
Type
Legislation
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South Africa

Wills Act, 1953

Act 7 of 1953

  1. [Amended by General Law Amendment Act, 1964 (Act 80 of 1964) on 1 January 1954]
  2. [Amended by Wills Amendment Act, 1958 (Act 48 of 1958) on 3 October 1958]
  3. [Amended by General Law Amendment Act, 1964 (Act 80 of 1964) on 24 June 1964]
(English text signed by the Governor-General.)ACTTo consolidate and amend the law relating to the execution of wills.BE IT ENACTED by the Queen’s Most Excellent Majesty, the Senate and the House of Assembly of the Union of South Africa, as follows:—

1. Definitions

In this Act, unless the context otherwise indicates—"competent witness" means a person of the age of fourteen years or over who at the time he witnesses a will is not incompetent to give evidence in a court of law; (i)"Court" means a provincial or local division of the Supreme Court of South Africa or the High Court of South-West Africa or any judge thereof; (ii)"Master" means a Master of the Supreme Court of South Africa, the Assistant Master at Kimberley or the Master of the High Court of South-West Africa; (iii)"sign" includes in the case of a testator the making of a mark but does not include the making of a mark in the case of a witness, and "signature" has a corresponding meaning; (iv)"will" includes a codicil and any other testamentary writing. (v)

2. Formalities required in the execution of a will

(1)Subject to the provisions of section three—
(a)no will executed on or after the first day of January, 1954, shall be valid unless—
(i)the will is signed at the end thereof by the testator or by some other person in his presence and by his direction; and
(ii)such signature is made by the testator or by such other person or is acknowledged by the testator and, if made by such other person, also by such other person, in the presence of two or more competent witnesses present at the same time; and
(iii)such witnesses attest and sign the will in the presence of the testator and of each other and, if the will is signed by such other person, in the presence also of such other person; and
(iv)if the will consists of more than one page, each page other than the page on which it ends, is also so signed by the testator or by such other person and by such witnesses anywhere on the page; and[subparagraph (iv) amended by section 20(a) of Act 80 of 1964]
(v)if the will is signed by the testator by the making of a mark or by some other person in the presence and by the direction of the testator, a magistrate, justice of the peace, commissioner of oaths or notary public certifies at the end thereof that he has satisfied himself as to the identity of the testator and that the will so signed is the will of the testator, and if the will consist of more than one page, each page other than the page on which it ends, is also signed, anywhere on the page, by the magistrate, justice of the peace, commissioner of oaths, or notary public who so certifies;[subparagraph (v) amended by section 1(a) of Act 48 of 1958 and substituted by section 20 of Act 80 of 1964]
(b)no deletion, addition, alteration or interlineation made in a will executed on or after the said date and made after the execution thereof shall be valid unless—
(i)the deletion, addition, alteration or interlineation is identified by the signature of the testator or by the signature of some other person made in his presence and by his direction; and
(ii)such signature is made by the testator or by such other person or is acknowledged by the testator and, if made by such other person, also by such other person, in the presence of two or more competent witnesses present at the same time; and
(iii)the deletion, addition, alteration or interlineation is further identified by the signatures of such witnesses made in the presence of the testator and of each other and, if the deletion, addition, alteration or interlineation has been identified by the signature of such other person, in the presence also of such other person; and
(iv)if the deletion, addition, alteration or interlineation is identified by the mark of the testator or the signature of some other person made in his presence and by his direction, a magistrate, justice of the peace, commissioner of oaths or notary public certifies on the will that he has satisfied himself as to the identity of the testator and that the deletion, addition, alteration or interlineation has been made by or at the request of the testator.[subparagraph (iv) amended by section 1(b) of Act 48 of 1958]
(2)Any deletion, addition, alteration or interlineation made in a will executed after the said date shall for the purposes of sub-section (1) be presumed, unless the contrary is proved, to have been made after the will was executed.

3. Soldiers' wills

(1)Any person while on active service with any of the land, air or naval forces of the Union or of any other country allied to or associated with the Union in any war, may make a will without complying with the formalities prescribed by section two or with any formalities whatsoever, except that it shall be made in writing.
(2)Such a will, hereinafter called a soldier’s will, shall be valid if the maker thereof dies while he is, or within one year after he has ceased to be, on active service with such forces.
(3)A soldier’s will, signed by the maker thereof, may on application to the Master having jurisdiction, be accepted by that Master without an order of court, provided he is satisfied by evidence on affidavit that it is a valid will in terms of sub-sections (1) and (2).
(4)Any person aggrieved by the Master’s acceptance of the will may, within thirty days after the date of such acceptance, or within such further period as the Court may on good cause allow, and after service of notice upon any person affected by such acceptance, make application to the Court having jurisdiction for an order setting aside such acceptance and the Court may confirm or set aside such acceptance or make such other order as it may deem fit.
(5)If a soldier’s will is not signed by the maker thereof or if a soldier’s will is signed by the maker thereof but the Master has refused to accept it, the Court having jurisdiction may on application, if the Court is satisfied that the will is a valid will in terms of sub-sections (1) and (2), direct the Master to accept the will and may make such further or such other order as to it seems fit.
(6)Notice of any application under sub-section (3) or (5) shall, unless the Court otherwise directs, be served on the spouse and intestate heirs of the deceased and also on any person who may be entitled to claim under any previous will made by the deceased, if such previous will is known to exist.

