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[2010] ZAWCHC 140
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Ex Parte: Porter and Another (14970/2010) [2010] ZAWCHC 140; 2010 (5) SA 546 (WCC) (13 August 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO: 14970/2010
In
the
ex
parte
application
of
JANE
HANDSLEY PORTER
1
st
Applicant
GEOFFREY
LEIGHTON ASHMEAD
2
nd
Applicant
JUDGMENT JUDGE
A.G. Binns-Ward
FOR
THE PLAINTIFFS ADV A.D. Brown
INSTRUCTED
BY Chris Fick & Associates
4
th
Floor
Waalburg
Building
28
Wale Street
Cape
Town
DATE
OF HEARING 6 August 2010
JUDGMENT 13
August 2010
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
REPORTABLE
Case
No: 14970/2010
In
the
ex
parte
application
of
JANE
HANDSLEY PORTER
First
Applicant
GEOFFREY
LEIGHTON ASHMEAD
Second
Applicant
Summary:
•
Section
2(3)
of the
Wills Act 7 of 1953
does not afford a basis for relief in
circumstances in which a testamentary instrument has been duly
executed in accordance with
the prescribed formalities, but the
executed document has subsequently been lost.
Narrow
construction of the word 'drafted' in
s 2(3)
of the
Wills Act
applied
, in conformity with the interpretation of the provision in
Bekker v Naude & andere
2003 (5) SA 173
(SCA).
Alternative
relief granted in terms of the common law
JUDGMENT
Delivered
on 13 August 2010
BINNS-WARD
J:
[1]
The facts in this matter are not in contention. The question in issue
is whether on those facts the relief sought by the applicants
in
terms of s 2(3) of the Wills Act No. 7 of 1953 ('the Act') can be
granted.
1
[2]
Just over a month before his demise, the testator executed a codicil
to his last will and testament. The codicil was executed
in a manner
fully compliant with the formalities prescribed in terms of s 2(1
)(a) of the Act. The duly executed codicil was thereafter
delivered
to the offices of the testator's attorney for safekeeping. It was
taken there by a messenger in the testator's employ.
It was enclosed
in a large (B4) envelope. The receptionist at the attorney's office
was able to recall the messenger in question
delivering an envelope
to the attorney's office, but she had no knowledge of what it
contained. Unfortunately, no-one can say what
became of the envelope
or its contents after their delivery to the attorney's offices. When
the codicil was called for after the
testator's death it could not be
found despite diligent search.
[3]
The provisions of the codicil can be precisely established because
the document executed by the testator had been drafted by
his
attorney in accordance with the instructions conveyed to him on the
testator's behalf by the latter's wife. The resultant draft
had
thereafter been emailed to the testator's residence. There is
therefore an electronic record of the text of the document in
existence. A print-out of the emailed draft codicil was duly executed
by the testator at his home in the presence of his wife and
one of
his close friends, who is a co-executor testamentary of his estate.
Also present when the document was executed were two
entirely
disinterested persons, who signed the codicil as witnesses.
Affidavits confirming the aforementioned facts have been made
by all
the persons who were present when the codicil was executed.
[4]
The intended effect of the codicil was to substantially increase the
value of the bequests made in the testator's last will
and testament
to each of his daughters. It left unaffected the bequest of the
residue of his estate to his wife. It also left unaffected
two
comparatively minor bequests to the only other beneficiaries in terms
of the will. The only person whose proprietary interest
might in a
sense be adversely affected by the changes wrought by the codicil
would appear to be the first applicant.
[5]
The first applicant is the testator's widow, who is a co-executor
testamentary of the deceased estate. The second applicant
is the
family friend and co-executor testamentary, mentioned earlier, who
had been present when the codicil was executed. They
seek an order in
the following terms:
That
the Master of the High Court, Cape Town, be ordered to accept the
First Codicil to the will of the late Stanley Allan Porter
('the
deceased'), a copy of which is annexed to the Founding Affidavit of
the First Applicant, marked as Annexure 'B', as his valid
First
Codicil to his last will and testament for the purposes of the
Administration of Estates Act, 66 of 1965
, in terms of
section 2(3)
of the
Wills Act, 7 of 1953
.
Annexure
B to the founding affidavit is a print out of the email attachment
that had been sent by the drafting attorney to the testator's
wife;
in other words, it is a replica of the document that was duly
executed by the testator, but it does not bear his signature,
or
those of the witnesses.
[6]
The third co-executor of the estate has filed an affidavit recording
that he has no direct knowledge of the relevant facts,
but has no
objection to the court granting the relief sought by his
co-executors. The Master has filed a report abiding the judgment
of
the court.
[7]
Section 2(3) of the Act 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).'
The
noun
'will
is
defined in s 1 of the Act as including 'a
codicil
and any other testamentary writing'
and
the word
'amendment
is
defined in that section as meaning 'a
deletion,
addition, alteration or interlineation'.
There
is no special definition in the Act in respect of the noun
'document
or
of the verbs
'draft
and
'execute'
or
any of the derivatives of those verbs and, consequently, they must be
given their ordinary meaning, determined with proper regard
to their
contextual employment.
