Summary of Judgment

Introduction

This was an appeal to the Supreme Court of Appeal from a decision of the Free State High Court, Bloemfontein. The proceedings arose from an application challenging the administration of a deceased estate and, in particular, the effect of two successive wills executed by the same testator within a short period.

The appellants were Nelri Pienaar and Chrismari Steven, the testator’s daughters. The respondents included the Master of the Free State High Court, Bloemfontein (first respondent), the testator’s former spouse Cynthia Merle du Toit (second respondent), the executor’s representative Suzette Malherbe (third respondent), and the testator’s son Derick du Toit (fourth respondent).

Procedurally, the third respondent prepared a first and final liquidation and distribution account that treated a particular Sanlam investment as forming part of the residue of the estate. The second and fourth respondents objected to that account. The Master upheld the objection and directed that the proceeds be paid to the second respondent. The appellants then approached the High Court for relief directed at administration under the later will (or, alternatively, a declaration of implied revocation of the earlier will to the extent relevant). The High Court dismissed the application. The appellants appealed to the Supreme Court of Appeal with leave granted by the High Court.

The dispute concerned testamentary interpretation and implied revocation, focusing on whether a later will, which did not contain an express revocation clause, nonetheless impliedly revoked an earlier will to the extent that it was inconsistent with the later will, and whether a particular Sanlam investment formed part of the residue of the estate or was payable to the second respondent as a legacy under the earlier will.

Material Facts

The material facts were largely common cause and were assessed by reference to the terms and structure of the two wills and the nature of the investment in question.

The testator, Frederik Jacobus du Toit, executed a will on 27 November 2006 and a later will on 28 May 2007. He died on 30 June 2007. The testator and the second respondent had divorced on 19 October 2006, prior to the execution of both wills. The appellants were the testator’s daughters from an earlier marriage; the fourth respondent was his son.

The 2006 will contained an express revocation clause in respect of previous wills and disposed of the estate by making specific bequests, including a bequest of the testator’s Sanlam Personal Portfolio to the second respondent if payable to his estate, with a provision that if she predeceased him the bequest would lapse into the residue. It also made a bequest of an immovable property and a motor vehicle to the fourth respondent and left the residue of the estate to the appellants. The 2006 will further contained extensive provisions concerning executorship and estate administration.

The 2007 will did not contain a standard revocation clause. It nonetheless began, as the earlier will did, with wording indicating the testator’s intention to bequeath “my estate as follows” and proceeded to provide a different distribution scheme, including the bequest of an immovable property to each of the three children, with the second respondent being granted lifelong use of the property bequeathed to the fourth respondent. It also bequeathed a cash amount to the first appellant and the fourth respondent, provided that the residue was to be shared by the appellants, and bequeathed a Volkswagen motor vehicle to the testator’s son-in-law (in contrast to the 2006 will, which had bequeathed that vehicle to the fourth respondent).

The dispute centred on a Sanlam investment policy valued at approximately R827 000. At the time of death the testator had three investments in his Sanlam Personal Portfolio. Two were not controversial for purposes of the reasoning: one had a nominated beneficiary (the testator’s first wife) and another had the second respondent nominated as beneficiary. The third investment, made on 22 March 2007, had no nominated beneficiary, and it was this investment that was treated as part of the residue by the executor’s representative in the distribution account but claimed by the second and fourth respondents to be payable to the second respondent under the 2006 will.

In October 2009 the third respondent prepared a first and final liquidation and distribution account treating the disputed policy as part of the residue. The second and fourth respondents objected to the Master, who upheld the objection. The Master’s stated basis was that the policy was specifically bequeathed to the second respondent under the 2006 will and that, because the 2007 will did not deal expressly with the Sanlam Personal Portfolio, there were in the Master’s view no conflicting provisions on this point; the Master accepted, however, that the motor vehicle bequest in the 2006 will was impliedly revoked by the inconsistent bequest in the 2007 will.

The High Court held that the 2007 will did not revoke anything, emphasising the absence of a revocation clause and concluding that the testator intended only to adjust the earlier will, and that it could not be established that the testator intended to revoke the earlier bequest of the Sanlam Personal Portfolio to the second respondent.

Legal Issues

The central legal issue was whether, on a proper construction of the two wills, the 2007 will impliedly revoked the 2006 will to the extent of inconsistency, specifically in relation to the disposition of the disputed Sanlam investment.

This required determination of whether the two wills could be read together and reconciled such that the earlier bequest of the Sanlam Personal Portfolio to the second respondent remained effective, or whether the later will constituted a new and different scheme for disposing of the entire estate, thereby impliedly revoking inconsistent earlier provisions and causing the disputed investment to fall into the residue under the later will.

The dispute concerned primarily the application of legal principles of testamentary interpretation and implied revocation to largely common-cause facts, together with a value-laden interpretive judgment about what the testator’s intention was as revealed by the language and structure of the two wills.

Court’s Reasoning

The Supreme Court of Appeal applied the established principle that where a testator dies leaving more than one testamentary disposition, the wills must be read together and reconciled where possible, but that earlier testamentary provisions are deemed revoked to the extent that they are inconsistent with later provisions. Where there is conflict between the provisions of two wills, the conflicting provisions in the earlier will are treated as having been revoked by implication.

