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[2012] ZASCA 97
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Raubenheimer v Raubenheimer and Others (560/2011) [2012] ZASCA 97; 2012 (5) SA 290 (SCA) (1 June 2012)
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THE SUPREME COURT
OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case No:
560/2011
Reportable
In
the matter between:
CHRISTELLE RAUBENHEIMER
….................................................................
Appellant
and
GERDA RAUBENHEIMER
….............................................................
First
Respondent
STEPHANUS PETRUS RAUBENHEIMER
…...............................
Second
Respondent
JAN HENDRIK HAGEN
….................................................................
Third
Respondent
MASTER OF THE HIGH COURT NORTH GAUTENG
…...............
Fourth Respondent
Neutral
citation:
Raubenheimer v Raubenheimer
(560/2011)
[2012]
ZASCA 97
(1 June 2012)
Coram:
Mpati P, Nugent, Cachalia, Leach and Wallis JJA
Heard:
11 May 2012
Delivered:
1 June 2012
Summary: Will – construction – bequest of
immovable property subject to a usufruct without identifying a
beneficiary
– properly construed the testator intended to
create a fideicommissum, the fideicommissary being identified by
necessary
implication – failure to attach list of specific
bequests referred to in the will not rendering the will void for
vagueness
– the will intended by the testator to be his final
will and should be accepted by the Master under
s 2(3)
of the
Wills
Act 7 of 1953
despite a failure to comply with statutory formalities.
___________________________________________________________________
O R D E R
___________________________________________________________________
On appeal from:
North Gauteng High Court,
Pretoria (Preller J sitting as court of first instance):
(1) The appeal succeeds, with costs.
(2) Paragraph 1 of the order of the court a quo is set
aside and substituted with the following:
‘
1 (a) The application in
convention is dismissed.
(b) The fourth respondent (the Master) is ordered to
accept the will dated 30 March 2006, annexure ‘GR2’ to
the founding
affidavit in the application in convention, as the will
of the deceased for the purposes of the
Administration of Estates Act
66 of 1965
.’
___________________________________________________________________
J U D G M E N T
__________________________________________________________________
LEACH JA (MPATI P, NUGENT, CACHALIA AND WALLIS JJA
CONCURRING)
:
[1] It is a never-ending source of amazement that so
many people rely on untrained advisors when preparing their wills,
one of the
most important documents they are ever likely to sign.
This is by no means a recent phenomenon. Some 60 years ago, in
Ex
Parte Kock NO
,
1
a high court
decried the number of
instances in which wills had to be rejected as invalid due to a lack
of compliance with prescribed formalities
and the regularity with
which the courts were being approached to construe badly drafted
wills, before urging intending testators
‘in their own
interests as well as in the interests of those whom they intend to
benefit when they die . . . to consult only
persons who are suitably
trained in the drafting and execution of wills and other deeds
containing testamentary dispositions’.
Despite this, the courts
continue all too often to be called on to deal with disputed wills
which are the product of shoddy drafting
or incompetent advice. This
is another such case.
[2] On 28 March 2006,
Dr S P
Raubenheimer, a medical practitioner of Pretoria (the testator), who
was at the time married to the appellant and had two
children born of
a previous marriage, signed a document dated 30 March 2006 which
purported to be a fresh will (a copy of the document
in question
being annexure GR2 in the papers). In it the, inter alia, replaced an
earlier will he had executed in 2002 and nominated
Jan Hendrik Hagen
as the administrator of his deceased estate. This document had been
prepared for him by Mr Hagen, a Cape Town
insurance broker and
investment advisor.
[3] The document GR2 bears the signatures of the
testator and two persons who allegedly witnessed the testator’s
signature.
However they had not in fact done so. Hagen had been the
testator’s insurance broker and financial advisor for some
years.
In December 2005 the deceased asked Mr Hagen to prepare his
will. After various subsequent discussions between the two of them,
Mr Hagen went to see the testator at his consulting rooms in Pretoria
on 30 March 2006, taking with him a draft will for signature.
The
testator was extremely busy and kept him waiting until approximately
7pm before seeing him. The testator then read through
the draft and
indicated his approval. When Mr Hagen asked about a list of specific
bequests which the testator had undertaken to
prepare to attach to
the will, the testator replied that he had simply not had enough time
to prepare it but that he would do so
in due course and furnish it to
Mr Hagen at some later stage.
