Brief Summary

Succession — Validity of will — Applicants sought an order for the Master of the High Court to accept documents executed by the deceased as her will — Deceased had executed a document with specific instructions regarding guardianship and property distribution prior to her death — Legal issue centered on whether the document met the requirements of a valid will under the Wills Act 7 of 1953 — Court held that the document, despite not being formally executed as a will, reflected the deceased's intentions and should be accepted as valid for the purposes of estate administration.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings took the form of an unopposed motion in the South Gauteng High Court, Johannesburg. The applicants sought, principally, an order directing the Master of the High Court to accept certain documents completed by the deceased as her will under section 2(3) of the Wills Act 7 of 1953, together with ancillary relief relating to forfeiture of a spouse’s share in an immovable property and interim relief concerning the care, custody and guardianship of a minor child.

The parties were members of the same family. The first applicant (adult daughter of the deceased) brought the application in her personal capacity and also represented the third applicant, an 11-year-old minor child of the deceased and the first respondent. The second applicant was the deceased’s adult son. The fourth applicant was the first applicant’s minor child. The first respondent was the deceased’s husband (married in community of property) and the father of the third applicant. The second respondent was the Master of the High Court, who abided the decision of the court.

As to procedural history, the matter came before the court on an unopposed basis, although the first respondent had delivered a notice of intention to oppose but filed no answering papers and did not appear. The court was initially reluctant to grant far-reaching relief without careful consideration, particularly given potential implications for the first respondent’s rights, and judgment was briefly reserved while heads of argument were filed for the applicants.

The general subject matter concerned the administration of a deceased estate and whether documents styled as an “Application for the Drafting of a Will” could nonetheless be accepted as a will under the statutory condonation mechanism, as well as related disputes about entitlement to a family home and interim arrangements for a minor child pending investigation by the Family Advocate.

Material Facts

The deceased, Monica Tembisile Mabika, was married to the first respondent in community of property. During 1998, the deceased, through her employer (Metrorail), purchased the immovable property at No. 30 Sable Street, Dawn Park Extension 2, Boksburg, which was registered in the names of both spouses by reason of the marriage in community of property. The bond repayments were deducted from the deceased’s salary. The first respondent was unemployed from 2006.

The court relied on the evidence that the marriage relationship had deteriorated severely. The first respondent left the common home in 2006 following an assault on the deceased and did not return. In December 2006 the deceased obtained an interim protection order against the first respondent under section 5(2) of the Domestic Violence Act 116 of 1998. The founding papers described ongoing cruelty and lack of support by the first respondent, and the court treated the relationship as having broken down irretrievably by the time of the deceased’s death.

In September 2010, while not hospitalised, the deceased attended at First National Bank and completed documents on an FNB form headed “Application For the Drafting of a Will” (Annexure “SM2”). The document recorded her personal details, marital status, and information relevant to a will. Under “Children” the deceased inserted the names of the four applicants. The document also recorded that Miss Sindisiwe Mabika (the first applicant) would be the children’s guardian if the deceased passed away, and it listed the first applicant under “Guardians”. The deceased signed the “Terms and Conditions” page and completed and signed a debit order for the will-drafting fee.

A further document (“Client Information”, Annexure “SM4”) contained a handwritten note by the deceased stating, in substance, that if she passed away the first applicant would arrange her burial; that the children should own the property and it should not be sold; and that other policies and investments should be shared equally between the four applicants.

It was common cause for purposes of the court’s reasoning that the deceased died on 24 January 2011 and that a formally executed will complying with all statutory formalities was not produced. Testamentary capacity was not in dispute in the judgment. A confirmatory affidavit from an FNB financial planner (Mkatshwa) stated that the deceased comprehended the nature and effect of her actions and was capable of forming the intention to bequeath benefits to the beneficiaries.

In January 2011, shortly before death, the deceased signed a form changing the beneficiaries of her pension fund by deleting the first respondent and leaving the applicants as beneficiaries. After the death, on 9 February 2011 the Master appointed the first applicant as executrix of the estate, and earlier authorised the release of funds for funeral expenses to her.

In relation to the minor child (the third applicant), the first applicant alleged that the deceased had informally appointed her to act as guardian and that the first respondent posed risks to the minor’s welfare. The first applicant had approached the Family Advocate for a report, but no report was available when the application was argued.

Legal Issues

The central legal question was whether the court was satisfied, as required by section 2(3) of the Wills Act 7 of 1953, that Annexure “SM2” (read with the surrounding circumstances relied upon) was a document intended by the deceased to be her will, notwithstanding non-compliance with all formalities required for the execution of wills.

A related issue was whether, in consequence of recognising the document as the deceased’s will and on the facts presented, the court should order that the first respondent forfeit his share in the immovable property.

A further issue concerned whether the court could grant final relief regarding care, custody and guardianship of the third applicant on the papers, or whether only interim relief was appropriate in the absence of a professional investigation and report, particularly in light of the stated intention to obtain a Family Advocate report.

These issues involved primarily the application of legal standards to facts, including an evaluative assessment of the deceased’s intention in relation to the document and an assessment of whether the available information was sufficient to make a definitive determination on custody and guardianship.

Court’s Reasoning

On the will issue, the court applied section 2(3) of the Wills Act, which permits a court to direct the Master to accept a document as a will if the court is satisfied that the document was drafted or executed by a deceased person and that the person intended it to be his or her will, even if the document does not comply with all formalities.

