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[2023] ZAECMHC 26
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Tilayi and Another v Master Of The High Court, Mthatha Eastern Cape and Others (3588/2021) [2023] ZAECMHC 26 (10 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
CASE
NO. 3588/2021
In
the matter between:
SIVIWE
TILAYI
1
st
Applicant
TEMBEKILE
SOBANTU 2
nd
Applicant
and
MASTER
OF THE HIGH COURT, MTHATHA
EASTERN
CAPE
1
st
Respondent
NONKUTHAZO
KUMBACA 2
nd
Respondent
VUKILE
TILAYI
3
rd
Respondent
KWANDA
TILAYI
4
th
Respondent
NQABA
TILAYI
5
th
Respondent
ZUKO
TILAYI
6
th
Respondent
ZUKISANI
TILAYI 7
th
Respondent
MONWABISI
TILAYI 8
th
Respondent
ANDISWA
TILAYI 9
th
Respondent
BABALWA
TILAYI 10
th
Respondent
SIBONGISENI
VOYI
11
th
Respondent
SIKHUMBULE
MQOMBOTI 12
th
Respondent
KHOLEKA
KUTSHWA 13
th
Respondent
HLELA
MQUQO
14
th
Respondent
ZOLEKA
VANGILE on behalf of IZIBELE VANGILE 15
th
Respondent
SGAGA
VANGILE 16
th
Respondent
YONELA
DUBE 17
th
Respondent
NALEDI
NQABISA 18
th
Respondent
ETHEL
NOFUMA 19
th
Respondent
ZOLILE
NOGANTSHO 20
th
Respondent
NONTLE
TILAYI
21
st
Respondent
ZUKISWA
TILAYI 22
nd
Respondent
UNATHI
TILAYI 23
rd
Respondent
VUYOKAZI
TILAYI 24
th
Respondent
BONGINKOSI
TILAYI 25
th
Respondent
LULAMA
SOMDAKA 26
th
Respondent
MNCEDISI
NOFUMA 27
th
Respondent
EVELYN
GCULE 28
th
Respondent
SIBONGILE
TILAYI 29
th
Respondent
REASONS
FOR JUDGMENT
LAING
J
[1]
This was an application for an order directing the first respondent
to accept
the codicil of the late Mr Samuel Sonwabo Tilayi (‘the
deceased’) as his last will and testament, under section 2(3)
of the Wills Act 7 of 1953 (‘the Act’). The court
previously dismissed the application. The reasons for judgment
follow,
pursuant to the applicants’ request.
Background
[2]
The applicants alleged that the deceased prepared a codicil to his
will on 28
July 2020, while undergoing medical treatment for COVID-19
at St Anne’s Hospital in Pietermaritzburg. He commenced
drafting
the document in manuscript, but fatigue prevented him from
completing the process. Consequently, alleged the applicants, he
dictated
the remainder of the codicil to his wife, the second
respondent, who recorded his wishes in her own handwriting. The
deceased confirmed
the contents after the second respondent had read
them back to him. He signed the document, to which the second
respondent and
a nurse, Ms Raindree Sewran, then added their
signatures.
[3]
The deceased subsequently passed away on 2 August 2020. The first
respondent
issued letters of executorship to the applicants on 30
August 2020. They are the deceased’s son and nephew,
respectively.
[4]
The applicants averred that the deceased intended the codicil to be
his last
will and testament. They admitted that the document did not
comply with the formalities of the Act because it was not prepared
entirely by the deceased and had not been properly signed.
Nevertheless, said the applicants, the codicil should be treated as
the deceased’s last will and testament and the first respondent
should be directed to accept it as such.
[5]
The supporting affidavits of two nurses and a unit manager
accompanied the application.
To that effect, all three individuals
indicated that they had seen the deceased ‘draft a document in
the presence of his
wife’. Both nurses were in attendance when
the deceased and his wife had signed it. One of the nurses, Ms
Sewran, confirmed
that she had signed the document as a witness.
