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[2023] ZAECMHC 36
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N.N.H v L.L.H and Others (1670/2022) [2023] ZAECMHC 36 (4 July 2023)
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
Reportable
Case No: 1670/2022
Date heard: 26/05/2023
Date delivered:
04/07/2023
In the matter between:
N[...]
N[...] H[...]
APPLICANT
And
L[...]
L[...] H[...]
FIRST
Respondent
M[...]
M[...] L[...] H[...]
SECOND
RESPONDENT
N[…]
K[…] N[…] N[…] H[…]
THIRD
RESPONDENT
T[...]
H[...]
FOURTH
RESPONDENT
MASTER
OF THE HIGH COURT MTHATHA
FIFTH
RESPONDENT
JUDGMENT
Notyesi AJ
Introduction
[1]
In this application, Ms N[...] N[...]
H[...] (the applicant) is the second wife of the late Mr E[...]
L[...] D[...] H[...] (the
deceased), and she is asking this Court to
declare null and void a massed will and testament of the deceased and
L[...] L[...]
H[...], the divorced wife of the deceased (first wife).
[2]
The first wife had concluded a civil
marriage, which was in community of property, with the deceased in
July 1978. The civil marriage
was terminated by divorce on 4 June
2003. There are three children born from that marriage. The divorce
of the deceased and the
first wife followed a deed of settlement
regarding the division of their joint estate in accordance with the
marriage in community
of property. Prior to the termination of the
marriage in community of property, the deceased and the first wife
had executed a
massed will pertaining to that joint estate. The
massed will was executed on 11 March 1988. The deceased passed on in
2016, approximately
13 years after the divorce. The first wife
suggests that there is no evidence that the massed will was revoked,
and therefore,
she seeks to enforce the provisions of the massed
will.
[3]
The second wife and the deceased had
entered into a customary marriage in 1984. There are three children
born out of the aforesaid
marriage. The marriage between the second
wife and the deceased survived until the demise of the deceased in
September 2016. In
other words, the second wife is the surviving
spouse of the deceased. According to the second wife, the deceased
died intestate,
and the alleged massed will is invalid. There is no
dispute about the validity of the marriages. I proceeded on the
basis
that both marriages were valid and lawful, with the first
marriage being terminated by divorce in 2003 and the second marriage
having survived until the death of the deceased.
[4]
The second wife contended that the will in
question fails to make provision for a joint estate, and instead, it
refers to separate
estates, and for that reason, the massed will is
invalid. She further submitted that in terms of the Administration of
Deceased
Estates Act 66 of 1965 (the Act), the survivor in a massed
will must formally and in writing, adiate and that the first wife
never
complied with the requirements for adiation. Finally, the
second wife contended that as a result of the deed of settlement
during
the divorce proceedings, the deceased had no joint assets for
purposes of the massed will, for the reasons that the deceased and
the first wife shared their joint assets and liabilities and thus
left no consolidated assets.
[5]
On the contrary, the first wife contended
that she had adiated and that the will is valid and binding
irrespective of the divorce
and the deed of settlement. She submitted
that an adiation by her, as the survivor, had the effect of
conferring her with rights
arising from the massed will and that
should be given effect in the absence of another will or proof of
revocation of the massed
will. In this regard, she relies upon a
certificate of adiation which she has attached to her papers.
[6]
The original massed will was not produced
by the Master in his report. The first wife, too, did not produce the
original massed
will.
Issue
[7]
The crisp issues for determination revolve around the validity of the
massed will and the questions
of whether, absent the adiation, there
can be a valid massed will and the effect of the deed of settlement
during the divorce proceedings
in 2003.
The parties
[8]
I shall, for the sake of simplicity, refer
to the parties as follows–
8.1
The applicant – the second wife;
8.2
The first respondent – the first wife;
8.3
The late husband – the deceased; and
8.4
The fifth respondent – the Master.
Background
[9]
The deceased was married to both the first
and second wives. There is no dispute concerning the validity of
their marriages. The
first wife was married in 1978. The second wife
was married in 1984. Each marriage produced three children. The first
wife divorced
the deceased in 2003. All the children are majors.
