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[2023] ZAFSHC 166
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Erasmus and Others v Master of the High Court, Bloemfontein and Others (3255/2022) [2023] ZAFSHC 166 (26 April 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case No. 3255/2022
In the matter between:
RIKUS
ERASMUS
1
ST
APPLICANT
SONIEK
ERASMUS
2
ND
APPLICANT
CHANTELLE MANTHEY
CILLIERS
3
RD
APPLICANT
SOPHIA ANNA MAGRIETHA
VILJOEN
4
TH
APPLICANT
RIKUS ERASMUS
N.O.
5
TH
APPLICANT
ELSABE
CILLIERS
6
TH
APPLICANT
And
THE MASTER OF THE HIGH
COURT, BLOEMFONTEIN 1
ST
RESPONDENT
CHRISTINA MARIA
ERASMUS
2
ND
RESPONDENT
PETRUS JACOBUS
ERASMUS
3
RD
RESPONDENT
NINA
BRITZ
4
TH
RESPONDENT
SUPERIOIR QUALITY
TRADING 528 BK
5
TH
RESPONDENT
(Reg. No.
CK2994/077248/23)
ETIENNE
STONE
6
TH
RESPONDENT
CORAM
:
GUSHA, AJ
HEARD
ON:
13 APRIL 2023
DELIVERED
ON
:
This judgment was delivered electronically by circulation to the
parties’ representatives by way of email and by release
to
SAFLII. The date and time for delivery is deemed to be at 14h00 on 26
April 2023.
JUDGMENT
INTRODUCTION
[1]
Mr Gerhardus Cornelius Erasmus (the
deceased) met his untimely death on the 5
th
August 2021 due to natural causes.
[2]
On the 7
th
December 2018 the deceased properly executed his last will and
testament (the 2018 will). On the 18
th
April 2021 however, he executed another will (the 2021 will), which
is the subject of the dispute between the parties.
THE PARTIES
[3]
The 1
st
and 2
nd
applicants are the deceased’s
adult biological children, the 4
th
applicant is their
biological mother and the deceased’s former spouse. The
deceased and the 4
th
applicant’s marriage terminated
through divorced in 2000.
[4]
The 3
rd
applicant is an adult female with whom the
deceased was, until his untimely death, involved in a romantic
relationship.
[5]
The 5
th
applicant is cited herein in his official capacity as the duly
appointed executor
[1]
of the
deceased’s estate. The 6
th
applicant is the deceased’s sister.
[6]
The 1
st
respondent is the Master of the High Court,
Bloemfontein, against whom the relief is sought. In its report dated
5 August 2022
the 1
st
respondent indicated that it is not
opposing the relief sought and that the court may, in terms of the
provisions of section 2(3)
Act 7 of 1953 (the Act), make an order
directing it to accept the second will as the deceased’s last
will and testament.
[7]
The 2
nd
respondent is also the deceased’s former
spouse, their marriage also terminating through divorce on the 2
nd
July 2020. The 3
rd
respondent is the deceased’s
brother. The 2
nd
and 3
rd
respondents are
nominated as executors in terms of the first will.
[8]
The 4
th
respondent is an adult woman and the 2
nd
respondent’s daughter. The 5
th
respondent is a close
corporation operated by the deceased.
[9]
The 6
th
respondent is an attorney who assisted the
deceased in legal matters and who is nominated in the 2021 will to
assist the 1
st
and 2
nd
applicants in the
execution of the 2021 will.
[10]
No relief is sought from and against the 2
nd
to the
6
th
respondents.
FACTUAL BACKGROUND
THE 2018 WILL
[11]
The 2018 will is common cause between the parties. I shall therefore,
refer to its contents very
concisely. The deceased executed the 2018
will whilst his marriage to the second respondent still subsisted.
The contents and validity
of this will are not in dispute. In terms
thereof the 1
st
and 2
nd
applicants as well as
the 2
nd
to the 5
th
respondents would have
benefitted from the bequests made therein.
THE 2021 WILL
[12]
For purposes of this judgment, I find it apposite to refer to the
contents of the 2021 will
in toto
. It is in manuscript and
reads thus;
My
Persoonlike testament
Hiermee bevestig ek G.C.
Erasmus ID 64[….] dat hierdie my waarlike en enigste testament
is, en dat dit my hartsbegeerte is
dat prok Ettiene Stone dit sal
behartig en Rikus en Elsabé sal bystaan met die uitvoer
daarvan (083[…] Ettiene se
nr).
1.
My eiendomme is as volg verdeel op aankoop
ware waarvoor ek dit gekoop het!!
My huis
(a) T[…] st 13 gaan aan
my
seun Rikus Eramus ID 95[….]
