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[2021] ZAGPJHC 81
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Billings v Master of High Court of Johannesburg and Others (24039/2015) [2021] ZAGPJHC 81 (11 January 2021)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO: 24039/2015
(1)
REPORTABLE:
YES
/ NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
11 January 2021
In the matter between:
COLLEEN
SUSAN BILLINGS
Applicant
and
THE MASTER OF THE HIGH
COURT OF
JOHANNESBURG
1
ST
Respondent
GAILEEN
DENTON N.O.
2
ND
Respondent
(In her capacity as
appointed executrix in the
Deceased Estate of ELLEN
JOAN CAMPBELL,
ID number [….]
(Estate No 9496/2012)
GAILLEEN
DENTON
3
RD
Respondent
(ID No: [….])
(In her personal
capacity)
JUDGMENT
MIA, J
[1] The applicant
sought the following relief in an amended application:
“
1.
The document attached to the supplementary affidavit marked 'SA2"
is declared to be the last will and testament of
the late Ellen Joan
Campbell, Identity Number [….] (Estate number 9496/2012).
2. The first
respondent is directed to accept the document to the supplementary
affidavit marked "SA2" to be the
last will and testament of
the late Ellen Joan Campbell, Identity Number 3[…] (Estate
number 949612012), for the purpose
of the
Administration of Estates
Act 66 of 1965
.
3. The first
respondent is directed to remove the second respondent as the
Executrix of the late estate of Ellen Joan Campbell,
Identity Number
3[…] (Estate number 9496/2012). The first respondent is to
appoint Legatus Trust (EDMS) BEPERK as executor
of the late estate of
Ellen Joan Campbell, Identity Number 3[…] (Estate number
9496/2012).
4. The third
respondent to pay the costs of the application.”
[2] Before the
amendment, the applicant requested that a document marked as Annexure
“A" be regarded as the last
will and testament of her
mother Ellen Joan Campbell, ("the deceased") in terms of
Section 2(3)
of the
Wills Act, 7 of 1953
, as amended. The remainder
of the relief mirrored the relief requested above except for the
appointment of the executor. The difference
between Annexure “A”
and “SA2” is that Annexure “A” appears to be
the deceased’s instructions
for the drafting of a will and how
she wishes her estate to be distributed and “SA2” is the
document giving effect
to those instructions. Furthermore, Annexure
“A” was signed by the deceased and two witnesses whilst
“SA2”,
a document tiled “TESTAMENT”, the will
drafted as a result of Annexure “A” was not yet signed by
the deceased.
[3] The applicant,
Colleen Susan Billings, currently residing at 6[…] C[…]
Street, D[…] R[…],
is the deceased's daughter. The
first respondent is the Master of the High Court, Johannesburg, with
offices situated at 6[…]
M[…] Street, M[…],
Johannesburg. The Second Respondent is Gailleen Denton N.O., an adult
female cited in her capacity
as the executrix appointed in the
deceased estate of Ellen Joan Campbell, Estate No 9496/2012. The
third respondent Ms. Gailleen
Denton was cited in her personal
capacity and is the sister of the applicant.
[4] Regarding the
initial application, there was an order by Theron AJ dated 10 May
2019 that the matter is postponed
sine die
for oral evidence.
The applicant was granted leave to file a supplementary affidavit
within fifteen days of the court order. The
second and third
respondents were granted leave to file supplementary affidavits
within fifteen days of receipt of the applicant’s
supplementary
affidavit. Within twenty days of delivery of the latter supplementary
affidavit, the parties were to meet to formulate
the terms and narrow
the issues regarding the referral to oral evidence.
[5] The applicant
filed a supplementary application and amended the relief she sought,
per paragraph [1] above. The second
and third respondents filed their
supplementary affidavit. The parties met on the 17 June 2019 and
identified witnesses to be called.
The applicant intended calling
four or five witnesses, whilst the respondent did not intend calling
any witness but reserved their
right, if needed, to call one witness.
[6] When the matter
was set down before me, it appeared that no witnesses would be
called. This issue was addressed in the
respondents' counsel’s
practice note and heads of argument, where Adv. Scott placed on
record that the applicant’s
attorney sent a letter dated 13
July 2019 informing the respondent’s attorney of record that
they did not intend to lead
any witnesses and were of the view that
the matter could be determined on the papers.
[7] The applicant
is one of seven siblings, whilst the third respondent is her youngest
sister. It appears that in or about
October 1992 the deceased
concluded a will. A copy of this will was attached to the papers and
is recorded as the first will. In
terms of the first will, the
deceased left her entire estate to her youngest daughter Ms. Gaileen
Denton and in the event that
she had died to her daughter Ms. Evelyn
Wentzel. In May 1997 the deceased was about to retire and was
prompted by the Human Resources
Department at her place of
employment, SA Greetings (Pty) Ltd to update her affairs and ensure
they were in order. This resulted
in the deceased applying to Legatus
Trust (Pty) Ltd(Legatus) to draft a new will to update her affairs.
