Can a suicide note be accepted in court and serve as proof in relation to the deceased’s last Will and Testament?

Suicide notes, among other things such as letters, e-mails and diaries, are some of the documents that have previously been submitted to our courts to be considered documents that should be declared as the last will of a person.

Around the world, various statistics show more men commit suicide than women.

If a Will does not comply with the requirements of the Wills Act, it will not be accepted as valid by the master of the high court and could be declared invalid.

What most people are not aware of is that the master of the high court follows the Wills Act to the letter, specifically Section 2 (1) of the Act.

This part of the Wills Act prescribes certain formalities in respect of the execution and amendment of a Will that must be complied with for the legal document to be valid.

If the testator can sign the Will, those formalities are;

• The Will must be signed by the testator on each page.
• The testator must sign the will in the presence of two competent witnesses who are both present at the same time.
• The same two witnesses must sign the Will on the last page in the presence of the testator and in the presence of each other.

As much as it’s always tempting to amend a Will, there are also various steps that should be considered and followed because, if not followed to the letter, any desired amendment to the Will, will not be considered as being valid as well.

As much as the above may seem drawn out and boring, the formalities and the following of these to the letter ensures the identity of the testator is secured. Fraud is also prevented during the signing and there is also the validity of the testators’ dispositions of assets and ensuring that these are made voluntarily and freely.

Can an invalid Will, or any documents that should serve as a Will, be rescued after the death of a person? The Wills Act’s Section 2 (3) provides that the master of the high court can be ordered by the high court to accept a document as a will only if the latter is satisfied that the deceased person intended that this should be his or her Will, or amendments thereof. This possible relief is available in the case where all formalities of the signing of the Will were not followed.

This section of the Wills Act was enacted in 1992, following which several applications were made to the high court for condonation orders to declare testamentary writings and documents as valid Wills of the deceased.

There are various examples where applications, relying on documents like e-mails and suicide notes, were successful. Amongst some of these is a case where a deceased gave instructions in a suicide note on what must happen to his estate.

There are also those applications that were unsuccessful, including one where a draft Will was prepared by a bank in terms of the deceased’s instructions, but never actually signed, and which was not condoned by the high court.

Each case for condonation is considered on its own merits and the facts as to whether the Will or document could be declared the Will of the deceased. Over and above the substantial cost aspect to approach the courts regarding the validity of Wills, it also brings about a considerable delay in the winding up of the estate of the deceased if such a process must be followed.

It is therefore important that testators should have a valid Will in place, one that followed the letter of the law to the tee, thus avoiding disputes and time delays after the death of a person.

Van Schalkwyk is head of legal at Standard Trust Limited