Not all rules and regulations are governed by written Legislation. The Constitution of South Africa recognises unwritten “Legislation” namely, Common and Customary Law.
Customary Law is defined as:
“An established system of immemorial rules which has evolved from the way of life and natural wants of the people, the general context of which was a matter of common knowledge, coupled with precedents applying to special cases, which were retained in the memories of the chief and his councillors, their sons and their sons’ sons until forgotten, or until they become part of the immemorial rules.”
The validity of a Will is prescribed in terms of the Wills Act 7 of 1953 (hereafter referred to as “the Act”). Validity of a Will to mention a few includes being of legal age, intention to executing a Will, as well as voluntary execution of a Will. However, this is not a complete list. The Law of Succession Amendment Act 43 of 1992 introduced numerous Sections into the Wills Act namely Section 2B. Section 2B of the Act refers to divorce or annulment of a marriage and how that will affect the validity of a Will.
Section 2B reads as follows:
“If any person dies within three months after his marriage was dissolved by a divorce or annulment by a competent court and that person executed a Will before the date of such dissolution, that Will shall be implemented in the same manner as it would have been implemented if his previous spouse had died before the date of the dissolution concerned unless it appears from the Will that the testator intended to benefit his previous spouse notwithstanding the dissolution of his marriage.”
However, late Winnie Madikizela-Mandela challenged a valid executed Will in terms of Customary Law. She held that she had a rightful claim to the house in Qunu in terms of Aba Thembu customs. The Will of late President Nelson Mandela was disputed.