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[2010] ZAWCHC 542
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Abrahams v Francis NO and Others (5890 / 2009) [2010] ZAWCHC 542 (10 November 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE HIGH COURT, CAPE TOWN
CASE
NO: 5890 / 2009
In
the matter between:
TERSIA
ABRAHAMS
…............................................................................
Applicant
and
CHANTAL
SHARON FRANCIS N.O.
….............................................
I
s
'
Respondent
(in
her capacity of executor of the estate of the
late
Warden
Francois Pietersen)
GWENDOLINE
PIETERSEN
…..........................................................
2
nd
Respondent
SAMUEL
PIETERSEN
…...............................................................
3
rd
Respondent
MASTER
OF THE HIGH COURT,
WESTERN
HIGH COURT, CAPE TOWN
…....................................
4
lh
Respondent
JUDGMENT
: 10 NOVEMBER 2010
BOZALEK
J
:
[1]
The applicant in this matter seeks an order declaring that a certain
document ("the contested will") to be the will
of the late
Warden Francois Pietersen in accordance with section 2(3) of the
Wills Act and condoning its non-compliance with
the various
provisions ot the Act relating to the drawing up of a valid will.
[2]
A further order is sought authorising and instructing the fourth
respondent, the Master of the High Court, to accept the contested
will, in terms of the aforesaid section 2(3), as the will of the
deceased.
[3]
The applicant is the sister of the deceased who was unmarried, had
no children and died on 15 July 2007. First respondent
is an
attorney and the executor in the deceased estate. Both the first and
fourth respondents abide the decision of the Court.
The second and
third respondents are the deceased's remaining sister and brother,
respectively, and both oppose the relief sought.
Apart from the
contested will, no other testamentary document was left by the
deceased. Thus far the deceased's estate has been
wound up as if he
died intestate with the result that the applicant, second and third
respondent will each inherit l/3
rd
of
his estate. In the event that the document is declared the
deceased's will, applicant will inherit 90% of the estate, with
the
remaining 10% revolving upon one Carol-Ane Matsela
("Matsela").
BACKGROUND
[4]
The deceased was employed by Transnet as a manager and at the time
of his death appeared to be living alone in a property
which he
owned. He had a stormy on-off relationship with a Ms. Leanne
Oliphant
["Oliphant").
It
would appear that, during 2007 at least, the deceased was unstable
and suffered from depression. He also appeared to be abusing
alcohol, a factor which rendered his relationship with Oliphant
abusive and caused her to break it off from time to time. This
in
turn appeared to exacerbate the anxiety and mental instability which
the deceased was suffering.
[5]
Beyond the fact that it was a result of natural causes, the
circumstances of the deceased's death are somewhat obscure. It
occurred while his was riding his bicycle on his way to visit
members of his family. On the one hand it is described as an
accident whilst other documentation indicates that he died of a
heart attack. Be that as it may for the purposes of this application
it must be accepted that he died of natural causes.
[6]
Members of the deceased's family attended the day after his death at
the offices of the first respondent who had wound up
their father's
estate. He advised them to search for a will. A search was conducted
of the deceased's house and Ms. Oliphant
emerged from his spare room
with an original unsigned and undated document written in the
deceased's handwriting on 3 sheets
of a Unisa assignment writing pad
and which reads as follows (including misspellings):
"TO
ALL MY FAMILY AND FRIENDS:
Please
know that I never wish or planned this tragedy to happen. I was
never an angel or perfect, but strived to give only my
best. Many or
all of you would be disapointed, but this decision was mine. My
estate
After
debt deductions
My
House and Car, policy contributions, jewellery, clothing Including
all contents eg. furniture, electrical appliance utensils
etc. must
go to Mrs Tersia Abrahams (sister) (021) 988 9992 (Sole
beneficiary).
Other;
10% of my entire estate must go to:
Mrs
Carol-Anne Matsela, colleage, mother and friend.
My
remains must be cremated as I would have died a dishonourable
death.
I
would like to pay tribute to the following persons that impacted
positively on my life in being.
