Smith v Parsons NO and Others (187/09) [2010] ZASCA 39; [2010] 4 All SA 74 (SCA) (30 March 2010)

75 Reportability

Trusts and Estates

Brief Summary

Wills — Amendment of will — Suicide note as testamentary document — Appellant sought to have a suicide note accepted as an amendment to the deceased's will under section 2(3) of the Wills Act 7 of 1953 — The note contained clear instructions regarding the disposition of the deceased's property, indicating an intention to amend the will — High Court initially found the note did not constitute an amendment, but on appeal, it was held that the deceased intended the note to serve as an amendment, directing the Master of the High Court to accept it as such.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings were an appeal to the Supreme Court of Appeal from a decision of the KwaZulu-Natal High Court, Durban and Coast Local Division (Luthuli AJ). The appeal concerned an application brought in motion proceedings for an order directing the Master of the High Court to accept a document described as a suicide note as an amendment to the will of the late Walter Percival Smith for purposes of the administration of his deceased estate.

The appellant, Heather Wendy Smith, was the applicant in the court of first instance. The first and second respondents (Charles Parsons N.O. and Fritz Albert Volker N.O.) were the executors of the deceased estate. The third respondent, Jeremy Alan Smith, was the deceased’s son and the only party who opposed the application. The fourth respondent, the Master of the High Court, did not oppose the relief sought.

Procedurally, the High Court accepted that the document had been written by the deceased, but dismissed the application on the basis that the deceased had not unequivocally intended the suicide note to amend his will. The appellant appealed with the leave of that court. The third respondent had filed a conditional counterclaim in the High Court (to operate only if the application succeeded), which the High Court did not decide because it dismissed the application; the parties agreed on appeal that, if the appeal succeeded, the counterclaim would require adjudication by the High Court.

The general subject-matter of the dispute was the proper application of section 2(3) of the Wills Act 7 of 1953, namely whether an informal document that does not comply with testamentary formalities should nevertheless be treated as a will or amendment to a will because the deceased intended it to have testamentary effect.

Material Facts

The deceased was a senior pilot employed by South African Airways. His wife died in September 2002, and the third respondent was their only child. After his wife’s death, the deceased formed a relationship with the appellant, who moved into his home in January 2003. While they lived together, the deceased substantially supported the appellant financially.

In February 2004 the appellant left the deceased’s home after an argument, and in February 2005 she returned to the United Kingdom. She maintained contact with the deceased, who later visited and persuaded her to return to South Africa. She returned in December 2005 and again lived with him.

On the morning of 25 February 2007, the appellant left for work while the deceased remained at home. The appellant spoke to him by telephone during the day. When she returned home shortly after 14h00, she found that the deceased had committed suicide by shooting himself in the bathroom. A handwritten note (the document in issue) was found on the kitchen counter with a crucifix placed on top of it.

The content of the note included personal statements to the appellant and to Jeremy, and also contained dispositions or instructions relating to property and assets. In particular, the deceased stated that the appellant could have the house, that the appellant was authorised to have immediate access to a specified Standard Bank Plusplan account (with a stated balance), and that there was cash in the safe. The note also stated: “My will is in the Brown envelope in the safe. I leave everything else to Jeremy as stated therein.” The note was dated Sunday 25/02/07 and signed “Wally”.

An important feature treated as part of the factual matrix was that the deceased had an existing will kept in the safe, and that the note was placed where it would be discovered after his death.

The High Court’s finding that the note was written by the deceased was not in issue on appeal. The dispute on appeal concerned whether, in light of the document and the surrounding circumstances, the deceased intended this document to operate as a testamentary instrument (specifically, as an amendment to his existing will) as contemplated by section 2(3).

Legal Issues

The central legal question was whether the suicide note was a document drafted or executed by the deceased that was intended by him to be his will or an amendment of his will for purposes of section 2(3) of the Wills Act 7 of 1953.

The dispute primarily concerned the application of law to fact, focusing on a factual inference (the deceased’s intention) drawn from the text of the note and the surrounding circumstances, assessed against the statutory standard in section 2(3). It also involved a limited legal characterisation issue raised by the third respondent: whether the note’s wording was more consistent with a donatio mortis causa than a testamentary disposition, and what consequences would follow from that classification.

Court’s Reasoning

The court approached the matter by identifying the governing statutory framework. It emphasised that section 2(3) empowers a court to direct the Master to accept a document as a will or amendment notwithstanding non-compliance with formalities, if the court is satisfied that the document was intended by the deceased to have that testamentary effect. The court treated this as a mandatory consequence once the jurisdictional facts are established, relying on authority indicating that where intention is proven, the court must order acceptance.

