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[2020] ZAWCHC 13
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Marshall v Baker NO and Others (9510/2019) [2020] ZAWCHC 13; 2020 (3) SA 463 (WCC) (25 February 2020)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case no: 9510/2019
In the matter between:
MARY
GWENYTH
MARSHALL
Applicant
v
LAUREN
MAIRI BAKER N.O.
First
Respondent
LAUREN
MAIRI
BAKER
Second Respondent
MASTER
OF THE HIGH COURT, WESTERN CAPE
Third
Respondent
REGISTRAR
OF DEEDS, CAPE TOWN
Fourth
Respondent
REGISTRAR
OF DEEDS, KING WILLIAMS TOWN
Fifth
Respondent
PAGDENS
INCORPORATED
Sixth
Respondent
FRIEDMAN
SCHECKTER ATTORNEYS
Seventh
Respondent
CHRISTOPHER
RICHARD BAKER
Eighth
Respondent
and
KEITH
STONE CATTELL
First
Interested Party
LIZELLE
BAKER
Second
Interested Party
ADELAIDE
ZANANA QOKOQA
Third
Interested Party
CHRISTOPHER
RICHARD BAKER
Fourth
Interested Party
Coram:
Justice J I Cloete
Heard:
28 November 2019, supplementary notes delivered 3 and 10 December
2019
Delivered:
25 February 2020
JUDGMENT
CLOETE
J
:
Introduction
[1]
The applicant is the former life partner of the late Mr Peter
van Heerden (“the deceased”) who passed away
at the age
of 63 on 17 October 2018 as a result of complications following
cardiac surgery. In essence, she seeks an order
declaring that a
document executed by the deceased on 7 October 2018 (“the
2018 document”) is his last will and
testament, together with
ancillary relief.
[2]
Although the prayers in
the notice of motion were formulated in far reaching terms, the
applicant abandoned prayers 1.3 and 1.15
as well as costs on a
punitive scale as envisaged in prayer 1.6. The remaining prayers in
Part A
[1]
were also clarified
with her legal representative and crystallised into the following:
[2]
2.1 The review and
setting aside of the decisions of the third respondent (“the
Master”): (a) accepting what is
now common cause is a
validly executed will of the deceased dated 9 October 2011 and
appointing the second respondent (his niece,
Ms Lauren Baker,
(‘
Lauren’
))
as
executrix in terms thereof;
and (b) subsequently rejecting the 2018 document as the
deceased’s last will and testament;
2.2 Declaring, in terms
of s 2A(c) of the Wills Act 7 of 1953 (“the Act”)
that the 2018 document revoked the 2011
will in its entirety;
2.3 Declaring that the
2018 document is the deceased’s will and ordering the Master to
accept it as such in terms of s 2(3)
of the Act (coupled with
attendant declarators that if the original cannot be found the Master
is to accept a copy, as well as
aspects pertaining to the content
thereof); and
2.4 Given the absence of
a nominated executor/trix in the 2018 document, ordering the Master
to convene a meeting for this purpose
(in Cape Town) in terms of
s 18(1)
of the
Administration of Estates Act 66 of 1965
.
[3]
Lauren is an adult. Her mother, Mrs Lizelle Baker, who is cited as
the second interested party, is the deceased’s sister,
and is
married to Lauren’s father, the eighth respondent and fourth
interested party, Mr Christopher Baker (‘
Chris’
).
The latter and Lauren (in both her personal and representative
capacities) oppose the relief sought, and also brought a conditional

counter-application in respect of an earlier will executed by the
deceased on 7 January 1999, which has fallen away given
the
applicant’s concession at the commencement of argument that the
2011 will was validly executed.
[4]
For convenience I will refer to Chris and Lauren (in both capacities)
as “the respondents” where applicable. In
addition the
respondents’ alternative argument that the 2018 document was
intended to be an amendment to the 2011 will, and
the dispute as to
whether a formal counter-application to this effect was required, are
not necessary to determine as a result
of the conclusion which I have
reached.
[5]
The sixth respondent (‘
Pagdens’
) is the firm of
attorneys appointed by Lauren to wind up the deceased’s estate,
and the seventh respondent (‘
Friedman
Scheckter’
)
represents Lauren and Chris in this litigation. The applicant, Lauren
and interested parties are all potential beneficiaries in
terms of
the 2018 document.
[6]
It is common cause that
the 2018 document was written (albeit in schematic form) by the
deceased in his own handwriting
[3]
and signed by him on 7 October 2018; that it was not witnessed
as required by s 2(1)(a)(ii) and (iii) of the Act; and
that the
Master’s reliance on s 2(1)(a)(v) in rejecting it was
clearly an error, given that the deceased did not sign
the will by
the making of a mark. By agreement, the matter was argued on the
assumption that the Master intended to refer to s 2(1)(a)(ii)

