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[2016] ZASCA 50
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Mitchell NO v Wren and Others (153/2015) [2016] ZASCA 50 (1 April 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 153/2015
In
the matter between:
IAN
DAVID MITCHELL NO
APPELLANT
and
SANDRA
JANE WREN
FIRST
RESPONDENT
YOLANDI
MYNHARDT
SECOND RESPONDENT
THE
MASTER OF THE EASTERN
CAPE
THIRD RESPONDENT
HIGH
COURT, PORT ELIZABETH
Neutral
citation:
Mitchell
NO v Wren
(153/2015)
[2016] ZASCA 50
(1 April 2016)
Coram:
Leach,
Seriti, Petse and Mbha JJA and Kathree-Setiloane AJA
Heard:
7
March 2016
Delivered:
1
April 2016
Summary:
Will ─
two notes written by deceased immediately before her death –wording
of notes and circumstances under which they
were written manifesting
that deceased intended them to be an amendment of her existing will ─
no direct evidence as to which
written last ─ surrounding
circumstances and probabilities as a whole indicating that one of the
notes was written after
the other and was to be accepted as a codicil
to deceased’s existing will.
ORDER
On
appeal from:
Eastern
Cape Local Division of the High Court, Port Elizabeth (Revelas J and
Eksteen J, sitting as court of first instance):
1
The appeal is dismissed.
2
The costs of the appeal on the scale as between attorney and client,
including the costs of two counsel where employed, are to
be paid out
of the estate of the deceased Carolynn Ellen De Villiers.
JUDGMENT
Petse
JA (
Leach,
Seriti and Mbha JJA and Kathree-Setiloane AJA
concurring):
[1]
The principal issue for determination in this appeal concerns the
validity of two testamentary notes written by Carolynn Ellen
De
Villiers (the deceased), shortly before she committed suicide in the
early hours of 9 June 2012. The court a quo found that
one of the two
notes, annexure A to the founding papers, should be accepted as a
valid codicil to the existing will of the deceased.
It is against
that order that the appellant, the executor of the deceased’s
estate, appeals to this court with leave of the
court a quo.
[2]
It is necessary at the outset to briefly set out the background
circumstances that are of relevance. The deceased and the first
respondent, Sandra Jane Wren, who had been friends since 2007, were
involved in a same-sex life partnership. They had lived together
in
the first respondent’s house for almost a year before the
deceased’s death. The deceased had sold her house in January
2012, a fact that supports the conclusion that she regarded her
relationship with the first respondent as permanent. The deceased
and
the second respondent, Yolandi Mynhardt, had been close friends for
many years.
[3]
The first respondent alleged that the deceased had, on the eve of her
death, gone through her suitcases and boxes that she had
brought with
her when she moved into her residence which she had not yet unpacked.
They had supper together and, at approximately
22h00, she retired to
bed leaving the deceased upstairs as the latter continued to go
through her possessions. The next morning
she discovered the body of
the deceased who had committed suicide during the night. One knows
from the time sms messages had passed
between her and her friend, the
second respondent, that the deceased took her life sometime after
01h00 the next morning.
[4]
Immediately after her body was discovered, a friend who had arrived
on the scene, found two handwritten notes that the deceased
had
written before she died. Both were attached to the founding papers as
annexures A and B. They are reproduced as annexures to
this judgment.
Both contain pieces of writing that make testamentary dispositions.
The relevant portions of each read as follows
(the spelling is as
they were written):
Annexure
A
‘
My
Last Will & testament
I
want all goods in this house to
be lon
belong to
Sandy
Jane Wren & Shee gets R1m from my estate
Yolande
“Zozi” also gets R1m from my estate.
Dad
& Barry there will be enough for you
Please
grant my dieing wish.
Sorry
to do this to you all but time to be with mom.
[1]
Love
y all
Life
is toooo hard
take
care I will be watching you.
Love
Love
Lots.’
Annexure
B
‘
My
Larst will & testemonemt
This
is my wish & if you ewer loved
me
you will make sure it is seen through
I
want Sandy to have legal rights of
everything
in 5 Wodehouses.
I
want Zozi to get R1m.