[10]
During the subsistence of the first
marriage, the deceased and the first wife executed a massed will on
11 March 1988. Below
is an extract from the massed will–
“
We,
the undersigned, E[...] L[...] D[...] H[...] and L[...] L[...] H[...]
(born S[…]), married in community of property,
do hereby
revoke all Wills, Codicils and other Testamentary Acts heretofore
made by us whether jointly or severally and declare
the following to
be our Last Will and Testament.
1.
Provided the survivor of us outlives the other for a period of thirty
days we
nominate such survivor to be the sole heirs or heiress of the
residue of the estate of the first-dying of us.
2.
Should neither of us survive the other for a period of thirty days we
bequeath
the residue of the estates of both of us in equal shares to
those of our children M[...] M[...] L[...] H[...], N[...] K[...]
N[...]
H[...] and T[...] H[...] who are alive at the death of the
survivor of us to the exclusion of the lawful issue of a predeceased
child.
Should any of our
children not have attained the age of twenty-five years at the date
of death of the survivor of us we direct that
the residue of our
estates shall, with the exception of all fixed property, be reduced
to cash and that any share devolving upon
a child under that age with
the exception of fixed property which shall be transferred into our
children’s names, shall be
held in trust by our Administrators
and invested in equities, interest-bearing securities and/or any
other investments as they
in their absolute discretion may deem fit
without being fettered by any of the considerations which otherwise
would cause them
to restrict the investments to recognised trustee
securities. . . .”
[11]
In 2003, during divorce proceedings, the
first wife and the deceased entered into a settlement agreement. The
settlement agreement
was about the distribution of the joint estate,
as their marriage was in community of property. The net effect of the
deed of settlement
was the dissolution of the joint estate. Below, I
set out briefly the terms of the settlement agreement as they are
relevant–
“
NOW
THEREFORE the parties, in full and final settlement of all claims
arising in consequence of the Plaintiff’s action and
Defendant’s Counter Claim, agree as follows:
Decree of Divorce
1.
That there shall be a
Decree of Divorce.
Movable Assets
6.
That in respect of
movable assets each party shall retain possession and ownership of
whatever assets are presently in his/her possession.
Cash Settlement
7.
That the Plaintiff pay
the Defendant an amount of R40 000 payment to be effected on or
before the 30
th
November 2003, failing which interest
shall accrue thereon at the rate of 15.5% per annum from 1
st
December 2003 to date of payment.
Immovable Properties
8.
8.1
That the Plaintiff shall sign all documents and do all things
necessary to transfer the
right of occupation in respect of the
residential allotment site at Lubacweni, Mount Frere into the name of
the Defendant.
8.2
That the Plaintiff shall retain sole ownership of the immovable
properties presently registered
in his name and shall bear sole
responsibility for payment of the bonds registered against the said
properties.”
[12]
Consequent to the divorce of the deceased
and the first wife in 2003, the second wife continued to be the only
wife of the deceased.
Their customary marriage was in community of
property for the reason that there are no antenuptial agreements
excluding community
of property. According to the second wife, she
and the deceased developed businesses. In 1999, they jointly
purchased a property
in Kokstad. The second wife alleged that she and
the deceased were joint owners of their businesses. The second wife
and the deceased
shared a common home.
[13]
In 2016, the deceased passed on. This is
approximately 13 years from the date that the deceased divorced
his first wife. The
deceased was buried in September 2016, and he is
survived by his second wife and six children, of which three were
born from their
first marriage.
[14]
Following the burial of the deceased, the
second wife reported the estate to the Master for the purposes of
obtaining letters of
executorship. She was issued with letters of
authority and thereafter started administering the intestate estate
of the deceased
as, according to her, there was no will.
