J W v Williams-Ashman NO and Others (16108/19) [2020] ZAWCHC 27; 2020 (4) SA 567 (WCC) (28 April 2020)

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[2020] ZAWCHC 27
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J W v Williams-Ashman NO and Others (16108/19) [2020] ZAWCHC 27; 2020 (4) SA 567 (WCC) (28 April 2020)

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Republic
of South Africa
IN THE HIGH COURT OF
SOUTH AFRICA
[WESTERN
CAPE DIVISION, CAPE TOWN]
[REPORTABLE]
Case
no: 16108/19
In
the matter between:
J
W
Applicant
and
DAVID
HOWARD WILLIAMS-ASHMAN
N.O
First
Respondent
(in
his capacity as executor of the estate late
NW)
MASTER
OF THE HIGH COURT, GAUTENG DIVISION
Second
Respondent
JOHANNESBURG
J
C
Third Respondent
I
N
F
Fourth Respondent
THE
SPEAKER OF THE NATIONAL
ASSEMBLY
Fifth
Respondent
CHAIRPERSON
OF THE NATIONAL COUNCIL
Sixth
Respondent
OF
PROVINCES
MINISTER
OF JUSTICE &
CORRECTIONAL
SERVICES
Seventh
Respondent
JUDGMENT DELIVERED ON
28 APRIL 2020
SHER, J:
1.
Section
2B of the Wills Act
[1]
provides
that if a person dies within 3 months after  they were divorced
or their marriage was annulled, any will which they
executed prior to
such divorce or annulment must be given effect to as if their former
spouse had died before such dissolution,
unless it appears from the
will that they intended their spouse to benefit notwithstanding it.
2.
In essence, in circumstances where it
applies the provision disinherits the former spouse and results in
their inheritance devolving
by way of intestate succession on the
testator’s heirs, instead of to them in terms of any
disposition which was made in
their favour in the will.
3.
Although
the provision came into operation some 28 years ago
[2]
and is one which is found in similar form in many international
jurisdictions including many states in the USA, as well as in the
UK,
New Zealand and a number of states in Canada and Australia, it is
still not one which many people in this country are aware
of.
4.
The applicant seeks an order declaring that
the provision is inconsistent with the Constitution, primarily on the
grounds that it
conflicts with s 25(1) thereof and is   contrary
to public policy. He also submits that it offends the provisions of s

34 of the Constitution. The application is opposed by the parents of
the applicant’s late wife (third and fourth respondents)
as
well as by the Master of the High Court (second respondent).
The
relevant facts
5.
The applicant is the former spouse of the
late NW. The parties were married to one another out of community of
property and subject
to the accrual system, on 11 June 2011. Some 4
days before their marriage NW executed a will in which she bequeathed
her entire
estate to her ‘husband’ ie the applicant and
appointed the first respondent, her attorney, as executor.
6.
In 2015 the parties sought marriage
counselling and a year later, some 5 years after their marriage, they
separated and the applicant
instituted divorce proceedings.
7.
In August 2016 the parties signed a
‘consent paper’ in terms of which they acknowledged that
their marriage had broken
down irretrievably and that there was no
reasonable prospect of it being saved, and recorded their agreement
in relation to the
proprietary consequences which should follow in
respect of their assets, on divorce.
8.
In this regard, as far as their fixed
assets were concerned they agreed that an immovable property in
Greenside, Johannesburg which
was registered in the name of NW should
remain hers and an immovable property in Edgmead, Cape Town which was
jointly registered
in their names should be awarded to the applicant.
They further agreed that a farm in Oudtshoorn and a flat in Cape Town
which
was held by a trust which they had established was to be
awarded to the applicant and to NW respectively.
9.
As far as their other assets were concerned
they agreed that a 30% shareholding which NW held in a manufacturing
business which
was operated by the applicant should be transferred to
him, as well as a Toyota Land Cruiser which was registered in NW’s

name, whilst she was to keep an Audi which was registered in her
name.
10.
In addition, the applicant agreed to
transfer an amount of R 332,000 to NW whilst the proceeds standing to
the credit of a joint
investment account which the parties held was
to be split equally between them, as were their household effects and
furniture.
11.
According to the applicant the terms of
this settlement were negotiated amongst the parties without legal
assistance.
12.
On 20 September 2016 the divorce came
before the regional magistrate of Cape Town on an unopposed basis and
a month later, on 24
October 2016, a final decree was issued which
incorporated the provisions of the consent paper.
13.
On 18 October ie about a week before the
decree of divorce was issued NW sent the applicant an email in which
she enquired whether
he had changed his will, or whether their
agreement that they would leave their assets to one another in the
event of their death
still stood. She repeated that this was her
wish, to her former bridesmaid, shortly before her death.
14.
I point out that although the applicant
also made a will on 7 June 2011, in it he bequeathed his estate to
the children of his former
marriage, and not to NW. Given the
contents of her email it appears that NW was under the impression
that in his will the applicant
had provided that she was to inherit
his estate in the event of his death.
15.
The applicant did not reply to this email
and avers that in a subsequent telephonic conversation which he had
with NW he informed
her that notwithstanding their divorce their
wills would remain ‘the same’.
16.
After they were divorced the parties
continued to remain in regular contact with one another. The last
communication which the applicant
had with NW was at the end of
November beginning December 2016, when she indicated that she wanted
to move to his farm, a request
which he was not amenable to as she
was living on her own.
17.
From 5 December 2016 onwards NW failed to
respond to the applicant’s cellphone messages and telephone
calls. Over the course
of the next few days he made enquiries of her
friends and family members but none of them had heard from her. On 8
December he
asked a friend to check on her, at which time it was
ascertained that she had committed suicide. The death certificate
records
her date of death as 8 December 2016 ie within a period of
less than 3 months from the date of the divorce.
18.
In
the circumstances the provisions of s 2B became applicable. The
effect of this is that NW is to be considered as having died

intestate, and by virtue of the relevant provisions
[3]
of the Intestate Succession Act
[4]
her parents would inherit her estate in equal shares, as there were
no children born of the marriage.
19.
In his founding affidavit the applicant
said that NW had previously attempted to commit suicide in 2013 and
again in 2014, and in
1991 she had been diagnosed with a bipolar mood
disorder, and over the course of many years both before as well as
during their
marriage she had been treated by a number of
psychologists and psychiatrists for this condition as well as for a
range of other
disorders including anxiety and depression, which he
alleged arose out of trauma she had sustained during her childhood
due to
emotional, psychological and sexual abuse she had suffered at
the hands of various family members.
20.
Third and fourth respondents objected to
these allegations and the inclusion by the applicant of a number of
deeply personal and
extremely private letters which NW had written
over the course of a number of years, which appeared to constitute
the primary source
from which these allegations were derived, and
they made application for this material to be struck out, on the
grounds that it
was irrelevant and inadmissible.
21.
They complained that these allegations were
scandalous and vexatious and  pointed out that some of the more
egregious of them
had been retracted by NW in further letters which
she had written, in which she had declared that they were untrue,
which letters
the applicant had not included amongst the documents
which he annexed to the founding papers.
22.
The respondents averred that the contents
of the documents which the applicant had annexed in support of these
allegations not only
breached the patient-doctor confidentiality
which had existed between NW and her treating practitioners but, in
addition, largely
constituted unadulterated hearsay (not only because
they emanated from NW but also because many of the practitioners from
whom
some of the information had been obtained had not been
identified), and the allegations could thus not possibly be dealt
with or
refuted, if they were allowed to stand.
23.
The applicant sought to justify the
inclusion of this material (which was voluminous and which took up a
good deal of his founding
papers) on the basis that the respondents
had only objected to some of it and much of it was not hearsay as it
pertained to facts
or circumstances which he had personally
experienced, and was in any event not being presented for the truth
thereof but rather
because it constituted a ‘manifestation’
of NW’s subjective experiences and ‘struggles’
throughout
her life, and demonstrated the unfortunate effect which
the statutory provision had on him as a person. The applicant
contended
that, as a result, in a broad sense the material was
relevant to the underlying issues which underpinned the
constitutional challenge.
24.
In my view the respondents are correct when
they say that the inclusion of this material was inappropriate and
irrelevant and was
little more than an ill-disguised attempt to paint
them as abusive and neglectful parents, and as such amounted to an
attack on
their character and reputation, as well as that of the
broader family. That this was in fact the motive for including this
material
is evident from paragraph 44 of the founding affidavit
where, after highlighting some of the more egregious incidents of
abuse
which NW was said to have suffered, the applicant alleged that
whether or not such incidents were true was irrelevant, as NW
believed
them to be so, and consequently the persons who perpetrated
these believed injustices were not persons who she wished should
benefit
on her death, and demonstrated that the operation of the
statutory provision against the applicant would therefore lead to an
‘unjust’
result.
25.
In my view, even if it could be said that
it would be ‘unfair’ for third and fourth respondents to
inherit by way of
intestate succession (which it is common cause
would be the effect of the Court upholding the contention that s 2B
revokes any
disposition which was made in NW’s will in favour
of the applicant), almost all of this material (which includes
personal
and disturbing musings pertaining to NW’s childhood
and a short and unhappy previous marriage which she entered into when