(b) T[….] st 11A
gaan aan Soniek Erasmus my dogter ID 00[….]
(c) T[…] st
11B gaan aan Riekie ID 68[…]
(d) E[…] weg 134
gaan aan Chantelle Manthey ID 75[…]
My besigheid genaamd
Superior Pave gaan aan Rikus met 70% aandele aan hom wat ek reeds
oorgegee het vir die feit dat hy by my werk,
en moet nie onder enige
boedel belasting val nie. Chantelle wat my boeke doen het 30% aandele
gekry aangesien sy ook hier werk.
Alle voertuie (privaat)
gaan aan Rikus Erasmus wat in Super Trans Trust is, en reeds aan hom
behoort as ook alle bessigheids voertuie.
Net my dubbel cab Ford
behoort aan Chantelle!!
Daar is ‘n polis
van R6000 000.00 wat al die oordragte moet betaal asook al my boedel
belasting.
Oordragte geskiet teen
die waarde wat ek betaal het by aankoop waarde
1. T[…]
13 is R140000, 1, 4 miljoen
2. T[…]
11A is R780000.00
3. T[…]
11B is R980000.00
4. E[…]
Weg R590 000.00
Artificial grass behoort
reeds lankal aan Rikus aangesien hy homslef opgebou het.
My Polis van ±R300
00 by Esau 08[…] word gedeel tussen Rikus en Soniek. Al my
oorblywende geld wat oor is van die
polis by Rampie Le Grange van
Upington 08[….] moet gedeed word tussen Rikus en Soniek.
Van my voertuie wat
oorbly soos privaat aangekoop kan Rikus besluit wat hy met die geld
doen.
Indien daar genoeg geld
oor is sal ek dit waardeur as daar uit polisse oor is, dat Elsabe
R250 000 kry, sy is my sussie vir haar
bystand by Rikus en uitvoering
van my testament. Sy is my suster. Baie dankie geniet die lewe verder
hy kosbaar en kort. Geteken
te Bloemfontein op die 18 April 2021
[13]
It appears from the pleadings that at some point the authenticity of
the 2021 will as well as
the deceased’s signature thereon was
placed in dispute by the 2
nd
respondent. The report by
Brigadier Johannes Frederick Hatting, a handwriting expert, put paid
to this. In the report he reached
the conclusion that the disputed
handwriting and the signature in the 2021 will was indeed that of the
deceased.
[14]
The deceased had, prior to his demise, informed the 1
st
applicant where at his residence to locate important documents, in
the event of anything befalling him. It was on the basis of
this
information that the 1
st
applicant discovered the 2021
will kept in the deceased’s safe in a red envelope.
[15]
Upon presenting same to the 1
st
respondent, the latter, on
the 28
th
February 2022, rejected the aforesaid will as it
did not comply with the provisions of section 2(1) (ii) (iv) of the
Act.
POINTS IN LIMINE
[16]
The 2
nd
and 4
th
respondents raised the following points
in
limine
;
that the deceased’s children (‘kinders”) in terms
of the 2018 will
[2]
would have
been heirs and as such would have a direct and substantial interest
in the application. It was further submitted that
the applicants had
not made out a case that the 1
st
and 2
nd
applicants and the 4
th
respondent are the only children and descendants of the deceased and
such no case was made that there are no other children or
descendants
whose interests could be affected by the relief sought.
[17]
Nothing turns on this point. Had there been any other children and or
descendants of the deceased,
the respondents certainly would have
taken the court into their confidence. They did not. Clearly there
are none, or if there be,
both parties are clearly in the dark with
regards to their existence. This point
in limine
is therefore
not upheld.
[18]
The second point
in limine
raised was that “Riekie”
(whoever s/he may be) would also have a direct and substantial
interest in the relief sought
and as such his/her non-joinder meant
that the application stood to be dismissed with costs.
[19]
The applicants submitted that this point stood to be dismissed as
“Riekie” was in
fact the 4
th
applicant. This
proposition is at best unsubstantiated and at worst wrong, for I
could find no reference in the papers alluding
to the 4
th
applicant and “Riekie” being the same person.
[20]
The
court in
United
Watch & Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and
Another
[3]
,
set
out the law relating to joinder as follows:
“
It
is settled law that the right of a defendant to demand the joinder of
another party and the duty of the Court to order such joinder
or to
ensure that there is waiver of the right to be joined (and this right
and this duty appear to be co-extensive) are limited
to cases of
joint owners, joint contractors and partners and where the other
party has a direct and substantial interest in the
issues involve and
the order which the Court might make…”
[21]
It is generally accepted that what is required is a legal interest in
the subject matter which
could be prejudicially affected by the
judgment of the Court
[4]
.
