War of the Wills: Is a thumbprint enough?

Many people believe that leaving a will prevents family disputes. In most cases this is true. A properly executed will provides clarity and ensures that the deceased’s wishes are carried out. 

Yet, courts regularly see instances where wills become the source of conflict. This often occurs when there is a lack of communication within the family, when the will is drafted in a way that leaves room for doubt or when allegations of irregular execution, fraud or undue influence arise.

The recent high court case of Dyantyi vs Dyantyi & Others, handed down by Judge Gayaat Da Silva Salie in the Eastern Circuit Local Division, Thembalethu, is a striking example of a will creating conflict within the family due to allegations of irregular execution. The court had to investigate whether the deceased’s will, executed with a thumbprint, was valid or not. 

Background

The woman, who died on 4 September 2022, left a will dated 31 October 2020. She also made an earlier will in 2017. The dispute centred around which should be accepted as her valid last will and testament.

In terms of the 2020 will, the deceased bequeathed her entire estate to her two sons, the first and second respondents, in equal shares. On the other hand, her grandson, the applicant in the matter, was the sole heir in terms of the 2017 will.

The applicant and the deceased resided in the same property up until her death and this property formed part of the deceased’s estate. There is no evidence to suggest that their relationship had soured in this time.

Aunt appointed as executrix 

On the woman’s death, the applicant learned that his aunt, the third respondent, was appointed as the Master’s representative in the winding up of his grandmother’s estate. This is also when he realised that his grandmother had changed her will in 2020 and had disinherited him completely. This ultimately meant that the applicant had to vacate the property where he had been living with his grandmother.

The applicant proceeded to contest the validity of the 2020 will. He argued that it was not properly executed since it did not meet the requirements of section 2(1)(a) of the Wills Act 7 of 1953, as amended (the “Wills Act”).

The applicant also alleged that the deceased did not have the necessary mental capacity to execute the will. However, no evidence thereof was provided, and the issue was therefore not considered by the court.

If the 2020 will was successfully challenged, it would mean that the court would have had to consider if the 2017 will was validly executed. If this was the case, the 2017 will would have become enforceable and the applicant would not have had to vacate the property he had been residing in.

Requirements for valid execution of a will

Ordinarily, the person making the will — the testator  — must sign on each page, at the end of the document, in the presence of two competent witnesses. The witnesses must also sign the last page in the testator’s presence.

However, the Wills Act recognises that a testator may be unable to sign and may instead make a “mark”. A “mark” includes a thumbprint. In such cases, additional safeguards apply as execution in this manner could be more susceptible to fraud.

These additional safeguards are laid down in the Wills Act: 

• The will must be signed in the presence of a commissioner of oaths;
• The commissioner of oaths must satisfy themselves as to the identity of the testator;
• The commissioner of oaths must certify that they are indeed satisfied that the will that was signed is the will of the testator;
• The commissioner of oaths must sign each page of the will (excluding the page on which their certificate appears); and
• The commissioner of oaths must append a certificate indicating their designation and signature, confirming items 2 and 3 of the above list. 

The Act then requires the commissioner of oaths to make the certificate above as soon as possible after the will has been signed. 

It further provides: “If the testator dies after the will has been signed in terms of subparagraphs (i), (iii) and (iv) but before the commissioner of oaths has made the certificate concerned, the commissioner of oaths shall as soon as possible thereafter make or complete his certificate, and sign each page of the will, excluding the page on which his certificate appears.”

Affixing a thumbprint 

In the case of Dyantyi, the testator signed her will by affixing a thumbprint. It is clear that the deceased had to comply with all the formalities in the Wills Act in validly executing her 2020 will. If not, the will would be null and void and the 2017 will would come into effect. 

From the first respondent’s version of events, the will was signed by the deceased by affixing a mark on 31 October 2020 in the presence of the attorney, the deceased’s two neighbours (who were also called as witnesses in court) and the executor’s two brothers. The neighbours signed the will as witnesses. The attorney also served as the commissioner of oaths, who signed the will and appended his certificate. This was confirmed by four confirmatory affidavits, the one being the affidavit of the attorney, who had been practising since 2018.

On the face of it, it appeared all the requirements as set out in the Wills Act had been complied with.

The court’s analysis

Judge Da Silva Salie emphasised the importance of the onus of proof. The applicant had to establish on a balance of probabilities that the 2020 will was invalid. In other words, there is a rebuttable presumption that a will which appears regular and complete on the face of it, is presumed to be valid until its invalidity is established on a balance of probabilities by the person alleging the invalidity. 

In consideration of the discharge of the onus by the applicant, the court considered the credibility of the witnesses and the circumstances under which the thumbprint was affixed. 

Credibility of witnesses: The applicant’s witness made her reluctance to be part of this court process very clear. The court found her testimony to be internally contradicting and inconsistent. 

The witness was very emotional, and it appeared that her version was marred by fear of family conflict. She confirmed that she had been threatened by family that her house would be taken away.

On the other hand, the respondents’ witness had a clear recollection of the signing of the will, which corroborated the story of the attorney responsible for drawing up the will.

Circumstances of signing of the will: Although evidence suggested that the witnesses to the will had not been present in the attorney’s office, as initially contended, this was not put to the attorney in cross-examination and the question remained unanswered. This unsupported contention raised by the applicant was also not enough to rebut the presumption of regularity of the 2020 will. 

Ultimately, the court arrived at the decision that the applicant did not meet the threshold to succeed in setting aside the 2020 will and, as a result, the application was dismissed. There was simply not enough evidence for the judge to rebut the presumption of validity. This left the 2020 will in full force and effect. 

The broader risks: abuse and fraud

This case underscores the importance of strict compliance with formalities under the Wills Act. Where a will is executed by way of a thumbprint or mark, the potential for abuse is high. Elderly or vulnerable testators may be pressured into signing documents they do not understand or marks may be fraudulently affixed without their knowledge.

Fraudulent wills not only distort the true wishes of the deceased but also sow deep divisions within families, leaving behind lasting legal and emotional conflict. For this reason, commissioners of oaths and witnesses carry a vital responsibility — they are the safeguards against abuse, ensuring that what is presented as a testator’s last will is genuinely their own.

The Dyantyi case serves as a reminder that, while wills are meant to bring certainty, they can sometimes bring controversy. However, what remains at the centre of all disputes are the rule of law and legislative compliance. 

Compliance with the Wills Act is essential to protect both the deceased’s wishes and the integrity of the estate process. If you wish to dispute a will, you will need undeniable and very clear evidence to rebut the presumption that it is valid.

Let this be a lesson to make sure that your will is in order and that it is compliant with legislation to avoid any disputes in the event of your death. Contact a legal practitioner for professional advice to ensure that your will is indeed compliant. Those who are left behind will already struggle with coming to terms with your death. Do not make them struggle with the winding up of your estate as well. 

Lara Horne is a candidate attorney and Karel Kogler a senior associate at Herold Gie Attorneys.