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[2011] ZAECPEHC 48
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Taylor and Others v Taylor and Others (257/11) [2011] ZAECPEHC 48; 2012 (3) SA 219 (ECP) (15 November 2011)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION : PORT ELIZABETH
REPORTABLE
CASE NO. 257/11
In the matter between:
RAYMOND MARK TAYLOR
…....................................................
1
st
Applicant
LISA ANN BLAIN
….......................................................................
2
nd
Applicant
ZANNE ELIZABETH TAYLOR
…................................................
3
rd
Applicant
and
HILDEGARD TAYLOR
…...........................................................
1
st
Respondent
THE MASTER OF THE HIGH COURT
…...............................
2
nd
Respondent
BARRY PAUL DAISLEY N.O.
…...............................................
3
rd
Respondent
JUDGMENT
GRIFFITHS, J.:
INTRODUCTION
[1] The three applicants in this matter are the children
of Patrick James Taylor ("the deceased") who died on 24
October
2006. Prior to his death, the deceased was married to the
first respondent. The second respondent, the Master of the High
Court,
Port Elizabeth, and the third respondent who is a co-executor
in the estate of the deceased, have had no involvement in this matter
contenting themselves, in the case of the third respondent, with a
notice to abide and in the case of the Master, with a report
in which
he indicated that he is not aware of any facts which might benefit
the court and that he abides the decision of the court.
[2] The applicants launched this application seeking an
order that a certain document referred to as a "wish list"
of
the deceased be accepted as an amendment to his last will and
testament, together with ancillary relief. The application has been
opposed by the first respondent.
THE ISSUES AND THE APPLICABLE LAW
[3]
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)."
[4] Accordingly, before a court will order the Master to
accept the document as a will, it must be shown that the document in
issue
was "
drafted or executed by a
person, since deceased, who intended the document in issue to be his
or her will, or an amendment of his
or her will
…
"
1
[5] In the present matter it is manifest from the papers
and accepted in argument by Mr. Dyke (counsel for the first
respondent)
that the document in issue was indeed drafted by the
deceased and that, since the drafting thereof, he has passed on.
Accordingly,
the central issue in this matter is: when he drafted the
wish list did the deceased intend it to be an amendment of his
existing
will as contemplated by section 2(3) of the Act, or not?
[6] In determining whether or not the deceased had such
intent at the time he drafted this document, the court is not bound
to apply
the established principles of documentary interpretation but
to examine the content of the document itself and the document in the
context of the surrounding circumstances which prevailed when it was
executed.
2
BACKGROUND
[7] The deceased died on 24 October 2006. Approximately
1 year before his death he became aware of the fact that he was
suffering
from terminal lung cancer and this knowledge spurred him to
undertake certain estate planning exercises. This is evidenced by the
fact that approximately 7 months prior to his death, and on 23 March
2006, he executed a last will and testament in terms of which
he
bequeathed his fixed properties to his children (first to third
applicants), his personal effects to the first respondent and
the
residue (subject to her surviving him for a period of 10 days) to the
first respondent. No evidence was placed before this
court as to the
extent of such cancer or as to whether the deceased had been informed
as to how long he might have expected to
live.
[8] In addition, the deceased sold a fixed property
owned by him to a Close Corporation, the members of which are the
first to third
applicants. The sale price was the sum of R360,000
which was payable on demand. There is some dispute on the papers as
to whether
it was intended that such payment would ever be demanded
and whether in administering the deceased's estate the first
respondent
agreed that the wish list be honoured, but this need not
be pursued any further as the applicants did not rely on any form of
waiver
in this regard, contenting themselves with the argument that
the deceased intended the wish list to stand as an amendment of his
existing will.
[9] On 6 September 2006 the deceased drafted the
aforementioned "wish list", a copy of which was annexed to
the founding
affidavit. Because of the importance of this document it
is reproduced in full hereunder.
"
My wishes regarding the fixed property;
The property known as 11 Cathcart Rd, Humewood, P.E. (which I have
bequeathed to my 3 children) consists of the main house, on
street
level, a downstairs 3 bedroom flat and an upstairs 2 bedroom flat. It
is my wish that in the event of my death, my wife,
Mrs. Hildegard
Taylor be allowed to remain living in the main house. The 2 flats can
be rented out to generate income, to cover
the normal day-to-day
running expenses of the property. Any surplus to be paid into a bank
account for the benefit of my three
children.
It is suggested that a 3 person "committee" be formed to
take joint decisions relevant to the property. The three persons
should be;
Mrs. Hildegard Taylor (my wife)
Mr. Raymond Taylor (my son)
Mrs. Shirley Pelser (my sister)
At any stage, should any one of the above persons not be able to
fulfill their duties, then my daughter Mrs. Lisa Blain is to replace
that person. Should it become necessary to replace a second person,
my younger daughter Mrs. Zanne Taylor is to be appointed.
