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[2016] ZAWCHC 165
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Louw NO v Kock and Another (14270/2015) [2016] ZAWCHC 165; 2017 (3) SA 62 (WCC) (31 October 2016)
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OFFICE
OF THE CHIEF JUSTICE
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
[WESTERN
CAPE DIVISION, CAPE TOWN]
Case
No.:
14270/2015
In
the matter between:
MARIA
MAGRIETHA LOUW
N.O.
Applicant/First
Defendant
(In
her capacity as duly appointed Executrix
in
the deceased estate of the late Pierre Koekemoer
with
Master’s reference: 5233/2015)
and
ANNA
CATHARINA
KOCK
First
Respondent/Plaintiff
THE
MASTER OF THE HIGH COURT,
CAPE
TOWN
Second
Respondent
JUDGMENT
delivered
31
OCTOBER 2016
MEER
J.
Introduction
[1]
This application concerns the interpretation of Section 2B of the
Wills Act 7 of 1953 (“the Act”), which provides
as
follows:
“
2B
Effect of Divorce or Annulment of Marriage on Will
.
–
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.”
[2]
The First Respondent is a surviving previous spouse as contemplated
in Section 2B of the Act (“Section 2B”).
In 2004
her deceased previous spouse, the late Pierre Koekemoer (“the
deceased”), together with her executed a joint
will in which,
at clause 1, they each nominated the survivor of them as sole and
universal heir. They divorced on 17 October 2014
and the deceased
died within three months after the divorce on 7 January 2015. The
Master, the Second Respondent, has refused to
give effect to clause 1
of the Will for the reason that Section 2B prevents the First
Respondent from inheriting.
[3]
The First Respondent, in turn, as Plaintiff, instituted an action
(“the main action”) against
inter alia
the
Applicant as First Defendant, who is the executor of the deceased's
estate. For ease of reference I shall refer to these
two
parties as they are cited in the main action. In her action the
Plaintiff sought to compel the Master to give effect
to clause 1 of
the will. She claimed that she is entitled to inherit under the will
as no other person is nominated as heir to
the deceased, and because
it appears that the deceased did not intend to benefit any other
person upon his death. The First
Defendant in her capacity as
executor of the estate of the late Pierre Koekemoer seeks the
dismissal of the Plaintiff's claim.
Background
Facts
[4]
The Plaintiff and the deceased were married for some 29 years.
During the subsistence of their marriage and some 11 years
before his passing, they implemented the aforementioned joint will on
6 July 2004. Clauses 1 and 2 of the will read as follows:
“
1.AFSTERWE
VAN DIE EERSSTERWENDE
Ons benoem die
langslewende van ons as die enigste en algehele erfgenaam van die
boedel van die eerssterwende van ons.”
2. AFSTERWE
VAN DIE LANGSLEWENDE
Indien die
langslewende van ons te sterwe kom sonder om ‘n verdere geldige
testament na te laat bemaak sodanige langslewende
sy of haar boedel
soos volg:
2.1 Ons bemaak aan
die vader van die testateur Johannes Magiel Koekemoer (geboortedatum
../../1934) die vaste eiendom, of indien
hy nie die langslewende van
ons oorleef nie, dan aan die Dierebeskermingsvereniging.
2.2 Die restant aan
die Dierebeskermingsvereniging.”
[5]
Upon their divorce on 17 October 2014 the Plaintiff and the deceased
concluded a settlement agreement regulating the proprietary
consequences of their marriage in full and final settlement thereof.
The settlement agreement was made an order of Court.
Thereafter, as aforementioned, on 7 January 2015 within three months
of the divorce, the deceased passed away of natural causes.
[6]
It appears as though the Plaintiff had remarried before the
deceased’s passing. On the night that the deceased passed
away the Plaintiff and her present spouse took occupation of the
deceased’s residence where they still reside. On 12
January 2015 the Plaintiff signed the notice of death form, wherein
she noted her relationship to the deceased, as spouse, even
though
they were at the time divorced. On 1 June 2015 the Plaintiff’s
attorneys of record addressed a letter to ABSA
Trust to which a next
of kin affidavit was attached. Therein too, the Plaintiff
described herself as the surviving spouse.
[7]
The will was lodged with the Master who refused to give effect to
clause 1 on the basis, as aforementioned, that the statutory
disqualification at Section 2B prevents the Plaintiff from
inheriting. On this scenario, given that the beneficiary
mentioned
at clause 2.1, the deceased’s father, Johannes Magiel
Koekemoer is pre-deceased, the estate stands to devolve to the
Society
for the Prevention of Cruelty to Animals.