Lecturer
Mr Charles Rogers (Senior Lecturer, UNISA (0844677777) Employer and
colleages at Spoornet Mrs Dijino Nasoro Mr Chris
Sono Mr Neil Naidu
All
Senior Management, Committee Members: Western Region My colleages
and dedicated members of staff Loved ones
Pietersen
family and other and in particular my sister Tersia Abrahams whom
supported me ever since. Also the Frans Lotriet Family.
There is
many others, Thanks to them also. Furthermore,
I
herewith declare that this writing replace all previous in respect
of estate devide or last wishes expressed. Appointment as
Executor
of my Estate Mrs Carol-Ane Matsela (021 940 3414/083 459 3278)
Immovable and Movable property (Home/Car) Must be immediately
be
taken in possession by Mrs Tersia Abrahams upon notice of death.
Bank Accounts
Mrs
Tersia Abrahams have full right to withdrawals from my bank
accounts
Standard
Bank
Savings:
PIN-20182
Cheque
: PIN - 34580
This
will pay for the funeral ceremony."
[7]
The first respondent forwarded the contested will to the fourth
respondent who endorsed it as being invalid by reason of not
having
been signed or witnessed. Various members of the deceased's family,
including the applicant and the second and third respondent,
appear
at times to have held differing views as to the basis upon which the
deceased's estate should be wound up and differing
instructions were
furnished to first respondent. Applicant then engaged separate legal
representation and, ultimately, this application
ensued. I do not
consider it material, for the purposes of this application, to
detail the twists and turns of the various positions
adopted by
family members; suffice it to say that the papers reveal that this
issue has unfortunately caused considerable dissension
amongst them.
THE
LAW
[8]
Section 2(3) of the Wills Act, which was amended by the Law of
Succession Act 43 of 1992, provides as follows:
"If
a court is satisfied that a document or the amendment of a document
drafted or executed by a person who had 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
Estates 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 ss (1)"
[9]
In Ex Parte Maurice
1995 (2) SA 713
Selikowitz J held that before a
court can make an order pursuant to s 2(3) a Court must be satisfied
that it has before it a
document:
which
was drafted or executed by a person;
who
had since died; and
who
intended that document to be his/her will.
He
held further that the relevant provisions "are
intended
to save a will that would otherwise be invalid due to a formal
defect in its attestation. The formal provisions for the
attestation
of wills remain part of our law. It is the hardship which results
from a technical shortcoming in the attestation
of a will which the
introduction of s 2(3) seeks to alleviate."
[10]
In
Van
Wetten and Another v Bosch and Others
2004
(1) SA 348
(SCA), the Court dealt with a document apparently written
by the deceased in contemplation of his suicide. It held that the
question
which confronted it was whether the deceased had intended
the document to be his will and that such enquiry of necessity
entailed
an examination of the document itself and also of the
document in the context of the surrounding circumstances.
[11]
In that matter it was contended on behalf of an opposing party that
after concluding the document in question the deceased
had appeared
to change his mind concerning the disposition of his property. The
Court held that those factors were not relevant
in the determination
of what the deceased's intention was at the time of writing the
contested will.
"Evidence
as
to
subsequent conduct is relevant only insofar as it throws light on
what was on the mind of the deceased at the time of making
the
contested will..."
The
approach adopted by the Supreme Court of Appeal in Van Wetten's case
was recently endorsed by that Court in the matter of
Smith
v Parsons N.O. and Others
2010
(4) SA 378
(SCA).
[12]
In the present matter there is no dispute that the contested will
was drafted by the deceased who died thereafter. The dispute
between
the parties is whether the deceased intended the document to be his
will. The respondents contend that, having regard
to the surrounding
circumstances and, most notably, various alleged statements made by
the deceased in the period before his
death, he did not intend the
document to be his will.
DISCUSSION
[13]
I turn in the first place to the contents of the document. Although
the document is neither dated, signed nor witnessed it
is common
cause that it was written by the deceased. There are, furthermore,
very clear indications that the deceased intended
it to be his will.
In it he lists the main assets in his estate and then clearly
directs that, save for 10% thereof, the applicant
is to be the sole
beneficiary of his estate. The contested will, expressly stipulates
that Matsela was to be his executor. The
following sentence makes
the deceased's intentions in drafting the document quite clear. "/
herewith
declare that this writing replace all previous in respect of my
estate devide (sic) or last wishes expressed."
