Comley v Comley and Others

• Jurisdiction: South Africa
• Judge: Price JP and Jennett J
• Judgment Date: 28 March 1957
• Hearing Date: 03 March 1957
• Court: Eastern Districts Local Division

Price, J.P.:

The petitioner is the widow of the late J. M. Comley, to whom she was married out of community of property. The first three respondents are the children of J. M. Comley, issue of a previous marriage.

D The said J. M. Comley (hereinafter called the testator) died on the 11th June 1956, having made a will on the 30th May 1956. The testator, by the said last will, bequeathed £200 to the petitioner and left the E rest of his estate to be divided in equal shares among his children, the first, second and third respondents.

The petition is brought to have the will declared invalid. It is contended that the will is invalid for any one or more of the following reasons:

(1)

That neither the testator nor the witnesses signed the first page, which was merely initialled by them, and an initial is not a signature.

(2)

F If the initials are a sufficient signature of the testator and each of the witnesses, they are not made at the foot or end of the first page, but at the top left hand corner, for the purpose of confirming an alteration of the date, and not to identify the page.

G There is an alternative claim that, in any event, the bequest to the second respondent is invalidated by reason of the fact that she herself wrote out the material portions of the said will.

In the view I take of the case it is unnecessary for me to decide the contention numbered (1) above or the alternative contention.

H The will, in this case, was made after the Wills Act, 7 of 1953, had come into force and unless the will conforms to the requirements of that Act, it is invalid.

Sec. 2 (1) (a) of the Act provides that no will executed after the 1st January, 1954, shall be valid unless:

(i)

It is signed at the end thereof by the testator or by his authorised agent, in his presence.

Price JP

(ii)

Such signature is made or acknowledged in the presence of two or more competent witnesses, present at the same time.

(iii)

Such witnesses attest and sign the will in the presence of the testator and of his authorised agent (if the will is signed by the testator's agent) and in the presence of each other.

(iv)

If the will consists of more than one page each page is so A signed by the testator or by such other person, and by such witnesses.

I shall refer to other provisions of sec. 2 (1) later.

The Act sets out with the greatest particularity how a will is to be signed if it is to be valid and effectual.

B ...