A conceptual view of the act of testation to elucidate a testator’s intention in the South African law of succession: a proposed “act-based model” as opposed to the traditional “requirements model” (part 2)

• Author: Faber, J.
• Pages: 740-753
• Date: 20 September 2021
• DOI: https://doi.org/10.47348/TSAR/2021/i4a5
• Published date: 20 September 2021

https://doi.org /10.47348/ TSAR /2021/i4a 5

TSAR 2021 . 4 [ISSN 0257 – 7747]

740740

A conceptual view of the act of testation to

elucidate a testator’s intention in the South

African law of succession: a proposed “act-

based model” as opposed to the traditional

“requirements model” (part 2)*

JAMES FABER**

6 The act of testation

By denition, the law of suc cession governs the devolution of asset s.130 The

recognition of test amentary succession enables a test ator to express h is/her wil l

(intention) in terms of the disposit ion of assets in a last will and testament. T he act of

testation (or testamentary act) may be broadly dened as the practical manifestation

of testator’s intention, where the latter is pr imarily concer ned with the disposition

of assets. Beinart131 describes the act of te station and its requirements as follows:

“It is clear law that a wil l, before it can be given effect to as su ch, must be a conscious, serio us and

deliberate st atement of intentio n, and therefore a mer e indication of a test ator’s last wishes, or a

statement for futu re use, or a mere note, or instructions for execution of the will is not an act of

testation. There must b e a serious and complete and nal act of testation mad e animo testandi, of

such a nature a s to show [the] testator intended his d eclaration to take effect a s his will. Unless the

declaration is of suc h a nature there is no act of te station at all.”

Corbett et al132 make a valuable contribution in clearly distinguishing acts of

disposition that do not qualif y as acts of testation. The aut hors unequivocally

indicate th at, in the cont ext of succession by contract, the act of d isposition is not

considered a testamentary act, and the document in which it is contained is not

regarded as a will:

“The execution of an antenuptial contract, a trust inter vivos, or a donatio m ortis causa containing

provisions in relat ion to the disposa l of property to t ake effect upon the t estator’s death are not

testament ary acts and a d ocument embody ing any one of these t ransaction s will not constit ute a

will or codicil .”

Emerging from these denitions are three key aspects that require further discussion:

rstly, that the dispositive intention must manifest i n a dispositive act relating to

the disposal of propert y; secondly, that animus testandi is clearly required for the

* See 2021 TSAR 504 for part 1.

** Lecturer, Faculty of Law, University of the Free State. I am grateful to Prof François Du Toit

(University of the Western Cape) for his valuable contribution and guidance with this article.

130 Van der Merwe and Rowland (n 30) 1; Corbett et al (n 2) 1, 34; Cronjé et al (n 38) 9.

131 (n 92) 200. Also see Corbett et al (n 2) 34-35, 727 and Du Toit (n 24) 661.

132 (n 2) 35.

2021 TSAR 740

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