[8]
In
De
Reszke v Czeslaw Maras and Others
[2006]
2 All SA 115
(SCA);
2008 (2) SA 277
, at para. [11], it was stated
that
'Section
2(3) lays down the requirements which a document which does not
comply with the formalities for the execution of a will
has to meet
before a court will order the Master to accept it as a will. The
effect of an order under s 2(3) is that a document
which is not a
will for want of compliance with certain prescribed formalities but
purports to be a will is given effect to if
the requirements of the
section have been met. For the grant of relief under s 2(3) a court
must be satisfied that the deceased
person who drafted or executed
the document intended it to be his will.'
A
consideration of this statement makes it immediately apparent that
the facts of the current case are impossible to reconcile with
requirements for relief in terms of s 2(3). The document which the
testator executed complied in all respects with the prescribed
formalities. That was the document which the testator intended to be
a codicil to his will. The document which the applicants seek
to have
the Master directed to accept is not that document, but only a
template of the one that was executed. In my view these
characteristics, which are distinguishable from those that would be
apparent in the kind of document contemplated in
s 2(3)
of the
Wills
Act, make
it clear that the provision is not intended to address the
predicament that arises when the testamentary instrument in issue has
been executed in compliance with the formalities but has subsequently
been lost.
[9]
For completeness, however, I shall deal briefly with the basis upon
the applicants' counsel sought, nevertheless, to persuade
me that the
matter should be accepted as falling within the ambit of s 2(3) of
the Act.
[10]
Counsel accepted that there was 'a difficulty' in the way of any
attempt to persuade the court that the document the applicants
seek
to have the Master directed to accept had been executed by the
testator. In a written note submitted at my invitation after
the
conclusion of the hearing, counsel implied that 'there may be some
debate...as to the ambit of the word "execute"
in the
section', but he did not advance any argument in furtherance of the
postulated debate. The argument that was advanced focussed
instead on
the word 'drafted'. Relying on a series of reported cases which
adopted a generous construction of the ambit of s 2(3)
of the Act,
2
counsel submitted that by causing his attorney to have drafted the
codicil the testator must, in the context of the evidence that
he had
adopted the resultant text, be taken to have himself 'drafted' the
document, in the sense of that word as employed in s
2(3) of the Act.
[11]
If the argument were to prevail in the circumstances of the current
case it would, of course, also require the words 'the document'
to be
construed widely enough to include any document which exactly
replicated the text of the intended testamentary instrument,
rather
than being confined to the narrower concept of the actual piece of
paper in issue, which, in my view, is what the statutory
provision
has in contemplation. But that difficulty aside, counsel's argument
cannot be sustained because it has now been definitively
determined
that the verb 'drafted', interpreted in the context of s 2(3),
denotes a direct act by the testator and not a representative
act by
some other person acting on behalf of the testator. Put differently,
the act of drafting a document within the meaning of
the provision
does not include causing a document to be drafted. The line of
authority supporting the construction of the provision
contended for
by the applicants' counsel has been considered and disapproved by the
Supreme Court of Appeal: see
Bekker
v Naude & andere
2003
(5) SA 173
(SCA) at para.s [9]-[20]. See also
Van
Wetten & another v Bosch & others
2004
(1) SA 348
(SCA) at para. [14].
[12]
Thus the formulation of relief in this application, predicated as it
was on the provisions of
s 2(3)
of the
Wills Act, was
misconceived.
The relief should rather have been sought under the common law, in
terms of which the court may in a proper case
authorise that a
'reconstructed copy' of a will be accepted by the Master. A proper
case for relief under the common law would
be made out in a matter in
which the executed will has been lost and the court is satisfied on
the evidence that the reconstruction
is both accurate and complete.
See Corbett et al,
The
Law of Succession in South Africa,
2
nd
edition,
(Juta, 2001) at pp. 116-117;
Ex
parte Gowree
1915
CPD 108
;
Ex
parte Ntuli
1970
(2) SA 278
(W) and
Nell
v Talbot
1972
(1) SA 207
(D). In my judgment a case for such relief has been made
out on the papers and I propose to grant it pursuant to the prayer
for
alternative relief in the notice of motion. It is customary in
matters of this nature to issue a rule
nisi
calling
upon all persons who might have an interest to show cause why an
order should not be made.
[13]
The following order is made
1.
A
rule
nisi
shall
and hereby does issue calling upon any person interested to show
cause on Friday, 10 September 2010, at 10h00 or as soon thereafter
as
the matter may be called, why an order in the following terms should
not be made:
The
Master of the High Court, Cape Town, is authorised to accept a copy
of the unsigned draft annexed, marked 'B,' to the founding
affidavit
of the first applicant as the first codicil to the last will and
testament of the late Stanley Allan Porter for the purposes
of the
administration of the deceased's estate in terms of the
Administration of Estates Act, 66 of 1965
The
rule
nisi
shall
be served by means of publication in one edition of the Cape
Times
and
Die
Burger
newspapers
and by service of a copy thereof on the Master of the High Court,
Cape Town.
A.G.
BINNS-WARD
Judge
of the High Court
1
Section 2(3)
was inserted into the
Wills Act by
s 3(g)
of Act 43 of
1992.
2
The cases referred to by counsel, as well as a number of judgments
to the opposite effect, are conveniently collected in the
judgment
of this court in
Ndebele
and Others v The Master and Another
2001
(2)
SA
102
(C).