and (iii) thereof. There is also no dispute that the deceased was of
sound mind when he executed the 2018 document, and no suggestion
of
fraud or undue influence.
[7]
The principal issue to be determined is whether the deceased
intended
the 2018 document to be his will as contemplated in s 2(3) of
the Act.
Relevant
factual background
[8]
The material facts, which are now largely common cause, are as
follows. The deceased was an intelligent person and a meticulous

planner. He held four university degrees and at the time of his death
was employed at the City of Cape Town’s Transport Development

Authority as a Principal Planning Officer in Urban Planning and
Mechanisms. He was unmarried with no children. In addition to the

applicant, Chris, Lizelle and Lauren were his family.
[9]
During August and September 2018 the deceased’s health
deteriorated to the point where he became physically weak. He
consulted his doctor who referred him to a cardiologist. On
27 September 2018 he underwent an angiogram. The results showed

a leaking heart valve and an aortic aneurysm, necessitating urgent
heart surgery.
[10]
On 3 October 2018 the deceased, accompanied by the applicant,
consulted the specialist who would perform the surgery.
They learnt
that it was scheduled for Monday 8 October 2018 and the deceased
would be admitted to hospital on Sunday 7 October
2018. Based on
the consultations which the deceased had with the cardiologist and
specialist, he was acutely aware that the surgery
could be
life-saving but could also trigger a death-causing event. After
consulting with the specialist the deceased informed Chris,
Lizelle
and Lauren that he was due to undergo surgery. He underwent the
surgery on 8 October 2018, but remained in intensive
care until
he passed away on 17 October 2018.
[11]
According to the applicant, although the deceased was understandably
hopeful that the surgery would save his life, he was also
a realist,
and prepared himself and his affairs in case of the worst possible
result.
[12]
On Thursday 4 October 2018 he nominated the applicant as the sole
beneficiary of his Cape Municipal Pension Fund. According
to the
applicant, from Friday 5 October 2018 until Sunday 7 October 2018 he
spent considerable time thinking about, and drafting,
the 2018
document. That document is fully reproduced hereunder:
[See
PDF for image]
[13]
The applicant states that on Saturday 6 October 2018 the
deceased told her that he was writing his will and asked her
for the
identity document of their domestic worker Adelaide, to whom he
wished to bequeath his Sanlam shares, as well as the erf
number of
the Harfield Village property. She could not locate Adelaide’s
identity document and this is why her surname is
not mentioned in the
2018 document. The deceased signed the 2018 document at about 11am on
Sunday 7 October 2018, before leaving
for hospital at around midday.
However, after signing the 2018 document and before leaving for
hospital, the deceased had an exchange
of WhatsApp messages with
Chris, who was not only his brother-in-law, but is also an attorney
who for many years advised him on
his work, personal and legal
affairs.
[14]
At 11.17am the deceased, having taken a photograph of the 2018
document, sent the following message to Chris:
‘
Bakes, here are
some thoughts regarding an updated Will which has not been legalized
yet. For the record If something should happen,
I would like my ashes
scattered on the Bushmans river. Kins.’
[15]
The response from Chris, sent at 11.23am, reads as follows:
‘
OK – will
arrange accordingly – will finalize with you over Christmas –
will also need to decide how you will
deal with the bond on the
property – thinking of you tomorrow – sure all will be
well.’
[16]
The deceased’s response a minute later at 11.24am was ‘
Thanks
Bakes Boet’.
[17]
The reference to ‘
the bond’
in the WhatsApp
message from Chris was to the mortgage bond registered over the
immovable property in Harfield Village, Cape Town
in which the
applicant and deceased resided at the time of his death and which is
registered in their names jointly. It was purchased
in July 2016 for
R1.6 million and a mortgage bond was registered in favour of SB
Guarantee Company (Pty) Ltd for R750 000.
According to Chris it
is the amount still owing under this mortgage bond which is largely
responsible for the shortfall in the
deceased’s estate.
[18]
Prior to its purchase the property was rented by the applicant, and
she and the deceased resided there together from time to
time from
2007 until 2012 when he moved in with her permanently. He previously
owned a flat in Kloof Street, Cape Town, where they
also resided