They
are the best
the
riest, more than enough is for u dad and barry
[5]
It is accepted that the references to ‘Zozi’ in these
notes is a reference to the second respondent. I must also
mention
that annexure B contains matters that are entirely unrelated to
testamentary dispositions. Listed above the quoted passage
were a
number of notes of a domestic nature made by the deceased and the
first respondent the previous evening before the latter
had retired
to bed. It also contains an additional note addressed to the first
respondent that reads ‘Sands – you are
a good wife’.
Annexure B was also signed and initialled by the deceased immediately
below the disposition set out above.
[6]
Apart from these two notes there were two other terse written notes
which are annexures IDM4 and IDM5 to the papers. They respectively
read as follows:
IDM4
IDM5
‘
Sorry
I let u
‘Dad & Barry
down
my love
You will have
don’t
loose confidence
enough get
in
yourself just
let
shares.
people
in.’
I love u guys.’
[7]
Annexures IDM4 and IDM5 are uncontroversial, and it was accepted
between the parties that they were written by the deceased.
Similarly, the fact that the deceased had written annexures A and B
was not in dispute. And the appellant’s initial assertion
that
the deceased lacked capacity to execute the contested documents due
to her having been intoxicated on the night in question
was not
persisted in.
[8]
The deceased was survived by her father, Mr Ian David Mitchell, and
brother, Mr Barry David Mitchell. On 18 July 2011 she had
executed a
will in terms of which she, inter alia, appointed her father as
executor in her estate and nominated him and her brother
as joint
heirs of the residue of her estate. She also bestowed certain
bequests on several legatees. The respondents were not mentioned
at
all. There can be no doubt, regard being had to the tenor of the
notes, that the deceased intended annexures A and B to be amendments
to her existing will and to bestow bequests upon them. (See for
example
Smith
v Parsons NO & others
[2010]
ZASCA 39
;
2010 (4) SA 378
(SCA).
[9]
The first and second respondents (the respondents), as applicants,
later instituted motion proceedings against the appellant
in his
capacity as the executor of the estate of the deceased, and the
Master of the High Court, Port Elizabeth, in which they
sought a
declaratory order that annexure A was intended to be the will of the
deceased or an amendment thereof. It bears mentioning
that this
application had been prompted by the Master’s refusal, pursuant
to a request by the respondents, to accept annexure
A as a
testamentary disposition for want of compliance with s 2(1)(
a
)(i),
(ii) and (iv) of the Wills Act, 7 of 1953 (the Act). In bringing the
application, the respondent relied upon s 2(3) of the
Act which, in
material parts, reads:
‘
If
a court is satisfied that a document or the amendment of a document
drafted or executed by a person who has died since the drafting
or
execution thereof, was intended to be his will or an amendment of his
will, the court shall order the Master to accept that
document, or
that document as amended, for the purposes of the Administration of
Estates Act, 1965 (Act 66 of 1965), as a will,
although it does not
comply with all the formalities for the execution or amendment of
wills . . .’
[10]
The application served before a full bench (Revelas et Eksteen JJ)
which found in favour of the respondents.
After
noting that the respondents bore the onus of establishing the
intention of the deceased when she wrote the contested notes,
it
found that both annexures A and B were supplementary to the
deceased’s existing will and had been executed for the purpose
‘. . . of adding to, or varying the provisions of her will’.
It went on to find that read together they ‘thus
constituted
a
codicil’. For this finding the court a quo placed much store in
Kleyn
v Estate Kleyn & others
1915
AD 527
at 537 where this court said that ‘. . . in the ordinary
course, a codicil is employed merely for the purpose of supplementing
and making alterations in a will, and it is usually read as an
annexure to the main document . . .’ The court a quo
held
further that as the two notes were compatible in that annexure A
merely provided an additional bequest to the first respondent,
it
would be the appropriate document to declare to be a codicil amending
the written will. Consequently , on
23
October 2014 it made an order that incorporated the following
paragraphs:
‘
1
[That] annexure A to the notice of motion be . . . declared to be a
codicil to the will of . . . Carolynn Ellen De Villiers.
2
[That] the respondent [the Master] is . . . ordered to accept
annexure A for the purposes of the provisions of the
Administration
of Estates Act 66 of 1965
, as a codicil.’
The
remaining paragraph of the order dealt with costs and is not germane
to this appeal.
[11]
It is against this order that the appeal lies.
I
propose dealing first with the approach to be adopted where the
deceased has left more than one will. Where a testator dies leaving
more than one will and the last will does not revoke the earlier
will, both wills must be read together and reconciled as far as
the
language used permits.