she was 21 years old)- save for some background circumstances which
formed a necessary part of the narrative which needed to be
told, is
wholly irrelevant to the issues which I am called upon to decide and
should never have been included.
26.
It does not have any direct bearing on the
legal question of whether or not s 2B is unconstitutional or contrary
to public policy,
and if it is allowed to stand it would be extremely
prejudicial to the respondents and affect their standing and
reputation in
the community, as well as that of other family members,
and as such it must be struck out. The Order which I propose making
in
this regard appears at the end of this judgment.
The
historical origins of the provision
27.
S
2B was introduced into the Wills Act pursuant to the final
recommendations which were made by the SA Law Commission in June
1991
[5]
following an exhaustive
review which it conducted into the SA law of succession over a period
of some 6 years between 1985 and
1991, which focused both on
intestate succession as well as on the formalities pertaining to, and
the alteration and revocation
of, wills.
28.
The
Commission pointed out that since 1969 an increasing number of
countries had introduced legislation which provided for the
revocation, either wholly or in part, of a prior will which had been
made by a testator who subsequently divorced or whose marriage
was
annulled, following upon similar studies which had been conducted by
law reform bodies in a number of jurisdictions.
[6]
29.
The
first of these statutory reforms occurred in the USA in 1969 when s
2-508 of the Uniform Probate Code (UPC) was adopted at a
‘national’
level, and was later adopted incrementally in a number of states.
[7]
It provided that a divorce or annulment would revoke any disposition
of property which was made in a prior will to a former spouse
[8]
unless the will expressly provided otherwise, and any property which
was prevented from passing to the former spouse by virtue
of such
revocation would pass as if the former spouse had failed to survive
the decedent ie as if he or she had predeceased the
testator.
[9]
30.
Similar
provisions were introduced in Ontario
[10]
and New Zealand
[11]
in 1977,
in British Columbia in 1979,
[12]
Saskatchewan
[13]
and
Queensland
[14]
in 1981 and
Manitoba
[15]
in 1982.
31.
In
1983 the UK Wills Act of 1837 was amended
[16]
to provide that the prior will of a testator in the UK who had been
divorced or whose marriage had been annulled was to take effect
as if
the appointment of his/her former spouse as executor or trustee had
been omitted, and any ‘devise’ or bequest
to the former
spouse would ‘lapse’, except insofar as a contrary
intention appeared from the will.
32.
Some
3 years later, in 1986, the Scottish Law Commission recommended
[17]
that statutory provision should be made for the revocation of any
disposition in a prior will in favour of a former spouse
[18]
as if he/she had predeceased the testator/testatrix, unless the will
provided otherwise. These recommendations were adopted into
law in
Scotland in 2016.
[19]
33.
Legislative
amendments providing for the partial statutory revocation of wills
were similarly affected in all the remaining states
in Australia
including South Australia
[20]
(1996) Victoria
[21]
(1997) New
South Wales (2006)
[22]
and
Western Australia.
[23]
34.
In
Tasmania
[24]
an amendment
which was apparently effected in 1985 whereby a prior will would be
revoked in its entirety on divorce or annulment,
unless a contrary
intention appeared from it, was reversed in 2008 to provide for
partial revocation only
[25]
and, in an opposite reverse in regard to its legal position, in the
same year Western Australia amended its law to provide for
the
complete revocation of wills which predate a divorce or annulment
(and not only dispositions made to a former spouse, or his/her

appointment as executor or trustee, as was previously the case).
[26]
35.
In Victoria, Tasmania, South Australia and
Queensland a statutory exception to the revocation of the appointment
of a former spouse
as a trustee in testamentary trusts which have
been established for the benefit of children of the parties, or their
appointment
as guardian to such children, exists.
The
justifications offered for statutory revocation on divorce
36.
The principal justifications which were
offered by the Commission for our own statutory amendment whereby a
prior will is to be
treated as having been revoked insofar as a
testator’s former spouse is concerned, are universal
justifications which were
put forward by all of the law reform bodies
whose reports the Commission had regard for.
37.
These justifications, briefly, are as
follows. In the first place it was generally accepted that with the
emotional upheaval which
often accompanies divorce a
testator/testatrix might not appreciate that a prior will which they
had made in favour of their former
spouse, during happier times,
would have to be given effect to notwithstanding the divorce, unless
it had been revoked by a subsequent
will which gave effect to the
testator’s contemporary wishes, and many a testator/testatrix
might neglect to make a new will
whilst focusing on the divorce
process. In this regard the prevailing view was that most spouses who
got divorced would, if they
thought about it, not want their former
spouse to benefit upon their death, at least not to the same extent
as they would have
benefited had the marriage still been in
existence.
38.
In the second place, it was thought that in
the majority of divorces the parties usually arrived at an agreement
in terms of which
they settled their differences and agreed upon the
proprietary aspects pertaining thereto, including how their assets
should be
divided amongst themselves, and consequently in the event
that a prior will in favour of a former spouse had not been expressly

revoked by a later one it might result in the former spouse being
unduly benefited by way of an ‘over-provision’, at
the
expense of other beneficiaries, if the will was given effect to.
39.
In the third place all of the law reform
bodies pointed to an ever-increasing divorce rate in most countries,
which it appears,
could be ascribed not only to the growing
population rate but also the rising abolition of the fault
requirement and a move towards
the grant of divorce on the simple
grounds of the irretrievable break-down of a marriage. The result of
the increase in the divorce
rate and simplified procedures that came
with the modernization of the process inevitably meant that more and
more people were
opting to get divorced without the benefit of legal
advice from lawyers, and many such persons would therefore not
realize that
unless they altered their wills on divorce their former
spouses would continue to inherit in terms of them, often to the
prejudice
of new spouses and children which they may have had.
40.
Thus, the Commission was of the view that
because it was generally difficult to inform and educate the general
public as to the
consequences of leaving an unrevoked prior will in
place in the event of divorce, it was necessary to provide for a
legislative
provision which effected an automatic, statutory
revocation thereof.
41.
However, because the Commission envisaged
that there might be instances where, notwithstanding a divorce, a
testator/testatrix might
deliberately not wish to revoke a prior will
because he or she intended nonetheless to benefit their former
spouse, it proposed
that the statutory revocation should make an
exception for those instances where such intentions had clearly been
expressed in
a will.
42.
In considering whether the proposed
statutory revocation should revoke a prior will wholly (ie in its
entirety) or only partially
(ie only in respect of dispositions which
were made in favour of a former spouse) the Commission considered
various approaches
which had been adopted in other countries.
43.
In
the first instance, it noted
[27]
that in some states the Courts had been given a discretion to declare
a will as being revoked, or to modify the ambit and operation

thereof. The Commission was not in favour of such an approach, as in
its view it would cause too much uncertainty.
[28]
In this regard it pointed out that the Ontario Law Reform Commission
(‘OLRC’) had rejected this approach on the basis
that it
would pose difficult questions for a judge, and could lead to
inconsistent judicial interpretations and the prospect of
endless
litigation and appeals.
[29]
44.
Because
of the difficulties with this discretionary approach, an alternative
which was adopted in some states
[30]
was to provide that divorce or annulment would result in an automatic
revocation of the entire will.
[31]
Although, as the OLRC pointed out, such an approach appeared at first
blush to be simple and straightforward and one which would
be
unambiguous in its operation, it could also result in unfairness to
other beneficiaries, including children. The OLRC was of
the view
that a statutory provision which struck down an entire prior will on
divorce would amount to ‘legislative overkill’
which
could cause more hardship and injustice than a situation where the
will was left unaffected.
[32]
45.
Thus,
a third alternative which was adopted by certain states was to
provide for partial revocation only, whereby a will was to
be read as
if any provision in it which favoured a former spouse had been
omitted.
[33]
However, whilst
this would have the salutary effect of leaving the remainder of the
will intact the difficulty with the adoption
of such a rule was that
it too could disinherit innocent beneficiaries, particularly in cases
where dispositions were linked to
a former spouse ie where the will
provided that a disposition to a former spouse should go to an
alternative beneficiary, in the
event of his/her death or incapacity.
As the OLRC pointed out such an approach could result in bitter
family disputes between family
members with competing claims.
[34]
46.
In
order to avoid these difficulties, the Commission therefore
proposed
[35]
that the
revocation should be specifically targeted at only preventing a
former spouse from benefitting from a will, by simply
providing that
it was to be read and implemented as if the former spouse had
predeceased the testator, unless it expressly provided
otherwise, in
line with the approach which was adopted by the USA at a national
level by way of s 2-508 of the UPC, and subsequently
endorsed by
numerous states in the USA and a number of states in Canada and
Australia.
47.
Whereas
in its Working Paper in 1987 the draft statutory provision which the
Commission originally proposed contained a fiction
whereby a former
spouse was to be ‘deemed’ to be deceased as at the date
of divorce or annulment, in its final report
[36]
the Commission pointed out
[37]
that the use of a fiction in legislation was undesirable, as it was
based on a false premise and lent itself to uncertainty in

interpretation. In order to obviate this the Commission accordingly
proposed that the statutory amendment should simply be worded
to
provide that a will which had been executed prior to divorce or
annulment would take effect in the same manner as it would have
if
the former spouse were deceased as at the date of the divorce or
annulment, and this recommendation was duly given effect to
in the
legislative amendment which was effected by means of s 2B.
48.
Thus, although the applicant’s
counsel consistently submitted in argument that s 2B contains a
fiction that a former spouse
has predeceased a testator/testatrix
this is not correct.
49.
Lastly, whereas in its original
recommendations in 1987 the Commission had provided for immediate and
‘permanent’ revocation
on divorce or annulment, in its
final report it recommended that this should be tempered by coupling
the revocation to a finite
time period, which it suggested should be
3 months. A prior will (which did not express a clear intent to
benefit a former spouse
notwithstanding a divorce or annulment),
would only be revoked if the testator died within this period.
In the event that
the will had not been revoked (by a later will), by
the time of the expiry of this period, it would not be statutorily
revoked
insofar as the former spouse was concerned, and would have to
be given effect to.
50.
The Commission was of the view that a
period of 3 months would be sufficient time for the testator to amend
or revoke an earlier
will which they may have made, which favoured
their former spouse, and if they had not done so within this period
it could be assumed
that they intended not to alter their previously
expressed wish to benefit their former spouse.
The
challenge in terms of s 25(1) of the Constitution
51.
S 25(1) of the Constitution provides that
no one may be deprived of property except in terms of a law of
general application, and
no law may permit the arbitrary deprivation
of property.
52.
The applicant contends that s 2B infringes
s 25(1) because it arbitrarily deprived NW of her testamentary right
to dispose of her
property in accordance with her express wishes and
arbitrarily deprived him of his right to receive it.
(i)
Freedom of testation
53.
Before turning to consider the relevant
jurisprudence which has emanated in respect of how s 25(1) is to be
applied it is necessary
to say something about a testator’s
right, in our law, to dispose of their property on death.
54.
Freedom
of testation is a fundamental principle
[38]
of our law of succession
[39]
which is predicated on the commonly accepted notion that a testator
is ordinarily free to dispose of their property on their death,
by
means of a will, in such manner as they see fit, and concomitantly, a
Court is ordinarily obliged to give effect to their wishes
as
expressed in such will.
[40]
Consequently, our Courts do not enjoy a ‘general jurisdiction’
to vary the terms of a will as they see fit.
[41]
55.
In
Harvey
[42]
the Supreme Court of Appeal confirmed
[43]
that the ‘deeply entrenched’ principle of freedom of
testation enjoys constitutional protection not only in terms of
s
25(1) but also in terms of the founding constitutional value of, and
the right to, dignity.
56.
In
this regard it held that freedom of testation is an important facet
of the right to dignity which protects not only a testator’s

