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[2010] ZASCA 99
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Van der Merwe v Master of the High Court and another (605/09) [2010] ZASCA 99; 2010 (6) SA 544 (SCA) ; [2011] 1 All SA 298 (SCA) (6 September 2010)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case no: 605/09
HENDRIK VAN DER MERWE
...................................................................................
Appellant
and
MASTER
OF THE HIGH COURT
.................................................................
First
Respondent
SOCIETY
FOR THE PREVENTION OF CRUELTY
................................
Second
Respondent
TO
ANIMALS
________________________________________________________________
Neutral citation:
Van der
Merwe v Master of the High Court & another
(605/09)
[2010]
ZASCA 99
(6 September 2010)
CORAM:
Navsa, Cloete and Shongwe JJA and Bertelsmann and Ebrahim AJJA
HEARD:
23 August 2010
DELIVERED:
6 September 2010
SUMMARY: Acceptance of document as
will in terms of
s 2(3)
of the
Wills Act 7 of 1953
─ absence of
signature not an absolute bar ─ document authentic and intended
to be deceased’s will.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
South Gauteng
High Court, Johannesburg (Tsoka J sitting as court of first
instance).
1. The appeal is upheld.
2. The order of the court below is set
aside in its entirety and the following order is substituted:
‘
The first
respondent is directed to accept the document executed by the
deceased during 2007, annexure ‘HVDM 1’ to the
founding
affidavit, as the will of John Henry Munnik van Schalkwyk for the
purposes of the
Administration of Estates Act 66 of 1965
.’
________________________________________________________________
JUDGMENT
________________________________________________________________
NAVSA JA: (Cloete and Shongwe JJA and
Bertelsmann and Ebrahim AJJA concurring)
[1] This is an appeal, with the leave
of this court, against a judgment of the Johannesburg High Court
(Tsoka J), in terms of which
an application under s 2(3) of the Wills
Act 7 of 1953 (the Act), to have an unsigned document declared to be
the will of the late
John Henry Munnik van Schalkwyk (the deceased)
and to authorise the Master of the High Court to accept it as such,
was dismissed.
The background is set out hereafter.
[2] The appellant,
Hendrik van der Merwe, and the deceased first met in 1969 when they
were both resident and employed in Heidelberg,
Gauteng. Later they
both moved to Johannesburg. In 1972 the appellant moved to Cape Town
but returned to Johannesburg six years
later. In 1990, the appellant
returned to Cape Town where he resides to this day. From the time
that the appellant and the deceased
had first met a friendship began
to develop and continued to strengthen, notwithstanding the later
geographical distance between
them. Their relationship was such that
their respective parents became friends. The appellant and the
deceased regularly travelled
overseas together on holidays and
visited each other. They kept in regular telephone contact and had no
secrets from each other.
The appellant describes the friendship as
follows:
‘
Ons
verhouding kan dus beskryf word as dié van jarelange vriende
en vertrouelinge, wat geen geheime vir mekaar gehad het
nie.’
[3] In 2007 the appellant and the
deceased discussed the future. The deceased intended to retire in
2008 and was keen to make important
decisions in relation to his
retirement. During these discussions the two friends decided that
they would each execute a will in
terms of which the other would be
the sole beneficiary of his deceased estate. Both were unmarried and
neither had descendants
or immediate families to whom they could
bequeath their estates ─ the deceased’s parents had by
then died. Following
on these discussions and in accordance with
their agreement the deceased sent the appellant an e-mail on 26 July
2007 (the
document at the centre of this case) which reads as
follows:
‘
TESTAMENT
Ek, die ondergetekende,
JOHN HENRY MUNNIK VAN
SCHALKWYK (ID No. 4803285060086)
Tans woonagtig te EENHEID
N0 29 BERGBRON VILLAS, WHITERIDGE UITBREIDING 9, ROODEPOORT herroep
hiermee alle vorige testament, kodisille
en ander testamentêre
aktes deur my gemaak en verklaar die volgende my testament te wees.
A
Ek bemaak my boedel, wat
roerende en vaste eiendomme insluit aan: HENDRIK VAN DER MERWE –
ID NO. 480218-5052-086. NO 1 LAETITIA
STRAAT CHRISMA BELVILLE 7530
B
Ek benoem ABSA TRUST
BEPERK as eksekuteur van my boedel en ek stel hulle vry van die
verpligting om sekuriteit aan die Meester van
die Hoogegeregshof te
verskaf.
C
ABSA TRUST BEPERK word
verder gemagtig om volgens diskresie gebruik te maak van die dienste
filiaal of verwante maatskappy en sal
gevolglik geregtig wees op
enige vergoeding vir sodanige dienste gelewer.