During this period, the
deceased informed all the surviving children
that she would update her will and that they would each receive an
inheritance from
her estate upon her death. Legatus confirmed that
they received an instruction to draft a will in correspondence dated
29 February
2012, wherein they stated that "Ons het in die faat
negentigs vir bogemelde persoon 'n testament opgestel ten opsigte
waarv'an
ons nooit die getekende testament ontvang het nie."
[8] Early in 2009,
the applicant looked after the deceased whilst she was ill. She moved
the deceased to her daughter as she
required assistance with the care
of the deceased. This was a temporary arrangement. In May 2010, the
deceased accompanied by her
daughter, Louise Marais, approached Ms.
Gailleen Denton to collect the first will and the property's Title
Deed. She informed Ms.
Denton that she wished to change her will. Ms
Denton informed her she could transfer the property into anyone’s
name as it
was her property. It appears the applicant wished to
provide for her son Mr. Walter Campbell who was not well.
[9] She requested
Ms Denton to take her to the attorney to effect changes to the will.
Ms Denton however, refused apparently
due to work commitments. She
requested that her sister, Louis Marais assist their mother instead.
It was the applicant’s
version that upon her return, the
deceased was distressed that Ms Denton had been unwilling to take the
deceased to the attorneys
to change the will which is confirmed by Ms
Marais and that Ms Denton had thrown the will and title deed at the
deceased. The deceased
passed away on 26 July 2010 in Krugersdorp.
The applicant returned to reside at the property to care for her
brother Mr Walter
Campbell, who was hospitalised in October 2011 and
passed away two weeks later.
[10] Ms Denton
arrived at the premises soon after that and announced she would be
taking an inventory and pictures of everything
on the property. She
also informed them that "everything in the house belongs to me.
I am rich, nobody must remove anything
from the property”. The
siblings, Littez Yvonne Williams, Helen Christine Harris and Joan
Lucia Baxter were present when
Ms Denton laid claim to the deceased’s
immovable property and personal belongings. A few weeks later, Ms
Denton sent a letter
through her attorneys informing her siblings
that she was the sole beneficiary of the deceased’s estate. She
demanded occupational
rent from the applicant forthwith.
[11] The siblings
met and decided to contest the will as they believed that the first
will did not reflect the deceased's
intention nor her wishes. Whilst
clearing their brother’s personal belongings and personal
effects, they discovered a document
they believed was the deceased’s
final will. It accorded with what the deceased mentioned to them. She
had told them that
she had a will drafted to protect their brother
Mr. Walter Campbell. It was the will drafted in May 1997 with Legatus
Trust (Pty)
Ltd. During their discussions, a family member informed
them that he knew Ms. Hélène de Villers, who signed the
Legatus
application for a will. She was contacted and explained that
the deceased's employer had advised the employees who were about to
retire to ensure they had updated wills. They deduced that this
prompted the deceased to prepare the final will. A will was prepared
according to the deceased’s instructions. It was, however, not
signed by the deceased. The instruction to prepare the will
was,
however, signed by the deceased and two witnesses.
[12] The applicant
met with the family to disclose the final will to the family. Ms.
Denton and two sisters, Louise Marais
and Noreen Williams rejected
the document. The applicant nor her siblings were aware that the
deceased’s estate had to be
reported. They became aware of this
in 2012 when the applicant consulted with her current attorneys
regarding the estate and how
it would be divided according to her
mother's final will. She informed her three siblings, being Littez
Yvonne Williams, Helen
Christine Harris, Joan Lucia Baxter, and they
agreed to report the estate as soon as possible. They instructed
their attorney in
April 2012, to attend to requirements to report the
deceased estate and handed over a copy of the final will. The
attorneys prepared
the necessary documentation to report the estate.
After the documentation was submitted, numerous requests were made to
the first
respondent about the Letter of Executorship. From the time
of reporting the estate in April 2012 until September 2014, there
were
unsuccessful enquiries at the offices of the first respondent.
[13] In September
2014, a certain Grace from the first respondent's offices, who was
the estate controller, informed the applicant’s
attorney that
she had the matter since October 2012. She was unsure about how to
resolve the matter as there were two wills. She
furthermore indicated
that as Ms. Denton attended at her office and presented an original
will, whilst the applicant submitted
a copy, she issued the Letter of
Executorship in accordance with the first will. She appointed Ms.
Denton as the executrix of the
deceased’s estate.