right to dispose of their property, but also their right to choose
their beneficiaries.
[44]
As was explained in
BOE
Trust
[45]
the right to dignity affords both the living and the dying the ‘peace
of mind’ of knowing that their last wishes will
be respected
and given effect to on their death.
57.
However,
as sacrosanct as freedom of testation may be our Courts have also
repeatedly held that it is not absolute,
[46]
and in appropriate instances it will not be given effect to it where
to do so would be contrary to constitutional imperatives and
public
policy.
58.
Thus,
in a series of cases
[47]
primarily involving charitable testamentary trusts or scholarships of
a public nature or character the Courts have refused to give
effect
to a testator’s wishes where to do so would constitute unfair
discrimination on the grounds of race, religion or gender.
[48]
59.
In
its most recent decision in this regard
[49]
the SCA has pointed out that this is by no means a closed list of the
grounds upon which a Court might legitimately refuse to give
effect
to the principle, on the basis of public policy. It held that, given
the dynamic nature of public policy it will have to
be moulded in the
course of time to meet the conditions of an ever-changing society,
and must at all times be infused with constitutional
values such as
dignity, equality and freedom.
60.
However,
that said, in cases involving matters of freedom of testation our
Courts have nonetheless repeatedly cautioned
[50]
against interfering with the expressed wishes of  testators,
particularly in matters of ‘private’ testation, as
the
Constitution affords them a great deal of testamentary autonomy,
which is ‘an important part of what gives substance’
to
their right to dignity.
[51]
61.
Thus,
it has been held one should be careful not to make a Court the final
arbiter as to the choice of beneficiary in testamentary
dispositions
of a non-public character, for to do so would be to intrude on a
particularly private and personal sphere of life,
involving a
person’s last wishes as to how and to whom to dispose of their
property, and might open a ‘Pandora’s
box’ of
litigation.
[52]
(ii)
Ad a law of general application
62.
In
the case of a so-called ‘frontal’ challenge to the
constitutional validity of a legislative provision the test is
an
objective one, and the subjective position in which a party to the
dispute may find itself does not have any bearing on the
legal status
of the provision.
[53]
The
danger of a Court adopting a subjective approach is that it could
result in it recognizing the validity of the provision in
respect of
one particular litigant only to deny it in the case of another. This
would amount to unequal treatment under the law
and result in legal
uncertainty.
[54]
63.
At
the time when it was passed in 1992, s 2B would only have been
applicable to divorces
[55]
which took place in respect of civil marriages which had been
solemnized in terms of the Marriage Act.
[56]
It is common cause that the marriage of the parties in this matter
was such a marriage.
64.
As third and fourth respondents rightly
point out this matter is not concerned with a challenge to the
constitutionality of the
provision on the grounds that it applies
arbitrarily and unequally only to the divorces of parties who were
married civilly
in terms of the Marriage Act, but not to parties who
were married in terms of other marital regimes, or to parties in
long-standing
but non-marital relationships.
65.
As
was further pointed out by way of supplementary submissions, since
the passing of the Recognition of Customary Marriages Act
in 1998
[57]
customary marriages are recognized as valid and effective marriages
for all purposes in our law, and may only be dissolved by way
of a
decree of divorce on the grounds of the irretrievable break-down
thereof, as in the case of civil marriages.
66.
Similarly,
since 2006 a so-called ‘same sex’ marriage or civil
partnership which is solemnized as a civil union in terms
of the
Civil Union Act
[58]
is subject
to the selfsame legal consequences as a civil marriage, and it too is
therefore subject to dissolution by way of a divorce
in terms of the
Divorce Act.
67.
Whilst
it is so that at present marriages which are solemnized according to
the tenets of Islamic law are not afforded the same
level of legal
recognition as other forms of marriage, pursuant to the decision and
Order of a full bench of this Court in
Women’s
Legal Centre
[59]
in August 2018, until the necessary legislation has been passed by
Parliament
[60]
every such
marriage may similarly be dissolved in accordance with the provisions
of the Divorce Act.
[61]
68.
Thus, as it stands at present, it can be
said that s 2B is a provision which is of general application to
divorces in South Africa.
69.
As third and fourth respondents further
point out, the fact that it applies only to parties who were divorced
ie to parties who
were previously married, and not generally to those
in long-standing relationships who have separated, accords with the
significance
which marriage is afforded in our law.
70.
As
Boqwana J pointed out in
Women’s
Legal Centre
[62]
marriage is an
institution by means of which a private relationship of voluntary
commitment and support between two parties is
brought into the
public, state-regulated domain, which results in legal consequences
(including a range of socio-economic benefits
and legal obligations
inter
alia
of support and maintenance), which do not apply to other
relationships.
71.
In any event as the relationship between
the applicant and NW was a marital one which was dissolved by a
divorce in terms of the
Divorce Act, it is not open to the applicant
to challenge the provisions of s 2
B
on the
basis of any unequal treatment between parties to a marriage, as
opposed to parties to a long-standing relationship.
(iii)
Has there been a deprivation of rights
?
72.
As
De Waal has pointed out
[63]
no
one has a fundamental right to inherit and a potential beneficiary
who is nominated in a will has no more than a
spes
or hope of inheriting. Thus, the exclusion of a beneficiary from a
will does not ordinarily result in the deprivation of any existing

right
per
se
.
73.
However,
an heir or legatee of an unconditional bequest in terms of a will
obtains a vested right on the death of a testator which
becomes
enforceable by way of a claim at the time when the liquidation and
distribution account is confirmed.
[64]
74.
When
the applicant sought to assert his claim as an heir in this matter,
he was informed by first respondent
[65]
that he had not been recognized as a beneficiary in terms of the
liquidation and distribution account, because he was excluded
by
virtue of s 2B.
75.
The question which arises is whether the
applicant is an heir in terms of his late wife’s will. If not,
then the provisions
of s 2B do not find application.
76.
As previously mentioned, in the will which
she made some 4 days before they were married his late wife sought to
bequeath her entire
estate to her ‘husband’, who she
identified by name and identity number as the applicant. Strictly
speaking therefore,
her nominated heir should have been referred to
as her husband ‘to be’.
77.
Be
that as it may, it is trite that when construing a will the cardinal
principle is to ascertain the intention of the testator,
at the time
of the
execution
thereof, from the language used therein.
[66]
What a testator may later say about what their intentions were at the
time when they executed the will, or what their intentions
were at a
later date, even if they had changed, would ordinarily not be of any
assistance in regard to the Court’s duty to
ascertain what the
testator’s intentions were at the time when the will was
executed, by interpreting the will, and would
thus generally be
inadmissible.
78.
This
is because, for well-established and long-standing reasons pertaining
to legal certainty in relation to written testamentary
expressions,
which constitute the bedrock for the law of testate succession, such
evidence cannot be admitted and the will must
be given effect to as
it stands.
[67]
As such, the
beneficiaries will be those who are appointed as such, in terms of
the will, and not those who the testator may have
intended to
constitute as beneficiaries at a later date, but who were not
appointed as such in the will.  After all, as was
said by
Corbett J (as he then was) in
Aubrey-Smith
v Hofmeyr
[68]
in construing a will the object is not to ascertain what a testator
meant to do, but what his intentions were at the time, as expressed

in the will.
79.
Even
where an event has occurred which was not contemplated by the
testator at the time when he made his will, a Court is not entitled

to surmise what his intentions would have been had he contemplated
the occurrence thereof and in so doing give effect to such surmise,

for to do so would be to add something to the will and not to
construe it.
[69]
80.
On the face of it therefore, third and
fourth respondents may well be correct when they submit that on an
ordinary literal interpretation
of the words used in her will the
applicant’s late wife intended to benefit him in his capacity
as her future husband and
not personally, and thus once they were
divorced he no longer qualified as an heir in terms of the will and
was not entitled to
inherit under it. On this basis it could be
argued that the applicant never fell within the ambit of s 2B. The
applicant on the
other hand submits that on a proper interpretation
of the will his description as NW’s ‘husband’ was
meaningless
as he was not in fact married to her at the time, and it
should thus be disregarded, and the will evinces a clear intention to
benefit him personally, given his identification by name and identity
number.
81.
As this issue was dealt with, during the
hearing, on the basis that the question of whether or not the
applicant was NW’s
heir in terms of the will is a matter of
interpretation which is not clear cut and not properly before me in
these proceedings
and is an issue which possibly falls to be dealt
with by another Court in subsequent proceedings, depending on the
outcome of this
matter, I make no pronouncement on this aspect, and
for the purpose of what follows I have assumed that the applicant is
a potential
beneficiary in terms of the will.
82.
On this basis, if s 2B applies to the will
the applicant will suffer a deprivation of his right to inherit the
property which may
have been bequeathed to him and s 25(1) will be
applicable.
(iv)
If there was a deprivation, was it
arbitrary
?
(a)
The principles
:
83.
Previously,
an arbitrary act was defined as one which was capricious, or which
proceeded ‘merely from the will’ (sic)
and was not based
on reason or principle.
[70]
In
this sense then an arbitrary act refers to one which is irrational ie
one in which, according to the accepted formulation, there
is no
rational connection between the means by which the action is affected
and its ends ie the purpose which it is aimed at achieving.
84.
However,
in its seminal judgment in
First
National Bank
[71]
(the first of a trio in relation to s 25(1), the so-called ‘property
clause’) the Constitutional Court held that the
use of the word
‘arbitrary’ in the clause had to be understood in the
context of the Constitution as a whole and the
historical context in
which it came into existence, against a backdrop of colonial conquest
and wholesale expropriation and deprivation
of land rights.
85.
It
referred
[72]
to the inevitable
tension which existed in s 25(1) between individual property rights
and societal interests, and was of the view
that the clause aimed to
strike a proportionate balance between them.
[73]
As such, it held that (as is the case with freedom of testation,
which is an incident thereof) the protection of property as an