[4]
Section 2(1)(
a
)(i)-(iii) of the
Wills Act 7
of 1953
prescribes that for a will to be valid it must be signed by
the testator in the presence of at least two competent witnesses who
attest and sign it in the presence of the testator and of each other.
Aware of this, Mr Hagen attempted to ensure that the testator
complied with these formalities and, when the testator indicated that
he was happy with the draft and wished to sign it, told him
this had
to be done in the presence of two witnesses. He suggested they should
go to a restaurant managed by the testator’s
business partner,
which was conveniently situated in the same building, to do so. This
the testator refused to do, saying that
he did not have the time and
that, in any event, as he and his business partner had recently
become embroiled in a business dispute,
he did not want him or anyone
else in the restaurant to act as a witness. Mr Hagen, completely
improperly, then suggested that
the testator should sign the will and
that he would ‘attend to the witnessing thereof in my offices’.
The testator
duly proceeded to sign the will which Mr Hagen then took
back to Cape Town where, two days later, he had two of his employees
sign
it as if they had witnessed the testator signing in their
presence.
[5] On the death of the testator, some three years after
the events described above, the Master of the North Gauteng High
Court,
oblivious at the time of the circumstances under which the
will had been signed and witnessed, accepted it as being the
testator’s
last will and testament and, acting in terms of its
provisions, duly appointed Mr Hagen as executor of the deceased’s
estate.
However, the first and second respondents, the testator’s
two children (for convenience I shall refer to them as ‘the
respondents’ because Mr Hagen and the Master, both of whom were
cited as respondents in this court, have played no part in
the
appeal) had their reservations. On 2 July 2009, their attorney sent
Mr Hagen an e-mail requesting him to provide certain information
in
regard to the will. This led to a slew of correspondence before, on
11 February 2010, the respondents learned of the circumstances
under
which the will had been signed.
[6] This led to the respondents instituting proceedings
in the high court seeking an order declaring, first, that the will
was null
and void by reason of a failure to comply with the necessary
statutory formalities and, second, that the deceased had died
intestate.
The appellant opposed the relief sought on the basis that
an order should issue under
s 2(3)
of the
Wills Act, directing
the
Master to accept GR2 as the will of the testator for purposes of the
Administration of Estates Act 66 of 1965
. In the alternative, the
appellant sought an order that the testator’s earlier will of
2002 be accepted as the testator’s
last will.
[7] The matter came before the high court which, on 31
March 2011, held that GR2 was void for vagueness, and granted the
respondents
relief in the terms they sought. Although not
specifically dealt with in the judgment, the effect of the high
court's decision,
albeit implied, was to dismiss the appellant's
counter application; including
the appellant’s
alternative contention that the 2002 will should be accepted in the
event of GR2 being found to be void. With
leave of the high court the
appellant now appeals to this court.
[8] In seeking to support the high court’s
decision, the respondents raised two main contentions; first, that
the appellant
had failed to establish a case under
s 2(3)
of the
Wills Act ie
that the testator had intended it to be his will, and,
second, that even if the testator had intended the document to be his
will,
it was void for vagueness as held by the court a quo. This will
of course involve a process of interpretation to ascertain whether
the testator’s testamentary intention can be determined from
the provisions of the document.
[9] Crucial to the debate on both these issues are
clauses 2 and 3 of the will which read as follows:
‘
2.
I bequeath my estate to my
spouse, CHRISTEL RAUBERHEIMER [the appellant]. She shall have a
usufruct over our residence in Pretoria
until her death or
remarriage.
See the attached list of
specific bequests.
3.
In the event of my spouse dying
before me or simultaneously with me or within 30 (thirty) days of me,
the bequest to her will lapse
and I bequeath my estate to my
children. The inheritance of a child who dies before me shall devolve
on his/her descendants by
representation or, upon having no
descendants, then on my remaining children or their descendants by
representation.
’
2
[10] Turning first to the debate in respect of whether
the document is to be taken as the testator’s last will, under
s 2(3)
of the
Wills Act
3
a
court asked to make an order must first be satisfied
that the testator who drafted or executed the relevant document
intended it
to be his will.
4
The respondents’ contention is that as the
testator failed to attach the list of specific bequests referred to
in clause 2,
it was necessary to infer that he did not intend the
document to be his will until such a list was attached. Consequently,
so the
respondents argued, as no list was ever attached, the document
in the form it was signed was not intended by the testator to be
his
final will, and the appellant had thus failed to establish an
essential requirement for the issue of an order under
s 2(3).
