Brief Summary

Wills and Estates — Usufruct — Right of usufruct over immovable property — Applicant, as second wife of deceased testator, seeks declaration that usufruct is unconditional and not subject to approval of testator's sons — Testator's last Will explicitly states usufruct is subject to sons' approval — Court finds plain reading of Will provisions indicates that usufruct is indeed conditional upon sons' consent, affirming the sons' control over the property and its use.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned motion proceedings in the Free State Division of the High Court, Bloemfontein, in which the applicant sought a declaratory order on the proper interpretation of a clause in a deceased testator’s last will. The application required the court to determine whether a usufruct conferred on the applicant in terms of the will was unconditional in relation to the immovable property, or whether it was subject to the approval of the deceased’s sons.

The applicant, Adri Viljoen, was the deceased testator’s second wife. The principal opposing parties were the deceased’s three sons from a previous marriage, namely Dieter Viljoen, Daniël Viljoen and Dewald Viljoen (cited as the third to fifth respondents). The first and second respondents, Francois Carl Louw N.O. and Lilly Rautenbach N.O., were cited in their representative capacities (as reflected by the “N.O.” designation), and the Master of the Free State High Court was also cited as a respondent.

Procedurally, the applicant launched an application for declaratory relief. The sons opposed the relief and raised points in limine relating to alleged defects in the commissioning of affidavits and alleged non-compliance with Rule 41A (mediation). The sons also delivered a notice of application to strike out portions of the applicant’s papers. In addition, the third respondent deposed to an answering affidavit and also filed a conditional counter-application, although the court ultimately found it unnecessary to grant separate declaratory relief in the counter-application if the main application failed.

The general subject-matter of the dispute was the interpretation of wills and, in particular, the construction and effect of a contentious phrase in clause 2.1 of the will dated 18 June 2020, which bequeathed the family home and its contents to the sons subject to a usufruct purportedly granted to the applicant, coupled with wording that referred to the approval of the sons.

2. Material Facts

During his lifetime, the deceased executed several wills, some handwritten and some typed. The court treated the sequence and wording of these instruments as important context for interpreting the 2020 will.

In 2013, the deceased signed a will that, on its wording, afforded the applicant a right of use over his houses and the ability to generate income from them, subject to termination upon remarriage. The court accepted that, on its face, the 2013 will created an unconditional usufruct in favour of the applicant (subject only to the remarriage-related termination provision).

In 2016, the deceased executed a typed will prepared after he told Ms Torr (an administrative employee at his attorneys) that he wished to amend his prior will. This 2016 will did not create a usufruct in favour of the applicant.

On 5 November 2019, the deceased executed another will revoking the 2016 will. In this 2019 will, the deceased bequeathed certain properties to his sons jointly and included a clause proposing that the applicant enjoy a right of use of the family house “if it carries the approval of the sons”. The 2019 will also excluded the sale of assets and recorded that the arrangement would be controlled by the sons, with additional provisions addressing termination in circumstances such as remarriage and lack of care for the property. The court regarded the 2019 will as clearly making the applicant’s right of use subject to the sons’ approval.

In June 2020, the deceased consulted Ms Torr again and indicated that he wished to revoke the 2019 will. On 18 June 2020, he executed the will that became the subject of the litigation. The relevant portion of clause 2.1 provided that the Fontein Street property in Ficksburg and all movable assets in the house were bequeathed in equal shares to the sons, “subject to a usufruct in favour of [the applicant] until her death.” The clause then stated that the usufruct did not include the sale of assets or goods and was “subject to the approval of my sons.” The court identified the interpretive dispute as turning on the meaning and reach of this latter phrase.

The applicant’s case, as relied on for the interpretive issue, was that the will conferred on her a usufruct over both the immovable property and the movables, and that the requirement of the sons’ approval applied only to the disposal of movable property, not to her right to use and occupy the immovable property itself.

The sons’ opposing case, insofar as it bore on the interpretive issue, was that the usufruct itself was conditional upon their approval, meaning that absent their approval the applicant did not have an enforceable right of use. The sons pointed to the history of earlier wills, the wording of the 2019 will, and the strained relationships within the family to support their understanding of the deceased’s intention as reflected in the 2020 text.

The court recorded that the parties had exchanged extensive correspondence after the deceased’s death and that the sons made it clear at a meeting held on 28 August 2021 that they would not grant a usufruct. The Master’s report dated 25 November 2022 indicated that the Master did not oppose the application and that the will of 18 June 2020 had been accepted.

As to procedural disputes, it was common cause that there were defects alleged in the commissioning of affidavits (the locality where the affidavits were purportedly signed and sworn to), and that the parties had not complied with the requirement under Rule 41A to file notices concerning mediation. The applicant explained the commissioning discrepancy as an error resulting from papers prepared in Bloemfontein but commissioned in Bethlehem. The sons also pursued a strike-out application directed at averments they characterised as scandalous, vexatious, irrelevant, and in part hearsay, with the applicant conceding the hearsay point in relation to one confirmatory affidavit.