[15]
Whilst the second wife retained possession
of the letters of authority, the first wife, with the assistance of
the Standard Executors
and Trustees Limited, sought and obtained
letters of executorship from the Master. According to the first wife,
both Standard Executors
and Trustees Limited relied on a massed will
which was executed by the deceased before her divorce. The first wife
produced a copy
of the massed will dated 11 March 1988. In terms of
the massed will in clause 5, Standard Executors and Trustees Limited
is nominated
as an executor. A copy of the massed will form part of
the record, and for that reason, I quote the relevant parts
therefrom–
“
We
appoint as Executor of our estates whichever of THE STANDARD BANK OF
SOUTH AFRICA LIMITED and STANDARD TRUST LIMITED shall first
lodge
with the Master of the Supreme Court a written acceptance of the
appointment in terms of section 14(1) of Act 66 of 1965
and we
further appoint STANDARD TRUST LIMITED to be the Administrator of
this our Will. We declare that neither the said Bank nor
the said
Company shall be called upon to furnish security for acting in those
capacities. For its services the said Bank/Company
shall be entitled
to recover Executors’ commission at the official tariff rates
in force from time to time and Administrators’
commission in
accordance with the Company’s tariff as laid down from time to
time. We further direct that the said Bank may
act as banker to our
estates or trust estates and that where the said Bank and the said
Company and any company or institution
in which either or both of
them may have an interest, financial or otherwise (hereinafter
referred to as “the Agent”)
is able to provide any
banking, financial, estate agency or any other services and/or
perform any work on behalf of our estates
or trust estates, then the
Agent shall be employed (unless it declines to do so) in preference
to other persons; and the Agent
shall be entitled to charge and
retain the customary charges, fees and/or commissions recoverable in
the ordinary course of business,
irrespective of the fact that the
Bank or the Company is receiving Executor’s and/or
Administrator’s remuneration for
its services to the estates
and/or trust estates.”
[16]
The Standard Executors and Trustees Limited
had also written letters to the second wife requesting assets of the
deceased and relevant
documents on the basis that they were the
appointed executors. According to the first wife, the written
requests to the second
wife had yielded no results. Letters were also
written to the second wife’s attorneys, even by the Master.
According to the
first wife, the Master cancelled the letters of
authority that were issued in favour of the second wife.
[17]
The Master has filed a report. In the
report, the Master stated that the Standard Executors and Trustees
Limited was nominated in
the massed will to be the executors of the
estate and that he appointed them on 8 March 2018. The Master
reported that the second
wife did not report that the deceased had a
will. Although the Master did not produce the original will, he
indicated that he accepted
the massed will. According to the Master’s
report, it was on those bases that he wrote a letter to the second
wife cancelling
the letters of authority. The Master reported that
the executors delegated their functions to the first wife. Upon her
appointment,
the first wife engaged attorneys to assist her. No
reasons had been proffered on why the Standard Executors and Trustees
Limited
delegated their functions as the appointed executors.
[18]
According to the Master’s report,
Standard Executors and Trustees Limited resigned as executors on 27
February 2020. As a
result of their resignation, the Master appointed
the first wife as executrix on 12 November 2021. The first wife was
assisted
by attorneys B A Mzolo & Associates. The Master alleged
that he appointed the first wife as executrix because she was the
sole
heir of the deceased in terms of the will. The first wife was
therefore assigned to collect the assets of the deceased and
administer
the estate.
[19]
According to the first wife, her attempts
to obtain details of the assets and the documents from the second
wife were unsuccessful.
Although the Master suggested that he
purportedly cancelled the letters of authority issued in favour of
the second wife, there
was no formal cancellation of such letters of
authority.
[20]
The second wife is now contesting the
validity of the massed will and is seeking an order to nullify the
purported massed will.
The contentions of the
parties
[21]
The second wife submitted to this Court
that the massed will and testament should be set aside as a nullity.
She is also seeking
the removal of the first wife as executrix of the
estate late for the simple reason that the deceased had no joint
assets and estate
with the first wife. According to the second wife,
the first wife and the deceased dissolved their joint estate during
the divorce
proceedings in 2003 through a deed of settlement. She
alleged that the deed of settlement dealt with the distribution and
sharing
of the joint assets in terms of the marriage in community of
property between the first wife and the deceased. Accordingly, the
second wife contended, in this regard, that there are no assets of
the joint estate as envisaged in terms of the massed will.
