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[2021] ZAWCHC 66
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Williams and Others v Hendricks and Another (17638/2020) [2021] ZAWCHC 66; 2021 (6) SA 551 (WCC) (19 April 2021)
Republic
of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case number: 17638/2020
Before: The Hon. Mr Justice Binns-Ward
Hearing: 15 April 2021
Judgment: 19 April 2021
In the
matter between:
ESTATE
LATE ELAINE ILSIA
WILLIAMS
First
Applicant
FRANCIS
LEONE
WILLIAMS
Second Applicant
THURSTON
CLEMENT
WILLIAMS
Third
Applicant
EUGENE
NATHAN
WILLIAMS
Fourth
Applicant
CARMEN
LETITIA THERESA
WILLIAMS
Fifth
Applicant
and
WESLEY
HENDRICKS
First
Respondent
THE
MASTER OF THE HIGH COURT, CAPE TOWN
Second
Respondent
JUDGMENT
(Delivered by email to the parties’ legal representatives
and by release to SAFLII.
The judgment shall be deemed to have been handed down at 10h00 on
19 April 2021.)
BINNS-WARD
J:
[1]
Section 2(3)
of the
Wills Act 7 of 1953
reads as follows:
‘
If
a court is satisfied that a document or the amendment of a document
drafted or executed by a person who has died since the drafting
or
execution thereof, was intended to be his will or an amendment of his
will, the court shall order the Master to accept that
document, or
that document as amended, for the purposes of the Administration of
Estates Act, 1965 (Act 66 of 1965), as a will,
although it does not
comply with all the formalities for the execution or amendment of
wills referred to in subsection (1).’
[2]
In the current matter, the close relations
of the late Elaine Hendricks seek an order directing the Master to
accept as a will for
the purposes of the
Administration of Estates
Act a
pro forma document signed by the deceased in which she gave
instructions to a bank to draft her last will and testament.
[3]
The first respondent is the surviving
spouse of the deceased, with whom he had been married in community of
property. He is also
the executor of the deceased’s estate.
He was cited in these proceedings in his personal capacity.
There is a
minor child of the marriage between the deceased and the
first respondent.
[4]
The Master was cited as the second
respondent, but she has taken no part in the proceedings.
[5]
The nature of the bank document was
consistent with its printed title, ‘
Will Application / Aansoek
om testament
’. It is
apparent from the terms of the document that the bank offers a
service for the drafting of wills. The
service is provided free
of charge if the bank’s trustee company is nominated as the
executor, but a fee is levied if the
will to be drafted provides for
an ‘alternative executor’. The form signed by the
deceased did not nominate an
executor, but it did purport to
authorise the debiting of an account conducted in the first
respondent’s name at a branch
of a different bank in the amount
of R90, presumably for services rendered by the bank in respect of
the will application.
[6]
The deceased’s instructions to the
bank in respect of the content of the will were framed as follows: ‘
I
would like to give my full estate to my son
[the
child’s full names and identity number were provided]
until
he is of age as well as any other monetary payouts as a result of any
claims. 50% of the family home, 50% of any investments,
50% of
any policy payouts, 50% of any savings.
’
It would appear that the deceased also wished her will to provide
that the bequest to her son should be administered
in a trust until
the child attained the age of 21.
[7]
The form signed by the deceased recorded
the following standard ‘terms and conditions’:
1.
I/We
acknowledge that Nedgroup Trust (Pty) Ltd will prepare a last will in
terms of the details and instructions provided in this
application
form.
2.
We
confirm that the information is correct and that it remains my/our
responsibility to advise Nedgroup Trust (Pty) Ltd if circumstances
change.
3.
These
instructions should not be construed as a valid will as the
requirements of the
Wills Act, 1953
, must still be met.
4.
I/We
confirm that the proper advice has been sought from Nedgroup Trust
(Pty) Ltd as to best practice relating to the structure
of my/our
will. If my/our instruction(s) are contrary to Nedgroup Trust
(Pty) Ltd’s advice, my/our instruction(s) should
prevail.
[8]
The will application form was completed by
the deceased with the assistance of a representative of the bank on
the day before she
died. She was terminally ill with cancer at
the time. The deceased passed away before her instructions for
the drafting
of a will were carried out.
[9]
As evident from the wording of
s 2(3)
of the
Wills Act, it
is required of an applicant seeking an order of
the sort contemplated by the provision to establish, amongst other
things, that
the document in question was intended by the deceased
person to be his or her will. It is in that regard that the
application
runs into difficulty on the merits of the claim.