together from time to time during that 5 year period. This flat was
bequeathed to the applicant in the deceased’s
2011 will, but
subsequently sold by him in 2016. The proceeds were applied to the
purchase of the Harfield Village property with
the bond securing the
balance of the purchase price.
[19]
The applicant maintains that ‘
bequeathing’
his
undivided half share of the Harfield Village property to her in the
2018 document is a ‘
strong indicator’
that it was
intended by the deceased to be his will, because it reflects his
intention to ensure that she would be secured in their
home if he
died, whereas if the 2011 will is accepted then his share of the
property devolves on Lauren as residual heir. As I
understood it,
there is no insurance policy in place to settle the amount owing
under the mortgage bond in the event of the death
of either the
applicant or the deceased.
[20]
The crux of the applicant’s case is furthermore found in the
following paragraphs of her founding affidavit:
‘
210. Pete did
not simply write his name, surname and identity number on the 2018
Will. He signed it too. His signature is a clear
indication that Pete
took ownership of the contents in the 2018 Will and intended it to be
his final “will”. Pete knew
and understood the value of a
signature on a document. During his 63 year life, Pete signed many
documents (such as, reports, wills
and contracts). Pete knew that his
signature on the 2018 Will would mean that he consented to it and
recorded that he regarded
it as binding on himself.
211. As stated above,
I knew Pete for more than 30 years. I knew him well enough to say
confidently that if Pete did not intend
the 2018 Will to be his will
then he would not have signed it. Nor would he have carefully put the
signed document in an envelope
that he then placed into a holder
which he kept in his briefcase that he stored safely in our kitchen
cupboard where it could be
found if he were to die.
212. The fact that
Pete did all this speaks volumes for its consistency with how I came
to know Pete as a person, namely, he did
this with a clear purpose in
mind: he intended the 2018 Will to be his “will” if he
died.
213. This is the
reason he chose to send a copy to Chris, an Attorney, who Pete knew
as someone who understood the law and would
be able to take the
necessary steps to give effect to the 2018 Will even though Pete
understood that the “updated Will …
has not been
legalized yet” by witnesses signing it.
214. I verily believe
that, although Pete was not schooled in law, he may well have been
aware that the 2018 Will may be “legalized”
later on by
our courts if needs be…’
[21]
Years earlier, and during 1998, the deceased told Chris that he
wished to appoint his nieces as his heirs. As they were still
minors
at the time, Chris suggested that he appoint Lizelle, failing whom
their daughters, as they would in any event inherit from
Lizelle if
she were to predecease them. The deceased followed this advice, which
he also considered to be appropriate given the
role that his sister
had played in his life.
[22]
Chris prepared a will for the deceased to this effect, which he sent
to him for consideration. The deceased signed it in Cape
Town but
returned it to Chris unwitnessed and undated. A copy of this document
is annexed to the answering affidavit. Chris telephoned
the deceased
and informed him that a will that is not signed before 2 independent
and competent witnesses is not valid, and that
he should therefore
re-sign it on his visit to Port Elizabeth for the Christmas holidays,
which were imminent. The deceased duly
did so on 7 January 1999
before 2 independent and competent witnesses, namely Jessie McMorland
and Therese Lightfoot, to whom
he was personally known. A copy of the
1999 will is also annexed to the answering affidavit together with
confirmatory affidavits
from the 2 witnesses concerned. Chris states
that the deceased was thus fully aware of the requirement that a
will, in order to
be valid, had of necessity to be signed before 2
witnesses.
[23]
During 2011 the deceased
discussed with Chris his wish to leave the Kloof Street flat to the
applicant, indicating that he had already
spoken about it with her.
He also wanted to leave his musical instruments to his friend, Keith
Cattell, and the rest of his estate
to Lauren, including the Bushmans
River property, which he had by then acquired.
[4]
Again Chris prepared a will for the deceased in accordance with his
wishes. The deceased thereafter accompanied the family on holiday
to
Botswana in October 2011, and on their return to Port Elizabeth,
Chris arranged for the deceased to sign the will before 2 witnesses