individual right was not absolute, and was subject to societal
considerations.
[74]
86.
In
the context of s 25(1) an arbitrary deprivation was therefore not
limited to a non-rational deprivation (in the sense of there
being no
rational connection between means and ends) and referred to a ‘wider
concept and controlling principle’ that
was more demanding than
mere rationality, but narrower than the proportionality required by
the limitations clause (s 36), which
speaks of reasonableness and
justifiability.
[75]
87.
Consequently,
[76]
it is important in every case in which s 25(1) is in issue to have
regard for the legislative context in respect of the deprivation

concerned, and the nature and extent thereof.
88.
Whereas
in some instances the deprivation might be of such a nature that no
more than a rational connection between means and ends
may be
required in order to prevent it from being arbitrary, in other
instances the ends would have to be more ‘compelling’
[77]
in order for it to pass
muster.
89.
After
considering comparative law
[78]
the Court concluded that in terms of s 25(1) a law which provides for
deprivation of property will be arbitrary where it does not
provide
‘sufficient reason’ for the deprivation, or where it is
procedurally unfair.
[79]
90.
Whether
or not sufficient reason for a deprivation exists is to be determined
by evaluating a ‘complexity’ of relationships,
to wit
those between the means employed (ie the form of the deprivation) and
the ends sought to be achieved by it (ie its purpose),
as well as the
relationship between the nature and purpose of the deprivation and
the extent thereof, and the persons affected
and the property
concerned.
[80]
91.
Where
a deprivation includes all the incidents of ownership ie where it is
total in effect its purpose will have to be more compelling,
than
where it only affects some incidents.
[81]
Thus, a ‘minor’ deprivation will more easily be found to
have been effected for sufficient reason than a more invasive
one.
[82]
92.
In
Mkontwana
[83]
the Court held that limitations on property rights which are widely
accepted in other open and democratic societies may also be

acceptable in ours, and may thus not constitute arbitrary
deprivations in terms of s 25(1), and where the government’s
purpose
for a deprivation is ‘legitimate and compelling’
there may well be ‘sufficient reason’ for it.
93.
If
a deprivation is found not to be arbitrary there is no limitation of
the right in s 25(1) and the question of justification in
terms of
the limitations clause (s 36(1)) does not arise. It is only if, and
once, a deprivation is it is found to be arbitrary
that a Court is
thereafter required to consider if it is nonetheless justified in
terms of the limitations clause ie whether it
is reasonable and
justifiable in an open and democratic society based on dignity,
equality and freedom.
[84]
94.
Lastly,
in
Shoprite-Checkers
[85]
the Constitutional Court held that where a deprivation is closely
connected to (or would extinguish) fundamental rights and
constitutional
values, in order for there to be sufficient reason for
it the deprivation should ‘approximate’ proportionality.
Simply
put, in such instances whether or not it is arbitrary must be
determined by testing it against the proportionality standard.
(b)
The principles applied
:
95.
Given that the deprivation which occurs
when s 2B is of application substantially affects a testator’s
right to freedom of
testation, which is a fundamental incident of
their property right in terms of s 25(1), and may also affect the
property rights
of their beneficiaries, and may thereby also breach
the testator’s constitutional right to dignity and those of
their beneficiaries,
the scale in this matter clearly tips towards
the higher, proportionality side of the test rather than the lower,
which requires
mere rationality. Thus, in order for there to be a
sufficient reason for the deprivation there needs to be more than
simply a rational
connection between the means adopted and the ends
aimed at.
96.
The applicant contends that s 2B lacks
sufficient reason on a number of grounds.  Firstly, he submits
that the relationship
between the means employed and the ends
sought to be achieved thereby is disproportionate, as there is no way
to rebut the
‘fiction’ contained in the provision by
evidence outside of the will, and with ‘court oversight’.
97.
Secondly, he contends that the provision
contains an element of irrationality in it, in that it seeks to
protect those who are ‘too
emotional or unawares’ (sic)
of the effect of divorce on their testamentary bequests, whilst at
the same time expecting the
same ‘class’ of persons to be
familiar with a specific provision of the Act, an action which he
describes as ‘counter-intuitive’.
98.
Thirdly, the applicant contends that the
provision fails to cater for the complexity of relationships that
exist between persons
who are divorcing, by creating a presumption
that cannot be rebutted except by way of an express indication ‘on
the face
of’ (sic) the will.
99.
Fourthly, the applicant contends that the
section ousts the ‘general discretion’ of the High Court
which exists elsewhere
in the Act and creates a fictionalized set of
circumstances which cannot ‘guarantee truth-finding’, and
which cannot
be justified. Lastly the applicant contends that the
provision is also procedurally unfair in that it does not permit any
extraneous
evidence to be considered.
100.
I will attempt to deal with these
contentions in the respective constitutional rights categories (ie ss
25(1) and 34), in which
they appear to fall. Some obviously transcend
both, at least in the way the arguments have been made.
101.
At the outset I point out that the
justifications which were put forward by the SALC for why there was a
need to amend our law of
intestate succession to provide for the
statutory revocation of a prior will in favour of a former spouse on
divorce or annulment,
were traversed in some detail above, and I do
not propose repeating  them all over again. In my view, these
justifications
are no less cogent and relevant today than they were
some 28 years ago when the provision was enacted.
102.
In this regard, and by way of summary, I
believe that most people who get divorced today generally still do
not want their former
spouses to inherit in terms of a prior will
which was made in their favour in happier times, especially not after
arriving at a
proprietary settlement with them in terms of which
their respective matrimonial assets are to be distributed.
103.
Secondly, I think that most people who get
divorced today still do not realize that unless they revoke a prior
will which favours
their spouse it will have to be given effect to,
notwithstanding the terms of any generous settlement they may have
arrived at
with them, and notwithstanding that they have parted ways
with them. In fact, they would probably be disconcerted to hear that
this is the legal position and would probably assume that divorce
would automatically result in disinheritance of their former spouse.
104.
In the circumstances the legislative
purpose which the provision sought to achieve when it was introduced
in 1992 is in no way less
compelling today than it was then, and the
provision still seeks to give effect to legitimate and important
societal considerations.
105.
In addition, with the jurisdiction to hear
divorces having been extended to regional courts and with legal costs
becoming increasingly
unaffordable, more and more people are opting
to do their own divorces and to settle their differences by way of
their own negotiated
settlements, without legal assistance. In my
view this is an important reason why the protection which the
provision affords should
remain in place, as many people will not be
aware of the legal position in relation to the validity of a
pre-divorce will, and
will ever-increasingly not have the benefit of
legal advice.
106.
As is also apparent from what is set out in
the discussion above the provision is one which is found in similar
form in many open
and democratic societies like ours which prize
dignity, equality and freedom, including the UK, Canada, Australia
and the USA.
107.
If one turns to consider the complexity of,
and the interplay between, the various relationships the following
may be said. Firstly,
as far as the relationship between the means
and the ends is concerned, the purpose which the provision seeks to
achieve is to
prevent a former spouse from benefiting unfairly in
terms of a will which was made by the other spouse prior to a divorce
or annulment,
unless the testator/testatrix made it clear in the will
that this is what he/she intended. It seeks to achieve that purpose
by
providing that the will is to be implemented as if the former
spouse had predeceased the testator/testatrix as at the dissolution

of the marriage.
108.
When one considers the means which have
been adopted to achieve these ends then one notes that the ambit and
effect of the provision
is limited, and focused. In the first place,
as far as the testator/testatrix spouse is concerned only the right
to dispose of
their assets in favour of their former spouse is
limited, and not their right to do so in respect of any other
beneficiaries.
109.
Equally, only the former spouse is
disinherited (and then only in respect of any assets which were not
previously given to them
in terms of a divorce or annulment
settlement), and none of the other beneficiaries under the will, and
the effect of the provision
is that the former spouse forfeits their
inheritance in favour of the intestate heirs of the decedent spouse
in accordance with
the rules of intestate succession. In effect this
will result in family members such as children or parents inheriting
in place
of the former spouse. Where the former spouse and the
decedent spouse have children from their marriage the former spouse’s

inheritance will devolve on the children in equal shares. Where there
are no children, as in this case, it will devolve upon the
decedent’s
parents in equal shares.
110.
When considering the effect the provision
would have the SALC had regard for the fact that the former spouse’s
inheritance
would devolve by way of intestate succession. It was of
the view that inasmuch as the rules of intestate succession are
generally
accepted to be based on principles of fairness and probably
reflect what a testator/testatrix would want to happen to their
assets
in the event of intestacy, and given that in most instances
the former spouse would already have received a fair and agreed share

of the decedent spouse’s assets on settlement of the divorce,
the provision will effect a fair and equitable distribution
of the
balance of the former spouse’s assets (to which they should as
a matter of principle and fairness have no claim),
to deserving
beneficiaries.
111.
The one possible area where the provision
could perhaps be criticized for being overbroad is that it could
serve to prevent a former
spouse from being appointed as a trustee to
a testamentary trust which is established for the parties’
minor children. As
pointed out above, in the majority of Australian
states a statutory exception to the ambit of the rule of revocation
has been made
to cater for this. But, inasmuch as this case is not
about this issue and is directed purely at a challenge to the
constitutionality
of the proprietary disposition of NW’s assets
in respect of her ex-husband this is not a matter which calls for a
decision
by me.
112.
Furthermore, and most importantly, as far
as the extent of the deprivation which is to be brought about is
concerned, although its
aim is to divest a testator/testatrix of
their right to dispose of their assets, which materially impacts on
their fundamental
right to freedom of testation and ownership, this
is a deprivation which can only be affected if they should pass away
within 3
months of divorce or annulment. In this regard, from what I
was able to establish SA’s legislation is unique. In all other

countries which have such legislation there is an automatic and
immediate ‘guillotine’ revocation of a will (be it

