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: J Faber

ISSN: 1996-2207
Affiliations: Lecturer, Faculty of Law, University of the Free State
Source: Tydskrif vir die Suid-Afrikaanse Reg, Issue 4, 2021, p. 740-753


The act of testation
By definition, the law of succession governs the devolution of assets.130 The recognition of testamentary succession enables a testator to express his/her will (intention) in terms of the disposition of assets in a last will and testament. The act of testation (or testamentary act) may be broadly defined as the practical manifestation of testator’s intention, where the latter is primarily concerned with the disposition of assets. Beinart131 describes the act of testation and its requirements as follows: “It is clear law that a will, before it can be given effect to as such, must be a conscious, serious and deliberate statement of intention, and therefore a mere indication of a testator’s last wishes, or a statement for future use, or a mere note, or instructions for execution of the will is not an act of testation. There must be a serious and complete and final act of testation made animo testandi, of such a nature as to show [the] testator intended his declaration to take effect as his will. Unless the declaration is of such a nature there is no act of testation at all.”