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[2023] ZAKZPHC 23
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Pillay and Another v Ganga N.O. (5444/2019P) [2023] ZAKZPHC 23 (3 March 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
FLYNOTES:
WHETHER “AFFIDAVIT” A WILL
WILLS
AND ESTATES – Will – Intention of deceased –
Document recording arrangement with parents for registration
and
bond payments for property – Signed by deceased and parents
– Dealing only with property – No indication
of
deceased bequeathing anything to any specific person – Not
intention of deceased that document was to be her will
–
Wills Act 7 of 1953
,
s 2(3).
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISIION, PIETERMARITZBURG
CASE NUMBER:
5444/2019P
In the matter between:
PETER
PILLAY FIRST
APPLICANT
SALOSHINI
PILLAY SECOND
APPLICANT
And
HIMERSHAN GANGA
N.O. FIRST
RESPONDENT
THE MASTER OF THE HIGH
COURT
SECOND RESPONDENT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
On 9 September 2019 a rule
nisi
was granted returnable on 7
October 2019 where in the relief sought was that a document entitled
Affidavit dated 20 March 2016 be
declared the last Will and testament
of the late Sivana Kaylene Ganga. It also contained relief that First
Respondent, who was
appointed as executor of the estate, does not
continue with the winding up of the estate.
[2]
It is not clear from the file why the matter was only heard on 25
February 2023 and
what had expired between the granting of the rule
nisi
on 9 September 2019 until 7 February 2023. Counsel were
also unable to enlighten me in this regard.
[3]
The issue is whether the document which is entitled Affidavit and
dated 20 March 2016
is to be declared the deceased’s last Will
and testament in terms of section 2(3) of the Wills Act 7 of 1953
(the Act). Section
2(3) stipulates 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 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
the 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]
In this case the Master of the High Court has filed a report setting
out that the
basic requirements for the operation of section 2(3) the
Act that there is a document executed by a person who has died with
the
intention that the document must be the persons Will has been
complied with and that in light of the decision of
ex parte
Williams in re Williams estate
2004 (4) SA 168
(T) that the order
must be granted as prayed for in prayer A of the notice of motion as
no prejudice would be suffered by the heirs
should the order be
granted.
[5]
At the return date now the application is opposed by First Respondent
who is the executor
of the estate and also the late husband of the
deceased.
[6]
It is necessary in determining the issues herein to set out what is
contained in the
document which is termed Affidavit. The document
annexure “SP4” at page 31 of the papers has a bold
heading “Affidavit”
and then reads as follows:
“
This
document is to confirm that we the parents
(Father)
Mr Peter Pillay, Id No [....]
and
(Mother)
Mrs Saloshini ID No [....]
will transfer our house which is situated in
[....]
K [....] Rd Northdale Pietermaritzburg
which is registered at the deeds office as
Portion
[....] of ERF [....]
to my
(daughter)
Sivana Kaylene Govender
ID
No [....]
just
for convenience. She is financially strong and would be able to get a
bond to refurbish the same. However when a bond is taken
on her name
(Sivana
Kaylen Govender)
we the parents will be the bond payers if we the parents should fail
in our obligation to pay towards the bond, This affidavit
will become
null and void and the property shall continue to be in the mane of
the bond holder
(Sivana
Kaylen Govender)
(Should anything should happen which would result in our demise the
above property will remain in her name. Should she marry this
property shall not form part of the marriage, should she pass on the
property will then be transferred back into the actual legal
owners
Mr
P and Mrs S Pillay
her parents.
We the parties have
willingly come to this agreement.”
[7]
It is signed by Mr. Peter Pillay and Mrs Saloshini as well as the
deceased Sivana
Kaylene Govender. It was then on that same day 20
March 2016. Certified by The South African Police Services as a true
copy of
the original. It does not appear to be commissioned as
alleged in the founding papers.
[8]
A reading of the document indicates that an arrangement had been
reached between the
Mother and Father of the deceased and her in
their respective capacities that she would obtain a bond, the house
would be registered
in her name but her parents would pay the bond
instalments, that on her death the property would be transferred back
to her parents.
Tragically the deceased died in a motor vehicle
accident and accordingly the issue arose whether it was a Will or
not.
[9]
It is common cause that the deceased left no Will, that she was
married to First Respondent
in community of property and that he was
appointed the executor of for estate. It is further undisputed by
First Respondent that
the parents were, in terms of the agreement
which was reached between them and the deceased, entitled to have the
house returned
to them. He does not dispute what is contained in the
document termed “Affidavit” and he is in agreement with
what
is contained therein. The issue that he raises is that there is
debt in the estate in the sum of approximately R 240 000.00 and
that
accordingly the property must form part of the join estate and also
that the agreement which the deceased had reached with
her parents
shall be obeyed if there is sufficient funds in the estate to do so.
