Exclusion of liability in wills

Abstract

A high level of skill is required from will drafters when drafting wills. Our courts have recognised that will drafters who make mistakes may be liable towards disappointed beneficiaries for their negligence in the drafting or execution of wills. Applications in terms of section 2(3) of the Wills Act 7 of 1953 point to the possibility that this liability may be even wider and, consequently, drafters are trying to protect themselves by inserting so-called ‘disclaimers’ in wills. The purpose of this article is to discuss these disclaimers and to determine whether it is possible for a will drafter to exclude this liability. Wills are unilateral legal acts and it is, therefore, not possible for such documents to include provisions of a contractual nature that are adjudicated by the measure of consensus reached. A testator may, however, of his own free will, include wording in his will that exempts the drafter, but care has to be taken with the formulation of this wording. The attention of the testator has to be drawn to such wording when using a standard form will and it remains to be seen whether the informed testator will sign such a will.