My wishes regarding my personal effects and the residue of my
estate;
My personal effects and the residue of my estate have been bequeathed
to my wife for the sake of simplicity. It is my wish that
the
furniture and household effects be left in the house and used until
their eventual disposal or replacement. Other more specialized
items
such as; power and hand tools, model trains, stamp collection,
postcard collection, aircraft and ship models, built and unbuilt,
paintings and pictures, cameras, binoculars, telescope, slide
projector and slides, books, puzzles, and motor vehicles, can be
distributed through my 3 children, in time, for their own personal
use or that of their families, given or sold to interested parties
or
collectors, or just sold out of hand. Any cash, shares or overseas
investment remaining after estate expenses and taxes have
been paid
should be divided among my three children.
The attached list are items in the house which belong to my wife and
as such do not form part of these wishes.
In the distribution of all of the above please be as fair and
equitable as possible and ensure that my wife and children are all
aware and involved in the process."
[10] It should be added that the document was signed at
the end by the testator and dated "6.9.06"
[11] No real evidence has been placed before us as to
the precise circumstances the deceased found himself in at the time
when he
drafted this document, save for an allegation by the
applicant that he made it with the knowledge that his death was
imminent.
This allegation appears to have been denied by the first
respondent but we can safely assume that if he was aware that he had
terminal
lung cancer one year prior to his death, it is at the very
least likely that as at the time of executing this document (which
was
done approximately one half months before his death) he was aware
that he would pass away in the then relatively near future. No
further evidence has been placed before us as to who found this
document, where it was found or to whom it was given or as to whether
any instructions were given by the deceased to such person.
THE DECEASED’S INTENTION
[12] It is as against this background that we must
attempt to divine what the deceased had in mind when he drafted the
wish list.
When analyzing the document itself, the relevant
surrounding and background circumstances of which we are aware should
be taken
into account. These are;
the deceased became aware that he had terminal cancer
approximately a year before his death;
as a consequence, and with this knowledge, he went
about regulating his affairs as best he could and conducting an
estate planning
exercise;
on 23 March 2006 he executed a formal and uncontestable
last will and testament in terms of which he bequeathed his fixed
properties
to the first to third applicants and the residue of his
estate to the first respondent;
he sold a fixed property to a Close Corporation owned
by the first to third respondents, presumably for their benefit;
on 6 September 2006 he executed the "wish list"
at a time when he must have been aware that he would probably pass
away
in the near future as a consequence of the cancer.
[13] With these facts in mind, it is necessary to
examine the language of the document itself. It is of importance to
note that
the two bold headings referred to "
My wishes
"
regarding, in the first instance, the fixed property and, in the
second instance, his personal effects and the residue of
his estate.
Peppered throughout the document are statements such as "
it
is my wish
"; "
the two flats can be rented
";
"
It is suggested that
". It is so that when dealing
with the cash, shares or overseas investment, the deceased changed
the language slightly by stating
that these items "
should be
divided among my three children
." However, this sentence
also comes under the general heading "
My wishes regarding my
personal effects and the residue of my estate
" and in my
view is therefore to be governed thereby. In addition, shortly
thereafter the deceased stated "
in the distribution of all of
the above please be as fair and equitable as possible and ensure that
my wife and children are all
aware and involved in the process
."
In so doing, he was clearly referring to all that went before,
including his wishes regarding the cash, shares and overseas
investment.
[14] Mr. Scott, who appeared for the applicant, has
argued that these apparently discretionary words are qualified by
certain other
words employed by the deceased later in the document,
such as "
is to be appointed
" and "
should be
divided among my three children".
This change of language,
so he has submitted, must point to an intention on the part of the
deceased to qualify the earlier words
quoted.
[15] In my view, the language employed by the deceased
in this document does not demonstrate an intention on the part of the
deceased
to amend his last will and testament. On the contrary, what
it would appear to indicate is that the deceased intended that his
last will and testament should stand but that it was his desire,
notwithstanding the bequests made therein, that his family should
stand together when it came to the administration of the estate and
the distribution of the assets and that they should be distributed
equitably amongst all the parties involved. In this regard, it seems
to me, he had faith in both his children (first to third applicants)
and his wife (first respondent) to, notwithstanding the bequests made
in his will, distribute his personal effects and the residue
of his
estate fairly and equitably and in accordance with his wishes as
expressed in the wish list which was executed subsequent
to his will.