[14] The
applicant’s attorneys wrote to the first respondent’s
attorneys and requested that the estate's winding
up be held over
given the dispute regarding the wills. There was no response from the
second and third respondent. The applicant
then sought various
counsel’s opinions which resulted in the applicant launching an
application in 2014 seeking an order
declaring that the final will
they believed they had, to be the will of the deceased in terms of
Section 2(3)
of the
Wills Act, 7 of 1953
, as amended ("the
Wills
Act"
;). The applicant was not happy with the application and
accordingly sought further opinion to draft a new application. Thus
new
counsel was briefed in February 2015 to prepare the current
application.
[15] The issue for
determination is whether the document attached to the supplementary
affidavit marked “SA2”
read with the application to draft
a will should be declared to be the last will of the late Ellen Joan
Campbell?
[16] Section 2(1)
of the Wills Act 7 of 1953(the Act) provides for the formalities
required in the execution of a will as
follows:
“
(1)
Subject to the provisions of section 3
bis
—
(
a
)
no will executed on or after the first day of January 1954, shall be
valid unless—
(i)
the will is signed at the end thereof by the testator or by some
other person in his presence and by his direction; and
(ii)
such signature is made by the testator or by such other person or is
acknowledged by the testator and, if made by such other person,
also
by such other person, in the presence of two or more competent
witnesses present at the same time; and
(iii)
such witnesses attest and sign the will in the presence of the
testator and of each other and, if the will is signed by such other
person, in the presence also of such other person; and
(iv)
if the will consists of more than one page, each page other than the
page on which it ends, is also signed by the testator or by
such
other person anywhere on the page; “
[17] Section 2(3)
of the Act provides:
“
(3)
If a court is satisfied that a document or the amendment of a
document drafted or executed by a person who has died since the
drafting or execution thereof, was intended to be his will or an
amendment of his will, the court shall order the Master to accept
that document, or that document as amended, for the purposes of the
Administration of Estates Act, 1965 (
Act
No. 66 of 1965
),
as a will, although it does not comply with all the formalities for
the execution or amendment of wills referred to in subsection (1).”
[18] In
Van Der
Merwe v Master of the High Court and Another
2010 (6) SA 544 SCA
at para [14]-[16] the Court stated:
“
[14]
By enacting s 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.
[1]
It has rightly and repeatedly been said that once a court is
satisfied that the document concerned meets the requirements of the
subsection a court has no discretion whether or not to grant an order
as envisaged therein. In other words the provisions of s
2(3) are
peremptory once the jurisdictional requirements have been
satisfied.
[2]
[15] Turning to the
provisions of s 2(3) the first question to be considered is whether
the document in question was drafted
or executed by the deceased.
Following on this is the question whether the deceased intended it to
be his will. In
Letsekga v the Master & others
1995 (4) SA
731
(W) the following was stated at 735F-G:
‘
The
wording of s 2(3) of the Act is clear: the document, whether it
purports to be a will or an amendment of a will, must have been
intended to be the will or the amendment, as the case may be, ie the
testator must have intended the particular document to constitute
his
final instruction with regard to the disposal of his estate.’
[16] A lack of a
signature has never been held to be a complete bar to a document
being declared to be a will in terms of
s 2(3). In
Letsekga
,
decided in the division from which this appeal emanated, the lack of
a signature was not held to be a bar to an order in terms
of s 2(3)
of the Act.
Ex parte Maurice
1995 (2) SA 713
(C) decided in
the same year as
Letsekga
was to the same effect. In
Thirion
v Die Meester & andere
2001 (4) SA 1078
(T) an unsigned
document drafted by a person shortly before he committed suicide was
held to be a valid will and declared as such
in terms of s 2(3). In
that case the deceased had executed a prior will that had complied
with all the prescribed formalities.
The very object of s 2(3), as
pointed out above, is to ameliorate the situation where formalities
have not been complied with but
where the true intention of the
drafter of a document is self-evident.
A basic trawl through the
decided cases reveals that the absence of a signature has not been
seen as a bar to relief in terms of
s 2(3)
.”(my
emphasis)
[19] In the present
matter, the deceased completed the first will. This will complied
with all the formalities. However, it
only benefitted the youngest
daughter and in the event of her demise, the oldest daughter. This
was done evidently to exclude her
son Mr. Walter Campbell whose
conduct she did not approve of. The deceased, however, later changed
her mind. Mr Campbell resided
in her house, he was her only son, and
she was concerned about his wellbeing after she died. She wanted to
be sure that he would
be provided for in her will. It appeared that
she was intent on providing for all her children. There is no
explanation for why
she wished to continue to benefit Ms. Denton to
the exclusion of the remaining children. On Ms. Denton’s
version, the deceased
approached her to change her will. According to
Ms Denton, she could not take the deceased to the attorneys to change
the will
which benefitted her exclusively, due to work commitments,
despite being aware of the deceased’s ill health. It is an
unavoidable
fact that the will remaining unchanged ensured that she
remained the beneficiary of the deceased’s entire estate.