partially or wholly) on divorce or annulment of a marriage, and it is
permanent in effect. This is an important aspect to which
I will
revert in due course.
113.
I think it is fair to say that inasmuch as
dissolution of a marriage by divorce or annulment is more likely to
take place amongst
younger and middle-aged couples rather than those
who are elderly, the chances of a testator/testatrix spouse dying
immediately
after their divorce ie within the 3 month period provided
for in s 2B is extremely low. Thus, in all likelihood, in real terms
the provision will only affect a very small number of persons, and
the overwhelming majority of persons who get divorced in this
country
(and the very few whose marriages are annulled) are not likely to be
struck by it. This is also the likely reason why this
provision is
relatively unknown ie because it is rarely applicable. In fact, the
effect of the 3 month period in the provision
is that, practically
speaking, for the overwhelming majority of the population who die
testate there is no rule of revocation on
divorce, and in the
majority of cases a prior will which favours a former spouse will
thus still be given effect to (unless it
is revoked by a later will,
such as is likely to occur on remarriage).
114.
I
would further venture to say that in this country, which is
struggling with mass unemployment and great poverty the majority of

persons probably die intestate, as they do not have the means to have
a will prepared and to obtain legal advice in relation to
estate
planning, and this is another reason why the provision has a very
limited effect.
[86]
In this
regard the rules of intestate succession function much in the same
way as s 2B does, in that a
former
spouse does not qualify to inherit from their ‘ex’ if
they die intestate, only a spouse does. Thus, where parties have

divorced and one of them dies intestate there is already in any event
a forfeiture of inheritance by the surviving former spouse
ex
lege
,
as would occur in cases of testate succession within the bounds of s
2B.
115.
I point out that there is no challenge to
the provision on the basis that it provides for different and unequal
treatment and therefore
unfairly discriminates between divorced
testators who die testate, and those who die intestate, if such a
challenge is at all feasible.
116.
As
third and fourth respondents further point out the provision only
applies to a testator who has not expressed an intention in
their
will to benefit their former spouse, notwithstanding the dissolution
of the marriage. Although in real terms one might be
cynical about
this- after all who would be willing to make a will in which they
declare that they are prepared to benefit their
spouse even in the
event of divorce- the provision allows for this, and one can imagine
situations where parties may wish to divorce
amicably and because of
the length of time they were married and the contributions which they
made to the marriage, both financially
as well as emotionally, they
may as part of their divorce settlement agree to benefit one another
in specially crafted wills, and
proceed to do so, prior to obtaining
the decree. Similarly, there may be instances where although they did
not express such an
intention initially in a will which they made
shortly after they got married a testator or testatrix later decide,
as part of their
divorce settlement, to prepare a codicil to this
effect.
[87]
117.
In addition, the provision does not apply
in respect of a testator who has executed another will post divorce.
Only a will which
is made prior to a divorce is hit by the rule of
revocation and a will which is made after a divorce is excluded from
s 2B’s
ambit and will therefore not be affected, even if it was
made within the 3 month period after the date of divorce and favours
the
former spouse.
118.
In the circumstances, although the extent
of a deprivation which is affected when s 2B does apply can be
far-reaching as far as
property dispositions are concerned, the
actual ambit thereof ie when it will come into operation, has been
severely curtailed.
To my mind this is a very important factor that
goes into the scale when weighing up the various relationships and
factors concerned.
119.
One
may contrast the limited ambit of s 2B as far as the deprivation of
property is concerned with that which featured in
First
National Bank
[88]
where the constitutionality of s 114 of the Customs Act
[89]
was challenged. The section allowed the Commissioner of the South
African Revenue Services to seize and sell goods belonging to
someone
other than a customs debtor (as long as they were found in the
debtor’s possession), in satisfaction of a customs
debt,
without a judgment from, or Order of, a Court. Although the purpose
of the provision was laudable in that it sought to provide
for the
satisfaction of customs debts owing to the fiscus, inasmuch as it
allowed for the deprivation of property which belonged
to a third
party (in this case the bank which had provided finance for the
acquisition of a motor vehicle which had been seized
by SARS), in
circumstances where there was no connection or relationship between
that party, whose property right would be deprived,
and the debt
which had been incurred by another, the Constitutional Court held
that it was arbitrary and violated s 25(1).
120.
That
then leaves the question of whether s 2B is arbitrary in that it is
procedurally unfair. In
Mkontwana
[90]
the Constitutional Court held that procedural fairness is a flexible
concept, which is to be evaluated on the facts and circumstances

before the Court.
121.
Mkontwana
concerned
s 118 of the Local Government Municipal Systems Act,
[91]
which limits the right of a property owner to transfer immovable
property without a certificate from the local authority certifying

that consumption charges for municipal services (ie water,
electricity and sewerage) which have become due in respect of the
property
during the preceding 2 years, have been paid, and renders
the owner liable for such charges, irrespective of who the actual
consumer
thereof may have been.
122.
After evaluating the various relationships
between the means and the ends, and the nature and purpose of the
provision and what
it sought to achieve, as well as the nature and
extent of the deprivation which it effected (in this regard it can
only prevent
an owner from transferring their immovable property for
a maximum of two years), the Constitutional Court held that
sufficient
reason existed for it, and it was not arbitrary. It also
held that the provision had a legitimate and compelling purpose in
that
it sought to prevent the accretion of municipal debt and sought
to preserve the solvency of municipal authorities.
123.
It was contended that s 118 was
procedurally unfair inasmuch as it did not provide that the municipal
authority was to render accounts
to a property owner, who would
therefore not know what was owing in respect of the property.
Although there was indeed no such
express obligation in the
provision, the Constitutional Court was of the view that an implied
duty on the part of the municipality
to do so, if and when requested
by an owner, could be read into the provision and in the
circumstances it was held not to be procedurally
unfair.
124.
As previously indicated, the applicant
submits that the provision is procedurally unfair because it does not
permit extraneous evidence
of an intention on the part of the
testator to benefit their former spouse notwithstanding the divorce,
to be put before a court.
Inasmuch as this submission is inextricably
bound up with those made in relation to the challenge in terms of s
34 of the Constitution
it will be convenient to consider it under
that rubric.
The
challenge in terms of s 34 of the Constitution
125.
Although s 34 is loosely referred to as the
‘right of access to court’ clause it is necessary, at the
outset, to remind
ourselves of what it actually says.
126.
It provides that everyone has the right to
have a dispute which can be resolved by the application of law
decided in a fair public
hearing before a Court, or where
appropriate, another independent and impartial tribunal or forum.
127.
Inasmuch
as s 2B does not contain a so-called ouster clause (whereby a right
to approach a court or its jurisdiction is ousted)
nor a statutory
time-bar or time-limitation clause
[92]
whereby such a right is limited in time ie in terms of which it can
only be exercised within a certain period of time, after which
it
will expire or prescribe, it does not constitute a breach of s 34, at
least not in the customary sense in which it is most often
invoked.
128.
Furthermore, the applicant’s
challenge in terms of s 34 is also not based on any suggestion that
the legislature’s determination
in s 2B of a 3 month period is
‘arbitrary’ (in the irrational sense) and no argument was
put forward to the effect
that the provision was constitutionally
assailable on this basis, or on the basis that the period was too
long or too short or
that it operated unfairly and indiscriminately
as a period in time, nor on the basis that a period of time should
not have been
set by the legislature at all.
129.
The
applicant submits that the provision offends s 34 because in the
first place it seeks to exclude the Court’s ‘general

oversight function’ (sic).
[93]
Secondly, because it ousts the ‘general discretion’ which
the Court has
[94]
in terms of
the Wills Act (such as that which it has to condone non-compliance
with the formalities required for a will
[95]
or the revocation of a will
[96]
),
thereby preventing it from accepting evidence which a former spouse
may be able to put forward of a testator spouse’s intent,
which
might be recorded in another document, or which may have been
expressed in terms of an oral agreement which is ‘publicly

accepted as true’ (sic).
[97]
130.
Thirdly, the applicant contends that the
provision is in conflict with s 34 as it ‘deletes’ (sic)
the constitutional
right which the applicant has to seek judicial
redress in circumstances where he is able to provide ‘direct’
evidence
of a testator spouse’s testamentary intentions, and
instead directs that the Court must operate under a ‘false
fiction’
that a former spouse has predeceased a testator
spouse,  which is contrary to public policy .
131.
Before proceeding further it may be
convenient to deal, once and for all, with the applicant’s
(repeated) contention that
s 2B provides for a fiction. I previously
set out (in the introductory paragraphs above) how, whereas the draft
provision which
the SALC initially circulated in 1987 was based on a
fiction, in its final report in 1991 it indicated that it was not in
favour
of using a fiction, and it accordingly recommended wording
that would simply provide that in the event of the death of a
testator
spouse within a period of 3 months after a divorce, the will
was to be implemented as if the former spouse had predeceased the
testator. The provision which was subsequently adopted by the
legislature in the form of s 2B was based on this proposal, and it

does not incorporate a fiction. In my view, it simply amounts to what
is commonly referred to in our law as a deeming provision
ie if
certain stipulated events occur then it will be deemed that the
former spouse predeceased the testator spouse, unless a contrary

intention appears from the will.
132.
In
this regard, in
S
v Rosenthal
[98]
it was held that the precise meaning and effect of a deeming
provision must be ascertained from the context in which it appears.