[22]
In advancing her contention, the second
wife pointed out that the massed will is self-evident pertaining to
the assets that were
held by the first wife and the deceased by
virtue of their marriage in community of property. In this regard,
reference was made
to the preamble and the first clause in the will,
which I now quote below–
‘
We,
the undersigned, E[...] L[...] D[...] H[...] and L[...] L[...] H[...]
(born S[…]), married in community of property,
do hereby
revoke all Wills, Codicils and other Testamentary Acts heretofore
made by us whether jointly or severally and declare
the following to
be our Last Will and Testament.
1.
Provided the survivor of us outlives the other for a period of thirty
days we
nominate such survivor to be the sole heir or heiress of the
residue of the estate of the first-dying of us.’
[23]
The second wife contended that, on a proper
reading of clause 1 and the preamble to the will, the clear intention
of the parties
was to deal with the assets held by virtue of their
marriage in community of property. The gravamen of the submission is
that upon
the distribution of the joint assets, in terms of the deed
of settlement, the massed will became null and void. The second wife
further submitted that clause 1 of the massed will is ambiguous and
vague and that there is no meaning that can be attached to
the
clause. In addition to those submissions, the second wife pointed out
that there is no adiation by the first wife and the sole
reason, in
this regard, is that there is no joint estate between her and the
deceased. On that ground, the contention was that
the massed will
must be nullified and that the first wife was wrongly appointed as
executrix for the estate of the deceased. There
is a further problem
in relation to the massed will, which is the absence of the original
will.
[24]
On
the contrary, the first wife contended that the deceased never
revoked the massed will, despite the fact that the decree of divorce
and the deed of settlement in 2003 and, therefore, the intention of
the deceased was to bequeath her with his assets. In this regard,
Ms
Klaasmani
,
who appeared for the first wife, relied on the authority of
Master
v Estate Cooper & Others
[1]
where Steyn J said–
‘
The
court interpreting a will must if at all possible give effect to the
wishes of the testator. The cardinal rule is “no
matter how
clumsily worded a will might be,a will should be so construed as to
ascertain from the language used therein the true
intention of the
testator in order that his wishes can be carried out.”
[25]
Ms
Klaasmani
emphasised, in her submissions, that although the deceased was
divorced from his first wife in 2003, there is no evidence that
he
had executed another will in which he revoked the massed will, and
therefore, it should be accepted that at all material times,
the
deceased intended for the first wife to inherit the residue of his
estate. She further relied, in this regard, on the authority
of
Phanyane
NO v Panyane NO and Others,
[2]
where Olivier AJ stated–
“
[A]
will which is regular and complete on the face of it is presumed to
be valid until its validity has been established. The onus
is on the
person alleging invalidity to prove such allegations. He or she who
alleges invalidity must prove.”
[26]
On the basis of these authorities, Ms
Klaasmani
submitted that the applicant failed to discharge the onus resting on
her to prove that the massed will is invalid and, therefore,
the
massed will be allowed to stand.
[27]
Regarding
the removal of the first wife as executrix of the estate, Ms
Klaasmani
submitted that as the first wife is the sole heir in terms of the
will, the Master was entitled to appoint her when Standard Executors
and Trustees Limited resigned as executors of the estate. Ms
Klaasmani
further submitted that the Master was entitled to appoint any person
as an executor of the estate in the event of Standard Executors
and
Trustees Limited resigning. The submission, in this regard, was that
there is no basis for the removal of the first wife as
an executrix
simply because the second wife disagreed with her appointment. Ms
Klaasmani
relied on the authority of
Oberholster
NO v Richer
[3]
where it was held–
“
[M]ere
disagreement between an heir and executor of a deceased estate, or a
breakdown in relationship between one of the heirs and
the executor
is insufficient for the discharge of an executor in terms of Section
54(i)(v) of the Act. In order to achieve the
results, it must be
shown that the executor conducted himself in such a manner that it
actually imperilled his proper administration
of the estate. Bad
relations between an executor and an heir cannot lead to the removal
of the executor unless it is probable that
the administration of the
estate.”
