Summary of Judgment

1. Introduction

This was a motion-court application in the Gauteng Division, Johannesburg, in which the applicant sought declaratory relief concerning the validity of a document purported to be the last will of the late Mphele Anna Mashao (“the deceased”). The primary relief sought was an order declaring the will invalid, coupled with an order declaring that the deceased died intestate.

The applicant, Moleko Daniel Maimane, was the deceased’s brother. The first and second respondents were the executors appointed by the Master to administer the deceased estate. The third to ninth respondents were the beneficiaries named in the will and were the parties who opposed the application (referred to in the judgment as “the respondents” for purposes of the opposition). The Master of the High Court was cited as the tenth respondent and did not oppose the application. The first respondent (both in his capacity as executor and in his personal capacity) delivered a notice that he abided the court’s decision on the will’s validity, and the second respondent did not oppose.

The dispute concerned the formal validity of the will under the Wills Act 7 of 1953, the effect of non-compliance with statutory formalities on the validity of the entire will, and whether the opposing beneficiaries could rely on the statutory condonation mechanism in section 2(3) of the Wills Act as a defence without bringing countervailing proceedings for that relief.

2. Material Facts

The document presented as the deceased’s will comprised a cover page and four subsequent pages containing the substantive text. The cover page bore the word “WILL” at the top and reflected the deceased’s name and identity number, but it contained no additional information not repeated in the pages that followed. The court regarded the cover page as capable of being left out of account, and the judgment’s references to “the will” were directed to the four pages after the cover page.

The feature giving rise to the dispute was that the third page of the will differed from the other pages in a crucial respect. At the bottom of the other three pages, there was provision for the signatures of two witnesses under the words “AS WITNESSES”, and provision for the deceased’s signature under the word “TESTATRIX”. The third page had none of these signature-related features.

During argument, counsel for the opposing respondents conceded (and the court accepted) that the will did not comply with section 2(1)(a)(iv) of the Wills Act. It was also conceded (and accepted) that if the third page failed to comply with that statutory requirement, the consequence was that the entire will would be invalid, because the invalid part contained dispositions made by the testatrix.

The opposing respondents, however, relied on section 2(3) of the Wills Act in their answering affidavit. In that affidavit, the ninth respondent explained the circumstances of the will’s discovery after the deceased’s death on 7 July 2020. According to this account, the applicant requested her to search for the deceased’s important documents; she did so but did not find the will. Only in September 2020 did the third and fourth respondents find the will by chance in an envelope in a bedside pedestal in the deceased’s bedroom.

The court treated the respondents’ reliance on section 2(3) as predicated on the will being an authentic document and on the discovery narrative. The court noted that it had reservations about whether the evidence satisfied section 2(3), including whether there was evidence that the deceased had drafted or executed the document, but the court expressly found it unnecessary to decide that point given the dispositive procedural issue regarding how section 2(3) relief must be sought.

3. Legal Issues

The court was required to determine, first, whether the will complied with the formal execution requirements in section 2(1)(a)(iv) of the Wills Act, and what the legal consequence was for the will as a whole if one page did not comply. This primarily involved the application of settled legal rules to largely common-cause features of the document, reinforced by concessions made in argument.

Secondly, the court had to decide whether it was competent for the opposing respondents, in motion proceedings where they were respondents to final relief, to rely on section 2(3) of the Wills Act as a defence to an application challenging validity, without bringing a counter-application (or other proceedings) in which they sought an order directing the Master to accept the document as a will despite non-compliance.

Thirdly, the court had to decide whether it should grant the further declarator sought by the applicant that the deceased died intestate, bearing in mind the possibility of subsequent proceedings under section 2(3) and the potential procedural effects of res judicata or issue estoppel.

The key issues were therefore mixed: questions of law (the proper procedural vehicle for section 2(3) relief; the legal consequences of non-compliance) and questions involving the application of those principles to the procedural posture of motion proceedings (including the implications of the Plascon-Evans approach to factual disputes).

4. Court’s Reasoning

The court accepted the concessions made on behalf of the opposing respondents that the will failed to comply with section 2(1)(a)(iv) of the Wills Act because that provision requires the testatrix’ signature on every page of the will. The court reaffirmed that compliance with the formalities in section 2(1) is assessed without regard to equities, even where the document appears to reflect the deceased’s wishes but is formally defective.

On the further concession, the court applied the settled principle that where an invalid part of a will contains dispositions made by the testatrix, the defect does not merely invalidate that portion, but renders the entire will invalid. The court found that this principle clearly applied on the facts, because the non-compliant page formed part of the dispositive document.

The central contest, however, concerned the respondents’ attempt to invoke section 2(3) as a defensive answer to the invalidity challenge. The court approached this as a question of procedural competence and fairness in motion proceedings. It emphasised that section 2(3) empowers a court to make a positive order directing the Master to accept a non-compliant document as a will if satisfied that the deceased intended it to be their will. Because that relief is affirmative in nature, the court held that it must be sought through appropriate proceedings—either a stand-alone application/action, or (in the context of existing litigation) a counter-application or counterclaim.