Whereas certain deeming provisions may be exhaustive, definitive or
conclusive of the subject matter they purport to deal with
and in
their formulation may include or amount to an irrebuttable
presumption, others may, wholly or in part, merely include or
amount
to a rebuttable presumption as to a state of affairs.
133.
In
my view the proviso in s 2B that, unless it appears from the will
that a testator intended to benefit his former spouse notwithstanding

a divorce or annulment, a will which was made prior to a divorce or
annulment must be implemented in the same manner as it would
have
been if the testator’s  former spouse had died before the
divorce or annulment, does not contain or amount to a
rebuttable or
irrebuttable presumption. To paraphrase Navsa JA in
Eastern
Cape Parks & Tourism Agency v Medbury (Pty) Ltd
[99]
the words in the deeming provision simply state the effect of (the)
meaning which it has ie the way in which the matter which is
referred
to therein is to be adjudged, without importing any artificiality or
fiction. The provision simply amounts to a statement
of an
‘indisputable conclusion’ which will take effect, if the
factual requirements stipulated are present.
134.
As far as the alleged deprivation of the
Court’s ‘general oversight function’ is concerned,
in my view nothing
in s 2B prevents a Court from exercising its
powers of oversight. The applicant is not prevented from having any
judicial dispute
which he may have in relation to either the
operation, validity, or the interpretation of the provision from
being determined by
a Court, and the provision does not bar the
applicant from having any dispute which he may have in this regard
from being adjudicated
upon. Thus, for example, the applicant is not
prevented from approaching the Court to rule on whether the necessary
contrary intention
to benefit him as former spouse, notwithstanding
the divorce, was adequately expressed in NW’s will, as required
by the provision.
135.
Similarly, as far as any alleged ouster of
the Court’s ‘general discretion’ ie its
discretionary power is concerned
I do not read the provisions of the
Act as affording the Court such a power, at least not one based on
what a Court might consider
to be just and fair, if this is what is
being suggested, and it would be anathema to the fundamental
principles of testate succession
were such a discretionary power to
exist. In this regard, as I previously mentioned in the section which
dealt with freedom of
testation, the bedrock of the law of testate
succession is certainty, and that is why it is a fundamental
principle of the law
of testate succession that a Court is obliged to
give effect to a testator’s wishes ie his intention
as
it is expressed in the will
, and it has
no general power to amend, alter, add to or contradict the terms of a
will based on what it might consider to be just
and fair in the
circumstances. In fact, if anything, as we all know the law of
testate succession can often be extremely unfair,
and even harsh in
its application.
136.
Although s 2(3) of the Act provides that a
Court may order the Master to accept that a document or an amendment
thereto qualifies
as a will, it can only do so if it is ‘satisfied’
that the testator intended it to be so. It does not have a ‘general

discretion’ to do what may in its view be fair, and it
certainly does not have a discretion to decide who should be a
beneficiary
and who not, or who should get what, in terms of a will.
137.
In similar vein, whereas s 2A provides that
a court may declare a will or part thereof to be revoked if it is
‘satisfied’
by evidence to such effect, including
evidence that the testator performed an act with regard to the will
by which he intended
to revoke it, this power is also not a
discretionary one.
138.
In his oral submissions the applicant
refined his argument to contend that, just as in the case of these
provisions of the Wills
Act, which allow for extraneous evidence to
be submitted to a Court which is seized with having to decide the
issues referred to
in the preceding paragraphs, s 2B should have
allowed for the provision of such evidence, and by not doing so it
unfairly and unconstitutionally
limited his right of access to the
court. To this end in the notice of motion the applicant proposed
that the Court should, in
the event that it found the provision to be
unconstitutional, provide for a reading in of words which would allow
it to be satisfied
of a testator’s intention to benefit their
former spouse, not only where it was expressed in a will but also
from evidence
extraneous thereto.
139.
From what I was able to establish from the
limited facilities available to me (regrettably none of the parties
provided any assistance
on this aspect in their heads of argument),
in a few states in the USA and Australia which have adopted statutory
revocation on
divorce legislation, provision has been made for
evidence of a testator’s intention
aliunde
their will.
140.
So
for example the Californian Probate Code
[100]
allows for the admission of ‘clear and convincing’
evidence of a testator’s intent outside of their will,
Wisconsin’s
legislation allows for extrinsic evidence ‘to
construe intent’ and in Alaska the courts have read such a
power into
their legislative provision on the basis that it creates
only a rebuttable presumption of revocation and is not a ‘strict

and inflexible’ rule.
[101]
141.
In
Tasmania the Wills Act provides that a divorce will revoke a
beneficial disposition to a former spouse unless a contrary intention

appears from the will or can ‘otherwise be established’,
[102]
and in Victoria statutory revocation will not occur if it ‘appears’
that the testator did not want a disposition to
be revoked upon the
ending of his marriage.
[103]
142.
In
contrast to this, in its report which also came out in 1991 (the same
year in which the final report of the SALC came out), the
Law Reform
Commission of Western Australia indicated
[104]
that it was not in favour of allowing evidence
aliunde
a will as this would ‘create uncertainty and foster litigation’
and would ‘involve the danger of fraud’
and this
recommendation was accepted and given effect to in the legislation
which was initially adopted.
143.
However,
in 2007 an amendment was passed whereby revocation will take place
unless a contrary intention appears from the will, or
there is ‘other
evidence’ establishing such an intention.
[105]
144.
In
its report the New South Wales Law Reform Commission also expressed
the view that there was no reason in principle why proof
of a
contrary intention should be restricted to expressions in the will,
especially as a testator might not know of the rule of
revocation on
divorce. It was accordingly of the view that it should be possible to
use statements made by the testator outside
of the will, as evidence
of their intention. Whilst it accepted that this might create
uncertainty it was of the view that this
was the ‘necessary
price’ to pay to ensure that a testator’s real intentions
were not frustrated. It also felt
that although there was a danger of
fraud the Courts were well used to weighing evidence and were ‘alert’
to such a
possibility. Consequently, it also recommended that the
general rule should be rebuttable by any evidence, including evidence
of
statements made by the testator,  which established to the
satisfaction of the Court that he did not intend, at the time of
the
termination of the marriage, that the rule of revocation should
apply.
[106]
145.
Thus,
in New South Wales an amendment which was effected in 1989 to the
Wills Probate and Administration Act of 1898 provided that
a prior
will would not be revoked if the Supreme Court was satisfied by any
evidence, including evidence of statements which were
made by the
testator, that he did not intend at the time of termination of his
marriage to revoke a testamentary disposition or
appointment.
[107]
146.
However,
it appears that this position was changed subsequently, and the
current legislation in force
[108]
in New South Wales does not allow for evidence
aliunde
the will and revocation will only not occur if a contrary intention
is expressed in the will itself.
147.
As
far as Canada is concerned the OLRC similarly recommended that in
Ontario revocation should only not apply where the will expressly

provided for a contrary intention.
[109]
This appears to also be the standard formulation which has been
adopted in most states in the USA, certainly those who have adopted
s
2-508 of the UPC.
148.
When
it dealt with this aspect in its working paper in April 1987
[110]
the SALC expressed the view that effect should not be given to an
intention which appeared in a document which was not a will or
a
codicil to it, and it was of the view that an exception should be
made to statutory revocation only if an intention that a divorce

should not affect a will appeared ‘from’ the will, or a
later will ie one made post-divorce. This recommendation was
endorsed
in its final report.
149.
There is no indication, from a
consideration of the working paper and the final report which it
presented in June 1991 that the
SALC deliberated this issue amongst
its members, nor does it appear as if it received any submissions
from any interested parties
in this regard.
150.
In my view there are a number of factors
which strongly militate against the desirability of accepting
evidence of a contrary intention,
aliunde
a will, in relation to our form of statutory revocation.
151.
In the first place, unlike in the case of
evidence which may be tendered in respect of s 2(3), pertaining to
whether a document
constitutes a will and s 2A pertaining to whether
a will has been revoked, which most often will extend beyond evidence
tendered
by a surviving former spouse and will include evidence from
other persons such as a legal representative or family members, as
well as documentary evidence (eg a draft will not yet signed, a
letter expressing an intention to revoke a will etc), if an exception

were to be allowed in relation to s 2B such evidence would, in many
instances, only be forthcoming from a surviving former spouse,
and
would be easy to fabricate. All that a former spouse would need to do
to get past the provision, would be to claim that the
decedent spouse
had told them orally that they wished them to inherit in the event of
divorce, notwithstanding that such an intention
had not been
expressed in their will, and it would be very difficult for a Court
not to accept such evidence, as there would be
no witnesses who would
be able to refute it.
152.
As
the Arizona Court of Appeals said in
Lamparella
[111]
the purpose of the provision would be ‘eviscerated if a former
spouse could circumvent the automatic revocation effected….
by
submitting self-serving testimony’.
153.
Secondly, if evidence of a contrary
intention outside of a will were to be allowed it would in my view
completely negate an important
objective which the legislature sought
to achieve by means of s 2B viz to get people who are getting
divorced and who have made
a prior will in favour of their spouse to
apply their minds to the situation and if they wish to benefit their
spouse notwithstanding,
to say so in writing, in a will.
154.
In addition, in my view allowing for
evidence of intention to be forthcoming from sources outside of a
will would create uncertainty,
on many levels. For one thing, family
members would not know where they stood in relation to whether they
were to inherit or not,
and the administration of a testator’s
estate by their executors could be hampered. In matters where there
is no extraneous
written indication by the testator of a contrary
intention (which is likely to often be the case), and little or no
evidence of
an oral expression thereof (which is also often likely to
be the case, particularly where the testator might have been unaware
of s 2B) the Court might be required to construe whether or not the
conduct or behaviour of the testator was indicative of such
a
contrary intention. Once again, this opens the door to uncertainty-
what one Court might find constitutes acceptable and satisfactory

