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[2012] ZASCA 131
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Theart v Scheibert and Others (630/11) [2012] ZASCA 131; [2012] 4 All SA 278 (SCA) (27 September 2012)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 630/11
Reportable
In the matter between:
DIANE
JEAN THEART
.........................................................................
APPELLANT
and
HANS-PETER
WOLFGANG SCHEIBERT
............................
FIRST
RESPONDENT
JAN
WILLY SUNDBY
........................................................
SECOND
RESPONDENT
THE
MASTER OF THE HIGH COURT
..................................
THIRD
RESPONDENT
THE
REGISTRAR OF DEEDS
...........................................
FOURTH
RESPONDENT
Neutral citation:
Theart v Scheibert
(630/11)
[2012] ZASCA 131
(27
September 2012).
Coram:
Cloete, Cachalia, Malan and Tshiqi JJA and
Erasmus AJA
Heard:
5 September 2012
Delivered:
27 September 2012
Summary: Wills ─ mutual will ─
interpretation ─ massing ─ presumption of destruction
where original will
cannot be found.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
Western Cape High Court, Cape
Town (Cloete AJ sitting as
court of first instance):
1 The appeal succeeds, and the second respondent is
ordered to pay the costs of the appellant and the first respondent,
including
the costs of two counsel where employed.
2 The order of the court a quo is set aside and the
following order is substituted therefor:
‘
(a) An
order is granted in terms of paragraphs 4.1, 4.2 and 4.3 of the
notice of motion.
(b) The second respondent is
ordered to pay the costs of the applicant and the first respondent,
including the costs of the interlocutory
application and the costs of
two counsel where employed.’
______________________________________________________________
JUDGMENT
______________________________________________________________
CLOETE JA (CACHALIA, MALAN, TSHIQI JJA AND ERASMUS
AJA CONCURRING):
[1] On 28 March 1983 Mr Kristian Jens Korsgaard and Mrs
Isabel Louisa Wilhelmina Korsgaard executed a mutual will (the mutual
will)
with the appellant as a beneficiary. In what follows I shall
refer to Mr Korsgaard as ‘the testator’, to Mrs Korsgaard
as ‘the testatrix’ and to them jointly as ‘the
testators’. The principal questions on appeal are the
interpretation
of the mutual will and whether it was revoked. The
first respondent is the executor of a will (the new will) made by the
testator
after the testatrix had died, and the second respondent, the
testator’s nephew, is the beneficiary under that will. The
third
respondent is the Master of the High Court, Cape Town, who did
not participate in these proceedings. The fourth respondent is the
Registrar of Deeds, Cape Town, who filed a report stating that the
records of the Deeds Registry reflected that immovable property
(referred to below) was registered in the name of the testator and
that the title was not endorsed to give effect to the mutual
will.
[2] The relevant facts are these. The testator was born
in Norway in 1908 and grew up in that country. He came to South
Africa in
the early 1940’s where he worked on whaling vessels
based near Cape Town. In the mid-1940’s he gave up whaling,
took
up employment in the Cape Town harbour and rented accommodation
in Green Point, where he met the testatrix.
[3] The testator purchased 19 Dysart Road, Green Point
(the property) in 1946 and the property was registered in his name in
February
1947. A few weeks later, in March 1947, the testator and the
testatrix married each other. It was common cause on appeal that the
marriage was in community of property and accordingly, that on their
marriage they owned the property in equal and undivided shares.
They
lived at the property until their deaths.
[4] In about 1954 the appellant, who was then nine years
old, and her brother began living permanently with the testators. The
appellant
was born in 1945. Her mother was the daughter of the
testatrix by a previous marriage. The testators raised the appellant
as if
she were their daughter. After the appellant’s brother
died, the appellant was the testatrix’s only living descendant
and remained so until her own child was born.
[5] On 28 March 1983 and in Cape Town the testators
executed the mutual will. The testatrix gave the appellant a copy of
that will
at about the time it was executed. The original cannot be
found. It was not produced to the Master. The copy in the appellant’s
possession was authenticated by one of the persons that had witnessed
the original and this evidence was not challenged by the
respondents.