[28]
I will consider the contentions of the
parties based on the applicable principles in respect of a massed
will.
Massed will and
testament
[29]
In
Rhode
v Stubbs,
[4]
it was held–
“
When
two (or more) testators make a testamentary disposition together,
grammatical uncertainty frequently arises. The use of the
(appropriate) first person plural does not convey unambiguously to a
reader of the will whether each testator is expressing his
wishes
only on his own behalf, or also on behalf of the other testator(s).
Our law finds a solution to the problem of interpretation
to which
this structural lack of clarity gives rise in the rule that mutual or
joint wills of spouses married in community of property
must in the
first instance be read as separate wills. The person analysing such a
will proceeds on the hypothesis that he or she
is dealing with
separate wills until the contrary clearly appears. The reason for
this approach is embedded in our common law.
In
Joubert v Ruddock
and Others
1968 (1) SA 95
(E) at 98F-G, Eksteen J quotes a
passage from Van Leeuwen’s Censura Forensis 3.11.6 in which he
underlines the importance
of the principle that a person ought to
remain capable of changing his will until the end of his days, and
motivates this proposition
by saying (
Schreiner’s
translation) “…there is nothing to which men are
more entitled than that their power of making a last will should be
free, and hence the rule; that no one can deprive himself of this
power”.
The proposition is not
correct without qualification. A testator can deprive himself of the
right to make a will by massing, but
if there is any doubt about his
intention, the will must be interpreted so as to leave the greatest
possible freedom of testation.
That gives rise to the subordinate
rule of interpretation, the presumption against massing, that applies
when the golden rule for
the interpretation of wills, ie to give
meaning to a testator’s words within the framework of a will,
fails due to vagueness
or ambiguity.”
[30]
Massing occurs when two or more persons,
with testamentary capacity, combine or consolidate (mass) their
separate estates (or their
undivided half shares of their joint
estate where they are married in community of property) into a single
massed estate, prescribing
in the Will what must be done with this
massed estate on the occurrence of a specific event, usually the
death of the first-dying
testator. In this regard, section 37 of the
Act states as follows–
“
If
any two or more persons have, by their mutual will, massed the whole
or any specific portion of their joint estate and disposed
of the
massed estate or of any portion thereof after the death of the
survivor or survivors or the happening of any other event
after the
death of the first dying, conferring upon the survivor or
survivors any limited interest in respect of any property
in the
massed estate, then upon the death after the commencement of this Act
of the first-dying, adiation by the survivor or survivors
shall have
the effect of conferring upon the persons in whose favour such
disposition was made, such rights in respect of any property
forming
part of the share of the survivor or survivors of the massed estate
as they would by law have possessed under the will
if that property
had belonged to the first-dying; and the executor shall frame his
distribution account accordingly.”
[31]
The following are the requirements for
statutory massing–
31.1
the first dying testator must have died on or after 2 October 1967,
being the date on which the
Administration of Estates Act 66 of 1965
came into operation.
31.2
There must be two or more persons as parties to the mutual will.
31.3
The parties must make a mutual will (a mutual will is a joint will in
which two or more testators have mutually
benefitted one another in
the same document).
31.4
The parties must mass the whole or part of their separate estate
assets into a consolidated unit, and this
unit must be disposed of in
the mutual will.
4.5
The mutual will must grant the survivor ‘a limited right’
in respect of any property which
has been massed.
31.6
The disposition of the massed estate must take place sometime after
the death of the first dying.
31.7
The survivor must adiate on the death of the first dying.
Interpretation of a
will
[32]
In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[5]
, Wallis JA said:
“
The
present state of the law can be expressed as follows. Interpretation
is the process of
attributing meaning to
the words
used in a document . . .
having regard to the
context
provided by reading the particular provision or provisions in the
light of the
document as a whole
and the
circumstances attendant
upon its coming into existence. . . . The
process
is objective, not subjective
. A
sensible meaning
is to be preferred to one that leads to insensible or businesslike
results or undermines the apparent purpose of the document.
Judges
must be alert to, and
guard against
,
the
temptation to substitute
what they regard as reasonable, sensible or businesslike for the
words actually used.” (Emphasis added.)