The court reasoned that permitting respondents to obtain the benefit of section 2(3) merely by raising it as a “defence” would conflict with foundational motion-proceedings principles, particularly the approach to factual disputes in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd. The court explained that in motion proceedings for final relief, factual disputes are resolved in a manner generally favourable to the respondent against whom relief is sought, provided the respondent’s version is supported by tenable evidence on oath. The court stressed that this mechanism is not designed to discover the truth; a matter may be decided without testing the veracity of the respondent’s account, and even a version that might be “pure fiction” can prevail if it is not so untenable that it can be rejected out of hand.

Against that background, the court considered that allowing the respondents to “defend” by section 2(3) allegations in an answering affidavit would permit them to obtain affirmative relief (or its practical equivalent) while retaining the procedural advantage reserved for respondents under Plascon-Evans. The court stated that, if the respondents had brought a counter-application, the applicant would have been respondent in that counter-application and the Plascon-Evans advantages would have operated in the applicant’s favour on those issues. The court relied on Luster Products Inc v Magic Style Sales CC for the proposition that where a main application and a counter-application are involved, the Plascon-Evans approach operates differently in each: the respondent’s version is assessed in the main application, but the reverse occurs in the counter-application.

The court rejected the argument that the applicant’s failure to file a replying affidavit cured this procedural defect. It held that a reply could not address the core problem that section 2(3) relief should be pursued in proceedings where the party seeking that relief bears the procedural posture of applicant (whether by convention or reconvention).

Because it held that the respondents were not permitted to rely on section 2(3) in this way, the court found it unnecessary to decide whether the evidence in the answering affidavit would have met the substantive requirements of section 2(3), and it also found it unnecessary to decide debates about the precise form a counter-application might have taken (including whether it should have been conditional, declaratory, or otherwise).

Finally, on the applicant’s request for a declarator that the deceased died intestate, the court declined to grant that additional order. It reasoned that the respondents might still pursue section 2(3) proceedings in the future, and that an intestacy declaration might raise res judicata or issue estoppel complications that could improperly bar such proceedings. The court further indicated that, if no successful section 2(3) proceedings were brought, intestate administration would follow as a matter of course. The court distinguished this from the invalidity declaration, stating that section 2(3) is directed at formally invalid wills, so a declaration of invalidity did not itself bar later section 2(3) proceedings.

5. Outcome and Relief

The court granted an order declaring that the will of the late Mphele Anna Mashao dated 20 November 2007 was invalid. The court refused to grant a further order declaring that the deceased died intestate.

The court ordered that the costs of the application were to be paid out of the deceased estate of the late Mphele Anna Mashao.

Cases Cited

Tshabalala v Tshabalala 1980 (1) SA 134 (O) at 137.

The Leprosy Mission and Others v The Master of the Supreme Court and Another NO 1972 (4) SA 173 (C) 184H–185A.

In re Morkel's Will 1938 T.P.D. 432.

Comley v Comley 1957 (3) SA 401 (E).

Oosthuizen v Die Weesheer 1974 (2) SA 434 (O).

Ex parte Michaelis 1975 (2) SA 452 (W).

Ex parte Cartoulis 1974 (2) SA 156 (C).

Wehmeyer v Nel 1976 (4) SA 966 (W).

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A).

Ngqumba en 'n Ander v Staatspresident en Andere; Damons NO en Andere v Staatspresident en Andere; Jooste v Staatspresident en Andere 1988 (4) SA 224 (A) at 259C–263C.

Luster Products Inc v Magic Style Sales CC 1997 (3) SA 13 (A) at 21E–H.

Legislation Cited

Wills Act 7 of 1953, section 2(1)(a)(iv).

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

Administration of Estates Act 66 of 1965.

Rules of Court Cited

No specific Uniform Rules of Court were cited by number. The judgment applied the motion-proceedings approach to disputes of fact derived from Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A).

Held

The court held that the will did not comply with the formalities prescribed by section 2(1)(a)(iv) of the Wills Act because the testatrix had not signed every page of the will, and that the defect affected the validity of the entire will.

The court further held that it was not competent for the opposing beneficiaries, as respondents in motion proceedings, to rely on section 2(3) of the Wills Act as a defence without bringing a counter-application (or other appropriate proceedings) seeking an order under that section, because doing so would be inconsistent with the procedural structure and fairness considerations underpinning the Plascon-Evans approach.

The court declared the will invalid, declined to issue an additional declaration that the deceased died intestate (to avoid prejudicing potential future section 2(3) proceedings), and ordered that costs be paid from the deceased estate.

LEGAL PRINCIPLES

Compliance with the execution formalities in section 2(1) of the Wills Act is assessed strictly and without regard to equitable considerations, even where the document appears to reflect the deceased’s genuine testamentary wishes.

Section 2(1)(a)(iv) of the Wills Act requires the testatrix’ signature on every page of the will, and non-compliance with this per-page signature requirement constitutes a formal defect rendering the will invalid.

Where an invalid part of a will contains dispositions made by the testatrix, the defect may render the entire will invalid, rather than being severable.

Relief under section 2(3) of the Wills Act is affirmative and must be sought by appropriate proceedings (such as a stand-alone application or a counter-application), rather than being raised merely as a defensive contention in answering papers, particularly in motion proceedings for final relief where the Plascon-Evans approach governs factual disputes.

In combined main-application and counter-application contexts, the Plascon-Evans approach operates with reference to the procedural posture in each application, as explained in Luster Products Inc v Magic Style Sales CC 1997 (3) SA 13 (A).