[6] The testatrix died on 11 February 1990. Two death
notices were filed with the Master in terms of s 7 of the
Administration
of Estates Act 66 of 1955 ─ one by the testator,
and one by Ms M M Brink who described herself in the notice she filed
as
a nurse/friend and who the appellant asserts was the testator’s
then girlfriend. The death notices are each dated 4 December
1997, ie
more than seven years after the testatrix’s death. Both notices
stated ─ incorrectly ─ that the testatrix
was married by
ante-nuptial contract and that she had died intestate. On 30 June
1998 Ms Brink filed an inventory of the testatrix’s
estate with
the Master in terms of s 9 of the Administration of Estates Act which
─ again incorrectly ─ reflected that
the testatrix owned
no immovable property and that the only moveable property she owned
consisted of clothes of no commercial value.
On 2 July 1998 the
Master wrote to the testator in the following terms:
‘
SIR
ESTATE LATE: I L KORSGAARD
As the Inventory reflects no
assets at all the matter is regarded as finalized and will be filed
off record.’
[7] After the testatrix’s death, the relationship
between the appellant and the testator deteriorated. (I shall deal
with
this aspect in more detail later in the judgment.) The testator
then executed at least three wills in which the appellant was not
a
beneficiary: one on 5 October 2005, one on 6 December 2006 and the
last, the new will, on 15 March 2008. The sole heir in all
of these
wills was the second respondent. It was common cause that in each
will the testator intended to bequeath the property
in its entirety
to him.
[8] The testator died on 6 May 2008. The first
respondent, his executor, drew up a liquidation and distribution
account reflecting
the terms of the new will and awarded the property
to the second respondent. The appellant lodged objections with the
Master asserting
the validity and enforceability of the mutual will.
The Master required the dispute to be resolved by the high court, and
the application
which culminated in this appeal was launched in the
Western Cape High Court, Cape Town, by the appellant. In her founding
affidavit,
the appellant contended that the mutual will effected a
massing of the estates of the testator and testatrix; and in the
notice
of motion, the appellant made claims in the alternative
depending on whether the court found that the testator had adiated
under
the mutual will.
[9] The main relief, sought on the basis that the
testator had adiated, was:
‘
1.
That it is declared that the will of the late Kristian Jens Korsgaard
dated 15 March 2008 (“the new will”), a copy
of which is
annexed to the founding affidavit, marked “C”, to the
extent that it purports to dispose of assets which
constituted a part
of the erstwhile matrimonial estate of the late Kristian Jens
Korsgaard and the late Isabel Louisa Wilhelmina
Korsgaard, including
certain immovable property situated at 19 Dysart Road, Green Point,
is invalid and unenforceable.
2. That it is declared that the
joint will of the late Kristian Jens Korsgaard and the late Isabel
Louisa Wilhelmina Korsgaard,
dated 28 March 1983 (“the joint
will”), a copy of which is annexed to the founding affidavit,
marked “A”,
is the will in terms of which assets which
constituted a part of the erstwhile matrimonial estate of the late
Kristian Jens Korsgaard
and the late Isabel Louisa Wilhelmina
Korsgaard, including certain immovable property situated at 19 Dysart
Road, Green Point,
must devolve.
3. That the third respondent is
directed to accept the joint will as the will in terms of which
assets which constituted a part
of the erstwhile matrimonial estate
of the late Kristian Jens Korsgaard and the late Isabel Louisa
Wilhelmina Korsgaard, including
certain immovable property situated
at 19 Dysart Road, Green Point, must devolve.’
The alternative relief sought was:
‘
4.1
That it is declared that the new will, to the extent that it purports
to dispose of one half of the assets which constituted
a part of the
erstwhile matrimonial estate of the late Kristian Jens Korsgaard and
the late Isabel Louisa Wilhelmina Korsgaard,
including and undivided
half share in certain immovable property situated at 19 Dysart Road,
Green Point, is invalid and unenforceable.