[8]
Given the Master's attitude, it is hardly surprising that in July
2015 the Plaintiff instituted the main action against the
First
Defendant, various alleged intestate heirs and the Master, in which
she sought to compel the Master to give effect to clause
1 of the
will. Her particulars of claim state that no other person but
the Plaintiff is nominated as heir to the deceased
in the will, and
that the deceased did not intend to benefit any other person apart
from her upon his death.
[9]
On 8 October 2015 the First Defendant filed both a notice in terms of
Uniform Rule 23(1) claiming that the particulars of claim
were vague
and embarrassing, and an exception thereto. The exception
stated
inter alia
that Section 2B was applicable, and that as
the particulars did not allege that it appears from the will that the
deceased intended
the plaintiff to inherit, notwithstanding the
dissolution of the marriage, the particulars did not support the
relief claimed by
the plaintiff. On 19 April 2016 pursuant to
an order of this Court, the exception was upheld and the Plaintiff
was granted
leave to amend her Particulars of Claim within 10 days of
the date of the order. The Plaintiff failed to file her Rule 28
Notice of intention to amend her Particulars of Claim within the time
specified in the Court order. Thereafter the First
Defendant
brought the current application to dismiss the Plaintiff’s
claim.
[10]
In this application the First Defendant contends that the Plaintiff's
claim in the main action stands to be dismissed, not
only as the
Plaintiff failed to file her notice to amend her Particulars of Claim
timeously, in compliance with the Court order,
but also because the
claim is bad in law and without merit. The Plaintiff, it is
contended, is also delaying the final liquidation
and distribution of
the deceased estate and is acting
mala fide
.
[11]
In response the Plaintiff in this application reasserts her stance
that as she is the only person nominated as heir, the deceased
did
not intend to benefit any other person, should he predecease her.
She avers moreover that it was the deceased’s
intention at all
times that she should inherit notwithstanding their divorce. In
her answering affidavit she states that
she has sufficient evidence
to rebut the presumption created by Section 2B. She avers that
she should inherit as there is
no evidence from which it can be
deduced that it was the deceased’s intention that she should
not inherit.
Discussion
[12]
Section 2B was introduced by Sec 4 of the Law of Succession Amendment
Act, Act 43 of 1992. The preamble to the Amendment
Act states
that it is intended to:
“…
regulate
the effect of a divorce or the annulment of a marriage on a will”.
No
further indication is given as to the legislature’s intention
and in the 24 years subsequent to the section’s inclusion,
no
cases appear to have come to court regarding its application.
[13]
In his article “
Die
Doodgewaande Gade en die Wil van die Testateur”
[1]
Professor J C Sonnekus states that the rationale behind Section 2B
was clear. The legislature created a three month ‘grace
period’ during which divorcees could draft new wills that take
proper account of their altered circumstances. Failure
to alter
a will during the three month period would leave the will – and
any bequests to the ex-spouse – intact, should
the testator
come to death after the 3 month grace period. The operation of
the section leaves the remainder of the will
unaffected, and
therefore other beneficiaries will still be entitled to the benefits
allotted to them by the testator.
[14]
Similar provisions to Section 2B preventing a surviving former spouse
from inheriting under the will of a deceased previous
spouse, unless
a contrary intention appears from the will, can be found in statutes
pertaining to wills in the jurisdictions of
England and Wales
[2]
,
Australia
[3]
and the United
States of America
[4]
.
Interestingly, neither the English, Australian, nor American
provisions are subject to any time limit, akin to the three
month
period at Section 2B. I could also find no case law relating to
the English and Australian provisions. Presumably,
the reason
for the absence of judicial interpretation is because the meaning of
these provisions is clear, and this has made debate
on their
interpretation unnecessary.
[15]
Likewise, the meaning and effect of Section 2B is clear and
unambiguous, and Counsel did not suggest otherwise. The section
clearly means that the death of one of the previous spouses within
three months after a divorce, will result in the surviving previous
spouse being deemed to be predeceased and thus unable to inherit,
unless it appears from the will itself that the deceased testator
intended to benefit the surviving previous spouse. This is the
only meaning that can be attributed to Section 2B if one considers
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears and the
apparent
purpose to which it is directed. See Natal
Joint Municipal Pension
Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) 603 G to 604A
[16]
Whilst the plaintiff has not taken issue with the interpretation of
Section 2B, she considers herself not to be disqualified
from
inheriting notwithstanding the proviso contained in the section:
“…
unless
it appears from the will that the testator intended to benefit his
previous spouse notwithstanding the dissolution of his
marriage.”
