In order to apply the "condonation provision", the court must satisfy itself that the document has been drafted or executed by a person, who has since died, and that the document correctly reflects the intention of that person to be his or her Will or an amendment to his or her existing Will.
In recent years there have been conflicting views on how to interpret the condonation provision. Two approaches have been adopted by the courts in this regard.
The first one is the strict approach which has been followed by most South African courts. In these cases, the word "draft" is considered to mean that the alleged testator has actively participated in the drafting of his Will, and does not include situations where the Will is drafted passively, through instructions to a third party, or situations where the Will is not subsequently executed. For example, in the case of Ex Parte Maurice, the court held that it could not condone a document in terms of section 2(3) where such a document merely expresses the deceased's wishes for the distribution of his estate. It further emphasised that the purpose of section 2(3) is to condone a document that would otherwise have constituted a valid Will but which simply has not complied with one of the formal requirements of the Act.
The liberal approach, on the other hand, adopts a purposive interpretation of the word "draft" so that it is the intention of the alleged testator that is decisive. In Ex parte De Swardt and Another NNO, the court stated that section 2(3) of the Act did not require that the Will be drafted personally by the deceased. The real test was whether the court was satisfied that the deceased intended the document to be his Will. This approach has been followed in a number of provincial division cases but can have no binding force following the decision of the Supreme Court of Appeal (SCA) in the case of Bekker v Naude.
In Bekker v Naude, the SCA adopted the strict approach, requiring that the word "draft" be associated with some personal action by the deceased. This would seem to include a handwritten document, a document typed on a computer by the deceased or dictated to a third party who then reproduces the document by hand or on a computer. However, this would not include instructions to an attorney. The extent to which personal drafting is required is still to be decided but the question remains one of the deceased's intention. This decision has not yet been overturned, and as such remains decisive of the position in our law.
In the case of Reszke v Marais and Others, the SCA confirmed its decision in Bekker v Naude and held that instructions given by a client to an attorney could not constitute a valid Will.
In conclusion, the law is clear in South Africa - in order for a document that does not comply with the requirements of the Wills Act to be condoned by the court there must have been personal action taken by the deceased in the drafting of a Will.
However, where the document merely entails instructions to an attorney of what is to be included in a Will, the question will be one of the deceased's intention. The case law is also settled that where the deceased has given instructions, he or she intends that another document is to be drawn up which will then constitute his or her Will once it had been checked and confirmed. Thus, mere instructions do not constitute a Will.
