Bekker, Elizabeth Christina v Naude, Mildred and Others

The deceased, Mr Louwrens Bekker, was previously married to the first respondent (Mev Mildred Naude) until their divorce on 6 March 1987. They had three children from that marriage. On 5 May 1990, the deceased married the appellant. In October 1993, the deceased and the appellant approached Absa Bank to draft a joint will. They consulted with a bank employee, Mrs Stoman, and explained what they wanted in their proposed will. Mrs Stoman made notes and sent them to the bank's head office, where other officials used the bank's standard terms to prepare a draft will. The appellant and the deceased received a letter from Absa Bank with the draft, requesting them to sign it in the presence of witnesses. The draft was never signed. The deceased died on 10 May 1998. In December 1999, the appellant instituted action for an order in terms of section 2(3) of the Wills Act 7 of 1953 that the draft embodied the last will of the deceased and the appellant, and that the Master be ordered to accept it as their testament.

• Whether a document prepared by a third party (Absa Bank) on the instructions of the deceased qualifies as a document 'drafted' ('opgestel') by the deceased for purposes of section 2(3) of the Wills Act 7 of 1953
• Whether 'drafted' in section 2(3) means personally drafted/prepared by the testator or includes documents caused to be drafted by the testator
• The correct interpretation of the word 'opgestel' ('drafted') in section 2(3) of the Wills Act in the context of the court's condonation power

The appeal was dismissed with costs. The High Court's dismissal of the application was upheld.

For purposes of section 2(3) of the Wills Act 7 of 1953, the word 'opgestel' ('drafted') bears the narrow meaning of personally drafted, written, typed or brought into existence by the testator through his or her own personal act. It does not include documents that the testator caused to be drafted ('laat opstel') by a third party such as a lawyer, bank or other person, even on the testator's instructions. This interpretation is mandated by: (1) the ordinary grammatical meaning of the word; (2) the contrast with section 2A which expressly uses 'laat opstel' where the wider meaning is intended; and (3) the legislative history showing deliberate rejection of wider threshold requirements proposed by the SA Law Commission. A document prepared by a third party on the testator's instructions does not qualify for condonation under section 2(3) of the Wills Act.

The court made observations about the policy rationale for maintaining the requirement of personal drafting even when granting condonation powers: testamentary formalities have for centuries been designed to prevent fraud and disputes after the testator's death. Even when granting a condonation power, this purpose was kept in mind. The requirement that the document be drafted by the testator personally provides a measure of reliability because it requires proof of a personal act by the testator from which intention can be clearly inferred. By contrast, if the requirement were merely one of 'causing to be drafted', the chances for fraud and false claims that the testator cannot refute after death would be much greater. The court also commented that it was not persuaded by arguments that requiring personal drafting creates an absurdity by increasing rather than decreasing formalities - the legislature clearly did not abandon all prerequisites when introducing the condonation power.

This judgment definitively resolved a conflict in the High Court decisions regarding the interpretation of section 2(3) of the Wills Act 7 of 1953. It established the authoritative interpretation that 'drafted' ('opgestel') requires personal action by the testator and does not include documents prepared by third parties (such as lawyers or banks) on the testator's instructions. This has important implications for the application of the court's condonation power under section 2(3), effectively limiting its scope to documents personally created by the testator, even if not complying with all formalities. The decision reinforces the policy consideration that even when granting condonation powers, some safeguards against fraud and disputes must be maintained. It confirms that the legislative intent was not to completely abolish formalities but to provide relief in limited circumstances where the testator's personal involvement in creating the document can be established.