[11] There is no merit in this argument. The testator
had instructed Mr Hagen to draw a will for him and had thereafter
held several
discussions with him as to what he wanted to achieve in
his will. It was pursuant to this that Mr Hagen drafted GR2 which the
testator
proceeded to sign after having read it and indicating that
he was satisfied as to its provisions. The document was headed
‘testament’
and was signed by the testator, quite
deliberately, on each of its three pages above the word ‘TESTATEUR’
(testator).
Moreover he did so after Mr Hagen had told him that it
needed to be witnessed to comply with the statutory formalities for
wills.
The only reason it was not properly witnessed was due to the
testator’s hard-headedness in refusing to do the necessary
before
his business partner with whom he had fallen out and Hagen’s
willingness to arrange to have two of his employees append their
signatures as if they had witnessed the testator’s signature.
[12] From this it is clear that the testator knew that
there was no list of specific bequests annexed to the will when he
signed
it. And although he stated that he would prepare one in due
course, his failure subsequently to attach such a list to the
document
does not mean he did not intend it to be his will. All it
means is that he did not subsequently vary the terms of the document.
Whether this was due to a failure to take proper care of his affairs
or a decision against making any such specific bequests is
neither
here nor there.
[13] I accordingly have no difficulty in concluding that
the testator intended GR2 to be his will at the time he signed it.
Indeed
I have no doubt that if he had been asked at any time
thereafter whether he had a will, he would have replied in the
affirmative,
having GR2 in mind in doing so.
[14] I turn to the second issue, namely, whether the
provisions of clause 2 rendered the will void for vagueness. The
respondents
argued that the failure to attach the list of specific
bequests to the will, taken together with the testator’s
failure to
identify the beneficiary upon whom the common home was to
devolve (whom it was argued was clearly not the appellant), resulted
in it being impossible to identify which of the testator's assets he
had intended the appellant to inherit as beneficiary of the
remainder
of his estate or to know upon whom the testator intended to bestow
ownership of the common home.
[15] The first of these difficulties seems to me to be
met by what I've already said, namely, that the failure to attach a
list
of specific bequests merely means that the testator for some
reason did not make any such bequests. It is therefore not a factor
which in any way renders vague the testator’s bequest of his
estate to the appellant.
[16] The effect of the testator, after bequeathing his
‘estate’ (boedel) to the appellant, proceeding in his
next breath
to extend to her what he referred to as a ‘usufruct’
over the matrimonial home until her death or remarriage, without
identifying the person in whom ownership of the home should vest, is
more complex. The appellant argued in the court a quo that
the clause
should be interpreted as providing for a bequest of the common home
to the respondents, subject to her enjoying a usufruct
until her
death or remarriage. Indeed in her notice of appeal the appellant
contended that the court a quo had erred in not construing
the will
in that way. However, in this court, represented by counsel who had
not appeared for her in the high court, the appellant
changed her
stance to contend that the clause could not be so construed and that
the failure to nominate a beneficiary in respect
of the common home
resulted in it falling into the estate bequeathed to her, so that it
devolved upon her free of any restrictions
as to her ownership.
[17] At the outset, it is necessary to consider whether
the testator in fact intended to create a usufruct over the common
home.
The word ‘usufruct’ is often loosely used, and its
use in a will does not necessarily mean that a testator appreciated
its legal significance. As is pointed out by the learned authors of
Corbett et al
The Law of Succession in South
Africa
(2ed) at 369 -370, with reference to
numerous authorities:
‘
Where
the testator has clearly conferred only a life interest upon a
beneficiary, the problem may arise as to whether a usufructuary
or a
fiduciary interest was intended. This can be a matter of some
difficulty. The mere use by the testator of the terms ‘usufruct’
or ‘usufructuary’ is not conclusive: there are many
instances where a life interest described in the will as being
a
usufruct has been held to be in truth fiduciary in nature.
Conversely, the use of the terms ‘fideicommissum’ or
‘fiduciary’ does not necessarily provide the final
answer: in spite of this the life interest may be construed as being
merely usufructuary. While the terms ‘usufruct’ (or
‘usufructuary’) or ‘fideicommissum’ (or
‘fiduciary’), as the case may be, would normally indicate
prima facie the type of life interest intended by the testator,
this
indication must yield to the intention to be gathered from the will
as a whole. Testators sometimes use terms such as these
without a
full appreciation of their legal signification and here it is safer
to have regard to the general scheme of the will
than to the
testator’s use of legal terminology.