3. Legal Issues

The central legal question was the proper interpretation of clause 2.1 of the 18 June 2020 will, specifically whether the words “subject to the approval of my sons” qualified the applicant’s usufruct as such (making it conditional/suspensive), or whether they qualified only the sale/disposal of assets or goods, leaving the usufruct over the immovable property unconditional.

This dispute was principally one of law and the application of interpretive principles to a document, but it also involved an application of those principles to contextual facts (including the earlier wills and the circumstances in which the 2020 will came into existence). The interpretive task required an objective value judgment about which meaning was the most coherent in context, rather than a credibility finding on contested oral evidence.

Secondary issues arose concerning procedural and interlocutory matters, namely whether alleged defects in commissioning should be fatal to the affidavits, whether non-compliance with Rule 41A affected the proceedings, and whether portions of the affidavits should be struck out under Rule 6(15). The court also referred to principles governing disputes of fact in motion proceedings, relevant to how the matter should be decided on the papers.

4. Court’s Reasoning

The court began by addressing the preliminary issues. In relation to the first point in limine concerning defects in commissioning, the court accepted that it had a discretion to condone or overlook defects where appropriate and exercised that discretion in favour of the applicant, reasoning that the interpretive issue needed determination and that no prejudice had been shown.

Regarding the second point in limine on Rule 41A, the court interpreted Rule 41A as compelling the filing of a notice indicating whether the parties agreed to mediation and observed that both parties had failed to comply. However, the court considered the parties to be so far apart that mediation would probably not have succeeded and concluded that, in the particular circumstances, mediation would have been futile. The court nonetheless emphasised the importance of parties considering mediation seriously, noting that in appropriate cases a court may disallow costs for failure to engage with mediation.

On the strike-out application, the court referred to Rule 6(15) and accepted the principle advanced that the court will not grant strike-out relief unless satisfied that prejudice will result, while also noting that the rule is not absolute and should be approached with common sense. The court concluded that the sons had “opened the door” to robust replying allegations by introducing extensive matter in their answering affidavit, and that they could not show prejudice arising from much of what they sought to strike out. The strike-out application was therefore not upheld in a manner that affected the core interpretive outcome.

Turning to the merits, the court identified the applicable interpretive framework. It reaffirmed that a will must be interpreted like other legal documents, but that courts tend to adopt a more liberal approach in construing wills because the testator has died and cannot clarify intentions. The court reiterated the “golden rule” that the testator’s wishes must be ascertained from the language used and then given effect unless prevented by law, and it endorsed the modern contextual approach to interpretation articulated in Natal Joint Municipal Pension Fund v Endumeni Municipality, requiring the language to be read in context, with attention to purpose and background facts known at the time of drafting, in an objective manner.

The court accepted that clause 2.1 of the 2020 will clearly created a usufruct in favour of the applicant, and it reasoned that, absent a condition, such a right would ordinarily vest on the testator’s death. The court further observed that a usufructuary has no right to alienate the corpus (including selling the immovable property) unless expressly authorised by the will, and it treated the clause’s prohibition on sale as consistent with that general position.

The interpretive difficulty arose from the positioning and reach of the phrase “subject to the approval of my sons.” The court accepted that, purely on the text, there were two possible readings: either the entire usufruct was subject to the sons’ approval, or only the sale of assets or goods required such approval. The court held that a literal reading alone could not fully resolve the matter and that context was therefore decisive under the Endumeni approach.

In applying context, the court placed substantial weight on the progression of the wills, especially the 2019 will, which explicitly made the right of use subject to the sons’ approval at the outset of the clause dealing with the applicant. The court considered that, viewed against this background, the 2020 will could reasonably be seen as a rewording of the 2019 clause rather than as a substantive shift to an unconditional usufruct. The court described the 2020 will as “a shadow” of the 2019 will in its phrasing, but held that the right of use remained the central feature in both.

The court also reasoned about the practical and relational context. It accepted that the deceased was aware of strained relations between the applicant and the sons and inferred that he attempted to craft a formulation that would, as far as possible, accommodate both sides. The court’s evaluation was that the deceased did not want to disappoint the sons by granting the applicant an unfettered right of use, nor to disappoint the applicant by entirely excluding her, and that the wording was structured so that the sons retained a “say” while the applicant retained a prospect of being allowed use.

On this analysis, the court rejected the applicant’s interpretation as untenable in the circumstances and concluded that, when the 2019 and 2020 wills were read together contextually, the correct construction was that the applicant’s usufruct was subject to the sons’ approval. The court noted that the sons had sought a declaratory order to that effect, but considered that such an order was unnecessary because dismissing the main application would have the same practical effect.