evidence another might not.
155.
All of this would result in an increase in
probate litigation, and the prospect of endless appeal processes
which could delay the
winding-up of a deceased estate for many years.
It might also lead to grotesque results where a former spouse has
already been
more than handsomely rewarded, by way of a divorce
settlement, and could potentially foment greedy and opportunistic
attempts by
a former spouse to grab the last remaining assets from
their late ‘ex’ which they had previously agreed would go
to
them in terms of a divorce settlement, thereby depriving their
ex-spouse’s heirs of what should rightfully come to them.
156.
When considering these aspects one must
again emphasize that s 2B only applies in the very limited instances
where a testator dies
within 3 months after their divorce, which is
unlikely in the case of most divorced couples. As I previously
indicated, in practice
the provision probably affects very few
people, and in the overwhelming majority of cases a will which was
previously made and
which favours a spouse will be given effect to.
157.
In the circumstances, in my view the
legislature’s decision not to make provision in a section of
the Wills Act which has
limited application in time and extent, for
proof of a contrary intention by a testator otherwise than in their
will (where one
would ordinarily expect to find it in accordance with
longstanding and fundamental principles of testate succession), is
not ‘disproportionate’
in any sense or procedurally
unfair, nor does it amount to a limitation of the applicant’s
right of access to a Court.
158.
Ultimately,
and to get back to first principles, I think sight must not be lost
of the fact that (as was set out in paragraphs 78-79
above),
ordinarily in any matter involving the determination of a testator’s
intention as to who is to be their beneficiary
and what they should
inherit, other than one involving the application of s 2B, it is a
trite and long-standing principle of the
law of testate succession in
this country that a Court is confined to the contents of a testator’s
will, no matter how long
ago it may have been made, and no matter
that in the meantime the testator’s intentions may have
changed. A former spouse
or any other potential beneficiary would
have no right to put before a Court extraneous evidence of the
testator’s intention,
from sources outside of the will, either
to show that it was consistent with that expressed in the will, or
that it had changed.
That would be completely contrary to accepted
principles. In the context of an argument in terms of 34, there would
thus be no
right of access to a Court with a view to putting such
evidence before it. Thus, outside of s 2B the applicant had no right
to
approach a Court to put extraneous evidence before it of NW’s
intention outside of her will, and the provision accordingly
did not
take away such a right of access to Court.
[112]
Conclusion
159.
In the result, in my view for the reasons
set out above s 2B serves a legitimate and compelling social purpose
and the deprivation
which it affects when it applies is not arbitrary
in terms of s 25(1), and there is sufficient reason for it. It is
also not procedurally
unfair. In addition, the terms of s 2B do not
constitute a limitation of the applicant’s right of access to a
Court, in breach
of s 34. Consequently, the application falls to be
dismissed.
160.
As far as costs are concerned I believe
that this is not a matter where the general principle that costs
should follow the event,
should apply, as it traversed novel issues
of law involving important societal considerations and it would be
unduly punitive to
order the applicant as the losing party to be
liable for the respondents’ costs, save in respect of the
application to strike
out, which concerned  a large amount of
material which was not only irrelevant, but also scandalous and
vexatious and should
never have been included. This added unnecessary
bulk to an application which was already much longer than it should
have been.
In this regard the material which was included in the
record in reply to third and fourth respondents’ notice in
terms of
rule 35(12), should also not have been there as it was not
incorporated in, and does not constitute an attachment to, any of the

affidavits. But second respondent was also at fault in that he also
added lengthy annexures in support of his affidavit, which
included
the entire series of reports which were produced by the SALC in their
extensive review of the law of succession in SA
between 1985 and 1991
or lengthy extracts therefrom, without attempting to cull what was
not necessary. This too, made the papers
unduly prolix.
161.
Although in matters such as these Courts
often direct that costs should be borne by the estate to my mind this
would also not be
fair. I see no reason why, having brought an
application which failed, the applicant should be afforded the luxury
of having his
costs (which will be considerable given the amount of
paper involved and the fact that he employed two counsel), paid for
out of
his late wife’s estate, nor in my view should the
Master’s costs come out of the estate. This would deplete what
little
will be left for third and fourth respondents as an
inheritance, once the costs which they have incurred are settled. In
my view,
this is also not a matter where costs can or should be dealt
with in terms of the principle in
Biowatch.
162.
In my view the fair and proper Order to
make in respect of costs is that, save for the application to strike
out, each party should
bear their own costs.
163.
I accordingly make the following Order:
163.1
The interlocutory application by third and
fourth respondents in terms of rule 6(15) is upheld with costs.
163.2
Paragraphs 22-24 and 31-46 (inclusive) of
the founding affidavit, together with annexures ‘FA2’ to
‘FA8’
thereto, are struck from the record.
163.3
The application for an Order declaring that
s 2B
of the
Wills Act 7 of 1953
is inconsistent with and/or contrary
to ss 25(1) and 34 of the Constitution, is dismissed.
163.4
Save for the Order made in terms of para
163.1 in respect of the interlocutory application each party shall be
liable for their
own costs of suit.
M
SHER
Judge
of the High Court
Appearances
:
Applicant’s
counsel: Adv JH Loots SC and Adv GP Solik
Applicant’s
attorneys: Norton Rose Fulbright (Cape Town)
Second
respondent’s counsel: Adv T Golden SC
Second
respondent’s attorneys: State Attorney (Cape Town)
Third
& fourth respondents’ counsel: Adv MTA Costa
Third
& fourth respondents’ attorneys: Lawtons (Sandton)
c/o
Dunster Attorneys (Cape Town)
[1]
Act
7 of 1953.
[2]
On
1 October 1992, by way of s 4 of the Law of Succession Amendment Act
43 of 1992.
[3]
S 1(1)(d)(i).
[4]
Act 81 of 1987.
[5]
In
its final report into the review of the law of succession (Project
22), June 1991.
[6]
The
principal ones which the Commission had regard for were the reports
which were prepared by the Ontario Law Reform Commission
in 1977
(‘
Report
on the impact of divorce on existing wills’
),
the 22nd report of the Law Reform Committee of the United Kingdom in
1980 (‘
The
making and revocation of wills’
),
report 47 of the New South Wales Law Reform Commission in 1986
(‘
Community
Law Reform Programme: Wills-Execution and Revocation’
),
and Consultative Memorandum 70 of the Scottish Law Commission in
1986 (‘
The
making and revocation of wills’)
.
In addition, the Commission also considered the British Columbia
‘
Report
on the making and revocation of wills
’
(1981) and the 44th report of the Law Reform Committee of South
Australia (1977) relating to the effect of divorce on
wills.
[7]
The
provision was adopted by the National Conference on Uniform State
Laws and the American Bar Association before being adopted
in a
number of states, including Alaska, Arizona, Colorado, Florida,
Idaho, Minnesota, Montana, Nebraska, New Mexico, New York,
North and
South Dakota and Utah. The Californian Probate Code also currently
provides (S 6122) for the revocation on divorce
or annulment of any
testamentary disposition of property which was made to a former
spouse, unless the will expressly provides
otherwise. Prof N Cahn of
the George Washington University Law School reports in her article
in the Iowa Law Review ‘Revisiting
Revocation upon Divorce’
(2018) ILR Vol 103:1879 at 1887 that virtually all states in the USA
now have explicit revocation
on divorce statutes.
[8]
As
well as any nomination of the former spouse as executor, trustee,
‘conservator’ or guardian.
[9]
In
1990 the ambit of the statutory revocation was extended to cover not
only former spouses but also relatives, and not only probate
but
also non-probate assets ie assets which parties sought to exclude
from their wills by transferring them to one another by
substitute
means, such as by way of
inter
vivos
trusts, life insurance or retirement-plan beneficiary designations
or so-called ‘transfer on death’ amounts, and
other
dispositions which were ever-increasingly being put into place
before a divorce or annulment in order to attempt to circumvent
s
2-508 v
ide
Cahn n 7 at 1885 ftn 22. Following the amendments which were made in
1990 the provision was re-numbered as s 2-804 of the UPC.
[10]
Now
s 17(2) of the Ontario Succession Law Reform Act 1980.
[11]
By
means of s 2 of the Wills Amendment Act 1977.
[12]
By
means of s 63 of the Attorney General Statutes Amendment Act 1979,
which introduced s 16 into the
Wills Act wef
1981.
[13]
S
3
Wills Amendment Act 1981. The current provision, s 19 of the
Saskatchewan Wills Act 1996 is in similar form.
[14]
Ss
18 (1) and (2) of the Succession Act 1981.
[15]
C
31 of the Wills Act SM 1982-83-84.
[16]
By
ss 18A(1)(a) and (b) which came into effect from 1 January 1983,
following upon the recommendations of the Law Reform Committee
in
1980.
[17]
At
p
ara
5.7(a), p 43 Consultative Memorandum 70 (1986).
[18]
Including
any provision confirming a power of appointment, or nomination as
executor or trustee.
[19]
S
1 of the Succession (Scotland) Act 2016.
[20]
By the introduction of s 20A into the Wills Act of 1936, in terms of
the Wills (Effect of Termination of Marriage) Amendment
Act 39 of
1996.
[21]
S 14(1)-(2) Wills Act 1997.
[22]
Ss 13(1)-(4) Succession Act 2006.
[23]
Prior
to the introduction of s
14A into the Wills Act of 1970 (by way of the Wills Amendment Act
2007) which came into effect on 9 February 2008 and which provided

for complete revocation, the formulation which was adopted in
Western Australia appears to have been one which was similar to
that
adopted in s 2-508 of the UPC ie  which provided for partial
revocation in respect of gifts or dispositions to the
former spouse
as well as any appointment as trustee, executor or guardian, and the
will was to be implemented as if the former
spouse had predeceased
the testator.
[24]
According
to the report of the New South Wales Law Reform Commission of 1986
(at para 10.12) the Tasmanian Wills Amendment Act
of 1985 adopted
the recommendation of the Tasmanian Law Reform Commission in its
‘
Report
on Reform in the Law of Wills
’
in 1983, that the entire will be revoked on divorce.
[25]
The
Tasmanian Wills Act of 2008 currently provides (ss 17(1)(a)-(c) and
17(3)-(4)) that divorce will revoke a beneficial disposition,

appointment as an executor, trustee or guardian or any power of
appointment exercisable by a former spouse (unless a contrary

intention appears from the will or ‘can otherwise be
established’).
[26]
S 14A(2)(a) of the Wills Act 1970.
[27]
At para 3.157 of its April 1987 Working Paper.
[28]
Id
.
[29]
Para
2, p 5 of the report of the Ontario Law Reform Commission n 6.
[30]
As
in Oregon (Ore. Rev. Stat S 114.130), Georgia (Ga. Code Ann. S
113-408) and Connecticut (Conn. Gen. Stats S 45-162) and also

initially in Tasmania
vide
n 24, and from 2008 in Western Australia
vide
n 23 and n 26.
[31]
The
Commission was of the view that such an approach would be too
severe. In this regard it referred (at para 3.158 of its 1987

