EVERYDAY LAW: Both wills may be read together
TODAY, I respond to another email which I received a few days ago. It reads: “Dear sir, “I would like to pose a couple of questions concerning wills. “a) A man had a handwritten will delivered to his attorney, of about seven years, and the attorney did not lodge it at the courts/registry in all that time. He died subsequently, is that or can that will be still valid?“b) Would a previous will that was registered be the valid one or can the wills be read in conjunction with each other?“Would there be any recourse for beneficiaries of the second will? Can they make claim to some of the property that was bequeathed to them.“How do you go about addressing a situation like this, if you see the differences between the two wills affecting you personally?”Safe keepingThe first question posed in the letter is whether the failure to lodge a will at the Supreme Court registry affects the validity of the will.Wills are lodged at the registry for safe keeping. However, the fact that a will was not lodged at the registry does not affect its validity. Provided a will complies with the requirements of the law, it will be valid.The Succession Act permits a holograph will to be made. A holograph will is one that is handwritten of the testator.Revocation clauseIf the second will contains a revocation clause it will revoke the first will or any prior wills.A revocation clause is that part of the will which provides that it shall “revoke all previous wills and testamentary dispositions” or similar language to specifically indicate that it is intended to revoke any prior will.Where a testator intends that his last will should embody all his testamentary wishes, it should contain a revocation clause. On the other hand if the last testamentary wish is simply to alter the provisions of a will then it will be done in the form of a codicil and it will only alter or add to the provisions of the previous will as desired by the testator.If the second will does not contain a revocation clause it will be read together with the first will. The practical effect of the absence of the revocation clause will be that the provisions of the second will would be wholly effective, and the first will would be valid only to the extent that it is not consistent with the later will.Therefore, two wills can be read together, provided the second will does not contain a revocation clause or if the said will is not wholly inconsistent with the first will.If there are provisions in the second will disposing property in favour of beneficiaries, they can benefit from those provisions.Of course, it is advisable to lodge your will with the Supreme Court registry. This will usually guarantee safekeeping. It also makes it easier to prove the existence of the will.