4.2 That it is declared that the
joint will is the will in terms of which one half of the assets which
constituted a part of the
erstwhile matrimonial estate of the late
Kristian Jens Korsgaard and the late Isabel Louisa Wilhelmina
Korsgaard, including an
undivided half share in certain immoveable
property situated at 19 Dysart Road, Green Point, must devolve.
4.3 That the third respondent is
directed to accept the joint will as the will in terms of which one
half of assets which constituted
a part of the erstwhile matrimonial
estate of the late Kristian Jens Korsgaard and the late Isabel Louisa
Wilhelmina Korsgaard,
including an undivided half share in certain
immovable property situated at 19 Dysart Road, Green Point, must
devolve.’
[10] The high court (Cloete AJ) non-suited the appellant
and refused leave to appeal. The appeal is accordingly with the leave
of
this court.
[11] The high court came to the conclusion that ‘the
joint will did not establish a massing of estates’ and went on
to find that even if it did, the testator had not adiated. Both
massing and adiation are issues on appeal. The high court did not
make a finding that the joint will had been revoked, as the second
respondent contends, but did conclude that the appellant had
probably
not rebutted the presumption that ‘when a will which was last
known to have been in the possession of the testator
cannot be found
upon his death, he is presumed to have destroyed it with the
intention to revoke it’. Revocation remains
an issue in the
appeal. Then finally, the high court concluded that the alternative
relief sought in paragraph 4 of the notice
of motion could not
competently be sought against the estate of the testator. This
finding is also challenged on appeal.
[12] It would be convenient to commence with the
question whether the mutual will effected a massing. The relevant
clauses in the
will are the following:
‘
2. We
appoint the survivor of us to be the Executor/Executrix of this our
Will and Administrator/Administratrix of our Estate, granting
unto
each other all the powers allowed in Law and particularly the power
of assumption.
3. We appoint the survivor of us
to be the sole and universal heir/heiress to the whole of our Estate
and Effects whether movable
or immovable and wherever situate and
whether in possession, reversion, expectancy or contingency.
4. In the event of our dying
simultaneously or in circumstances where it is difficult or
impossible to determine the first dying
of us or on the death of the
survivor of us, then and in that event we declare our Last Will and
Testament to be as follows:
4.1 We appoint as Executrix of
this our Will, Administratrix of our Estate and Trustee hereunder,
DIANE JEAN CHESTER (born Kells),
presently of Cape Town, hereby
granting unto her all such powers and authorities as are required or
allowed in Law, especially
the powers of assumption.
. . .
5. We give and bequeth the whole
of our Estate and Effects movable and immovable, of every description
and wheresoever situate,
whether same may be in possession,
reversion, remainder, expectancy or contingency to DIANE JEAN CHESTER
(born Kells).’
[13] The appellant’s counsel contends that the
mutual will effected a massing of the estates of the testators for
the purposes
of a joint disposition to her; and that as the testator
had accepted a benefit from the testatrix under the mutual will, he
had
lost the right to revoke his part of the mutual will in
accordance with the decision in
The
Receiver of Revenue, Pretoria v C H Hancke
1915 AD 64
at 71-72. The consequence, according to the
appellant’s counsel, was that the new will was of no effect and
the appellant
was entitled to inherit the property.
[14] Counsel for the second respondent contended, at
least in this court, that clause 3 of the mutual will constituted an
out and
out bequest of inter alia the property to the second
respondent which vested on the testatrix’s death; and that
clause 5
of the will was a bequest to the appellant by the testator
alone, which he was free to revoke. The consequence, according to the
second respondent’s counsel, was that the new will was valid
and that the second respondent was entitled to inherit the property.
[15] The high court gave a third interpretation to the
mutual will. It held that:
‘
[C]lauses
3 and 5 are utterly irreconcilable unless subject to a qualification,
namely that clause 5 will only operate upon the
happening of certain
of the events in clause 4, namely upon the simultaneous death of the
testator and testatrix, or in circumstances
in which it is difficult
or impossible to determine the first dying (thus implying some sort
of virtually simultaneous death).