Evaluation and
analysis
[33]
When the first wife and the deceased
concluded the massed will, they were married in community of
property. There can be no doubt
that the massed will relate to their
joint assets in terms of marriage in the community of property. In
this regard, I am fortified
by the wording in the preamble–
‘
We,
the undersigned, E[...] L[...] D[...] H[...] and L[...] L[...] H[...]
(born S[…]), married in community of property,
do hereby
revoke all Wills, Codicils and other Testamentary Acts heretofore
made by us whether jointly or severally and declare
the following to
be our Last Will and Testament.’
[34]
Clause 1 is not immediately clear, although
I am prepared to accept that it refers to the surviving spouse of
that marriage in community
of property. The clause reads–
“
Provided
the survivor of us outlives the other for a period of thirty days we
nominate such survivor to be the sole heir or heiress
of the residue
of the first-dying of us.”
[35]
The first problem with the massed will is
that the deceased and the first wife divorced in 2003. During the
divorce, the first wife
and the deceased dissolved their joint estate
and distributed the assets in terms of the deed of settlement. That
conduct, in my
view, rendered their massed will null and void, for
there were no consolidated assets for purposes of a massed will. I
agree with
the submission by the second wife that there are no assets
in the joint estate as envisaged in terms of the massed will. In my
view, the will should be invalidated on this basis alone.
[36]
There
is a further problem. The original will was not produced. There is a
rebuttable presumption that when a will that was last
known to be in
the testator’s possession cannot be found, the testator is
presumed to have destroyed it with the intention
of revoking it.
[6]
The massed will was executed in 1988. The first wife and the deceased
divorced in 2003. They executed a deed of settlement in which
they
distributed their joint estate. The deceased passed on in 2016. A
copy of the will was only produced in 2018. I cannot accept
the copy
of the massed will in these circumstances.
[37]
It is well to remember that the deceased is
survived by the second wife to whom he is married in community of
property by virtue
of customary law. I find it extremely difficult to
determine the residue of the deceased’s assets from those of
the second
wife. In these circumstances, it is apparent that the
deceased, by his conduct, revoked the massed will. The version of the
second
wife that she holds a joint estate with the deceased was
uncontested, and I do accept, considering the 13-year period from the
date of divorce of the first wife.
[38]
I find no merit in the submission by Ms
Klaasmani
that
the deceased had intended to bequeath his assets to the first wife
solely on the basis that there is no evidence of another
will having
been executed by the deceased. The starting point is that there is no
joint estate held by the first wife and the deceased,
and therefore,
there can be no massing of the estate.
[39]
Another insurmountable problem for the
first wife is that she did not adiate even if the massed will was
valid. I say so for the
following reasons: (a) in the answering
affidavit, the first wife filed what purports to be an adiation
certificate, and this certificate
is unsigned by witnesses and it has
no date when it was filed; (b) realising the shortcomings in the
first certificate, a declaration
has been signed by attorney, Mr
Mzolo, and it has no date; and (c) the purported adiation certificate
is fraudulent for the reasons
that it purports to have been signed by
the surviving spouse. There is no doubt that, at the time of the
death of the deceased,
the first wife was not a surviving spouse of
the deceased. My view is that if the certificate was submitted to the
Master, he was
certainly misled in this regard. In the Master’s
report, there is simply no confirmation that the first wife had
adiated
within 30 days of the death of the deceased. It bears
mentioning that the first wife had only emerged in relation to the
deceased
estate towards the end of 2017, although the deceased passed
on in 2016. I find this to be opportunistic on its own. It is
startling
that the first wife, who had not been living with the
deceased for approximately 13 years, would simply emerge only to
demand the
assets of the deceased in circumstances where she has
taken her own assets from the joint estate. The massed will bring on
some
of its own obligations to the surviving spouse. In this case,
the first wife seems to take no responsibilities other than to demand
the benefits from the purported massed will. The interest of justice
cannot permit such eventuality or occurrence.