[10]
The applicants’ counsel submitted
that a liberal approach should be adopted in respect of the
application of
s 2(3).
He relied on three judgments in
support of his argument:
Van Wetten v
Bosch
[2003] ZASCA 85
(19 September
2003);
[2003] 4 All SA 442
(SCA);
2004 (1) SA 348
(SCA),
Mabika
and Others v Mabika and Another
[2011]
ZAGPJHC 109 (8 September 2011) and
Dikgale
v Master of the High Court, Polokwane
[2013] ZAGPPHC 85 (26 March 2013).
[11]
The document in issue in
Van
Wetten
was in the form of a letter
drafted by the deceased to his attorney setting forth instructions to
the latter to draw up a will.
In that respect it is therefore
comparable on its facts to the current case. However, the
evidence in
Van Wetten
was to the effect that the letter had never been sent to the
attorney. The deceased in that case instead entrusted the
letter
to a friend for safekeeping as if it were in fact his will.
In deciding that the letter qualified to be recognised as having
been
intended by the deceased to be his will, the appeal court was
persuaded by the surrounding circumstances. Notably, the
document had been entrusted to a close friend in a sealed envelope
endorsed with the words ‘
Maak net
oop as daar iets met my gebeur of ek ander besluit!
’
The entrustment of the letter occurred in circumstances in which the
deceased was emotionally charged because he suspected
infidelity by
his wife. He took his own life every shortly after giving the
letter to the friend for safekeeping. It
seemed that he had
probably been contemplating doing that when he entrusted the document
to his friend. It could accordingly
readily be inferred in the
circumstances that the deceased in
Van
Wetten
’s case intended the
letter, which contained detailed instructions for the administration
of his deceased estate, to be regarded
as his will. The essence
of the court’s reasons for so concluding are reflected at
para 19 of the judgment, where
Lewis JA said:
‘
The
inference that the deceased contemplated suicide leads inevitably to
the conclusion that, when he gave the envelope to Van der
Westhuizen,
it was not intended that the latter should hand the enclosed document
to attorney Mike Nolan so as to see to the drafting
of his will. At
the time when it was envisaged that the envelope would be opened, and
the document read, the deceased would already
be dead. A dead man
cannot execute a will, and the deceased, even in a troubled frame of
mind, would have appreciated that. This
fact alone, in my view, shows
that the contested will was intended by the deceased to be his will.
The terms of the contested will
bear that out.’
[12]
By contrast, in the current case there is
nothing to indicate that the deceased intended the document to be
anything other than
what it appears to be – an instruction to
the bank to draft a will.
[13]
The facts in
Mabika
were more closely analogous to those in
the current matter. In that matter too, the document in issue
was a written instruction
to a bank by the deceased to draft a will
for her. As in the current case, the deceased in
Mabika
was terminally ill and died before a will could be executed in
accordance with her signed detailed instructions. The court’s
reasoning for holding that the instructions document should be
accepted as the deceased’s will were set out in para 15 of
the
judgment as follows:
‘
I
have already sketched extensively the family background, and the
circumstances leading to the present application. I have also
examined closely the purported will, Annexure “SM2”. It
is plain that the deceased died on 24 January 2011 engulfed
in
miserable circumstances after she executed, in her own handwriting
Annexure “SM2”. She clearly intended the document
to be
her final will but did not survive to sign it. This is so despite the
fact that the document is styled “
Application
for the Drafting of a Will
”.
It contained full personal details which the deceased intended to
appear in her will. The surrounding circumstances are
that the
deceased and the first respondent, due to his cruelty towards her,
were estranged. They were on the verge of a divorce,
but for her
illness and eventual death. They no longer lived together since 2006.
The deceased clearly intended to disinherit the
irresponsible and
unemployed first respondent from her estate. She took him to the
maintenance court in order to compel him to
comply with his fatherly
responsibilities, including that of his own son. She even obtained an
interim protection order to put
an end to the persistent assaults on
her. She was also hugely scared of the first respondent. That is why
she never ventured to
mention to him the word ‘
divorce
’
.
Under
these circumstances, it will be greatly unjust not to accept Annexure
“SM2” as the deceased’s final will,
and the first
respondent will unfairly benefit from her estate when it is clear
that such was not her intention. In
Van
der Merwe
[
Hendrik
van der Merwe v Master of the High Court and Another
[2011] 1 All SA 298
(SCA)]
,
supra
,
Navsa JA at para [14] said:
“
By
enacting section 2(3) of the Act the legislature was intent on
ensuring that failure to comply with the formalities prescribed
by
the Act should not frustrate or defeat the genuine intention of
testators …
”
Once this
Court accepts that the deceased intended Annexure “SM2”
to be her final will, the issue of discretion does
not come into play
at all. The decision to declare that the first respondent should
forfeit his share of the immovable property,
although drastic in
nature, will be justified in the circumstances of this matter.’