4. Competency to make a will

Every person of the age of sixteen years or more may make a will unless at the time of making the will he is mentally incapable of appreciating the nature and effect of his act, and the burden of proof that he was mentally incapable at that time shall rest on the person alleging the same.

5. Witnesses cannot benefit under a will

A person who attests the execution of any will or who signs a will in the presence and by direction of the testator or the person who is the spouse of such person at the time of attestation or signing of the will or any person claiming under such person or his spouse, shall be incapable of taking any benefit whatsoever under that will.

6. Witness cannot be nominated as executor, etc.

If any person attests the execution of a will or signs a will in the presence and by direction of the testator under which that person or his spouse is nominated as executor, administrator, trustee or guardian, such nomination shall be null and void.

7. Repeal of laws

The laws specified in the Schedule are hereby repealed to the extent set forth in the fourth column of the Schedule: Provided that the laws so repealed shall continue to apply in respect of any will executed before the first day of January, 1954.

8. Application of Act to South-West Africa

This Act and any amendment thereof which may be made from time to time shall apply also in the territory of South-West Africa, including the Eastern Caprivi Zipfel referred to in section three of the South-West Africa Affairs Amendment Act, 1951 (Act No. 55 of 1951).[section 8 substituted by section 21(1) of Act 80 of 1964]

9. Short title and date of commencement

This Act shall be called the Wills Act, 1953, and shall come operation on the first day of January, 1954.

Schedule

Laws repealed

Province or UnionNo. and year of lawTitle or subject of lawExtent of repeal
Cape of Good HopeOrdinance No. 15 of 1845.Execution of WillsSo much as is unrepealed.
Do.Act No. 22 of 1876.Attesting Witnesses Act, 1876.The whole, excepting section two insofar as it applies to powers of attorney.
Do.Act No. 3 of 1878.Wills Attestation Amendment Act, 1878.The whole.
NatalOrdinance No. 1 of 1856.Testamentary dispositions of Natal-born subjects of Great Britain and Ireland.The whole.
Do.Law No. 2 of 1868.Execution of Wills and Codicils.The whole.
Orange Free StateOrdinance No. 11 of 1904.Execution of Wills and other Testamentary Instruments Ordinance, 1904.Sections one to five inclusive and sections seven and ten insofar as the two last mentioned sections apply to wills.
South - West Africa.Proclamation No. 23 of 1920.Wills Proclamation, 1920.The whole.
TransvaalOrdinance No. 14 of 1903.Wills Ordinance, 1903.The whole.
UnionAct No. 14 of 1920.Wills Ordinance, 1903 (Transvaal) Amendment Act, 1920.The whole.
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History of this document

04 October 1996 amendment not yet applied
01 October 1992 amendment not yet applied
04 December 1970 amendment not yet applied
24 June 1964 this version
03 October 1958
Read this version
01 January 1954
Commenced