She
contends that it so appears. The issue then becomes the
interpretation of the will itself.
[17]
The rules pertaining to the interpretation of wills are trite.
In
Verseput and others v De Gruchy, NO, and another
[1977] 4
ALL SA 339
(W) at 342 Franklin, J stated:
“
In construing
a will the cardinal principle is to ascertain from the language used
therein the true wishes of the testator.
In construing wills
the Court has in the course of time evolved a number of presumptions,
such as the presumption against intestacy
and the presumption that,
if the language used in the will is ambiguous or doubtful, that
meaning ought to be given to the will
which is in accord with the
general wishes of the testator to be gathered from the terms of the
will read as a whole, and so as
to make a bequest effective, rather
than that which makes it null and void. But these presumptions may
only be resorted to if the
language of the will is of doubtful
import.”
[18]
In Parker and others v Estate Fletcher
,
1932 CPD 202
at page
205 Watermeyer AJP (as he then was) stated:
“
Undoubtedly
the first rule of construction is that the Court must endeavour to
ascertain the intention of the testator from the
terms of the will
taken as a whole, but if an event has occurred which was not
contemplated by the testator at the time he made
his will the Court
is not entitled to surmise what his intention would have been if he
had contemplated the occurrence of that
event and to give effect to
such surmise. To do so would be to add something to the will
and not to construe it.”
[19]
Both Mr Benade for the Plaintiff and Mr Coston for the First
Defendant agreed that the words used in Clauses 1 and 2 of the
will
are clear and unambiguous. They agree moreover that the
intention of the deceased (and indeed the First Defendant, as
co-testator to the joint will), was that the “langslewende”
or longest living of the two spouses who had effected the
will, would
be the sole and exclusive heir of the deceased. An analysis of
the will indeed reveals that both the content
and intent thereof are
clear and unambiguous. This being so, the will does not call
for interpretation.
[20]
In support of the Plaintiff's stance that the statutory
disqualification at Section 2B does not apply to her, Mr Benade
submitted
that the application of Section 2B is subject to a finding
as to what the intention of the testator was. In the event of a
finding that there can be no doubt that the testator intended the
plaintiff to inherit, Section 2B, he submitted, cannot be enforced.
As the intention of the testator is clearly expressed, namely
that the longest living should inherit upon the death of the
first
dying, the Plaintiff could inherit, so his argument continued. Had
the deceased not wanted the plaintiff to inherit,
submitted Mr
Benade, he would have said so in the will or would probably have
executed another will the day after the divorce.
Citing the
case
Bothma Batho Transport v S Bothma & Seun
Transport
2014 (2) SA 494
, he submitted moreover, that extrinsic evidence could
be adduced to determine the intention of the deceased. In
Bothma
, which pertained to the interpretation of a contract,
Wallis JA stated at paragraph 12 that the process of interpretation
does
not stop at the perceived literal meaning of words, but
considers them in the light of all relevant and admissible context,
including
the circumstances in which the document came into being.
Finally, noting that the plaintiff would have been able to
inherit
had the deceased died three months and one day after the
dissolution of her marriage of 29 years, Mr Benade submitted that it
was
in the interests of justice to find in favour of the plaintiff.
[21]
The difficulty with Mr Benade's argument is that it ignores the
existence and substance of Section 2B, both the interpretation
and
applicability of which have been agreed to by the parties. It
is so that it is not the Plaintiff's case that Section
2B does not
apply to the circumstances of this case. It is her case in
defence of this application that the statutory disqualification
which
prevents previous spouses from inheriting, does not apply to her, as
it appears from the will that the testator intended
to benefit her.
The other fallacy of Mr Benade's argument is that it accords to the
testator by his mere intent the extraordinary
power to override a
provision in an Act of Parliament, a consequence, that I am quite
certain could never have been intended by
the legislature.
I note also that as neither the period of a marriage nor the harsh
consequences of the timing of death
impact on the statutory
disqualification at Section 2B, these are not factors that I am at
liberty to consider. I note in
any event that upon divorce the
Plaintiff was party to a settlement agreement regulating the
proprietary consequences of her marriage.