Working Paper) to the reports of the South Australian, Queensland
and Ontario Law Reform Commissions.
[32]
Report
of the OLRC n 6, at p 6.
[33]
As per the amendment adopted in the UK
vide
n 16.
[34]
Report
of the OLRC n 6 para 4, p 6. This was the approach which was
initially adopted by the state of New York in 1966. However,
it
subsequently elected to adopt s 2-508 of the UPC, in its place.
[35]
At
paras 3.160-3.176 pp 77-82 of its 1987 Working Paper and endorsed in
its final report which was published in June 1991, at
paras
3.58-3.63 pp 77-79.
[36]
At
paras 3.60-3.63, pp 78-80.
[37]
With
reference to a doctoral thesis by Oliver J (the vice- chairman of
the Commission), in 1975.
[38]
Moosa
NO & Ors v Minister of Justice and Correctional Services &
Ano
2018 (5) SA 13
(CC) at para [18].
[39]
As
it is in the English, Australian, Dutch and German legal systems
vide
Du Toit ‘
The
limits imposed upon freedom of testation by the boni mores: Lessons
from Common Law and Civil Law (continental) legal systems’
2000 11 Stell LR 358.
[40]
In re
BOE Trust Ltd & Ors NNO
2013 (3) SA 236
(SCA) at para [26].
[41]
Harvey
NO v Crawford NO
2019
(2) SA 153
(SCA) at para [53].
[42]
Id,
at
paras [22] and [56].
[43]
As
per its earlier decision in
BOE
Trust
n
40 at paras [27]-[29].
[44]
Harvey
n 41 at para [64].
[45]
Note
40
at
para [27].
[46]
Harvey
n 41 at para [22],
BOE
Trust
n 40 at para [28],
Rhode
v Stubbs
2005 (5) SA 104
(SCA) at paras [17] and [18].
[47]
Minister
of Education & Ano v Syfrets Ltd NO & Ano
2006 (4) SA 205
(C);
Curators,
Emma Smith Educational Trust v University of KwaZulu Natal
2010 (6) SA 518
(SCA);
In
re Heydenrych Testamentary Trust & Ors
2012 (4) SA 103 (WCC).
[48]
Contrary
to the provisions of ss 9(4) and (3) of the Constitution.
[49]
Harvey
n
41 at para [53], which concerned a ‘private’
testamentary trust and not one which had a public character.
[50]
King v
De Jager
2017
(6) SA 527
(WCC) at para [65];
Harvey
n 41 at para [57]
in
fin
and
a quo
reported
sub
nom
Harper
& Ors v Crawford NO & Ors
2018 (1) SA 589 (WCC).
[51]
King
n
50 at para [65].
[52]
Id,
at
para [61].
[53]
Ferreira
v Levin NO and Ors; Vryenhoek & Ors v Powell NO & Ors
1996 (1) SA 984
(CC) at para [26], as endorsed in
Shoprite-Checkers
(Pty) Ltd v MEC for Economic Development, Environmental Affairs &
Tourism, Eastern Cape & Ors
2015 (6) SA 125
(CC) at para [31].
[54]
Id.
[55]
In
terms of
the provisions of the
Divorce Act 70 of 1979
.
[56]
Act 25 of 1961.
[57]
Act
120 of 1998.
[58]
Act
17 of 2006.
[59]
Women's
Legal Centre Trust v President of the Republic of South Africa
&
Ors
2018 (6) SA 598 (WCC).
[60]
The
full bench directed the president and cabinet to prepare and enact
the requisite legislation granting formal recognition to
Muslim
marriages within 24 months ie by 30 August 2020.
[61]
As
per para 4 of the Order which was handed down on 31 August 2018.
[62]
Note
59 at para [3], with reference to the decisions of the
Constitutional Court in
Minister
of Home Affairs & Ano v Fourie & Ano; Lesbian & Gay
Equality Project & Ors v Minister of Home Affairs
& Ors
[2005] ZACC 19
;
2006 (1) SA 524
(CC) and
Dawood
& Ano v Minister of Home Affairs & Ors; Shalabi & Ano v
Minister of Home Affairs & Ors; Thomas & Ano
v Minister of
Home Affairs & Ors
2000 (3) SA 936 (CC).
[63]
MJ
de Waal 'The Law of Succession and the Bill of Rights' Bill of
Rights Compendium (2012) 3G 19-3G 20 cited in
King
n 50 at para [59],
Harvey
n 41 at para [64].
[64]
De
Leef Family Trust & Ors v CIR
[1993] ZASCA 46
;
1993 (3) SA 345
(A) at 358C-E.
[65]
In
a letter dated 17 April 2018
.
[66]
Verseput
& Ano v De Gruchy NO & Ano
1977 (4) SA 440
(W) at 443C-E cited by Meer J in
Louw
NO v Kock & Ano
2017 (3) SA 62
(WCC) at para [18].
[67]
Robertson
v Robertson’s Executors
1914 AD 503.
Evidence
of an extrinsic nature is only admissible in very limited
circumstances ie where there is some latent ambiguity or so-called

‘equivocation’ in the language which was used, such as
where the words are equally open to multiple interpretations
and
evidence is needed to clarify what was meant at the time, in the
light of the surrounding circumstances ie the material facts
and
circumstances known to the testator at the time when he made the
will.  In such limited instances the Courts have allowed

evidence to be given to identify the subject or object of a
disposition.
But
extrinsic evidence has not been allowed where its object, or the
result of its admission, would be to contradict, add to,
or alter
the expressed intention of a testator, where that is clear
vide
Aubrey-Smith
v Hofmeyr
1973
(1) SA 655
(C) at 657E-658C.
[68]
Id,
at
657G, citing
Ex
parte Estate Stephens
1943 CPD 397
at 402.
[69]
Parker
v Fletcher's Estate
1932 CPD 202
at 205, cited by Meer J in
Louw
n
66 at para [18].
[70]
Johannesburg
Licensing Board v Kuhn
1963 (4) SA 666
(A) 671C.
[71]
First
National Bank of SA Ltd t/a Wesbank v Commissioner, South African
Revenue Service; First National Bank of SA Ltd t/a Wesbank
v
Minister of Finance
2002(4)
SA 768 (CC).
[72]
With
reference to Van Der Walt,
The
Constitutional Property Clause
(Juta, 1997), pp 15-16.
[73]
First
National Bank
n 71, at para [50].
[74]
Id
,
para [49].
[75]
Paras
[65] and [98].
[76]
P
ara
[63].
[77]
Id,
para
[66].
[78]
By
having regard for property right clauses in the Constitutions of the
United States of America and Australia, the European Human
Rights
Convention and the German Basic Law.
[79]
First
National Bank
n 71 at para [100].
[80]
Id.
[81]
Id
.
[82]
Mkontwana
v
Nelson Mandela Metropolitan Municipality, Bissett v Buffalo City
Municipality, Transfer Rights Action Campaign v MEC for Local

Government & Housing, Province of Gauteng
2005(1) SA 530 (CC) at para
[90].
[83]
Id
,
at paras [51] and [90]
.
[84]
First
National Bank
n
71, at para [70].
[85]
Shoprite-Checkers
(Pty) Ltd v MEC for Economic Development, Environmental Affairs &
Tourism, EC & Ors
2015
(6) SA 125
(CC) at paras [80] and [82].
[86]
Prof Cahn n 7 at pp 1900-1901 has pointed out that in the USA people
who have wills are likely to be older, wealthier and more
formally
educated: whereas 55% of Americans whose annual household income is
more than USD 75 000 have wills only 31% of those
earning below USD
30 000 have one, and 61% of persons with a postgraduate
qualification have one. She has also noted that in
the USA there is
a higher rate of divorce amongst those with a lower income.
[87]
Prof
Cahn, n 7 at p 1897 reports that there are studies which suggest
that currently less than half of spouses who get divorced
in the USA
wish to completely disinherit their former spouses.
[88]
Note 71.
[89]
Act 91 of 1964.
[90]
Note 82 at para [65].
[91]
Act
32 of 2008.
[92]
See
for example
Mohlomi
v Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC), where it was held that s 113 (1) of the
Defence Act 44 of 1957, which provided for a period of 6 months
within which to
institute an action for damages, was
unconstitutional as it did not afford claimants sufficient period of
time to seek judicial
redress,
contra
the decision in
RAF
v Mdeyide
2011 (2) SA 26
(CC) where the Court held that
s 23
(1) of the
Road
Accident Fund Act 56 of 1996
, which provided for a period of 3 years
within which to institute a claim in respect of loss or damage
arising out of a motor
vehicle accident where the identity of the
driver had been established, was held not to be unconstitutional.
[93]
Paras
78 and 101, founding affidavit.
[94]
Id
,
para 93.
[95]
In
terms of
s 2(3).
[96]
In
terms of
s 2A.
[97]
Para
79, founding affidavit.
[98]
1980 (1) SA 65
(A) at 75G-76A.
[99]
2018 (4) SA 206
(SCA) at para [53] ftn 12, citing
Muller
v Dalgety & Co Ltd
[1909] HCA 67
;
(1909) 9 CLR 693
at 696.
[100]
S
5040(b)(2).
[101]
Per
Cahn n 7 at pp 1892, 1910.
[102]
S
17(4)
Wills Act 2008.
[103]
S
14(2) Wills Act 1997.
[104]
At
para 4.37, p53 (Project no. 76-Part II
Effect
of Divorce on Wills
(1991)).
[105]
Ss
14(2)(a)-(b) to the Wills Act 1970, which was introduced wef 9
February 2008 by the Wills Amendment Act 2007.
[106]
P
ara
10.32 of its report.
[107]
S
15A, inserted in terms of the Wills Probate and Administration
(Amendment Act).
[108]
S
13(2) of the Succession Act 2006.
[109]
R
ecommendation
no. 1, at p 11 of its report of 28 February 1977, n 7. This is also
the position in Saskatchewan in terms of s 19(2)
of its Wills Act of
1996.
[110]
At
paras 3.174-3.176 pp 81-82.
[111]
In re
Estate of Lamparella 109 P.3d 959 at 966 (Ariz. Ct. App. 2005) cited
by Cahn n 7 at p 1891 ftn 66.
[112]
Contrast for example the position in
Twee
Jonge Gezellen (Pty) Ltd & Ano v Land & Agricultural
Development Bank of SA t/a The Land Bank & Ano
2011(3)
SA 1 (CC) where it was held that the rules and procedure for
provisional sentence (which provide that a liquid document
gives
rise to a rebuttable presumption of indebtedness and a Court has no
jurisdiction to hear oral evidence other than in relation
to the
authenticity of a defendant’s signature), constituted a
limitation of a defendant’s constitutional right to
a fair
hearing in terms of s 34, insofar as they might prevent him from
showing there was a balance of success in his favour
on the
principal case, without oral evidence. The applicant in this matter
did not put up a constitutional challenge in these
terms.