Issue
to have been decided
[6]
The main issue was whether the deceased had intended the codicil
described by
the applicants and attached to the application as indeed
his will or an amendment thereof. This arose from the provisions of
section
2(3) of the Act.
[7]
None of the respondents opposed the application.
Legal
framework
[8]
The formalities to be observed in the drafting and completion of a
will are
contained in section 2(1) of the Act:
‘…
(1)
Subject to the provisions of section 3bis–
(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 signed by the testator or by such
other person anywhere on the page; and
(v)
if the will is signed by the testator by the making of a mark or by
some other
person in the presence and by the direction of the
testator, a commissioner of oaths certifies that he has satisfied
himself as
to the identity of the testator and that the will so
signed is the will of the testator, and each page of the will,
excluding the
page on which his certificate appears, is also signed,
anywhere on the page, by the commissioner of oaths who so certifies:
Provided
that–
(aa) the will
is signed in the presence of the commissioner of oaths in terms of
sub-paragraphs (i), (iii) and (iv)
and the certificate concerned is
made as soon as possible after the will has been so signed; and
(bb) if the
testator dies after the will has been signed in terms of
sub-paragraphs (i), (iii) and (iv) but before the
commissioner of
oaths has made the certificate concerned, the commissioner of oaths
shall as soon as possible thereafter make or
complete his
certificate, and sign each page of the will, excluding the page on
which his certificate appears;
(b)
…’
[9]
Sections 2(1)(b) and 2(2) deal with amendments made in a will. For
the sake
of completion, section 2(3) provides as follows:
‘
(3) 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 No. 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 sub-section
(1).’
[10]
The Law of
Succession Amendment Act 43 of 1992 added section 2(3) to avoid the
problems experienced and hardships caused by the
strict formalistic
approach that had been adopted by the courts in the past.
[1]
The purpose of the provision was to provide legality to a document
that was not,
ex
facie
,
a valid will.
[2]
It is apparent
from the case law, however, that the formalities prescribed under
section 2(1) have certainly not been rendered
superfluous and are
still required to guarantee the authenticity of a will and to
minimise the risk of fraud.
[3]
[11]
It is necessary to mention that the formalities apply equally to a
codicil. In terms of section 1 of
the Act, a will ‘includes a
codicil and any other testamentary writing’.
[12]
The application of the law to the circumstances of the present matter
will be considered below.
Application
to the facts
[13]
The codicil to which the applicants referred was comprised of two
parts. The first, in manuscript,
read as follows:
‘
Cover page
Addendum to my will of 28
July 2020 and signed at Pietermaritzburg. My current will will be
covered and dealt with principal by
my wife. It will be read after
burial.
By me in the present of
my wife.’
[4]
[14]
It was important to note that the contents of the first part, as
depicted above, were taken directly
from a typed version attached to
the applicants’ founding affidavit. The identity of the author
of the typed version was
not disclosed. Of some concern was that, in
the absence of an explanatory affidavit from the author, it was
difficult to match
the contents of the typed version with the barely
legible handwriting of the first part of the codicil.
[15]
The latter bore what may (or may not) have been the deceased’s
signature. It also reflected the
signatures of the second respondent
and Ms Sewran, respectively.
[16]
The second part of the codicil was completed in entirely different
handwriting and ran to some four
pages in length. A separate typed
version was also attached, but, as with the other typed version, the
author remained unidentified.
It indicated that the applicants and
second respondent were appointed as executors, set out the powers and
duties of the second
respondent, and the way the estate was to have
been administered.
[17]
A signature appeared at the foot of each page of the second part, but
it was impossible to discern
whether it was that of the deceased.
Similarly, the initials of a single witness had been added, but these
read ‘NZ’,
which did not correspond with those of Ms
Sewran.
[18]
The codicil was not,
ex facie
, a valid will since it did not
comply with the formalities contained in section 2(1) of the Act.
This much was conceded by the
applicants, who nevertheless contended
that it would be proper for the first respondent to be ordered to
accept the codicil.