[2]
If the
wills are inconsistent, the earlier testamentary disposition will be
deemed to have been revoked by the latest testamentary
disposition
but only to the extent that its provisions are inconsistent with the
later will.
[3]
[12]
But where the testator leaves two wills executed on the same day and
they cannot be read together, they will both be invalid
if it cannot
be established which one of the two wills was executed last.
[4]
It is trite that the question whether or not two wills are capable of
being reconciled is one of construction.
[5]
If there is uncertainty as to which one is the later will, evidence
to establish that fact will be admissible.
[6]
These principles apply with equal force to codicils
[7]
which, ordinarily, are intended to amend or supplement a will.
[13]
In the present case the appellant accepted that: (a) the contested
notes comply with s 2(3) of the Act; (b) they were executed
on the
same day; and (c) the deceased intended making bequests to the
respondents. Thus, what remains for determination is the
question
whether or not they are compatible or, as foreshadowed in the
preceding paragraph, a determination can be made as to which
note was
executed last.
[14]
In argument, counsel for the appellant submitted that the two
contested notes were irreconcilable as, on the one hand, in annexure
B the deceased bequeathed R1 million to the second respondent and
just household goods to the first respondent whereas on the other,
in
annexure A, the deceased made not only similar bequests but an
additional bequest of R1 million to the first respondent. In
advancing this argument, he emphasised that the contradiction between
annexures A and B stemmed from the material negative impact
that the
additional bequest of R1 million to the first respondent would have
on the value of the residue of the deceased’s
estate that fell
to be divided between the deceased’s father and brother who
were the residual heirs.
[15]
To my mind this argument is untenable. It has to be accepted as a
matter of simple logic that an invariable consequence of
any bequest
of a specific legacy is that the value of the residue of the estate
that ultimately devolves upon residual heirs is
diminished by the
value of such bequest. Accordingly, if the testator intended to
provide a beneficiary with an addidional legacy
by way of a codicil
that does not affect another legacy to another beneficiary, effect
must be given to it.
[16]
But in any event, the question of which note was written last
determines the issue. On this issue, counsel for the appellant
contended that the form and structure of the contested suicide notes
‘lends nothing to a conclusion either way as to what
the
deceased’s intention was at the time of drafting’. In
elaboration he submitted that whilst annexure A was written
on a
clean sheet of paper, it was not signed whilst annexure B was signed,
albeit written on a piece of paper that bore unrelated
scribblings.
In consequence, so concluded the argument, it cannot reasonably be
inferred which one of the two notes was written
last and therefore
intended by the deceased to reflect her final wishes concerning the
bequests. (See in this regard
Van
Wetten v Bosch & others
[2003]
ZASCA 85
;
2004 (1) SA 348
(SCA) para 21;
Anderson
and Wagner & another v The Master & others
1996 (3) SA 779
(C) at 784G-785A.)
[17]
This must be considered in the light of all the background and
surrounding circumstances. In this regard the following factors
bear
mentioning: (a) the deceased executed a will a year previously in
terms of which the respondents are not beneficiaries; (b)
the
electronic messages exchanged between the deceased and the second
respondent immediately before the deceased took her life
make plain
that the deceased loved the respondents; (c) the deceased lived in a
relationship with the first respondent on which
she placed a high
premium, describing the first respondent as ‘a good wife’
in annexure B, and they had discussed marrying;
(d) when the deceased
moved in with the first respondent after selling her own house they
sold some of their furniture and household
effects and purchased new
furniture together; (e) the R2 million bequest bestowed on the
respondents represented readily available
moneys the deceased was
holding in a bank; (f) the deceased and the first respondent
had undertaken duties of reciprocal
support; (g) the deceased’s
note to the appellant that ‘there was enough for them’ ─
meaning the appellant
and his son ─ and that ‘dad and
Barry you will get enough shares’ indicates that it was
uppermost in the deceased’s
mind that the major source of their
inheritance from the residue would be derived from the proceeds of
the shares and that they
were not to begrudge the respondents for
having been bestowed with legacies amounting to R2 million.
[18]
From this it can be inferred that the deceased well knew that she had
not made any provision in her will for the benefit of
the
respondents. Hence she wrote the two contested notes bestowing
bequests on the respondents. Her declaration in one of her electronic
messages to the first respondent when she wrote: ‘. . . I have
to live longer so I can change my will. . . . Checked on [first
respondent] and she is fast asleep . . . I really need time with
[first respondent]’ to my mind reinforces this conclusion.