[22]
With regards to the extrinsic evidence, referred to by Mr Benade, it
is so that the Plaintiff seeks to show, as alluded to
in her
answering affidavit, that she is able to show by means of statements
made to others that the testator did indeed intend
to benefit her
regardless of their divorce. The difficulty with this is firstly that
Section 2B does not permit extraneous evidence,
and secondly that, as
aforementioned there is no need for interpretation as the intention
of the testator is clear from the will
itself. As was said in
Aubrey-Smith
v Hofmeyer
1973
(1) SA 655
C at 657 E by Corbett J,:
“
Generally
speaking, in applying and construing a will, the Court’s
function is to seek and to give effect to, the wishes of
the testator
as expressed in the will. This does not mean that the Court is
wholly confined to the written record.
The words of the will
must be applied to the external facts and, in this process of
application, evidence of an extrinsic nature
is admissible to
identify the subject or object of a disposition. Evidence is not
admissible, however, where its object is to contradict,
add to or
alter the clearly expressed intention of the testator as reflected in
the words of the will.”
It
can be said with reference to
Bothma supra
that the intentions
of the testator are clearly expressed, in the literal meaning of the
words, considered in context, including
the circumstances in which
the document came into being. In keeping with the principle of
freedom of testation, the provisions
of the will call neither for
interpretation nor interference.
[23]
It must be borne in mind that the will in question was the joint will
of two spouses who were married to each other at the
time of its
implementation. That clause 1 refers to the “langslewende”
as opposed to the surviving spouse as
being the sole heir does not
detract from this simple fact. The will correctly attracted the
attention of Section 2 B when
the deceased died within 3 months of
the divorce. As clause 1 in effect nominated the surviving
spouse who outlived the deceased
as the sole heir, the proviso in
section 2B was triggered.
[24]
This being so, the Plaintiff as surviving spouse can only inherit if
it appears from the will that the deceased intended her
to inherit
notwithstanding the dissolution of the marriage. Such an
intention does not appear from the will. The will provides
for the
longest living to be the sole heir of the first dying, no more no
less. For the intention the Plaintiff advocates
to have
appeared, the will would have had to provide for the longest living
to be the sole heir of the first dying notwithstanding
the
dissolution of their marriage, or words to that effect. The
will simply cannot be construed to enable a surviving spouse
like the
first defendant to inherit after divorce, and thereby not only rebut
the statutory presumption created by Section 2B but
also circumvent
its provisions.
[25]
I am therefore inclined to agree with Mr Coston for the First
Defendant that if the deceased intended the Plaintiff to inherit
after divorce, the will would have explicitly stated so or he would
have made a new will indicating as such.
[26]
An interpretation of the will and the clear and unambiguous wording
of Section 2B in my view excludes the first defendant from
inheriting. The fact that this may be a harsh consequence and
that the Society for the Protection for Animals is the sole
heir as a
consequence, does not detract from this.
[27]
Finally, I note that it is so as contended on behalf of the First
Defendant, that the Plaintiff failed to plead material facts
that
would sustain an intention on the part of the deceased that he did
not intend to benefit any other person apart from the Plaintiff
notwithstanding the divorce. Nor did she so plead in the
purported amendment to the Particulars of Claim. I am inclined
in the circumstances to agree with the First Defendant that these
pleadings remain expiable.
[28]
In light of all of the above I am of the view that the Plaintiff’s
claim in the main action is incompetent in law and
excluded by the
provisions of Section 2B of the Will’s Act. I am
accordingly inclined to grant the First Defendant,
being the
Applicant in this application the relief she seeks.
Costs
[29]
As the application succeeds the Plaintiff’s claim stands to be
dismissed with costs. Such costs ought in my view
to include
the costs of the exception as well as the costs of this application.
[30]
I accordingly grant the following order:
1. The claim of the
First Respondent/Plaintiff against the First Defendant/Applicant
under case no. 14270/2015 is dismissed.
2. The First
Respondent/Plaintiff shall pay the costs such to include the costs of
the exception as well as the costs of this application,
on the scale
as between party and party.
_________________________
Y
S MEER
Judge
of the High Court
[1]
Tydskrif van die Hedendaagse Romeins Hollandse Reg 1996, (59) page
294
[2]
Section
18A of the Wills Act of 1837, as amended, under the law of England
and Wales,
[3]
Section13(1)
of the Succession Act 2006 of New South Wales
[4]
US
Uniform Probate Code of 1969 at Sections 2 – 508 and Sections
2 – 804