[14]
It seems to me, with respect, that the
learned judge in
Mabika
was guided by the equities of the case rather than the prescripts of
s 2(3). Whilst there was no doubting that the document
in
issue in that case reflected the deceased’s testamentary
wishes, there was no evidence that she had intended it to be
her
will. Proof that she had so intended was one of the
essential requirements for relief in terms of s 2(3).
This
would appear to have been overlooked by the court in
Makiba
.
In my opinion, the judgment in
Mabika
was justifiably criticised by Professor MJ de Waal in his
contribution to the (2011)
Annual Survey
of South African Law
(Juta) 1033 s.v.
‘
The law of succession (including
administration of estates) and trusts
’
at 1039-1041 as ‘
unfortunately, a
hard case which made bad law
’.
[15]
In
Dikgale
’s
case, the court was satisfied that signed entries in the deceased’s
diary that appeared to set out instructions for
the administration of
her affairs and the care of her child after her death were intended
by her to express her testamentary wishes.
It is indeed unusual
for anyone to make signed entries in a diary. The content of
the entries coupled with the attachment
of the deceased’s
signature to them justified the conclusion by the court in that case
that her directions were intended
by the deceased to be her will.
I would consider the judgment in
Dikgale
to manifest the sort of liberal application of s 2(3) that the
applicants’ counsel contended for. I say that because
to
have treated entries in a diary as ‘a document’ seems to
me to stretch the contextual import of the word ‘document’
in s 2(3) too far. But that is not the issue in the
current case. The distinguishing feature in the current case
is
that the content of the document in issue and the circumstances
surrounding its execution indicate clearly that the deceased
did not
intend it to be anything other than a drafting instruction.
There is nothing to support the contention that the deceased
intended
the document to be her will; everything points to the contrary.
[16]
It follows that a case for the substantive
relief sought in this application has not been made out.
[17]
The first respondent contended that the
applicants in any event did not have the legal standing to bring the
application.
The basis upon which the second to fifth
applicants alleged that they had standing was their situation as
contingent intestate
heirs to the estate. It is quite evident,
however, that the prospect of any of them inheriting on intestacy
from the deceased’s
estate is illusory. On intestacy, the
deceased’s estate falls to be shared between the first
respondent and the minor
child. Indeed, if the value of the
deceased’s share of the estate in community of property is less
than R250 000,
the first respondent would inherit the entire
share
(s 1(1)(c)
of the
Intestate Succession Act 81 of 1987
).
It is evident, however, if regard is had to the supporting
affidavit as a whole, that the second to fifth applicants brought
these proceedings not in their own interests but concerned, rather,
that the deceased’s minor child should inherit her portion
of
the joint estate in accordance with the deceased’s declared
wishes. A court will not lightly turn away a litigant
who
approaches it in the interests of a minor child, even if,
technically, the proper approach would have been for the applicants,
or one of them, to apply for the appointment of a curator
ad
litem
to prosecute the proceedings on
the child’s behalf, if so advised. It is for this reason
that I have treated of the
application on its merits rather than
dismissing it on the point
in limine
,
as could have been done.
[18]
The first respondent sought his costs of
suit. Although the general rule is that costs follow the
result, the awarding of
a costs order remains a matter within the
discretion of the court. Being satisfied that the applicants
were actuated not
by their personal interests, but rather with a bona
fide concern that the deceased’s wishes for her deceased estate
to devolve
upon her child as conveyed in the instructions given on
the day before her death for her last will and testament be
implemented,
I consider that the equities of the case make it one in
which it would be appropriate to depart from the general rule and
make
no order as to costs. It weighs with me in this regard
that I would expect the first respondent, if it were practicable for
him to do so, to honour his late wife’s declared wishes
regardless of the fact that due to a cruel twist of fate they did
not
end up being entrenched in a will as she had intended.
[19]
The following order will issue:
1.
The application is dismissed.
2.
There will be no order as to costs.
A.G. BINNS-WARD
Judge
of the High Court
APPEARANCES
Applicants’
counsel:
D.L.
Petersen
Applicants’
attorneys:
Boer Arries & Associates
Cape Town
First
Respondent’s counsel:
B. Braun
First
Respondent’s attorneys:
Jaffer & Associates
Cape Town