A man who wrote out his wishes for the distribution of his estate while lying in hospital, but who died before his legal insurer could formalise the document, has had his handwritten will recognised by the High Court in Johannesburg.
In a judgment handed down on 14 October 2026, Acting Judge KD Iles ruled that the document could be accepted as the deceased’s will under section 2(3) of the Wills Act, even though it did not comply with the prescribed witnessing formalities.
The application was brought by the deceased’s long-term partner, who said he had written and signed the 15-page document on 25 December 2020, less than three weeks before his death. His three children from a previous marriage opposed the application, questioning whether their father had written it, whether he had been mentally capable of making a will, and whether he intended the document to be his final will or merely instructions for one to be prepared.
The Court accepted the applicant’s account and directed the Master of the High Court to recognise the document as the deceased’s will. Her separate request to be appointed executrix was dismissed because that appointment falls within the Master’s powers.
A race to have the will witnessed
The deceased was hospitalised in December 2020. According to the applicant, he asked her to bring him a notebook and pen. On Christmas Day, he handed her the notebook, explaining that he had drafted a document and wanted her to take it to his legal insurer, LIPCO, to be formalised.
The applicant said he had already signed it.
She could not approach the insurer immediately because its offices were closed for the festive season. When she returned to the hospital on 3 January 2021, the deceased allegedly asked two members of the medical staff to witness the document. They declined.
The applicant approached LIPCO the following day and was told that formalising the will would take about 10 days. The deceased apparently believed he would not live long enough for that process to be completed and continued trying to find witnesses.
A hospital employee, Ms Masilo, signed the document on 6 January. A former colleague, Mr Ngobeni, signed it two days later, after the deceased had contacted him.
Neither witness signed in the presence of the other or in the deceased’s presence, as required by the Wills Act.
The deceased underwent a medical procedure later that day, failed to regain consciousness, and died on 13 January 2021.
His children disputed the document
The applicant and the deceased had lived together since 2016, after their families concluded lobola negotiations. Their customary marriage was not legally valid because the deceased’s previous marriage had not yet been dissolved when the lobola was finalised in March 2017.
The couple continued living together and had three children, all minors. The deceased also had four other children, including three from his first marriage and another minor child, whose interests were represented separately in the proceedings.
The deceased’s children from his first marriage challenged the application on several grounds. The first respondent said he had visited his father in hospital on numerous occasions, but the deceased had never mentioned making a will. He also questioned whether his father had been sufficiently well to understand what he was doing.
The children disputed the handwriting and alleged that the applicant had committed fraud.
The applicant produced a handwriting expert’s report concluding that the writing and signatures matched specimen material attributed to the deceased. The respondents’ expert questioned the methodology, pointing to the lack of an original, verifiable handwriting specimen from around the same period and insufficient reasoning to support the conclusion. The expert did not, though, positively state that the handwriting was not the deceased’s.
The applicant also produced affidavits from Masilo and Ngobeni confirming their involvement, together with WhatsApp messages exchanged with the deceased during his hospitalisation.
Judge Iles acknowledged that the competing expert reports raised questions about the handwriting evidence, and the Court could not decide on motion proceedings which expert opinion was preferable.
The applicant’s account, though, was supported by more than the handwriting report. She said she had taken the notebook to the deceased, received it back with the completed document, and saw him make arrangements for it to be witnessed.
The judge considered it unlikely that the deceased would have taken these steps if he had not written the document himself. The children, despite disputing authorship, did not positively state that the handwriting was not their father’s.
The fraud allegations also lacked supporting evidence. The two witnesses’ affidavits backed the applicant’s account, while the respondents provided no facts to substantiate their challenge to the WhatsApp messages. Judge Iles found that the allegations were speculative and did not establish a genuine dispute of fact.
Was it already a will?
The children also argued that the deceased had not intended the handwritten document to operate as his will. They pointed to his instruction on the final page asking LIPCO to ratify it for his signature approval, saying this showed that he expected a formal will to be prepared and presented to him for signing.
The distinction is important under section 2(3) of the Wills Act. Although section 2(1)(a) sets out the formalities for executing and witnessing a will, section 2(3) allows a court to direct the Master to accept a document that does not meet those requirements. The court must be satisfied that the deceased wrote or executed it and intended it to be his will at the time.
Judge Iles considered the document itself and the circumstances in which it was prepared.
It was headed “Will” and set out the deceased’s wishes for the distribution of his estate. It identified his relatives by name and identity number and dealt with specific assets, funeral policies, beneficiary nominations, and vehicles. The final page contained his full name, identity number, signature, and the date, 25 December 2020.
The judge also considered the wording of the instruction to LIPCO. The deceased referred to “this will”, asking the insurer to ratify it. As Judge Iles explained, ratifying something means confirming what already exists, rather than creating something new.
The Court distinguished the matter from previous cases in which documents were found to be instructions for preparing a will rather than wills themselves, including Ex parte Maurice, De Reszke v Maras and Others, and Williams and Others v Hendricks and Another.
In this case, the deceased had set out his bequests and signed the document. His subsequent attempts to have it witnessed also supported the applicant’s version. When he learnt that LIPCO was closed, and later that formalisation would take 10 days, he continued trying to have the handwritten document signed by witnesses.
Judge Iles found that he wanted the document to operate as his will if he died before the formal process could be completed. Having LIPCO prepare a more formal version would have perfected a will already made, rather than created a new one.
The question of mental capacity
The children also questioned whether their father had the mental capacity to make a will while in hospital.
Under section 4 of the Wills Act, the burden of proving mental incapacity rests with the person alleging it.
Judge Iles found that the first respondent’s description of his father’s condition was too vague. He did not specify when he had visited the deceased or explain what he had observed that led him to conclude his father was incapable of making a will.
The document itself showed that the deceased could identify his relatives, recall their identity numbers, list his assets and give instructions about their distribution. He had also arranged for witnesses and remembered that he needed to change beneficiary nominations on his funeral policies.
Although the respondents said they had requested the deceased’s medical records, none was placed before the court. They also did not ask for a postponement or referral to oral evidence to obtain them.
The judge found no evidential basis to conclude that the deceased lacked the capacity to form the necessary testamentary intention.
The order
The Master was directed to accept the document signed on 25 December 2020 as the deceased’s will for purposes of the Administration of Estates Act.
The applicant’s request to be appointed executrix was dismissed. Although the deceased had nominated her for the position, section 15(1) of the Act reserves the appointment of executors to the Master.
The applicant was awarded her costs on scale B, payable jointly and severally by the first to third respondents. No costs order was made against the fifth respondent, who had participated in the proceedings in a representative capacity to protect the interests of a minor child.
Read the full judgment here.