to whom he was personally known. This is the 2011 will.
[24]
According to Chris the deceased called him a few days before his
scheduled 2018 surgery. He told Chris that he was having thoughts

about a proposed update to his will. He said that he would send Chris
this update via WhatsApp. Chris cannot recall the precise
exchange,
but states that it was clear to him from their discussion that the
purpose in sending the 2018 document to him was, once
again, to
obtain input and advice and to assist the deceased in finalising it.
Chris confirmed that he would look at the document
and thereafter
revert with advice. The applicant is unable to dispute that the
conversation took place although she claims that,
if it had occurred,
it would reasonably have been expected of the deceased to refer to it
in the message he later sent.
[25]
The subsequent WhatsApp exchange on 7 October 2018 was the
product of that discussion. The reason why Chris raised the
bond
issue was because he was aware of its existence, and the deceased had
previously mentioned that the outstanding indebtedness
was sizeable.
Chris states he was also aware that there were no substantial or
realisable assets in the deceased’s estate
other than the
Harfield Village property. He therefore considered it important that,
if the deceased’s half share was to
be left to the applicant,
the bond indebtedness be appropriately addressed, ideally without
having to dispose of the property.
[26]
In this regard it should
be mentioned that the applicant made much of the disputed value of
the Bushmans River property which is
referred to in the 2018
document. In my view, nothing turns on this, given that in the same
document it is ‘
bequeathed’
to Lauren and would
therefore in any event not affect the ‘
bequest’
to the applicant of the
deceased’s half share of the Harfield Village property.
Further, and while it is so that the estate
inventory signed by
Lauren reflects a motor vehicle with a value of R200 000, this
too was ‘
bequeathed’
to the applicant in the
2018 document, and cash in bank accounts and the like totalling
R365 856 is not mentioned in that document
at all. In any event,
and as is apparent from the applicant’s replying affidavit, she
subsequently had no regard to the vehicle
or cash when contending
that ‘…
but
for the undervaluation of
[the
Bushmans River]
property,
there would be no shortfall’.
[5]
This therefore does not advance the applicant’s case, but
rather lends credence to Chris’ version that the bond issue