[19]
Erasmus (
et al
) observed that:
‘
By far the most
important requirement which has to be satisfied before a court will
grant an order in terms of section 2(3) is the
requirement that the
court has to be satisfied that the testator intended the document to
be his or her will.’
[5]
[20]
In the present matter, the most difficult hurdle for the applicants
to have overcome was the interpretation
to have been given to the
first part of the codicil. It suggested that the codicil was merely
an addendum to an existing will.
This was reinforced by the reference
to a ‘current will’, intimating that there had been a
prior will, which may (or
may not) have remained of application. To
compound the confusion, the second part of the codicil contained no
revocation clause.
If the second part indeed expressed the dying
wishes of the deceased, then it was, nevertheless, far from clear
whether it was
to have been interpreted as his final will or whether
it was to have been understood in conjunction with an existing will,
prepared
prior to his admission to hospital.
[21]
The above problems must be viewed within the context of the overall
uncertainty about whether the deceased
truly intended the second part
of the codicil to have been his will. It could not have been said,
without hesitation, that it was
his signature at the foot of each
page. The initials of the witness were not those of Ms Sewran. They
differed from her signature
on the first part of the codicil. Whereas
the two nurses and the unit manager stated that they saw the deceased
‘draft a
document in the presence of his wife’, they
failed to identify it as having been either the first or second part,
or both.
Furthermore, Ms Sewran’s affidavit did not clarify
which document she signed.
[22]
The only reliable witness to the alleged drafting and signing of the
first and second parts was the
second respondent. As the deceased’s
wife, however, she stood to benefit from the will and consequently
her reliability had
to be called into question.
Relief
and order
[23]
There were, ultimately, too many uncertainties to have permitted me
to have been satisfied that the
codicil was intended as the
deceased’s will. I was unable to hold, on a balance of
probabilities, that either the first or
the second part, or both,
expressed his final wishes.
[24]
I pause to
observe that the second respondent’s drafting of the second
part attracted the implementation of section 4A(1)
of the Act, which
would have disqualified her from benefitting from the will.
[6]
The provisions of section 4A(2) create exceptions to this, including
authority for a court to declare that a person in the position
of the
second respondent would indeed be competent to benefit if the court
was satisfied that the person did not defraud or unduly
influence the
testator in the execution of the will. Such an issue was, however,
not before the court.
[25]
Overall, I was not persuaded that the requirements of section 2(3) of
the Act had been met. The application
was not opposed, there was no
need to have directed the applicants to pay the costs thereof.
[26]
The application was dismissed.
JGA
LAING
JUDGE
OF THE HIGH COURT
I
agree.
L
RUSI
JUDGE
OF THE HIGH COURT
APPEARANCE
For
the applicants:
Adv
Nabela,
instructed by Polo Attorneys, Mthatha.
For
the respondents:
No appearance.
Date
of request for reasons:
15
February 2023.
Date
of delivery of reasons for judgment: 10
May 2023.
[1]
HJ
Erasmus (
et
al
),
‘Wills and Succession, Administration of Deceased Estates’,
in
LAWSA
(vol 31, 2ed, 2011), at paragraph 265. See, for example,
Kidwell
v The Master
1983 (1) SA 509 (E).
[2]
Ibid.
[3]
This is evident from a trio of cases decided shortly after the
amendment of the Act. See
Horn
v Horn
1995
(1) SA 48
(W);
Logue
v The Master
1995 (1) SA 199
(N); and
Ex
parte Maurice
1995 (2) SA 713 (C).
[4]
Sic.
[5]
HJ
Erasmus (
et
al
),
op
cit
(n 1).
[6]
The
provisions of section 4A(1) state that:
‘…
Any
person who attests and signs a will as a witness, or who signs a
will in the presence and by direction of the testator, or
who writes
out the will or any part thereof in his own handwriting, and the
person who is the spouse of such person at the time
of the execution
of the will, shall be disqualified from receiving any benefit from
that will.’