Finally, on costs, the court exercised a discretion to depart from the ordinary costs-follow-the-result approach. It reasoned that neither side could be faulted for failing to foresee the interpretive nuances advanced by the other, that the arguments were helpful and thorough on both sides, and that fairness and the interests of justice in a family dispute supported an order that each party pay its own costs.

5. Outcome and Relief

The application was dismissed.

No declaratory order was granted in favour of the applicant. The court’s dismissal of the application had the effect that the applicant did not obtain a declaration that she enjoyed an unconditional usufruct over the immovable property independent of the sons’ approval.

The court ordered that each party pay its own costs.

Cases Cited

Titty’s Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd 1974 (4) SA 362 (T).

Smith v Kwanonqubela Town Council 1999 (4) SA 947 (SCA).

Wightman t/a JW Construction v Headfour (Pty) Ltd and Another 2008 (3) SA 371 (SCA).

Robertson v Robertson’s Executors 1914 AD 503.

Aubrey Smith v Hofmeyer N.O. 1973 (1) SA 655 (C).

Prophet v National Director of Public Prosecutions 2007 (6) SA 169 (CC).

University of the Free State v Afriforum and Another 2017 (4) SA 283 (SCA).

Van Zyl and Others v Government of the Republic of South Africa and Others [2005] 4 All SA 96 (T).

King and Others N.N.O. v De Jager and Others 2021 (4) SA 1 (CC).

Natal Joint Municipal Pension Fund v Endumeni Municipality (920/2010) [2012] ZASCA 13; [2012] 2 All SA 262 (SCA); 2012 (4) SA 593 (SCA) (16 March 2012).

Legislation Cited

No legislation was cited in the judgment as the direct basis for the decision on the merits.

Rules of Court Cited

Uniform Rule of Court 41A.

Uniform Rule of Court 6(15).

Held

The court held that clause 2.1 of the will dated 18 June 2020 created a usufruct in favour of the applicant in respect of the Fontein Street property and the movable assets in the house, but that, properly interpreted in its textual and contextual setting, the usufruct was conditional upon the approval of the deceased’s sons.

The court held further that the applicant’s construction, which would limit the sons’ approval requirement to the sale of movable assets only (and not to the usufruct over the immovable property), was not sustained when clause 2.1 was read contextually alongside the 2019 will and the apparent purpose of the 2020 formulation.

The points in limine concerning defects in commissioning and non-compliance with Rule 41A did not prevent determination of the matter. The court exercised its discretion to accept the affidavits notwithstanding commissioning defects and treated mediation as futile on the facts. The court did not grant strike-out relief in a way that altered the interpretive determination.

The court dismissed the application and ordered that each party pay its own costs.

LEGAL PRINCIPLES

A will is interpreted by attributing meaning to its language in accordance with established principles of interpretation. The court applied the principle that the “golden rule” of testamentary interpretation is to ascertain the testator’s wishes from the language used and to give effect to them unless a rule of law prevents this, as stated in Robertson v Robertson’s Executors 1914 AD 503.

The court applied the modern contextual interpretive approach articulated in Natal Joint Municipal Pension Fund v Endumeni Municipality (920/2010) [2012] ZASCA 13; [2012] 2 All SA 262 (SCA); 2012 (4) SA 593 (SCA) (16 March 2012). Under this approach, interpretation is a unitary, objective process in which the language, grammar, syntax, and the context and purpose of the provision are considered together. Where more than one meaning is possible, each meaning must be weighed against context and purpose, and a sensible meaning is preferred over one that yields insensible results, without substituting what seems reasonable for the words actually used.

In construing wills specifically, the court recognised a tendency towards a somewhat more liberal approach than in contract interpretation, grounded in the reality that the testator is deceased and cannot clarify intention, while still requiring that the court remain anchored to the language of the document read in context.

The court proceeded on the accepted principle that a usufructuary is not entitled to alienate the corpus (including selling the property) unless expressly authorised, and that restrictions on sale contained in the will must be understood against that background.

In relation to motion proceedings, the court referred to the principle that an applicant will generally only obtain final relief where disputes of fact are resolved in its favour, unless the respondent’s version does not raise a real, genuine, or bona fide dispute or is so far-fetched or untenable that it can be rejected on the papers, as formulated in Wightman t/a JW Construction v Headfour (Pty) Ltd and Another 2008 (3) SA 371 (SCA).

On interlocutory relief, the court treated an application to strike out under Uniform Rule of Court 6(15) as discretionary and generally dependent on demonstrated prejudice, while acknowledging that the rule is applied with practical common sense in the light of the circumstances of the case.

With respect to Uniform Rule of Court 41A, the court treated the rule as requiring the filing of a notice relating to mediation and indicated that failure to engage with mediation may, in appropriate cases, have costs implications, while holding that mediation was futile on the facts before it.

Viljoen v Louw NO and Others (56/2020) [2023] ZAFSHC 489 (4 December 2023)