D
My stoflike-oorskot moet
terug vervoer word na Suid Afrika (indien nodig). My troeteldiere
(indien enige bestaan op hierdie tydstip)
moet aan die slaap gesit
word deur n gekwalifiseerde Veearts, en dan saam met my
stoflike-oorskot veras word. Die as moet begrawe
word in dieselfde
graf waar my ouers begrawe is te: BENONI-begrafplaas, Afdeling DR5 ─
Graf No’s 681/2.
Geteken__________________________________
Op hierdie__________dag
van_____________2004
in die teenwoordigheid
van die ondergetekende belanglose
getuies, almal
terselfdertyd teenwoordig.
AS GETUIES
:
1.
________________________ ________________________
TESTATEUR
2.
________________________’
[4] After sending this e-mail the
deceased contacted the appellant telephonically to ask if it met with
his approval. During August
2007 and in accordance with the agreement
referred to above the appellant reciprocated. He approached an
attorney and instructed
him to draft a will in similar terms, which
instruction was carried out. On 17 August 2007 the appellant signed
the will prepared
for him by his attorney. The deceased was aware of
this fact.
[5] The deceased retired on 20 March
2008, and died less than a month thereafter on 12 April, without
having executed the document
sent by e-mail to the appellant ─
he did not comply with any of the formalities prescribed by s 2(1)(a)
of the Act.
According to the appellant the deceased gave no
indication at all before his death that he wanted to revisit their
mutual decision.
The appellant is the only beneficiary of the
deceased’s pension fund, which the former submitted indicates
that the latter
had not changed his mind. At the time of his death
the e-mail was still stored on the deceased’s computer. The
appellant
speculated that the deceased had not taken the time to sign
the document because he had not contemplated his early demise.
[6] It is necessary to record that the
deceased had signed a properly executed will on 23 September
2004, in terms of which
he had bequeathed his entire estate to The
Society for the Prevention of Cruelty to Animals, the second
respondent. Save for the
identity of the beneficiary the will is in
an identical format to that which appears in paragraph 3 above.
[7] Following on the deceased’s
death, as stated above, the appellant applied to the Johannesburg
High Court to have the document
set out above, declared the
deceased’s last will and testament. In response the Chief
Executive Officer of the second respondent,
Ms Marcelle Meredith,
filed an affidavit stating that the second respondent had no
knowledge of the discussion referred to by the
appellant and was
unable to speculate on the reason for the deceased’s failure to
sign the will in favour of the appellant.
Importantly, the second
respondent chose to abide the court’s decision. Effectively
there was no opposition to the application
and in these circumstances
a court should guard against uncritical acceptance of the appellant’s
version.
[8] In his report to the court below
the Master of the high court, the first respondent, noted that he had
received and accepted
the prior properly executed will in favour of
the second respondent but that he had no objection to the relief
sought by the appellant.
[9] The high court considered the
absence of the deceased’s signature to be of critical
importance. In his judgment dismissing
the appellant’s
application Tsoka J said the following:
‘
In
my view, the formalities referred to in Section 2 of the Act centre
around the signature of the testator. The signature is the
centre
that brings the other formalities together. In the absence of the
signature, there is no legal nexus between the alleged
Will and the
testator. In the absence of the signature, which may be of the
testator in the form of the signature of himself/herself
or a thumb
print of the testator or a signature of a person signing in the
presence and under the direction of the testator, it
is impossible to
link a document alleged to be a Will, to the testator. In this
instance one cannot speak of a Will, otherwise
any document as long
as it contains the particulars of the testator, may be characterized
as a Will.’
[10] Tsoka J took the view that
admitting the document referred to above as the deceased’s will
would be to ‘open the
floodgates for any person to submit any
document…as a Will of a testator’. The learned judge
considered the existence
of the earlier properly executed will as a
further factor militating against the acceptance of the document
under discussion as
the deceased’s last will. He accordingly
dismissed the application. There is no reference to decided cases in
the judgment
of the court below.
[11] The formalities required in the
execution of a will are set out in s 2(1) of the Act. The relevant
parts of s 2(1)
(a)
provides:
‘
(a)
no will executed on or after the first day of January, 1954, shall be
valid unless ─
(i) the will is signed at
the end thereof by the testator or by some other person in his
presence and by his direction; and
(ii) such signature is
made by the testator or by such other person or is acknowledged by
the testator and, if made by such other
person, also by such other
person, in the presence of two or more competent witnesses present at
the same time; and
(iii) such witnesses
attest and sign the will in the presence of the testator and of each
other and, if the will is signed by such
other person, in the
presence also of such other person; and
(iv) if the will consists
of more than one page, each page other than the page on which it
ends, is also so signed by the testator
or by such other person
anywhere on the page; and . . .’
[12] On the other hand, s 2(3) of the
Act sets out the power of a court in relation to a will or amendment
thereof which does not
comply with the prescribed formalities. It
reads 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 order the Master to accept that
document, or
that document as amended, for the purposes of the Administration of
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).’
[13] It is clear
that the formalities prescribed by s 2(1) and s 2(2) in relation to
the execution of a will and amendments thereto
are to ensure
authenticity and to guard against false or forged wills.