Although the 2007 will lacked an express revocation clause (unlike the 2006 will), the court regarded this as not decisive. It emphasised that, on a reading of both documents, the testator’s intention in each will was to dispose of his entire estate. Both wills began with materially similar introductory words indicating that the testator bequeathed his estate “as follows”, after which each will proceeded to set out dispositions aimed at a complete scheme of distribution.

The court characterised the 2007 will as representing a distribution plan that differed materially from the 2006 will. It placed weight on the fact that the 2007 will dealt more specifically with immovable properties, bequeathing an immovable property to each child and granting the second respondent a lifelong right of use in relation to the property bequeathed to the fourth respondent. This, in the court’s assessment, amounted to a completely new and different scheme rather than a set of additional dispositions simply superimposed on the earlier will. In this connection, the court adopted the approach described in Price v The Master, namely that where two wills are different in effect and each deals with the entire estate, they cannot stand together, and the later will must be construed as having impliedly revoked the earlier will.

Turning to the disputed Sanlam investment, the court identified the key inconsistency as lying in the treatment of the residue in the two wills. The testator dealt with the residue in both wills, but the composition and distribution of the residue necessarily changed under the later will because the later will made different and more specific bequests, especially of immovable property. The court proceeded from the assumption, in the absence of evidence to the contrary, that the testator knew the meaning of “residue”. On that basis, the later will’s residuary clause was understood to capture assets not otherwise specifically disposed of under the later scheme, and to distribute those assets to the appellants in accordance with the later will.

The court reaffirmed the “golden rule” of will interpretation: the testator’s wishes are to be ascertained from the language used, and once those wishes are ascertained they must be given effect. It also recognised the principle that where a bequest is made in an earlier testamentary instrument, clear and unambiguous language in a later instrument is required to justify a finding that the testator intended to revoke that earlier bequest. Applying these principles, the court concluded that, viewed in light of the structure and terms of the 2007 will, the testator intended the disputed investment (for which no beneficiary had been nominated) to form part of the unspecified assets falling into the residue under the later will.

The court also noted that the testator had nominated beneficiaries for two of the three Sanlam investments (his first wife and the second respondent, respectively), whereas the disputed investment had no nominated beneficiary and therefore constituted an asset of the estate. In the context of the 2007 will’s scheme, the court considered the necessary inference to be that the testator intended to alter the earlier will’s disposition insofar as it would otherwise divert that asset from the residuary distribution contemplated in the later will.

Finally, the court addressed why the absence of an express revocation clause did not negate implied revocation. It accepted that the 2006 will contained important administrative provisions that did not need alteration and that the later will could operate as an adjustment in form while nonetheless effecting implied revocation where inconsistency arose. Where change was intended, the later will’s scheme and operative language (“I bequeath my estate as follows”) indicated that the later dispositions were to govern.

Outcome and Relief

The Supreme Court of Appeal upheld the appeal with costs. It set aside the order of the High Court and replaced it with an order declaring that the will dated 28 May 2007 impliedly revoked the will dated 27 November 2006 to the extent of inconsistency.

It further ordered that the Sanlam Personal Portfolio in issue was to form part of the residue of the testator’s estate. The court ordered the second respondent to pay the costs of the application in the High Court, and it also awarded costs in the appeal.

Cases Cited

Ex parte Estate Adams 1946 CPD 267.

Ex parte Scheuble 1918 TPD 158.

Ex parte Mark's Executors 1921 TPD 284.

Vimpany v Attridge 1927 CPD 113.

Bredenkamp v The Master 1947 (1) SA 388 (T).

Gentle v Ebdens Executors 1913 AD 119.

Price v The Master 1982 (3) SA 301 (N).

Robertson v Robertson’s Executors 1914 AD 503.

Cuming v Cuming 1945 AD 201.

Cohen NO v Roetz NO [1991] ZASCA 173; 1992 (1) SA 629 (A).

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Supreme Court of Appeal held that, where a testator executed two wills each purporting to dispose of the entire estate, and the later will embodied a materially different distribution scheme, the later will impliedly revoked the earlier will insofar as the two were inconsistent. On the proper construction of the later will’s scheme and residuary disposition, the disputed Sanlam investment (for which no beneficiary was nominated and which therefore fell into the estate) formed part of the residue to be distributed under the later will, rather than being payable to the second respondent under the earlier will.

LEGAL PRINCIPLES

The judgment applied the principle that where multiple testamentary instruments exist, they must be read together and reconciled where possible, but that inconsistencies are resolved by implied revocation, with later dispositions prevailing over earlier inconsistent dispositions.

It applied the approach that where two wills are not merely cumulative but each deals with the entire estate and the later will represents a new and different scheme of distribution, the wills cannot stand together in full, and the later will must be construed as impliedly revoking the earlier will to the extent necessary to give effect to the later scheme.

The judgment reaffirmed the “golden rule” of will interpretation: the testator’s intention is determined primarily from the language of the will, and once that intention is ascertained, effect must be given to it. In that interpretive exercise, the court proceeded on the basis that, absent contrary evidence, a testator is taken to understand the meaning of a residuary clause and that the composition of the residue may differ between wills depending on the specific bequests made in each scheme.

It further applied the principle that revocation of an earlier bequest by a later testamentary instrument generally requires clear and unambiguous language; however, such clarity may be found not only in express revocation clauses but also in the structure and necessary implications of a later will that disposes of the entire estate in a manner inconsistent with earlier dispositions.