This interpretation would render
the words “or on the death of the survivor of us” in
clause 4
pro
non scripto
but
would certainly give meaningful effect to the content of the joint
will. This interpretation also clearly militates against
any massing
of the estate(s) of the testator and testatrix.’
[16] It is convenient to start with the interpretation
given by the high court. That interpretation offends against the
well-established
canon of construction that where it is possible to
reconcile and give effect to every clause in a will, that
interpretation should
be adopted: see for example
Smith
v Smith
1913 CPD 869
at 878. In my view,
clause 3 is not irreconcilable with clause 5. It seems plain from the
mutual will that clause 3 governs the
position where the first spouse
has died and there is a survivor, and that clause 5 governs the
position where the survivor has
died. That is the sequence of the
will: the bequest to the survivor is in clause 3; inter alia the
death of the survivor is contemplated
in clause 4; and the bequest to
the appellant follows in clause 5. Clause 4 contemplates three
possible situations: both spouses
dying simultaneously (the first
possibility) or virtually simultaneously (the second possibility) and
the death of the survivor
after the first dying (the third
possibility). In the first, there will be no survivor and in the
second, no survivor for practical
purposes, and clause 3 would
therefore not operate in either case. The third possibility deals
with the position ‘on the
death of the survivor of us’
and clause 3 would therefore be applicable. But clause 4 continues,
in regard to the third possibility,
with the words ‘then and in
that event we declare our Last Will and Testament to be as follows’.
These words cannot
refer to the first dying, who would already have
died. This conclusion is reinforced by the provision in clause 4.1
appointing
an executor. That provision also cannot be applicable to
the first dying as the first dying appointed the survivor as his/her
executor
in terms of clause 2. The words can therefore only refer to
the survivor. The last part of clause 4 must accordingly be
interpreted
as meaning ‘on the death of the survivor of us,
then and in that event the survivor declares his/her Last Will and
Testament
to be as follows’. The question is what is to be made
of clause 5: is it the bequest of the survivor alone and therefore
revocable by the survivor (as counsel for the second respondent
contends), or is it a bequest by both testators; and if the latter,
was there a massing of estates?
[17] To my mind, in answering the first question, the
most important fact to be taken into account is that clause 5 does
not form
part of clause 4. That is an indication that it is not
intended to be disposition solely by the survivor after the first
dying
has died. Had that been the intention, clause 5 would simply
have followed on as the last sub-paragraph of the immediately
preceding
clause, where it would have been governed by the words that
I have interpreted as meaning ‘on the death of the survivor of
us, then and in that event the survivor declares his/her Last Will
and Testament to be as follows’; and the provisions of
clause 5
would then have been a bequest by the survivor alone. But clause 5
stands on its own. Apart from that, to quote Milne
J in
D’Oyly-John
v Lousada
1957 (1) SA 368
(N) who at
374D-375A dealt with a similar argument on a similar will and said
inter alia:
‘
I
cannot help thinking that if the testators had intended to make the
survivor of them the absolute heir of the first-dying and
that the
rest of the will . . . should be that of the survivor only, they
would have worded the will quite differently. They could
so easily
have said, for example,
“
(1) We
will that, upon the death of the first-dying, the survivor shall be
his or her full and sole heir absolutely, without conditions
of any
kind.
(2) Clauses 3 to 6 of this will
are intended to be in no sense a joint disposition but solely the
will of the survivor which he
or she may revoke at any time
notwithstanding that he or she may have accepted the bequest
contained in clause 1.”
Whether this will was made with
or without legal assistance, I find it impossible to believe that the
framers of its terms intended
them to be equivalent to the clauses I
have suggested.’
In the present case the will was indeed drawn up by an
attorney. I therefore reject the interpretation of the will urged on
us by
the second respondent’s counsel and find that clause 5 is
the bequest of both the first dying and the survivor.