[14]
Notwithstanding the denials of the second and third respondents, it
is clear from its wording that when the deceased drafted
the
contested will he was contemplating suicide. This appears from his
reference to the
"tragedy"
which
he never wished to happen, the disappointment that his family and
friends would suffer and, conclusively, his reference
to dying "a
dishonourable
death".
This
prompts two observations; firstly the fact that the deceased was
contemplating suicide does not of itself render the document
something less than his will, if that is indeed what it is.
Secondly, the fact that the deceased changed his mind about
committing
suicide also does not exclude the document being declared
his will. The contested will must be judged on its own terms (which
are unconditional), and the surrounding circumstances. Any later
change of mind on the part of the deceased, unless given effect
thereto by an act of revocation in the form of a subsequent will or
codicil or by destruction of the original will, is irrelevant.
See
in this regard the Law of Succession in South Africa, Juta 2
nd
ed
Corbett et al at page 94 et sequor.
[15]
This brings me to an examination of the various grounds advanced by
the second and third respondents, singly or cumulatively,
why the
contested will, although admittedly drafted by the deceased, should
not be declared to be his will. They both deny that
the document was
intended to be the deceased's will, first respondent pointing to the
fact that it was found at his house amongst
surplus notepaper and
not in a place where one would expect to find any of the deceased's
important documents. First respondent
also relies on what she
considers to be contradictory remarks made by the deceased prior to
his death in which he indicated that
her children would be cared for
in the event that he died. Reliance is also placed by her on what
she terms the "form"
of the letter and its incomplete
nature and the fact that shortly before his death the deceased was,
according to her, under
emotional stress and concerned about his
health.
[16]
The third respondent similarly relies upon an alleged intimation by
the deceased, a month prior to his death, that Ms. Oliphant
as well
as all his brothers and sisters would be looked after in the event
of his death. He refers to the contested will as an
"emotional
letter"
which
the deceased appears to have written during a period of depression
and contemplation of suicide.
[17]
Ms. Oliphant furnished an affidavit on behalf of the respondents in
which she describes the stormy and abusive nature of
their
relationship. She states that the deceased told her in 2007 that,
whilst considering suicide, he had written a letter to
his family
arising out of a dispute which he had with second respondent and in
which letter he favoured certain family members.
She stated that the
deceased had then changed his mind and had torn up the letter in
question in front of her.
[18]
Ms. Oliphant also refers to assurances from the deceased shortly
before his death in 2007 that he would look after her and
all
members of her family in the event of his death. She described how
she found the contested will, stating that she looked
in all the
places where the deceased normally kept his documents but eventually
found it amongst his study notes. Ms. Oliphant
adds that she got the
impression that it was a draft document which the deceased had
written with the view to expressing his
thoughts before writing the
letter to his family which he had torn up in front of her. She does
not, however, state her reasons
for forming this impression or
whether she had even read the letter which the deceased tore up in
front her. Ms. Oliphant states
further that the deceased did not
draw up the contested will after he tore up the letter to his family
but once again furnishes
no reasons for making this claim. She also
expresses the opinion that the deceased would not have left what he
regarded as his
will unsigned and unwitnessed amongst his study
notes. According to her he would have put it amongst his important
documents
or in his safe. Her reasoning in this regard is that she
knew the deceased as a well-organised and educated person who knew
well
what the requirements were for a valid will. Again, however,
this broad assertion is not substantiated in any way.
[19]
In considering the various grounds advanced by or on behalf of the
respondents as to why the deceased could not have intended
that the
contested will would be his will, I bear in mind the applicability
of the
Plascon
Evans
rule,
namely, that any factual disputes must be resolved on the basis of
the facts averred by the respondents together with those
of the
applicant which cannot be disputed by the respondents. However, even
on the facts, as opposed to the assertions or conclusions
put
forward by or on behalf of the respondents, as set out above, they
carry little weight, either singly or cumulatively, and
do not, in
my view, cast any substantial doubt on the deceased's apparent
intention that the contested will would constitute
his will.