would need to be appropriately addressed.
[27]
According to Chris, at no stage did the deceased indicate to him that
the 2018 document was intended to be his will. Moreover,
despite the
deceased’s prior knowledge of the witnessing requirement, and
the applicant’s own version that it was drafted
over a period
of days, the deceased took no steps to have it witnessed either.
Chris disputes the applicant’s claim that
the deceased did not
have ‘
the luxury of time’
in having the document
witnessed, pointing out that on the evening of 5 October 2018
the deceased even met Lauren for dinner
at a restaurant (at which the
applicant herself was not present).
[28]
The last interaction which Chris had with the deceased was a
telephone conversation between them (and Lizelle) on the morning
of
his admission to hospital on 7 October 2018, in which the
deceased was optimistic that the surgery would be a success,
and was
looking forward to spending Christmas with them again at Bushmans
River. Although the applicant concedes that the deceased
was hopeful,
she maintains that he made no plans for the forthcoming Christmas
holiday due to the uncertainty about the success
of the surgery.
[29]
The nub of the respondents’ opposition may be found in the
following paragraph in the answering affidavit:
‘
138. I do not
dispute that the 2018 document sets out Pete’s
“thoughts
regarding an updated Will”
and,
consequently, that the 2018 document may in certain respects align
with his intentions regarding the disposal of his assets
on his
death. Importantly, however, the WhatsApp exchange to which I have
already referred (annexure FA20) makes it clear that
the 2018
document was not his final will and was not intended to be. It was a
preliminary document that was subject to my advice
and input and to
subsequent finalisation.’
Discussion
[30]
Section 2(3) of the Act provides as follows:
‘
(3) 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 No. 66 of 1965), as
a will, although it does
not comply with all the formalities for the execution or amendment of
wills referred to in subsection
(1).’
[31]
Section 2A(c) of the Act reads as follows:
‘
2A.
Power of court to declare a will to be revoked.
---If
a court is satisfied that a testator has--- …
(c) drafted another
document or before his death caused such document to be drafted, by
which he intended to revoke his will or
a part of his will, the court
shall declare the will or the part concerned, as the case may be, to
be revoked.’
[32]
The purpose of s 2(3) is to empower courts:
‘…
to
validate a document that would otherwise not pass muster as a will
due to a technical flaw in its attestation… to avoid
thwarting
the lawful wishes of the deceased would-be testator.’
[6]
[33]
The court must be
satisfied on a balance of probabilities that the deceased intended it
to be his or her will.
[7]
With
reference to Supreme Court of Appeal authority
[8]
the test was described by a full court of this division in
Westerhuis
and Another v Westerhuis and Others
[9]
as follows:
‘
[50] The
Supreme Court of Appeal has stated repeatedly that, when applying
s2(3), the real question is whether the deceased intended
the
document (or any amendment) thereto to be her will. And so, the court
is required primarily to ascertain whether at the time
of drafting or
executing the document, or any amendment thereto, as the case may be,
the necessary intention on the part of the
testator has been
established. Such an enquiry entails an examination of the document
in the context of the surrounding facts and
circumstances and the
party so alleging must show unequivocally that the intention existed
concurrently with the execution or drafting
of the document…’
[10]
[34]
A helpful exposition of
the approach to be adopted is to be found in
Letsekga
v The Master and Others
[11]
where Navsa J (as he then was) stated as follows:
‘
In
Ex
parte Maurice
1995
(2) SA 713
(C) Selikowitz J, in dealing with s 2(3) of the Act,
says the following at 716E-F:
“
In my view,
s2(3) requires that the document in question must have been intended
by the testator to be his/her will. A document
which was intended to
convey information about what a testator wishes to have included or
has already included in his/her will
does not suffice. Written
instructions to an attorney or other adviser so as to enable the
recipient to draft the testator’s
will are not intended by such
testator to constitute his/her will albeit that they record the
author’s intended testamentary
dispositions…”
I am in respectful
agreement with this interpretation of s 2(3) of the Act…
The wording of s 2(3)
of the Act is clear: the document, whether it purports to be a will
or an amendment of a will, must have been
intended to be the will or
the amendment, as the case may be, ie
the testator must
have intended the particular document to constitute his final
instruction with regard to the disposal of his estate
.’
[Emphasis
supplied].
[35]
By way of further
elaboration, it was held by Thring J (with whom Friedman JP
concurred) in
Anderson
and Wagener NNO and Another v The Master and Others
[12]
as follows:
‘
To me the words
of s 2(3) of the Act are clear. The provisions of the subsection
apply only to certain documents. To come within
the ambit of the
subsection the document concerned, be it a will or an amendment of a
will, must have been drafted or executed
by the person concerned with
a certain intention. That intention must have been that the document
should itself constitute his
will or an amendment of his will, as the
case may be. An instruction by a testator to his attorney or other
adviser to draft or
prepare a will or an amendment of a will along
certain lines or in certain terms, no matter how precisely defined,
is not written
with the intention required by the subsection, and
consequently cannot be brought within its terms. The difference
between a document
which is intended by its maker to be his will, or
an amendment of his will, on the one hand, and an instruction by him
to another
person to draw a will or an amendment to a will, is
neither merely technical nor insubstantial: in my view it is
fundamental. In
the former case, the maker of the document intends it
to constitute the final expression of his wishes as regards the
disposal
of his estate. It is not subject to change, save, perhaps,
by means of a subsequent and entirely fresh and separate amendment or