In addition, the words quoted above "
in the distribution of
all of the above please be as fair and equitable as possible and
ensure that my wife and children are all
aware and involved in the
process
." by no means evince an intention on the part of the
deceased to amend the will and tend rather to support the view that
he
trusted his family with the task of distribution.
[16] On this basis, and accepting that he had such trust
in his family, it seems clear that his intention could only have been
that
the will was to remain extant as it stood and that he intended
to leave to his family the responsibility of distributing his
personal
effects and the residue of his estate fairly and equitably
and in accordance with his expressed wishes. Thus the deceased could
not have intended the wish list to stand as an amendment of his
formally executed will.
[17] The fact that such trust on his part was, as it
turns out, ill-founded, cannot alter the situation as to his
intention at the
time of executing this document. The situation can
be likened in reverse to that which prevailed in the Van Wetten
case
3
.
In that matter the SCA found that the relevant document was in fact
executed by the deceased in that matter with the intention
of it
being his final will. At the time it was executed, he had been
troubled by certain problems that he had experienced with
his wife
and, as a consequence, had in the disputed document excluded her as a
beneficiary. It appears that subsequent thereto
he had made up with
his wife but had not destroyed, or given contrary instructions
regarding, the disputed document in that matter
before he died. It
was argued on her behalf that because of this reconciliation and
other factors he had changed his mind with
regard to her
disinheritance. With regard to this argument Lewis JA stated;
4
"
These factors are not, in my view, relevant
in determining 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 (as in
Schnetler NO v Die Meester en Andere
5
).
There is no such evidence in this case."
[18] In the present matter, had a dispute arisen between
his children and his wife before the deceased died which indicated
that
they were unlikely to agree with regard to his expressed desires
relating to distribution of the estate, and had he died without
destroying or withdrawing the wish list, these facts could not have
been taken into account in determining what his intention was
in
drafting it. Likewise, after his death, the fact of such disagreement
cannot be taken into account for such purpose.
[19] When the document is measured against the
surrounding circumstances enumerated above, it seems to me that the
matter is put
beyond doubt. It is obvious that the deceased was fully
alive to the fact that he needed to regulate his affairs prior to his
death
and that he had performed certain acts to that end. In
particular, he had executed a will seven months before his death and
at
a time when he must have been aware that his death was not too far
away. This demonstrates that he was clearly possessed of the
knowledge that, in order for a will to have effect, it has to be
executed in accordance with certain formalities. There is simply
no
explanation as to why he did not do this if he in fact intended to
amend his will. This, coupled with the language employed
in the wish
list, leads inescapably to the conclusion that he did not intend
thereby to amend his will but that he was of the belief
that the
parties concerned would work together in distributing his estate in
accordance with the wish list.
[20] Whilst it may be so that when the wish list was
drafted the deceased was aware that his death was not far away, there
is no
indication that he believed that his death was so imminent that
he was unlikely to have an opportunity to have the document formally
executed. In this regard, this case differs materially from the
Smith
and
Van Wetten
matters
in that the court in those matters found that the respective deceased
had the intention of committing suicide, or contemplating
suicide,
when they drafted the respective documents concerned and that this
was a compelling factor in favour of their intending
such documents
to be, in the one instance, a final will, and in the other, an
amendment of an earlier will.
[21] In addition, during the interim period after he
made his will and before he drafted the wish list, there is no
evidence whatsoever
that the circumstances in his life changed to
such an extent to have persuaded him to change his will in any way.
[22] I am accordingly not persuaded that the applicants
have established that in executing the document referred to as the
deceased's
"wish list", he intended this to be an amendment
of his last will and testament.
[23] In the circumstances, I would propose that the
application be dismissed with costs.
ZILWA, A.J. : I agree
ACTING
JUDGE OF THE HIGH COURT
GRIFFITHS, J.
:
It
is so ordered
JUDGE OF THE HIGH COURT
HEARD ON : 04 AUGUST 2011
DELIVERED ON : 15 NOVEMBER 2011
COUNSEL FOR APPLICANTS : Mr Scott SC
INSTRUCTED BY : Kaplan Blumberg Attorneys
COUNSEL FOR RESPONDENTS : Mr Dyke
INSTRUCTED BY : Anthony Inc.
1
Per
Seriti AJA in Smith Parsons
2010 (4) SA 378
( SCA) at paragraph 7
2
Van
Wetten & Another v Bosch and others
2004 (1) SA 348
(SCA) at
paragraphs 15 – 16;Cf. KPMG v Securefin Ltd.
2000 (4) SA 399
(SCA) at paragraph 39
3
Supra,
footnote 2
4
At
paragraph 21
5
1999
(4) SA 1250
(C)