Consequently in so far as the individual is not the 4
th
applicant, I hold the view that he/she will not be prejudicially
affected by any order this court may make. Should the court find
that
the 2021 will is valid, then s/he too will benefit from the order
made. In such an eventuality, the fact that s/he is not
named in full
should serve as no hurdle to the executor(s) as
the
identity number is reflected, “Riekie’s” identity
therefore can with relative ease, be ascertained.
[22]
In the event that I find otherwise, still no prejudice would arise as
“Riekie” is,
in any event, not mentioned in the 2018
will. Further, it is improbable that “Riekie” is one of
the deceased’s
“kinders” as that would mean that
the deceased had her/him at the age of 4; the deceased was born in
1964, Riekie as
per the identity number indicated in the 2021 will,
was born in 1968.
[23]
Resultantly, the second point
in limine
is also not upheld.
ISSUE IN DISPUTE
[24]
This court is called upon to adjudicate which of the two wills should
obtain, more specifically
whether the 2021 will is valid and reflects
the intention of the deceased and, if so, whether it represents his
last will and testament
and thereby revokes the 2018 will.
THE RELIEF SOUGHT
[25]
In the notice of motion, the applicants claim the following relief;
25.1. That
the First Respondent be ordered to accept the document drafted and
signed by the late, Gerhardus Cornelius
Erasmus, identity number
64[…], on 18 April 2021, annexure “FA5’ to the
founding affidavit, for the purposes
of the Administration of Estates
Act, Act 66 of 1965, as the late Mr Erasmus’ last will and
testament.
25.2. That
the First Respondent considers appointing and issuing letters of
authority to the First and Sixth Applicants
as executors in the
estate of the late Gerhardus Cornelius Erasmus, identity number
64[…]; alternatively, any other suitable
person.
25.3. That
the First Respondent withdraw / retract any other letters of
authority issued by him in respect of the late
Gerhardus Cornelius
Erasmus, in contradiction to the appointment to be made in terms of
paragraph 2 of this order.
25.4. That
the costs of the application be paid by the estate of the late
Gerhardus Cornelius Erasmus, except in the
event of the respondents
opposing the application in which instance the applicants will seek
an order to be issued against such
respondents opposing the relief.
THE LEGAL FRAMEWORK
[26]
In order to properly adjudicate the dispute between the parties, it
is apposite to have regard
to the following provisions;
THE WILLS ACT
[27]
Section 2(1) of the Act provides that for a will to be valid, it must
comply with the requirements
as stated therein. To comply therefore,
a will must be signed
[5]
by the
testator or by someone else in his presence or by his direction, in
the presence of two witnesses, who in turn must also
sign in the
presence of each other and the testator at the same time.
[28]
Section 2(3) of the Act provides 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
(my own emphasis) order the Master to accept that document, or
that document as amended, for the purposes of the Administration of
Estates Act, Act 66 / 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).
[29]
It is trite that the provisions of section 2(3) of the Act, were
enacted to ameliorate a situation
where formalities have not been
complied with, but where the true intention of the drafter was
self-evident
[6]
.The aforesaid
provisions make it clear that the court is not clothed with a
discretion to either grant of refuse the order envisaged
therein;
once the court is satisfied that the jurisdictional requirements are
met, the provisions are peremptory. Differently put,
once the court
is satisfied that the document was drafted by the deceased then the
court must determine whether the deceased intended
same to be his
last will and testament. In the event that the answer to both is in
the affirmative, the court shall grant the order
as envisaged.
THE ADMINISTRATION
OF ESTATES ACT
[30]
Section 14 of the deceased administrations Act provides that;
(1)
The Master shall, subject to subsection (2)
and sections 16 and 22, on the written application of any person who-
(a).
has been nominated as executor by any
deceased person by a will which has been registered and accepted in
the office of the Master;
and
(b).
is not incapacitated from being an
executor of the estate of the deceased and has complied with the
provisions of this Act, grant
letters of executorship to such person.
SUBMISSIONS BY THE
PARTIES
[31]
The parties are
ad
idem
that the 2021 will is not compliant with the requirements of the Act.
The applicants submit however that albeit this will is non-compliant,
the court must have regard to the intention of the deceased, which
intention, it is submitted, appears
ex
facie
the document. Reliance was placed on the words “
dat
hierdie my waarlike en enigste testament is
[7]
”.
Furthermore, the fact that the deceased informed the 1
st
applicant where to find important documents in the event something
befell him, indicates that he intended to revoke all other previous
wills and intended for this document to be his last will and
testament.