[40]
In
my view, the massed will is also riddled with contradictions,
vagueness and ambiguities. I agree, in this regard, with the
submissions
by Mr
Dingiswayo
,
counsel for the second wife, that in a mutual or massed will, the two
estates are consolidated into one, thus it cannot be said
that the
survivor will be an heir or heiress to the estate of the first-dying,
for that defeats the intention of a massed or a
mutual will and
indicates the existence of two separate wills. The present will refer
to estates as opposed to an estate, and that
must surely indicate
that there are separate estates. In these circumstances, it is
correct to follow the approach in
Theart
v Scheibert & Others,
[7]
where it was held that if there is any doubt about the intentions of
the testator, then the presumption against massing takes place.
The
use of plural words in the will casts serious doubt on the intention
of the testator, whether the testator intended massing
or not.
[41]
In these circumstances, this Court is
constrained to accept that there is no valid massed will.
Conclusion
[42]
It
is trite law that a will must be interpreted so as to leave the
greatest possible freedom of testation. However, a testator can
deprive him or herself of the right to make a will by massing.
[8]
Whether or not there has been massing is a matter of construction.
However, when there is confusion or ambiguity regarding the
meaning
of the testator, the presumption against massing finds
application.
[9]
The present
massed will is ambiguous, contradictory and confusing, and therefore,
there is a strong presumption against the massing.
I have also found
that there was no consolidation of assets for purposes of the massed
will. Insofar as the first wife and the
deceased were partners to a
marriage in community of property, the deed of settlement, which
resulted in the distribution of their
joint assets, had the effect of
invalidating any massed will in the absence of clear intentions on
their part. I have also found
that the first wife has not adiated,
and therefore, the massing has not taken effect.
[43]
For the foregoing reasons, the application
must succeed, and costs must follow the results. I have not been
persuaded differently.
The second wife is entitled to her costs. The
massed will be nullified, and it therefore follows that the executor,
who was appointed
in terms of the invalid will, should be removed,
for the reason that the appointment too, in my view, was authorised
by an invalid
will.
Order
[44]
In the result, the following order is made–
(1)
It is declared that the massed will and testament of L[...] L[...]
H[...] and E[...] L[...] D[...]
H[...] is null and void.
(2)
The Master of the High Court is directed to take all necessary steps
and remove L[...] L[...]
H[...] as the estate executrix of the estate
late E[...] L[...] D[...] H[...].
(3)
The first respondent (L[...] L[...] H[...]) is directed to pay the
costs of the application, including
all costs previously reserved.
M NOTYESI
ACTING JUDGE OF THE
HIGH COURT
I agree
M N HINANA
ACTING JUDGE OF THE
HIGH COURT
Appearances
Counsel
for the applicant:
Adv
Dingiswayo
Attorneys
for the applicant
:
Dube
Lesley Attorneys Incorporated
c/o
Nceba Giwu Incorporated
Mthatha
Counsel
for the first respondent:
Adv
Klaasmani
Attorneys
for the first respondent:
M
Dukada Incorporated
Mthatha
No
appearance for second to third respondents
[1]
Master
v Estate Cooper & Others
1954 (1) SA 140
(C) at 143H-144A.
[2]
Phanyane
NO v Phanyane NO and Others
[2022] ZAGP JHC 481 para 10.
[3]
Oberholster
NO v Richer
[2013]
3 All SA 205
(GNP) at 210C-E.
[4]
Rhode
v Stubbs
2005
(5) SA 104
(SCA) paras 16-18.
[5]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
[2012] 2 All SA 262
(SCA);
2012 (4) SA 593
(SCA) para 18.
[6]
See
Ex
Parte Slade
1922
TPD 220.
[7]
Theart
v Scheibert
& Others
[2012] ZASCA 131
;
[2012] 4 All SA 278
(SCA) para 18.
[8]
Joubert
v Ruddock
1968
(1) SA 95
EI at 98E-G;
Rhode
v Stubbs
above n 4 paras 16-17.
[9]
Rhode
v Stubbs
above n 4 para 18. See also
Outhoff
and Another v Kaplan N.O and Others
[2019] ZAGPPHC 135 para 40.