[20]
The final will attached to the Legatus application for a will must be
read having regard to section 2(3) of the Act.
The question to be
considered regarding the intention of the section is whether the
document clearly
purports
to be a will or an amendment of a will. The deceased must have
intended the will or the amendment, as the case may be to
her final
instruction. Regarding the deceased’s visit to Ms Denton to
retrieve the old will and the title deed and the request
to visit the
attorneys it is clear the first will lodged with the first respondent
was not the deceased’s final instruction.
[21]
It
is evident that the deceased did not understand what was required to
change her will, and she believed that she needed Ms Denton
to
accompany her to the attorney. The deceased wished to provide for her
son Mr. Campbell. It is evident from Ms Denton’s
conduct that
she was not satisfied with an equal distribution of the assets after
being led to believe that she would inherit everything.
The
application for a will to Legatus read with the will subsequently
drafted indicates the deceased's final intention when she
reassessed
her position at retirement. When she became ill, she sought to
retrieve the old will and title deed from Ms Denton,
and it was clear
she no longer wished for her estate to devolve under the old will.
She could not have obtained the old will as
Ms. Denton had it in her
possession. This is so as she filed the first will with the first
respondent. Thus notwithstanding
the formalities not being
complied with section 2(3) of the Act as stated in
Andersen
NO and Others v Master of the Supreme Court and Others
[1996]
1 All SA 637
(C) where the Court noted at p 642 that:
“
Sectio
n
2(3) is in the nature of a special exemption from the rigours of the
requirements of section 2(1). In
Stoltz
v
The
Master
and
Another
1994
(2) PH G2 (E) it was held that:
"I
t
woul
d
appear
,
however
,
tha
t
wit
h
th
e
enactmen
t
o
f
sectio
n
2(3
)
th
e
legislature
,
whil
e
seekin
g
t
o
retai
n
th
e
benefi
t
jus
t
referred
to," (that is, the securing of authenticity and the elimination
of false or forged wills) "recognised on the
other hand the
virtue of not invariably insisting on a strict compliance with all
the formalities prescribed in section 2(1)(
a
)
in order to achieve the situation where a will, otherwise established
to be the genuine will of the testator, would not be declared
inoperative
merely
for
want
of
compliance
with
the
prescribed
formalities.
Hence
its
imposition
on
the
Court
of
the
peremptory duty, upon satisfaction as envisaged in the section, to
order the Master to accept the document in question as a
will."
Whilst the final will
does not comply with the formalities, it does evidence the deceased’s
final wishes as per her instructions
to Legatus and as she intended.
This is also supported by the decision in
Pienaar and another v
Master of the Free State High Court and Others
2011(6) SA 338 SCA
where at paragraph 11 the court found that ‘
where there is a
conflict between the provisions of the two wills, the conflicting
provisions of the earlier testament are deemed
to have been revoked’
COSTS
[22] I now proceed
to the question of costs. The request is usually made that the costs
be paid from the estate. This was
not the case in this matter. There
was a remand for oral evidence and a request that the applicant be
liable for the costs on the
one hand. The applicant requested that
the second and third respondent be held responsible for the costs
initially as the respondents
had resisted the leading of oral
evidence. I believe that the costs should not come from the estate;
instead, it is appropriate
that costs should follow the cause.
Counsel for the second and third respondent deemed it an appropriate
order in the circumstances
as did the applicants.
ORDER
[23] For the
reasons above, I grant the following order:
1. The document
attached to the supplementary affidavit marked 'SA2" is declared
to be the last will and testament of
the late Ellen Joan Campbell.
2. In terms of
section 2(3)
of the
Wills Act 7 of 1953
, the first respondent is
directed to accept the document attached to the supplementary
affidavit marked "SA2" to be the
last will and testament of
the late Ellen Joan Campbell, for the purpose of the
Administration
of Estates Act 66 of 1965
.
3. The first
respondent is directed to remove the second respondent as the
Executrix of the late estate of Ellen Joan Campbell,
(Estate number
9496/2012). The first respondent is to appoint Legatus Trust (PTY)
LIMITED as executor of the late estate of Ellen
Joan Campbell,
(Estate number 9496/2012).
4. The third
respondent to pay the costs of the application.”
S C MIA
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Appearances:
On behalf of the
applicant:
Adv M Karolia
Instructed
by:
Ayoob Kaka Attorneys
On behalf of the 2
nd
and 3
rd
respondent:
Adv A Scott
Instructed
by:
Low & Heyl Attorneys
Date of
hearing:
04 August 2020
Date of
judgment:
11 January 2021
[1]
See
Logue
op cit
at
203F-G. In
Anderson
op
cit
at
785C the following is said about s 2(3) of the Act:
‘
Section
2(3) is in the nature of a special exemption from the rigours of the
requirements of s 2(1).’
[2]
See
Anderson
at
785E-F and the cases there cited.