[19]
Bearing the foregoing considerations in mind it is, in my view,
inherently improbable that the deceased would have wished
to
leave R1 million to the second respondent only and be content to
bestow no more than household goods on the first respondent
which
were in any event jointly owned by them. The appellant would have
this court accept that even in the face of the affectionate
accolades
heaped on the first respondent by the deceased, she could
nevertheless have been content to leave the first respondent,
‘a
good wife’, with no more than such household goods. Counsel for
the respondents argued that annexure A is more formal
both in
appearance and its tenor. In contrast, annexure B is more informal,
lacking in proper structure and contains unrelated
scribblings. On
behalf of the respondents it was further submitted that if annexure A
was written first, endowing the deceased’s
‘good wife’
with a R1 million legacy, it was inherently improbable that the
deceased would almost immediately thereafter
decide to revoke that
bequest by way of replacing annexure A with annexure B. On the known
facts it is indeed inconceivable that
the deceased would have wished
this. That is not only inherently improbable but also flies in the
face of reality of the facts
encapsulated in the preceding
paragraphs.
[20]
The obvious inference from those facts, and knowing that the deceased
had been conversing with the second respondent by sms
immediately
before she died, is that she decided to leave her a legacy out of the
cash at hand she had in the bank. This gave rise
to annexure B. Then
realising that the second respondent was getting probably more than
the first respondent, her ‘good wife’,
she wrote annexure
A so as to make a similar cash bequest to the first respondent as
well. All of this accords with her statement
in annexure B that the
respondents ‘are the best’ as well as her statement to
her father and brother in both annexure
A and annexure IDM5 that the
shares she was leaving them would be enough.
[21]
Counsel for the appellant submitted that to find this to be the case
would be to speculate on the events that occurred that
fatal morning.
I do not agree. It is the most probable inference that can be drawn
that is consistent with the known facts and
surrounding
circumstances.. The conclusion to which I have therefore come is that
annexure A was written last. Counsel for the
appellant correctly
conceded that should that be found to be the case, the appeal must
fail.
[22]
In regard to costs, the court a quo directed that the costs of the
application, on the scale as between attorney and client,
be
recovered from the estate of the deceased. No appeal was noted
against that order and in this court the parties were in agreement
that regardless of the outcome of the appeal, a costs order in
similar terms be made. That is the customary order made in cases
of
this nature. The parties were further agreed that costs of two
counsel, where so employed, should be allowed.
[23]
In the result the following order is made:
1
The appeal is dismissed.
2
The costs of the appeal on the scale as between attorney and client,
including the costs of two counsel where employed, shall
be paid out
of the estate of the deceased Carolynn Ellen De Villiers.
_________________
X M PETSE
JUDGE
OF APPEAL
APPEARANCES:
For
Appellant:
A M Breitenbach SC
Instructed
by:
De
Villiers & Partners, Port Elizabeth
Claude
Reid Inc, Bloemfontein
For
Respondents:
A Beyleveld SC (with D Bands)
Instructed
by:
Boqwana
Loon & Connellan, Port Elizabeth
Webbers,
Bloemfontein
[1]
The deceased’s
mother committed suicide when the deceased was 15 years old.
[2]
Ex parte Estate
Watkins-Ritchford v CIR
1955
(2) SA 437
(A) at 448D-E;
Price
v The Master & others
1982
(3) SA 301
(N) at 303G-H;
Pienaar
& another v Master of the Free State High Court, Bloemfontein &
others
[2011]
ZASCA 112
;
2011 (6) SA 338
(SCA) para 11.
[3]
Gentle v
Ebden’s Executors
1913
AD 119
;
Ex
parte Adams
1946 CPD 267
at 268.
[4]
M M Corbett, Gys
Hofmeyr and Ellison Kahn
The
Law of Succession in South Africa
2ed at 95.
[5]
Corbett
et
al
loc
cit at 95.
[6]
Moskowitz v The
Master & others
1976
(1) SA 22
(C) at 24A-H.
[7]
Ex parte Estate
Adams
1946 CPD 267
at 268; see also
s 1
of the
Wills Act 7 of 1953
which
provides that ‘will’ includes a codicil and any other
testamentary writing.