codicil. In the latter case, the maker of the document does not vest
it with the same intention of finality: he anticipates that
another
document will, in due course, be prepared and placed before him for
his consideration and approval, which he may or may
not sign or
alter, as he may wish when it is presented to him.
Any other
interpretation of the subsection would seem to me to be unjustified,
and would open the door to fraud and abuse…
…
Once it is
satisfied that the document concerned meets the requirements of the
subsection, the Court “shall” order the
Master to accept
it…
These considerations
all lead me to conclude that s 2(3) of the Act must be strictly,
rather than liberally, interpreted. Whilst
the pursuit of equity
(sometimes erroneously confused by laymen with “justice”)
and the elimination of hardships are
consummations devoutly to be
wished, their attainment can often not be justified if it entails the
sacrifice of certainty and legal
principle. I do not think that the
Legislature had such a sacrifice in mind when it placed s 2(3) on the
statute book. I find myself
in respectful agreement with what
Selikowitz J said at 716I-717B in
Maurice’s
case
supra
,
which I have already set out above.’
[36]
A strict approach to
interpretation in relation to the intention requirement was confirmed
by Brand J (as he then was) in
Ndebele
and Others NNO v The Master and Another
[13]
where the learned Judge stated that:
‘
Thring J
prescribes a strict approach with reference to the third requirement
– i.e. with regard to the testator’s intention.
In fact,
as far as I am aware, no-one has thus far suggested that there should
be a flexible approach to the issue of intention…’
[37]
The question arises
whether the principles of interpretation enunciated in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[14]
have altered the established approach of a strict interpretation in
relation to the intention requirement.
Endumeni
was
handed down on 16 March 2012. The two decisions to which I was
referred in argument delivered after
Endumeni
,
and which dealt more specifically with the intention of the deceased,
are
Westerhuis
and
Osman
and Others v Nana NO and Another.
[15]
[38]
In
Westerhuis
, as set out above, it was stated that the party
seeking to establish the necessary intention on the part of the
testator must show
unequivocally
(my emphasis) that it existed
concurrently with the drafting or execution of the document. This
appears to me to support the strict
interpretation approach. In
Osman
no reference was made to the strict interpretation requirement.
And in
Grobler
(also handed down after
Endumeni
) it was
not necessary to deal with this aspect because the case was decided
on a different basis.
[39]
Moreover, the applicant
has not suggested that the strict interpretation approach is
incorrect, but has limited her reliance on
Endumeni
to support the now
well-established contextual approach in achieving that
interpretation. Presumably for this reason, much emphasis
was placed
by her on the wording of the 2018 document which
Endumeni
made clear is that the
‘…
inevitable
point of departure is the language… itself, read in context
and having regard to the purpose of the provision
and the background
to the preparation and production of the document’
,
which is an objective, and not a subjective, process.
[16]
[40]
Although each case must
be decided on its own particular facts, I have found guidance for
present purposes in the decision of the
Supreme Court of Appeal in
Van
Wetten and Another v Bosch and Others
.
[17]
In that case it was accepted that letters by the deceased which
accompanied the contested will threw light on his intention in

composing it. It was also found that evidence of subsequent conduct
is relevant only insofar as it indicates what was in the deceased’s

