Hendrik van der Merwe v Master of the High Court and another

The appellant (Hendrik van der Merwe) and the deceased (John Henry Munnik van Schalkwyk) had been close friends since 1969. In 2007, they mutually agreed that each would execute a will naming the other as sole beneficiary, as neither had immediate family. On 26 July 2007, the deceased emailed the appellant a document entitled 'TESTAMENT' which bequeathed his entire estate to the appellant. The appellant reciprocated by executing a properly signed will on 17 August 2007 naming the deceased as sole beneficiary, and the deceased was aware of this. The deceased also nominated the appellant as sole beneficiary of his pension fund. The deceased retired on 20 March 2008 and died unexpectedly on 12 April 2008, before signing the document. The unsigned document remained on the deceased's computer. The deceased had previously executed a valid will in 2004 in favour of the SPCA (second respondent). The appellant applied under section 2(3) of the Wills Act 7 of 1953 to have the unsigned document accepted as the deceased's will.

• Whether an unsigned document can be accepted as a valid will under section 2(3) of the Wills Act 7 of 1953
• Whether the absence of a signature is an absolute bar to relief under section 2(3)
• Whether the document was drafted by the deceased
• Whether the deceased intended the unsigned document to be his will
• What degree of proof is required to satisfy a court that a document not complying with formalities was intended to be a will

The appeal was upheld. The order of the high court was set aside in its entirety. The first respondent (Master of the High Court) was directed to accept the unsigned document executed by the deceased during 2007 as the will of John Henry Munnik van Schalkwyk for purposes of the Administration of Estates Act 66 of 1965.

The binding legal principles established are: (1) The absence of a signature on a document does not constitute an absolute bar to relief under section 2(3) of the Wills Act 7 of 1953; (2) Section 2(3) is peremptory in nature - once a court is satisfied that the jurisdictional requirements are met (that a document was drafted by the deceased and was intended to be his/her will), the court must grant the order and has no discretion to refuse; (3) The purpose of section 2(3) is to ensure that failure to comply with prescribed formalities does not frustrate or defeat the genuine testamentary intention of a testator; (4) The greater the non-compliance with prescribed formalities, the more evidence will be required to satisfy a court that the document was intended to be the deceased's will; (5) A court must be satisfied on objective evidence that: (a) the document was drafted or executed by the deceased, and (b) the deceased intended it to be his/her will (i.e., the testator's final instruction regarding disposal of the estate).

The Court made the following non-binding observations: (1) The formalities prescribed by sections 2(1) and 2(2) of the Wills Act exist to ensure authenticity and guard against false or forged wills; (2) Where there is no opposition to an application under section 2(3), courts should guard against uncritical acceptance of the applicant's version; (3) The Court noted that a basic survey of case law reveals that the absence of a signature has consistently not been seen as a bar to relief under section 2(3), citing cases such as Letsekga v the Master (1995), Ex parte Maurice (1995), and Thirion v Die Meester (2001); (4) The Court observed that section 2(3) is 'in the nature of a special exemption from the rigours of the requirements of s 2(1).'

This case is significant in South African succession law as it clarifies the application of section 2(3) of the Wills Act 7 of 1953 and confirms that the absence of a signature is not an absolute bar to a document being declared a valid will. The judgment reinforces the remedial nature of section 2(3), which was enacted to prevent formalities from defeating the genuine testamentary intentions of deceased persons. The case provides important guidance on the type and quality of evidence required to satisfy a court that a non-compliant document was intended to be a will, emphasizing the need for objective factors supporting the testator's intention. It demonstrates the court's willingness to look beyond strict formalities where authenticity and intention are clearly established. The case also confirms that once jurisdictional requirements under section 2(3) are satisfied, a court has no discretion but must grant the order.