[18] I turn to consider the appellant’s argument
that the mutual will effected a massing of the testators’
estates.
The problem that arises in cases such as the present is that
the testators referred to themselves using the first person plural.
The semantic result is that the testators appear to make dispositions
of each other’s property, and if the will is taken
at face
value, it can easily lead to the interpretation that massing was
intended whereas that might not have been their true intention.
[19] In the mutual will, ‘we’ and ‘our’
were used in clauses 2 and 3, which is grammatically correct in as
much as both testators were simultaneously making a will in the same
terms; but in truth, each testator could only have been saying
‘I’
and ‘my’, and to that extent the will stands to be
interpreted as the separate will of each, although
contained in one
document. I have already pointed out that the third possibility
envisaged in clause 4 can only apply to the survivor.
The quest
io
n
that remains to be answered is whether the will effects a massing.
[20] The correct approach to the interpretation of a
joint or mutual will was authoritatively laid down by this court in
Rhode v Stubbs
2005
(5) SA 104
(SCA) paras 16-18 (my translation):
‘
[16]
When two (or more) testators make a testamentary disposition
together, grammatical uncertainty frequently arises. The use of
the
(appropriate) first person plural does not convey unambiguously to a
reader of the will whether each testator is expressing
his wishes
only on his own behalf, or also on behalf of the other testator(s).
Our law finds a solution to the problem of interpretation
to which
this structural lack of clarity gives rise in the rule that mutual or
joint wills of spouses married in community of property
must in the
first instance be read as separate wills. The person analysing such a
will proceeds on the hypothesis that he or she
is dealing with
separate wills until the contrary clearly appears. The reason for
this approach is embedded in our common law.
[17] In
Joubert
v Ruddock and Others
1968
(1) SA 95
(E) at 98F-G, Eksteen J quotes a passage from Van Leeuwen’s
Censura Forensis
3.11.6 in which he underlines
the importance of the principle that a person ought to remain capable
of changing his will until the
end of his days, and motivates this
proposition by saying (
Schreiner’s
translation) “. . . there
is nothing to which men are more entitled than that their power of
making a last will should be
free, and hence the rule; that no one
can deprive himself of this power”.
[18] The proposition is not
correct without qualification. A testator
can
deprive himself of the right to
make a will by massing, but if there is any doubt about his
intention, the will must be interpreted
so as to leave the greatest
possible freedom of testation. That gives rise to the subordinate
rule of interpretation, the presumption
against massing, that applies
when the golden rule for the interpretation of wills, ie to give
meaning to a testator’s words
within the framework of a will,
fails due to vagueness or ambiguity.’
[21] Following the approach in
Rhode
,
I find no indication, much less a clear indication, that massing was
intended in the situation envisaged in the mutual will that
has
eventuated, viz where the one testator has survived the other. The
test for massing applied to the facts of this case is whether
the
testatrix disposed of the testator’s share of the joint estate
as well as her own, either after her death or after the
death of the
testator:
Rhode
paras
11-13 and authorities there referred to. The will is ambiguous in
that it is not clear whether the testators intended that
the
appellant was to inherit from the first dying, subject to rights to
the estate of the latter that are conferred on the survivor
during
the survivor’s lifetime (no massing); or whether the testators
intended that the first dying’s estate was to
be consolidated
with that of the survivor for the purposes of a joint disposition to
the appellant on the death of the survivor
(massing). In view of the
ambiguity, and on the authority of
Rhode
,
the presumption against massing is decisive.
[22] I therefore reject the interpretation put upon the
will by the appellant’s counsel. I find that the testators
intended
that the estate of the first dying would devolve upon the
survivor; that rights to that estate were conferred on the survivor
during
the latter’s lifetime; and that the estate of the first
dying and the estate of the survivor would separately devolve upon
the appellant when the survivor died. It was suggested in argument
that the rights conferred on the survivor were those of a fiduciary
under a
fideicommissum residui
. I do not believe that to be
correct, as there is no indication that the survivor was given a
power of alienation (see the cases
discussed in M M Corbett, Gys
Hofmeyr and Ellison Khan
The Law of Succession in South Africa
2ed (2001) at 328-329). But it is not necessary to determine the
exact nature of the rights conferred on the survivor, who in the
event was the testator, as the primary asset to which the appellant
lays claim is the property; there is no suggestion that there
is a
dispute in respect of any other assets; and the testator has died.