[10]
In
ex parte
Williams in Re Williams Estate
2000 (4) SA 168
(TPD) it was held that as set out in section 2(3) it does not relate
to a prescribed course of conduct but to the creation of a
document
(howsoever it may be accomplished) which the testator intended to be
his Will. It was held at 179 F:
“
In
that case the test to be applied after his death without proper
execution of the Will is not whether he in life regarded the
document
as a valid Will but regarded it as an expression of a final
disposition of his estate”
In Reszke v Marais &
Others
2006 (1) SA 401
(CPD) it was held at 407:
“
The
appearance of the document goes to evidentiary weight, however, and
cogent evidence would be required to persuade a court that
an
educated person such who signs a document, which does not in
substance appear to be a Will nonetheless intended it to be such.”
In Kotze v Die Meester en
Andere
1998 (3) SA 523
(NKA) it was held:
“
That
before
section 2(3)
of the
Wills Act 7 of 1953
can be applied to
elevate a defecting Will to the status of a valid will there must be
proof of the intention of the testator which
is of such a nature that
a court is satisfied with a great measure of certainty that it was
actually his intention that the document
in question was to be his
will.”
[11]
It was submitted on behalf of Applicants that First Respondent does
not oppose the transfer of
the property and that the “Affidavit”
was the last wish of the deceased. Her intention was clear that the
house must
go to her parents. Accordingly it was her intention that
the “Affidavit” be her last Will.
[12]
On behalf of First Respondent it was submitted that it was never
intended to be a Will. The wording
is indicative of this fact and
nothing in the affidavit indicates that the deceased stipulated what
she wished to have done with
her estate.
[13]
In deciding whether indeed it was the intention of deceased that the
document termed “Affidavit”
be her last Will the wording
of the document and the way in which it was drafted must be
considered. The document was headed “Affidavit”.
In my
view, clearly a reading thereof indicates that there was an agreement
reached between the deceased and her parents to bond
the property
that her parents would refurbish the property. In the event that she
died the property would be transferred back to
them as they would
have paid all the bond instalments in the interim. It does not refer
in anyway to her estate or to any other
assets which she may have. It
is also signed by all three of the parties. There is also no
indication of her bequeathing anything
to any specific person. The
whole document only deals with this property. The last sentence reads
“We the parties have willingly
come to this agreement.”
That is not indicative of a person expressing their intention that
the document be their Will. The
documents relates to a purely
financial transaction as appears from the wording “She is
financially strong and would be able
to get a bond to refurbish the
same.”
[14]
As already set out the contents of the “Affidavit” is not
disputed by First Respondent,
the executor. He states that it is not
her last Will but she had died in testate and that the property has
to be brought into the
estate so as to wind up the estate. The
parents of the deceased, Applicants will indeed have a claim against
the estate, not only
in respect of the instalments which they may
have paid but also in terms of the agreement which was reached with
the deceased and
which is not disputed. It would appear to me that in
practical terms there would be no difference in the end result if it
is accepted
as a Will or not.
[15]
Considering the cases referred to above and the “Affidavit”
after careful consideration
of the document I am not satisfied that
it has been shown that it was the intention of the deceased that the
document was to be
her Will.
[16]
In my view it is apparent from a reading of the papers that both
Applicants and First Respondent
are trying to deal with the estate of
the deceased to the best of their abilities and to protect certain
rights. Accordingly in
my view it would not be appropriate in these
circumstances to grant a cost order against any party but that it
would be more appropriate
that the costs of this application be costs
in the estate.
[17]
Accordingly the following order is made:
1.
The rule
nisi
granted on 9 September 2019 is discharged
2.
The costs of the application are to be costs in the estate of the
late Sivan Kaylene Govender
estate number as: 728/2078.
P C Bezuidenhout J.
JUDGMENT
RESERVED:
7 FEBRUARY 2023
JUDGMENT HANDED
DOWN:
3 MARCH 2023
COUNSEL FOR
APPLICANTS:
J
L MIRANDA
Instructed
by: Carlos
Miranda Attorney
Pietermaritzburg
Ref: P643/cm
Tel: 033 345745
COUNSEL FOR
RESPONDENTS:
E MAIKOO
Instructed
by: Euracia
Maikoo & Attorneys
Pietermaritzburg
Ref: G2023/01/10/EMM00
Tel: 033
3942525/3421193