mind at the time of making the document.
[41]
In that case the words used by the deceased in the contested will
included ‘
I have made the following decisions…
declare all previous will and testaments not valid from this day…
as of today
5 September this is my will to be followed’.
In
addition, the deceased was contemplating suicide when he drafted the
document, and he handed it to a friend (and not his attorney
for
drafting purposes) for safekeeping, to be opened only in the event of
something happening to him or him changing his mind.
All of these
factors led the Supreme Court of Appeal to conclude that:
‘
[26] These are
not the words of a person giving instructions for the drafting of his
will. They are the words of a person who has
made a decision to which
immediate effect is to be given. They are his will. The very words
used by the deceased are thus also
decisive of the question before
the Court: the deceased intended the document to be his will. The
surrounding circumstances, and
in particular, as I have said, the
handing over of the documents in sealed envelopes to Van der
Westhuizen, to be opened only should
something happen to him, lead to
the same conclusion.’
[42]
In
Van
Wetten
it
was also held that ‘…
the
real question to be addressed at this stage is not what the document
means, but whether the deceased intended it to be his will
at
all’.
[18]
[43]
Having considered the
aforementioned authorities, my view is that the further reliance
placed by the applicant on the interpretive
approach considered in
KPMG
Chartered Accountants (SA) v Securefin and Another
[19]
is misplaced. That decision had nothing to do with s 2(3) of the
Act. It dealt with the parol evidence rule.
[44]
The applicant submitted
that in
Schnetler
NO v Die Meester en Andere
[20]
the Court rejected a similar argument to that raised by the
respondents. However this submission overlooks the fact focused
nature
of the enquiry. The only similarities to the instant matter
were that the document (also written in the deceased’s
handwriting
and not signed by witnesses) was signed by him at the end
of the document; and those to whom ‘
bequests’
were made were
identified.
[45]
The differences were that the document comprehensively set out the
deceased’s assets, specifically named his children
but made no
‘
bequests’
to them (he had a poor relationship
with them and stated during his lifetime that he would disinherit
them), made stipulations
about his funeral arrangements and stated
further that it was his ‘
last will’
. The document
was also the sole memorial of the deceased’s intention. It was
found in a sealed envelope in his home after
his death, was
unaccompanied by any other instruction of whatsoever nature, and
there was no information about any previous wills
drawn up or
executed by him.
[46]
It is against this
background that I now consider the facts in the present case in order
to determine whether the deceased intended
the 2018 document to be
his ‘
final
will and testament’
,
[21]
i.e. whether that document constitutes a ‘
fixed
and final expression’
[22]
of the intention to dispose of his property on death. In this regard
it is necessary to bear in mind that it is
not
the applicant’s
case that the 2018 document was intended to be an amendment to the
2011 will. She has pinned her colours firmly
to the mast of the 2018
document being the deceased’s will and for this reason has
sought an order declaring that it revoked
the 2011 will in its
entirety.
[47]
The objective facts reveal the following. The deceased was an
educated man who was meticulous in the planning of both his work
and
personal affairs. He was well aware that in order for a will to be
properly executed, it was necessary for him to sign it in
the
presence of two witnesses. This he had done on no less than two
previous occasions. Furthermore, when he executed both the
1999 and
2011 wills, he devoted considerable thought to what they should
contain, and on each occasion discussed his intentions
with Chris,
who subsequently drafted them in accordance with his final
instructions.
[48]
He knew, by the latest, on 3 October 2018 (and in all
probability earlier) that his scheduled surgery could just as likely

be life-saving as it could trigger a death causing event. He was
undoubtedly under an enormous amount of stress but, as the facts

demonstrate, he nonetheless followed the same
modus operandi
as he had in respect of both the 1999 and 2011 wills.
[49]
The deceased contacted Chris and told him that he was thinking about
a proposed update to his will. This undisputed fact alone
is a strong
indicator that he was considering, at best, an amendment(s) to the
2011 will, and not that he intended to revoke it
in its entirety.
This is supported by the facts that nowhere in the 2018 document did
he nominate an executor/trix and nor were
all of his assets (i.e.
cash in bank accounts) dealt with. Chris told him that he would look
at the proposed update and revert
with advice thereon.
[50]
The words ‘
latest updated will’
on the 2018
document cannot be viewed in isolation. The deceased prepared the
document, after his discussion with Chris, over a
few days
(indicating, yet again, that he gave considerable thought to this
proposed update). The applicant contends that if Chris
is to be
believed then she would have expected the deceased to specifically
refer to their conversation in his first WhatsApp message
on
7 October 2018. However this contention is not supported by the
contents of that message. Nor is it supported by the message
from
Chris in response.
[51]
If this was something out of the blue, Chris would surely have asked
the deceased why he had sent him ‘
some thoughts regarding an
updated Will which has not been legalized yet’.
Nor would
Chris have responded ‘…
will finalise with you over
Christmas – will also need to decide how you will deal with the
bond… thinking of you tomorrow
– sure all will be well’.
And if the deceased had intended the 2018 document to be his final
testamentary instruction, it is difficult to understand why
instead
of immediately pointing this out in response, he simply conveyed his
thanks to Chris.
[52]
To my mind, the deceased’s signature at the foot of the 2018
document, viewed in proper context, was nothing more than
a
confirmation of his ‘
thoughts’
. The applicant’s
belief that the deceased may have been aware that the 2018 document
could be legalised by the courts in
the event of his death is not
supported by the historical facts and is in any event subjective.
Even accepting the applicant’s
evidence that on 6 October
2018 the deceased told her that he was writing his will, and asked
for certain information for
this purpose, it cannot be overlooked
that he only completed the document on the following morning, and
almost immediately thereafter
took a photograph and sent it to Chris
with his accompanying message. And if the deceased had already
decided that if he survived
the surgery he would in any event not be
able to visit Chris at Christmas, this too would surely have been
pointed out by him when
Chris responded in the manner that he did.
[53]
The applicant also made much of her nomination as sole beneficiary of
the deceased’s pension fund on 4 October 2018,
maintaining
that its incorporation by reference in the 2018 document is a further
indicator that it was intended to be his final
will. But the simple
fact of the matter is that, given her nomination, the proceeds would
be paid directly to her, and would not
fall into the deceased’s
estate. Moreover, given the deceased’s discussion with Chris,
he may well have considered
it important that Chris knew what he
planned to do with the proceeds of his pension fund, particularly in
light of the sizeable
bond liability.
[54]
Accordingly, an examination of the document itself and of the
document in the context of the surrounding circumstances, leads
me to
conclude that it was a recordal of the deceased’s testamentary
intentions, and
not
what he intended to be his will for
purposes of s 2(3). It follows that s 2A(c) need not be
considered. It also follows that
the application must fail.
Costs
[55]
As alluded to earlier, the notice of motion was couched in
far-reaching terms, and some prayers (along with two unmeritorious