[23] As I have found that there was no massing, the
question of adiation falls away. It is therefore not necessary to
decide which
of the two approaches summed up in the judgment of Van
Winsen J (Steyn J concurring) in
Ex parte Estate van Rensburg
1965 (3) SA 251
(C) at 255E-256E, should prevail. No argument was
addressed to this court on the question and it would accordingly be
undesirable
to comment further.
[24] The further consequence of the finding that there
was no massing, is that the appellant is entitled to succeed to the
testatrix’s
half share of the joint estate in terms of the
mutual will ─ unless the testatrix revoked the dispositions she
made therein.
I now turn to consider that question.
[25] The second respondent’s counsel relied on the
rebuttable presumption that when a will that was last known to be in
the
testator’s possession cannot be found, the testator is
presumed to have destroyed it with the intention of revoking it:
In
re Beresford, Ex parte Graham
(1883) 2 SC 303
;
Ex parte Slade
1922 TPD 220
;
Ex parte Warren
1955 (4) SA 326
(W). But the
argument falls to be rejected on both the facts and the law.
[26] So far as the facts are concerned, in order to be
effective, revocation would have had to take place before the
testatrix’s
death. But there is no apparent reason for her to
have done so. On the contrary, the evidence points the other way.
According to
the appellant, the relationship between her and the
testatrix ‘was de facto that of a mother and daughter. It was a
close
and loving relationship, and remained so until her death’.
This evidence is supported by the evidence of the appellant’s
erstwhile sister-in-law, who deposed to an affidavit in which she
stated:
‘
3.
After my brother’s marriage to the applicant, I became a close
friend of the applicant and of her family, including her
grandmother,
Isobel Korsgaard (“the testatrix”) and her
step-grandfather Jens Korsgaard (“the testator”).
I
visited them regularly. Our friendship survived the applicant’s
divorce from my brother.
4. I regularly saw the testatrix
and the testator in the company of the applicant and I was thus able
to witness their interaction
with the applicant.
5. The testatrix and the
testator were both very family oriented. They treated the applicant
as an own child. This accorded with
my understanding that they had in
fact raised the applicant as if she were their own child.
. . .
7. I am able to say, on the
basis of my personal observation, that until the testatrix died in
1990 there was no deterioration in
the relationship between the
applicant, on the one hand, and the testatrix and testator, on the
other. It was apparent to me that
their relationship was and remained
a close and loving one.’
The appellant has admitted that some two years after the
testatrix’s death, her relationship with the testator did
deteriorate.
The second respondent has attempted to put the date
earlier by asserting that the appellant’s relationship with
both the
testator and the testatrix had deteriorated during the
testatrix’s lifetime; but according to the appellant, he was
not in
a position to comment on her relationship with the testatrix,
because he only started visiting the testator after the testatrix
had
died. The affidavits of other persons on which the second respondent
relies, also relate to the period after the testatrix
had died. There
is accordingly no conflict of fact on this point and the evidence of
the appellant stands uncontroverted. In addition
there are the
following facts. The appellant was, on the death of her brother, the
testatrix’s only surviving descendant.
The testatrix gave the
appellant a copy of the mutual will at about the time it was
executed. Having made a will, there is no apparent
reason why she
would have decided to disinherit the appellant and to die intestate.
On the other hand, there was every reason why
the testator would seek
to destroy the will after the testatrix’s death because he did
not wish the appellant to inherit
anything ─ and that state of
mind may explain the late filing of the death notices and the
inventory with their incorrect
contents, and may further explain why
the testator did not disclose the existence of the mutual will to the
persons who drew up
his three subsequent wills.