‘
These comments are all the more appropriate where, as
here, the will was drafted by a person not trained in the law.
Bearing this
in mind, and having regard to certain of the other
provisions of the will, I turn to consider whether the testator in
fact intended
to create a usufruct over the common home.
[18] Importantly, in both clauses 2 and 3 of the will,
the testator made a bequest of his ‘estate’ (boedel), the
bequest
in clause 3 being subject to that in clause 2 failing. The
dominant clause is clearly the bequest of the testator’s
estate,
by which an heir is instituted.
Consequently
‘its effect should not be modified nor its meaning strained’
unless a contrary intention is clearly indicated
by other provisions
in the will.
5
There are no such contrary intentions in the present
case. Indeed as there was no specific bequest of a ‘usufruct’
in
clause 3 of the will, the bequest of the estate in that clause
clearly includes the matrimonial home, and there is no reason to
interpret the ‘estate’ bequeathed in clause 2 any
differently. As such a bequest is one of ownership of the property,
it is irreconcilable with the appellant acquiring no more that a
usufructuary interest over the matrimonial home. Consequently,
whatever may have been intended by the testator providing for a
‘usufruct’ over the matrimonial home, it was not a
usufruct in its true legal sense.
[19] This conclusion does not mean that the testator
necessarily intended full and unrestricted dominium in the common
home to pass
to the appellant. That the contrary is the case is clear
from his provision that she was to enjoy the property only until her
death
or remarriage, implying that upon the occurrence of the first
of those events the property should pass to another. Accordingly,
in
my view, in clause 2 of the will the testator created a
fideicommissum over the property without expressly identifying the
person upon whom it should devolve on the appellant’s rights as
fiduciary coming to an end.
[20] In
Jewish Colonial Trust Ltd v Estate Nathan
1940 AD 163
at 180 Watermeyer JA, in dealing with a similar
failure, said:
‘
. . .
if the ownership of property is bequeathed to a beneficiary, then any
curtailment of the rights of ownership appearing in
the will, such as
a prohibition against alienation or a conditional deprivation of the
rights of enjoyment, is of no legal effect
unless a third party is
indicated in whose favour such curtailment is to operate.’
The reason for this is that ‘(u)nless a testator
indicates . . . some person who shall be entitled to the
subject-matter of
the bequest if and when the event occurs, the
prohibition hangs in the air; there is no one to enforce it . . .’
6
[21] By extending a ‘usufruct‘ over the
common home until the appellant’s death or remarriage, the
testator obviously
intended that she was not to alienate the
property. But in considering the effect of the testator’s
failure to specifically
nominate a beneficiary to whom ownership of
the common home was to pass after the appellant, it should be
remembered that, like
any other testamentary provision, a disposition
to a beneficiary may be necessarily implied from the terms of the
will. In doing
so, a court is guided by the same principles as those
applied when implying tacit terms into a contract
7
–
it applies the well-known ‘bystander test’
in the light of the express terms of the will and the relevant
surrounding
circumstances and considers whether it a term ‘so
self-evident as to go without saying’.
8
Although a court must guard against making a will for a
testator and thereby doing violence to the concept of the testator
determining
the destiny of his or her estate, when a beneficiary can
be identified by this process it will not hesitate to ensure that
effect
is given to the testator’s implied intention.
[22] Of course in determining a testator’s intent,
the terms of the will as a whole must be considered. It is clear from
clauses
2 and 3 that the testator intended only the appellant and,
failing her, the respondents in equal shares or their children by
representation,
to inherit from him. No other person is mentioned as
a potential beneficiary and, most significantly, in clause 3 the
testator
did not burden the bequest of his estate to the respondents
with what he incorrectly referred to as a usufruct as he did the
bequest
to the appellant in clause 2. From this the inference is
irresistible that he intended ownership of the common home to pass to
the respondents without any limitation on their dominium in the event
of their inheriting. No reason presents itself for concluding
that
the testator could have intended a person other than the respondents
from ultimately acquiring the common home if the appellant
initially
inherited the property but not if the respondents did so.
[23] In interpreting a will, a court must if at all
possible give effect to the wishes to the testator. The cardinal rule
is that
‘no matter how clumsily worded a will might be, a will
should be so construed as to ascertain from the language used therein
the true intention of the testator in order that his wishes can be
carried out’.