[20]
Even accepting that the deceased told various members of his family
in the weeks and months before his death that they would
be looked
after upon his death, in contradiction of the terms of his contested
will, this does not in itself cast any real doubt
on his apparent
intention as expressed by him in writing. There is, for example, no
evidence that he was aware how his estate
would devolve in the event
of his dying intestate. Furthermore, these assurances were in most
instances vague or generalized,
never witnessed by more than one
person, and with no clear indication that they were sincerely meant.
[21]
The evidence given by Oliphant regarding the tearing up of the
letter is, in my view, significant. It underlined the deceased's
realisation that anything which he committed to writing was
important and, by implication, that if he changed his mind in regard
thereto the destruction of that document was desirable, if not
necessary. Significantly, however, the deceased did not destroy
the
contested will but retained it amongst his private papers. First
respondent referred to the contested will being found amongst
the
deceased's surplus notepaper but it is clear that she did not
personally witness Oliphant finding the document. The latter's
description is less dismissive, namely, that she found it amongst
the deceased's study notes. The evidence regarding what important
documents the deceased kept and where he kept them is scanty, if not
non-existent, and I do not consider that an adverse inference
can be
drawn from the spot in which the contested will was found. It is
also of some significance that, as is clear from the
papers, for at
least some period of time most, if not all, members of the family,
including second and third respondents, regarded
the contested will
as expressing the deceased's last wishes. This can be inferred from
the terms of a letter written by first
respondent, at the time when
he enjoyed the confidence of all of the parties, to the fourth
respondent on the 20 July 2006. In
it he asked whether the Master
would support a planned application to court declaring the contested
will valid.
[22]
There is also the evidence of Ms. Carol-Ane Matsela who deposed to
an affidavit on behalf of the applicant. She too has an
interest in
the matter, having been appointed executor and being a beneficiary
to the extent of 10% of the deceased estate in
terms of the
contested will. It was common cause that Matsela worked with the
deceased and had become close to him. According
to her shortly
before his death the deceased had told her that she was "in
his
will",
that
she would bury him, that she would be his executor and that he had
left 10% of his estate to her. If accepted, this evidence
unquestionably strengthens applicant's case since these intimations
reflect the provisions of the contested will. Not having
been
present, first and second respondents can do little more than deny
that any such conversation took place and point to conflicting
assurances allegedly made by the deceased to themselves or their
children.
[23]
Taking a broad view of the surrounding circumstances, I do not
consider that any of the various assurances made by the deceased
plays a decisive role in the determination of whether he intended
the document to be his will. What must carry much greater weight
are
the terms of the contested will which unequivocally point towards
the deceased's intention that it would constitute his will.
A
further weighty factor is that although the deceased destroyed
another document relating to his view of his family members
shortly
before his death, he did not destroy the contested will but kept it
in a place of sufficient prominence for it to be
found without any
difficulty after his death.
[24]
Taking all these factors into account and the undisputed evidence, I
am satisfied that annexure "TA1" to the applicant's
founding affidavit should be declared to be the deceased's will,
nothwithstanding its lack of compliance with the formalities
prescribed by the Wills Act. It follows that fourth respondent must
be directed to accept annexure "TA1" as the deceased's
will.
[25]
There remains the question of costs. There is of course no question
of any costs order against the first and fourth respondents
who
abided the Court's decision. The remaining parties were in agreement
that whomsoever failed in the application should not
have to bear
the costs of the successful party, but that such costs should rather
be costs in the estate. The second and third
respondents have been
unsuccessful in their opposition. However, I do not consider that it
was unreasonable of them to oppose
the relief sought by the
applicant and in the circumstances I considered that the proposed
costs order would be appropriate.
The relief sought by applicant
relating to condonation of the non-compliance with the formalities
prescribed by the Wills Act
is superfluous and subsumed by an order
directing fourth respondent to accept the contested will.
[26]
In the result the following order is made:
1.
The Master of the High Court, Western Cape Provincial Division, is
ordered to accept the document marked "TA1" annexed
to the
founding affidavit of the applicant, as the last will and testament
of Warden Francois Pietersen for the purposes of the
Administration
of Estates Act 66 of 1969.
2.
The costs of the application, including the costs of second and
third respondents, shall be costs in the winding up of the
deceased's estate.
L
J BOZALEK
JUDGE
OF THE HIGH COURT