Note: See section 9

Read this version
04 March 1953
Read this version
25 February 1953
Assented to

Cited documents 0

Documents citing this one 73

Gazette 20
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  7. South Africa Government Gazette Legal Notices A dated 2020-02-07 number 43001 part 1
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  9. South Africa Government Gazette Regulation Gazette dated 1965-03-26 number 1068
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  11. South Africa Government Gazette dated 1965-04-14 number 1084
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  13. South Africa Government Gazette dated 2002-03-01 number 23195
  14. South Africa Government Gazette dated 2002-08-02 number 23708
  15. South Africa Government Gazette dated 2003-03-03 number 24665
  16. South Africa Government Gazette dated 2009-04-21 number 32147
  17. South Africa Government Gazette dated 2020-04-03 number 43192 part 1
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Judgment 51
  1. Bennett v Master of the Supreme Court (266/1994) [1995] ZASCA 100 (18 September 1995)
  2. Blom and Another v Brown and Others (345/2010) [2011] ZASCA 54 (31 March 2011)
  3. De Reszke v Czeslaw Maras and Others (76/2005) [2005] ZASCA 137 (30 November 2005)
  4. Dlamini N.O and Others v Dlamini and Others; In Re: Nchupetsang N.O and Others v Dlamini and Others (22496/20) [2021] ZAGPJHC 417 (5 November 2021)
  5. Du Preez NO and Others v Master of High Court and Others (45184/2021) [2024] ZAGPPHC 320 (26 March 2024)
  6. Dube v Ndlovu and Others (13909/20) [2022] ZAGPJHC 42 (25 January 2022)
  7. Erasmus and Others v Master of the High Court Bloemfontein and Others (3255/2022) [2023] ZAFSHC 104 (26 April 2023)
  8. Frantrade Nineteen (Pty) Ltd and Others v Realty Corporation of South Africa Limited and Others (20400/18) [2019] ZAGPJHC 75 (22 February 2019)
  9. Geza and Others v Standard Trust Ltd and Others (3534/2021) [2023] ZAECPEHC 16 (14 March 2023)
  10. Grobler v Master of the High Court & others (645/2018) [2019] ZASCA 119 (23 September 2019)
  11. Gruhn and Others v Singh NO and Others (8884/16) [2021] ZAWCHC 6 (30 November 2021)
  12. Harpur NO v Govindamall and Another (730/1991) [1993] ZASCA 110 (6 September 1993)
  13. Harvey NO and Others v Crawford NO and Others (1016 of 2017) [2018] ZASCA 147 (17 October 2018)
  14. Henriques v Giles NO and Another; Henriques v Giles NO and Others (213/2008) [2009] ZASCA 64 (29 May 2009)
  15. Hohl N.O. and Others v Dalcos and Others (38224/20) [2022] ZAGPJHC 49 (11 February 2022)
  16. Kohlberg v Burnett and Others (422/84) [1986] ZASCA 32 (26 March 1986)
  17. Koyingana and Another v Koyingana and Others (842/2021) [2022] ZANCHC 29 (14 June 2022)
  18. Lange and Another v Henegan and Others (45732/18) [2023] ZAGPJHC 1557 (15 November 2023)
  19. Levin and Another v Levin and Others (644/2009) [2011] ZASCA 114 (3 June 2011)
  20. Louw NO v Louw and Others (18214/2019) [2023] ZAWCHC 149 (22 September 2023)
  21. Mitchell NO v Wren and Others (153/2015) [2016] ZASCA 50 (1 April 2016)
  22. Moeketsi and Another v Johanna Catharina Sophia Hageman NO and Others (3767/18) [2022] ZAGPJHC 670 (20 September 2022)
  23. Moosa NO and Others v Minister of Justice and Correctional Services and Others (Trustees of the Women's Legal Centre Trust as Amicus Curiae) [2018] ZACC 19 (29 June 2018)
  24. Moshabane v Mtshagi and Others [2024] ZAECPEHC 2 (25 January 2024)
  25. Ngakaemang and Another v Master of High Court and Others (1620/2019) [2023] ZANCHC 98 (1 December 2023)
  26. Obst v Machabe NO and Another (47605/2021) [2023] ZAGPJHC 1425 (27 November 2023)
  27. Pillay and Another v Ganga N.O. and Another (5444/2019P) [2023] ZAKZPHC 22 (3 March 2023)
  28. Poolo and Others v Sithole N.O. and Others (29850/2021) [2023] ZAGPPHC 685 (9 June 2023)
  29. Qhali Martins Monyane NO and Others v Rikhotso and Another (9629 of 2020) [2022] ZAGPJHC 652 (16 September 2022)
  30. Raubenheimer v Raubenheimer and Others (560/2011) [2012] ZASCA 97 (1 June 2012)
  31. Samuels and Others v Juries and Others (2508/2022) [2023] ZAWCHC 107 (28 July 2023)
  32. Smith v Parsons NO and Others (187/2009) [2010] ZASCA 39 (30 March 2010)
  33. Solomon v Solomon and Another (17909/2022) [2023] ZAWCHC 101 (20 July 2023)
  34. Sono and Another v Master of The High Court Johannesburg and Others (2021/46542) [2023] ZAGPJHC 807 (23 June 2023)
  35. Thobejane v Master of the High Court - Pretoria Gauteng Division and Others (960/2022) [2023] ZAGPPHC 1213 (27 October 2023)
  36. Tilayi and Another v Master of the High Court and Others (3588/2021) [2023] ZAECMHC 28 (10 May 2023)
  37. Trustees for time being of East London Hebrew Congregation v Galperin and Others (EL 748/2021) [2022] ZAECELLC 1 (13 May 2022)
  38. Van Den Heever N.N.O. and Another v Poulos N.O. and Others (43528/2015) [2023] ZAGPJHC 344 (18 April 2023)
  39. Van Heerden v Bronkhorst (846/2019) [2020] ZASCA 147 (13 November 2020)
  40. Van Loggenberg N.O. v Jones and Others (2022/19225) [2023] ZAGPJHC 249 (3 April 2023)
  41. Van Loggerenberg and Another v Prigge and Others (91711/16) [2017] ZAGPPHC 80 (6 December 2017)
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  46. Vlok NO and Another v Botha and Others (30836/16) [2017] ZAGPPHC 60 (14 December 2017)
  47. Wade v Master of the High Court of South Africa N.O. and Others (2022-060221) [2023] ZAGPJHC 1149 (11 October 2023)
  48. Wallage v William-Ashman NO and Others (823/2022) [2023] ZASCA 44 (31 March 2023)
  49. Wilkinson and Another v Crawford NO and Others [2021] ZACC 8 (16 April 2021)
  50. Wren and Another v Master of the Eastern Cape High Court, Port Elizabeth and Another (3727/2012) [2014] ZAECPEHC 98 (11 December 2014)
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