9
In the present case, in the light of what I have set out
above, despite the poor wording of GR2, I am satisfied that clause 2
creates
a fideicommissum over the common home with the appellant as
the fiduciary until her death or remarriage whereupon the property is
to pass to the respondents or their children as prescribed in clause
3.
[24] To summarise my conclusions:
(a) The will GR2 was intended by the testator to be his
will and should be accepted as such by the Master under the
Administration
of Estates Act 66 of 1965.
(b) The testator’s failure to attach a list of
specific bequests to GR2 does not render it void for vagueness.
(c) The provisions of clause 2 of GR2 similarly do not
render it void for vagueness.
(d) The court a quo therefore erred in concluding that
GR2 was void for vagueness and that the testator died intestate.
(e) Clause 2 of GR2 provides for the appellant to
inherit the entire estate of the testator subject to there being a
fideicommissum
over the common home to endure until the appellant’s
death or remarriage whereupon the property is to devolve upon the
respondents
or their children.
.
[25] That brings me to consider the question of costs.
The court a quo directed the costs of the present parties to be paid
out
of the estate. The appellant did not seek to appeal against that
order which must stand. However, the appellant has succeeded in
this
court as the effect of this judgment will be that she will inherit
the entire estate, subject of course to the fideicommissum
over the
common home. The respondents have argued against this, and although
they have to a limited extent succeeded in obtaining
a benefit from
of the estate, it seems to me to be wrong in principle that the
estate should bear the costs of the appeal which,
effectively, would
be paid by the successful appellant who has inherited the estate. In
these circumstances it is appropriate for
the respondents to bear the
costs of the appeal.
[26] The order of the court a quo must be set aside.
Strictly speaking the appeal was brought against paragraph 1 of the
order,
(paragraph 2 being the order for costs against which there is
no appeal). In that regard it must be inferred that although no
mention
was made of the counter application, the costs order granted
by the court a quo encompassed both the application in convention and
the counter application.
[27] The following order is therefore made:
(1) The appeal succeeds, with costs.
(2) Paragraph 1 of the order of the court a quo is set
aside and substituted with the following:
‘
1 (a) The application in
convention is dismissed.
(b) The fourth respondent (the Master) is ordered to
accept the will dated 30 March 2006, annexure ‘GR2’ to
the founding
affidavit in the application in convention, as the will
of the deceased for the purposes of the
Administration of Estates Act
66 of 1965
.’
______________________
L E Leach
Judge of Appeal
APPEARANCES:
For Appellant: L W de Koning SC
Instructed by:
Laubscher Attorneys, Pretoria
Schoeman Maree Incorporated, Bloemfontein
For 1
st
& 2
nd
Respondent: J J
Botha
Instructed by:
Tim du Toit & Kie Attorneys, Lynnwood
Naudes Attorneys, Bloemfontein
1
Ex
Parte Kock NO
1952 (2) SA 502
(C) at 516E-H.
2
This
is my translation of the original Afrikaans which reads:
‘
2.
Ek bemaak my boedel aan my eggenote, CHRISTEL
RAUBENHEIMER. Sy sal vruggebruik hê op ons woning te Pretoria
tot afsterwe
of hertroue.
Sien aangehegte lys van spesifieke bemakings.
3.
Indien my eggenote voor my of gelyktydig met my of
binne 30 (dertig) dae na my sou sterf, dan verval die bemaking aan
haar en
bemaak ek my boedel aan my kinders. Die erfenis van ‘n
kind wat voor my te sterwe kom sal oorgaan op sy/haar afstammelinge
by representasie, staaksgewyse of by gebrek aan afstammelinge, dan
op my oorblywende kinders of hulle afstammelinge by representasie,
staaksgewyse
.’
3
It
reads: ‘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
See
eg
Van Wetten & another v Bosch & others
2004 (1) SA
348
(SCA) para 14 and
De Reszke v Maras & others
2006 (2)
SA 277
(SCA) para 11.
5
Ex
parte Melle & others
1954 (2) SA 329
(A) at 334 applied in
Schaumberg v Stark
NO
1956 (4) SA 462
(A) at 468.
6
Per
Van den Heever JA in
Aronson v Estate Hart
1950 (1) SA 539
(A) at 552.
7
Cf
Wilkins NO v Voges
[1994] ZASCA 53
;
1994 (3) SA 130
(A) at 136H-137D.
8
9
Per
Steyn J in
Masters v Estate Cooper
1954
(1) SA 140
(C) at 143H-144A.