points
in limine
) were only abandoned when the matter was
argued. Moreover the applicant’s affidavits contained not only
a number of unfortunate
ad hominem
attacks on the respondents,
but also an attack on the validity of the 2011 will itself, separate
from the issue of its purported
revocation. Given the tragic
circumstances of this case, I might otherwise have been inclined to
make no order as to costs. However,
given the aforegoing, and the
wasted time and expense to which the respondents were put as a
result, it is my view that the appropriate
order is the one that
follows.
[56]
I accordingly make the following order:
1. The application is
dismissed and the interim interdict granted by agreement between the
parties on 2 July 2019 is discharged.
2. The applicant shall
bear the costs of both the application and the conditional
counter-application on the scale as between party
and party as taxed
or agreed, as well as any reserved costs orders.
______________________
J I CLOETE
[1]
Part B pertained to interim relief and an order was granted by
consent on 2 July 2019.
[2]
The eighth respondent was added as the fourth interested party at
the commencement of argument by consent. The applicant also

abandoned her points
in
limine.
[3]
The document was thus created by the deceased personally and was
thus ‘
drafted
or executed’
by
him: see
Bekker
v Naude en Andere
2003
(5) SA 173 (SCA).
[4]
Chris and Lauren tragically lost their elder daughter (Kerri-Lee) in
2003.
[5]
At para 170.
[6]
Grobler
v Master of the High Court and Others
(645/2018)
[2019] ZASCA 119
(23 September 2019) at para [13].
[7]
Grobler
(
supra
)
at para [17].
[8]
Van
Wetten and Another v Bosch and Others
2004
(1) SA 348
(SCA) at para [16];
De
Reszke v Marais and Others
2006
(2) SA 227
(SCA) at para [12].
[9]
(A276/2017)
[2018] ZAWCHC 84
(27 June 2018) at para [50].
[10]
I do not understand the full court’s reference to
‘
unequivocally’
to set a standard of
proof higher than the usual civil standard as set out in
Grobler
(
supra
).
[11]
1995 (4) SA 731
(WLD) at 735C-G which was referred to with approval
in
Grobler
(
supra
).
[12]
1996 (3) SA 779
(CPD) at 784G-785H.
[13]
2001 (2) SA 102
(CPD) at para [27].
[14]
2012 (4) SA 593 (SCA).
[15]
(37220/2018) [2019] ZAGPJHC 161 (3 May 2019).
Cf
Taylor and Others v Taylor and Others
2012
(3) SA 219
(ECP) at para [6], a decision handed down on 15 November
2011 and thus pre-
Endumeni.
[16]
Endumeni
at para [18].
[17]
2004 (1) SA 348
(SCA) especially at paras [9], [21], [25] and [26].
[18]
At para [16].
[19]
2009 (4) SA 399
(SCA) at paras [38] and [39].
[20]
1999 (4) SA 1250 (C).
[21]
Van
Vuuren and Another v Master of the High Court and Others
(37901/2014) [2015]
ZAGPPHC 67 (3 March 2015).
[22]
Osman
(
supra
)
at para [23].