In determining intention, the court applied the approach that the document itself must be examined and that the surrounding circumstances must be considered. This entailed a contextual assessment rather than a purely formal inquiry into whether the document resembled a conventional will or complied with signature and witnessing requirements.

Applying that approach, the court held that the text of the note contained clear, operative directions about the disposition of assets. The statement that the appellant could have the house was treated as an unambiguous instruction that the house should devolve upon her upon his death. Likewise, the instruction authorising immediate access to the Standard Bank Plusplan account was understood not as a bank-mandate question, but as an expression of intention that the funds in that account be made available to the appellant as part of what he wished to happen after his death. The court considered that these directions were not merely incidental remarks but were phrased as instructions meant to be acted upon.

The note’s reference to the existing will in the safe was treated as particularly significant. The deceased expressly acknowledged the existence and location of his formal will, and then distinguished between what he was doing in the note (providing for the appellant with specific assets) and what the will already did (leaving “everything else” to Jeremy). The court inferred from this structure that the deceased was consciously supplementing or adjusting his testamentary scheme by carving out certain assets for the appellant while leaving the residue to his son.

The third respondent’s argument that the note was intended merely as instructions for a later formal amendment was rejected. The court reasoned that, given the circumstances—specifically that the deceased was about to commit suicide—he could not realistically have intended to create a set of drafting instructions for later execution. The manner of signature (“Wally”) was treated as consistent with the personal nature of the document, and the court stressed that section 2(3) does not require compliance with formal signature requirements; the decisive question is whether the document was drafted or executed with the requisite intention to be a will or amendment.

The court also placed weight on the manner in which the note was left: it was placed in a prominent location under a crucifix, supporting an inference that the deceased intended it to be found and implemented after his death. This was treated as part of the surrounding circumstances strengthening the conclusion that the note was meant to have operative effect.

On the argument that the language was that of a donatio mortis causa, the court accepted the proposition that such a donation must be executed with the formalities required for a will. However, it rejected the characterisation on the facts, holding that the deceased was not contemplating a donation requiring acceptance prior to death; rather, he was regulating the disposition of his estate in anticipation of death. The court therefore treated the note as falling within the ambit of section 2(3) as an intended testamentary amendment rather than as an attempted donation mortis causa.

Having evaluated both the wording of the note and the surrounding circumstances, the court concluded that it was satisfied that the suicide note was intended by the deceased to be an amendment to his will as contemplated by section 2(3).

Outcome and Relief

The appeal was upheld with costs, including the costs of two counsel where employed. The order of the High Court was set aside and replaced.

The substituted order directed the Master of the High Court to accept the suicide note (annexure “A” to the notice of motion) as an amendment to the deceased’s will for purposes of the Administration of Estates Act 66 of 1965. It further ordered that the costs of the application would be costs in the winding-up of the deceased estate, but that the third respondent must pay the costs occasioned by his opposition, including the costs of two counsel where employed.

The judgment recorded that, given the parties’ agreement, the third respondent’s conditional counterclaim (filed in the High Court) would require adjudication by the High Court if the appeal succeeded; the Supreme Court of Appeal did not determine that counterclaim.

Cases Cited

Van Wetten and Another v Bosch and Others 2004 (1) SA 348 (SCA)

Harlow v Becker NO and Others 1998 (4) SA 639 (D)

Jordaan and Others NNO v De Villiers 1991 (4) SA 396 (C)

Legislation Cited

Wills Act 7 of 1953 (section 2(3))

Administration of Estates Act 66 of 1965

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Supreme Court of Appeal held that the suicide note, assessed on its wording and the surrounding circumstances, was intended by the deceased to operate as an amendment to his will within the meaning of section 2(3) of the Wills Act 7 of 1953. As a result, the Master of the High Court was required to accept the document as such for the purposes of administering the deceased estate under the Administration of Estates Act 66 of 1965.

LEGAL PRINCIPLES

Section 2(3) of the Wills Act 7 of 1953 permits a court to direct the Master to accept a document as a will or an amendment to a will even if it does not comply with testamentary formalities, provided the court is satisfied that the document was drafted or executed by the deceased and was intended to be his or her will or an amendment.

In determining whether the required intention exists, the court must consider both the content of the document and the surrounding circumstances in which it was created and left. The inquiry is directed at testamentary intention rather than compliance with formal signing or witnessing requirements.

A document’s informal character, its personal tone, or the absence of a conventional signature does not preclude relief under section 2(3) if the court is satisfied that the deceased intended the document to have testamentary effect.

A contention that the document reflects a donatio mortis causa does not defeat a section 2(3) claim where, on a proper characterisation, the deceased was regulating the disposition of the estate in anticipation of death rather than attempting a donation requiring acceptance; and in any event, the judgment accepted that a donatio mortis causa must comply with the formalities required for a will.