The court accepted that testamentary capacity was not in issue and also accepted the legal position (supported by authority cited to it) that a lack of a signature is not an absolute bar to a document being declared a will under section 2(3). The court identified the “crisp question” as whether it was satisfied that Annexure “SM2” was intended to be the deceased’s will. In addressing intention, the court considered both the content of the document and the surrounding circumstances, in line with the approach described in the authorities cited (in particular, the enquiry being directed to whether the deceased intended the document to be a will at all, rather than first focusing on interpretive questions about its meaning).

Although Annexure “SM2” was labelled an “Application for the Drafting of a Will” and contained terms indicating that a will would only be valid once completed and signed in compliance with the Wills Act, the court concluded that the deceased’s completion of extensive personal details, the explicit guardian designation, and the handwritten note in the client information documentation reflected a settled intention regarding the disposition of her estate and the arrangements she wanted for her children and the property. The court also regarded the broader context as significant: the deceased and first respondent were estranged; they had not cohabited since 2006; there had been domestic violence and protective legal steps taken; and, on the papers, the deceased wished to prevent the first respondent from benefiting from her estate in circumstances where his conduct and lack of support were alleged. The court concluded that the deceased intended Annexure “SM2” to be her final will but did not survive to sign a final will document.

The court further reasoned that, once the section 2(3) requirements were met, the court’s role was not discretionary in the sense of choosing whether to grant the condonation order: the statute was treated as requiring that the Master be directed to accept the document once the court was satisfied as to intention. The court stated that, on that footing, “the issue of discretion does not come into play at all” once intention was established.

As to forfeiture, the court described the forfeiture of the first respondent’s share in the immovable property as drastic, but concluded that it was justified in the circumstances as presented, particularly given the finding that the deceased did not intend the first respondent to benefit from her estate and the injustice that would result if he did.

Regarding care, custody and guardianship of the third applicant, the court distinguished between interim protection and final relief. The court accepted that the third applicant appeared, on the papers, to be “presently better off” in the first applicant’s care, but considered that there was insufficient information to make a definitive order because there had been no full professional investigation. The first applicant had indicated that the Family Advocate should investigate and report on the child’s best interests, but the report had not been produced. The court therefore declined to make a final determination and instead granted interim relief pending the Family Advocate’s report, including care, custody and guardianship to the first applicant, while providing that the first respondent should have reasonable contact as per the notice of motion formulation.

On costs, notwithstanding the first respondent’s default (notice to oppose without answering papers and absence at the hearing), the court declined to order costs against him. The court noted his unemployment and held that an appropriate costs order was for costs to be paid out of the deceased estate.

Outcome and Relief

The court granted substantive relief in favour of the applicants. It directed the Master to accept Annexure “SM2” as the deceased’s will for purposes of the Administration of Estates Act 66 of 1965. It ordered that the first respondent forfeit his share of the immovable property at 30 Sable Street, Dawn Park Extension 2, Boksburg.

In relation to the third applicant, the court requested the Office of the Family Advocate, Johannesburg, to investigate and compile a report on the child’s present circumstances and to report to the court as soon as possible. Pending that report, the first applicant was granted interim care, custody and guardianship of the third applicant.

Costs were ordered to be paid by the estate of the deceased, and not by the first respondent.

Cases Cited

Hendrik van der Merwe v Master of the High Court and Another [2011] 1 All SA 298 (SCA)

Ex Parte Maurice 1995 (2) SA 713 (C)

McDonald and Others v The Master and Others 2002 (5) SA 64 (O)

Van Wetten and Another v Bosch and Others 2004 (1) SA 348 (SCA)

Legislation Cited

Administration of Estates Act 66 of 1965

Wills Act 7 of 1953 (section 2(3), and the judgment’s reference to signature formalities under the Act)

Domestic Violence Act 116 of 1998 (section 5(2))

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the documents executed by the deceased in September 2010 (Annexure “SM2”), though styled as an application for drafting a will and not complying with all formalities for execution of a will, were intended by the deceased to be her will for purposes of section 2(3) of the Wills Act 7 of 1953. The Master was therefore directed to accept them as the deceased’s will for estate administration purposes.

The court further held, on the circumstances presented, that the first respondent had forfeited his share of the immovable property that had formed part of the joint estate. In addition, because the evidence was insufficient for a final determination of the minor child’s best interests, the court directed the Family Advocate to investigate and granted interim care, custody and guardianship to the first applicant pending that report. Costs were ordered to be borne by the deceased estate.

LEGAL PRINCIPLES

Section 2(3) of the Wills Act 7 of 1953 empowers a court to direct the Master to accept a document as a will even where it does not comply with all execution formalities, provided the court is satisfied that the document was drafted or executed by a person who has died and that the deceased intended the document to be his or her will.

In determining whether a document was intended to be a will, the enquiry is directed primarily at intention, assessed from the document itself and the surrounding circumstances. The focus at that stage is whether the deceased intended the document to be a will at all, rather than first deciding interpretive questions about the meaning of the provisions.

A lack of signature is not, in itself, a complete bar to a document being declared a will under section 2(3). Once the court is satisfied that the statutory requirements are met, the court must direct the Master to accept the document as a will for purposes of estate administration.

Where final relief concerning a child’s care and guardianship is sought on motion papers, and the court lacks sufficient professional investigation into the child’s circumstances, it may be appropriate to grant interim care and guardianship arrangements and to call for a report by the Family Advocate before making definitive orders.

Mabika and Others v Mabika and Another (2011/10308) [2011] ZAGPJHC 109 (8 September 2011)