[27] For these reasons, even if the presumption applied,
it was in my view (and contrary to the tentative view of the high
court)
clearly rebutted. But in order for the presumption to apply,
it must be established that the will was last known to be in the
testator’s
possession ─ because the presumption,
according to the first and third authorities to which I have already
referred in para
25 above, does not apply if the will was in the
hands of a third party. The high court held that ‘[i]n
correspondence annexed
to the applicant’s founding papers the
applicant (through her attorney) informed the first respondent that
the original will
“
was handed to the
testator and testatrix. ... The present whereabouts of the original
document are unknown
”
and that the
applicant “
is unable to confirm (or
deny) that the original will was ever lodged with the Master of the
High Court
”’
. But the first
passage quoted by the high court from the letter sent by the
appellant’s attorneys is preceded by the words:
‘To the
best of our client’s knowledge’. Those words clearly
indicate that the appellant was unable to say one
way or the other
what the actual position was. There was simply no evidence to
indicate who was in possession of the mutual will
before the
testatrix’s death. The presumption accordingly did not arise.
[28] The final question, apart from costs, is whether
the high court was correct in making the following finding:
‘
Further,
the applicant cannot seek a declaratory order against the estate of
the testator (which is being dealt with by the executor
in terms of
the new will), obliging such executor to deal with those assets which
might have devolved upon the testator in accordance
with the will of
the testatrix.
. . .
The alternative relief sought by
the applicant lies, not against the testator’s estate, but
against the estate of the testatrix
which is not a party to these
proceedings.’
The conclusion of the high court cannot be supported. It
may be that the high court overlooked the fact that para 4.3 of the
notice
of motion was directed at the Master, not the second
respondent. Be that as it may, no part of the alternative relief
sought would
have the effect of compelling the first respondent to
distribute any asset in the testator’s estate otherwise than in
accordance
with the new will. Paragraph 4.1 of the notice of motion
is directed at an amendment of the liquidation and distribution
account
filed with the Master by the first respondent in respect of
the very estate he is administering, so as to exclude the testatrix’s
estate. The purpose of paras 4.2 and 4.3 of the notice of motion is
to procure recognition by the Master of the mutual will as
the
testamentary instrument under which the assets in the testatrix’s
estate, including her half share in the property, fall
to be
administered. Such recognition is a necessary prerequisite for the
appointment by the Master of an executor for the testatrix’s
estate. No executor was appointed on her death because, as I have
said, an inventory was filed with the Master that indicated that
her
estate comprised only clothing of no commercial value. The relief
sought in paras 4.1 to 4.3 of the notice of motion should
accordingly
have been granted. The appeal must therefore succeed to this extent.
[29] That brings me to the question of costs. The
parties were agreed that the costs of an interlocutory application
should be costs
in the cause; and that the costs, including the costs
of the first respondent, should be paid by the loser in this
litigation.
The parties were also agreed that the costs of appeal
should include the costs of two counsel, where employed. It seems to
me that
as the appellant had to go to the high court and this court
to obtain the relief to which she was entitled, she should have the
costs in both courts.
[30] The following order is made:
1 The appeal succeeds, and the second respondent is
ordered to pay the costs of the appellant and the first respondent,
including
the costs of two counsel where employed.
2 The order of the court a quo is set aside and the
following order is substituted therefor:
‘
(a) An
order is granted in terms of paragraphs 4.1, 4.2 and 4.3 of the
notice of motion.
(b) The second respondent is
ordered to pay the costs of the applicant and the first respondent,
including the costs of the interlocutory
application and the costs of
two counsel where employed.’
_______________
T D CLOETE
JUDGE OF APPEAL
APPEARANCES:
For Appellant: S P Rosenberg SC (with him T R Tyler)
Instructed by:
Lamprecht Attorneys, Cape Town
Honey Attorneys, Bloemfontein
For Respondent: J G Dickerson SC (with him D van Reenen)
Instructed by:
Scheibert & Associates, Cape Town
Lovius Block Attorneys, Bloemfontein