[32]
The 2
nd
and 4
th
respondents, initially opposed
the relief sought as they disputed that the 2021 will was drafted by
the deceased. Their opposition
was primarily based on the following;
they submitted that the deceased was an astute businessman and had
executed a valid will
prior to 2021. It was submitted that he knew
the requirements of a valid will and would not have drafted not
compliant will. In
arguments the 2
nd
and 4
th
respondents however conceded that the 2021 will was authentic. They
submitted further that the 2021 will was, by virtue of its
non-compliance, rejected by the 1
st
respondent and can
therefore never be accepted as a valid will.
APPLICATION
[33]
I am satisfied that the first jurisdictional requirement has been
met. The 2021 will was drafted
by the deceased, this much is evinced
by the handwriting expert as well as the 2
nd
and 4
th
respondents’ capitulation in this regard. This will as drafted
by the deceased clearly does not comply with the requirements
of
section 2(1) of the Act. Only his signature appears on said document.
It follows therefore that in order for the applicants
to avail
themselves of the remedy contained in the provisions of section 2(3)
of the Act, the second jurisdictional requirement
as stated therein
must be satisfied, i.e. did the deceased intend for the second will
to be his last will and testament?
[34]
In
Westerhuis
and Another v Westerhuis and Others
[8]
the court restated the legal position thus;
“
The
Supreme Court of Appeal has stated repeatedly, that, when applying s
2(3), the real question is whether the decease intended
the document
(or any amendment) thereto to be her will. And so, the court is
required primarily to ascertain whether at the time
of drafting or
executing the document, or any amendment thereto, as the case may be,
the necessary intention on the part of the
testator has been
established.
Such an enquiry entails an
examination of the document in the context of the surrounding facts
and circumstances and the party so
alleging must show unequivocally
that the intention existed concurrently with the execution or
drafting of the document”
(my own
emphasis).
[35]
In answering the aforesaid question therefore, I can do no better
than have regard to the document
itself. In this regard, the title of
the document is illuminating; “my persoonlike testament
[9]
”.
The deceased went further, in the very first sentence he wrote “dit
is my waarlike en enigste”
[10]
As if his intention couldn’t be any clearer, he went on to make
specific bequests to specific persons. It is particularly
illuminating that in his lifetime, the deceased mended the strained
relationship he had with his biological children, such that
the 1
st
applicant worked for him. This becomes all the more so evident in the
2021 will wherein he made his 2 biological children his primary
heirs. There can be no quibble that
ex
facie
the document the intention of the deceased was crystal clear. To hold
otherwise would amount to unnecessary nitpicking and defeating
the
very purpose of section 2(3) of the Act. It is after all trite that
in its very essence, section 2(3) of the Act is meant to
avoid wills
being declared invalid for lack of compliance with the requirements
whereas, from the document, the true intention
of the testator is
self-evident.
[36]
Albeit the deceased did not expressly provide that the 2021 will
revoked all other previous wills,
I hold the considered view that the
words “waarlike en enigste” were meant to do exactly just
that. It is clear
ex facie
the 2021 will that the deceased
specifically intended for this will to be his last and only
testament.
CONCLUSION
[37]
Having found that the two jurisdictional requirements have been met,
this court is not clothed
with any discretion, I have to grant the
relief sought in prayer 1 of the notice of motion.
[38]
With regards to prayers 2 and 3 the court cannot interfere with the
function of the 1
st
respondent, that function falls within
the purview of the Master, section 14 of the Administration of
estates Act is clear in this
regard.
ORDER
[39]
In the result I make the following order;
39.1. The
Master of the High Court, Bloemfontein is authorized to accept the
will executed by Gerhardus Cornelius Erasmus,
on 18 April 2021 as his
last will and testament.
39.2. Prayers
2 and 3 of the notice of motion are dismissed.
39.3. The
costs of the application to be paid by the estate of the late
Gerhardus Cornelius Erasmus.
_______________
NG
GUSHA, AJ
On
behalf of the applicant
Adv.
J.S. Rautenbach
Instructed
by:
Huggett
Retief Inc
BLOEMFONTEIN
On
behalf of the respondent:
Adv.
J.L. Olivier
Instructed
by:
Lovius
Block Inc
BLOEMFONTEIN
[1]
Letter
of executorship dated 28/03/2022: estate 000456/2022.
[2]
Clauses
6.1.3, 6.2 and 7.2 of the 2018 will.
[3]
1972
(4) SA 409
(CPD) at 415 E-H
[4]
Henri
Viljoen (Pty.) Ltd. v Awerbuch Brothers, 1953 (2) SA 151 (O),
[5]
If
the will consists of more than one page, then each page of the will
must be so signed.
[6]
Van
Wetten and another v Bosch and others
2004 (1) SA 348
(SCA) at para
16.
[7]
In
English: This is my true and last testament.
[8]
(A276/2017)[2018]ZAWCHC
84 (27 June 2018) at para 50.
[9]
In
English: my personal testament.
[10]
In
English: This is my only and true testament.