1
[14] By enacting s
2(3) of the Act the legislature was intent on ensuring that failure
to comply with the formalities prescribed
by the Act should not
frustrate or defeat the genuine intention of testators.
2
It has rightly and
repeatedly been said that once a court is satisfied that the document
concerned meets the requirements of the
subsection a court has no
discretion whether or not to grant an order as envisaged therein. In
other words the provisions of s
2(3) are peremptory once the
jurisdictional requirements have been satisfied.
3
[15] Turning to the
provisions of s 2(3) the first question to be considered is whether
the document in question was drafted or
executed by the deceased.
Following on this is the question whether the deceased intended it to
be his will. In
Letsekga
v the Master & others
1995
(4) SA 731
(W) the following was stated at 735F-G:
‘
The
wording of s 2(3) of the Act is clear: the document, whether it
purports to be a will or an amendment of a will, must have been
intended to be the will or the amendment, as the case may be, ie the
testator must have intended the particular document to constitute
his
final instruction with regard to the disposal of his estate.’
[16] A lack of a
signature has never been held to be a complete bar to a document
being declared to be a will in terms of s 2(3).
In
Letsekga
,
decided in the division from which this appeal emanated, the lack of
a signature was not held to be a bar to an order in terms
of s 2(3)
of the Act.
Ex
parte Maurice
1995
(2) SA 713
(C) decided in the same year as
Letsekga
was to the same
effect. In
Thirion
v Die Meester & andere
2001
(4) SA 1078
(T) an unsigned document drafted by a person shortly
before he committed suicide was held to be a valid will and declared
as such
in terms of s 2(3). In that case the deceased had executed a
prior will that had complied with all the prescribed formalities. The
very object of s 2(3), as pointed out above, is to ameliorate the
situation where formalities have not been complied with but where
the
true intention of the drafter of a document is self-evident. A basic
trawl through the decided cases reveals
that the absence of a signature has
not been seen as a bar to relief in terms of s 2(3). On the
other hand, it must be emphasised
that the greater the non-compliance
with the prescribed formalities the more it would take to satisfy a
court that the document
in question was intended to be the deceased’s
will.
[17] I return to consider the document
in question against the jurisdictional requirements of s 2(3) of the
Act. The appellant provided
proof that the document had been sent to
him by the deceased via e-mail, lending the document an aura of
authenticity. It is uncontested
that the document still exists on the
deceased’s computer. Thus it is clear that the document was
drafted by the deceased
and that it had not been amended or deleted.
[18] The document is boldly entitled
‘TESTAMENT’ in large type print (6 mm high), an indicator
that the deceased intended
the document to be his will. Furthermore,
the deceased nominated the appellant as the sole beneficiary of his
pension fund proceeds.
This is an important and objective fact which
is consonant with an intention that the appellant be the sole
beneficiary in respect
of the remainder of his estate. It is also of
importance that the deceased had no immediate family and that the
appellant was a
long time friend and confidante. The fact that his
previous will nominated the second respondent as his sole heir
indicates that
he had no intention of benefiting remote family
members. The appellant’s version of the mutual agreement to
benefit each
other exclusively by way of testamentary disposition is
uncontested by the second respondent, the sole beneficiary of the
prior
will, and is supported by the fact that after the deceased had
sent the document to the appellant, the latter executed a will
nominating
the deceased as his sole beneficiary ─ another
objective fact. All of this leads to the inexorable conclusion that
the document
was intended by the deceased to be his will.
[19] In light of the aforegoing it is
clear that the court below erred in dismissing
the application. The appellant was
clearly entitled to the relief sought. The following order is made:
1. The appeal is upheld.
2. The order of the court below is set
aside in its entirety and the following order is substituted:
‘
The first
respondent is directed to accept the document executed by the
deceased during 2007, annexure ‘HVDM 1’ to the
founding
affidavit, as the will of John Henry Munnik van Schalkwyk for the
purposes of the
Administration of Estates Act 66 of 1965
.’
_________________
M S NAVSA
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: H G McLachlan
Instructed
by
Visagie
Vos Goodwood
E
G Cooper Majiedt Inc Bloemfontein
For
1
st
Respondent: Abide decision of the court
Instructed
by
Master
of the High Court Johannesburg
For
2
nd
Respondent: Abide decision of the court
Instructed
by
Marston
& Taljaard Bedfordview
1
See
in this regard
Logue & another v The Master & others
1995
(1) SA 199
(N) at 202D-E and
Anderson and Wagner NNO &
another v The Master and others
1996 (3) SA 779
(C) at 785B-C.
2
See
Logue op cit
at
203F-G. In
Anderson op cit
at 785C the following is said about s
2(3) of the Act:
‘
Section
2(3) is in the nature of a special exemption from the rigours of the
requirements of s 2(1).’
3
See
Anderson
at 785E-F and the cases there cited.