Henriques v Giles NO and Another; Henriques v Giles NO and Others (213/08) [2009] ZASCA 64; 2010 (6) SA 51 (SCA) ; [2009] 4 All SA 116 (SCA) (29 May 2009)

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Henriques v Giles NO and Another; Henriques v Giles NO and Others (213/08) [2009] ZASCA 64; 2010 (6) SA 51 (SCA) ; [2009] 4 All SA 116 (SCA) (29 May 2009)

Links to summary

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 213/08
In
the matter between:
elIZABETH
HENRIQUES
A
ppellant
and
MICHAEL
JOHN GILES NO
1
st
Respondent
PFK
(CAPE TOWN) INCORPORATED
2
nd
Respondent
In
the appeal in the counter-application between:
elIZABETH
HENRIQUES
A
ppellant
and
MICHAEL
JOHN GILES NO
1
st
Respondent
PFK
(CAPE TOWN) INCORPORATED
2
nd
Respondent
CARLO
GUISEPPE CAMMISA
3
rd
Respondent
MASTER
OF THE HIGH COURT
4
th
Respondent
Neutral Citation:
Henriques
v Giles NO
(213/08) [2009] ZASCA 64 (29 May 2009)
Coram: NAVSA, VAN HEERDEN et
MHLANTLA JJA, KROON et TSHIQI AJJA
Heard: 15 May 2009
Delivered: 29 May 2009
Summary
:
Wills
– husband and wife each inadvertently signing will drafted for the
other – husband first-dying – whether rectification
of his will
possible
Order
On appeal from:
High
Court, Cape Town (Goliath J sitting as court of first instance):
1. Save for the setting aside of paragraph 2 of the order of the
court below, the appeal is dismissed with costs, such costs to

include the costs occasioned by the employment of two counsel.
2. The appeal against the dismissal by the court below of the
counter-application succeeds to the extent set out below, with no

order as to costs.
3. The order of the court a quo is set aside and replaced with the
following:
3.1 The counter-application succeeds to the extent set out in 3.2
below, with no order as to costs.
3.2 The acceptance and registration, on 10 November 2004, by the
Master of the High Court, the fourth respondent in the
counter-application,
of the will annexed as ‘RN2’ to the founding
affidavit of Ronald Nes as the will of the late Francesco Franco
Cammisa in terms
of
s 8
of the
Administration of Estates Act 66 of
1965
, is set aside.
3.3 The application succeeds in part and the will annexed as
‘RN1’ to the founding affidavit of Ronald Nes, signed by the late

Francesco Franco Cammisa on 15 September 1999, is rectified by:
(a) The deletion of clause 2 of ‘RN1’ and the substitution
of same with clause 2 of Annexure ‘RN2’ to the founding affidavit

of Ronald Nes;
(b) the deletion of clause 3 of ‘RN1’ and the substitution
of same with clause 3 of ‘RN2’;
(c) the deletion of the first sub-clause numbered 5.1 and of the
second sub-clause numbered 5.1 of ‘RN1’ and the substitution
of
same with the two respective sub-clauses both numbered 5.1 of ‘RN2’;
(d) the deletion of the words above the heading ‘Clause 1’
on the first page of ‘RN1’, namely ‘I, the undersigned JACKIE

CAMMISA, married out of community of property to FRANCO CAMMISA, do
hereby make and execute my Last Will and Testament’ and the

substitution of same with the words ‘I, the undersigned FRANCO
CAMMISA, married out of community of property to JACKIE CAMMISA,
do
hereby make and execute my Last Will and Testament.’
3.4 The Master of the High Court, Cape Town, is ordered to accept
‘RN1’, as rectified in terms of 3.3 above, as the last will
of
the late Francesco Franco Cammisa for the purposes of the
Administration of Estates Act 66 of 1965
.
3.5 The issue relating to the testamentary capacity of the late
Jessie Agnes Maria Cammisa at the time of her signing Annexure ‘RN2’

on 15 September 1999 is referred to oral evidence.
3.6 Subject to 3.7 below, the costs of this application are to be
paid from the estate of the late Francesco Franco Cammisa.
3.7 The costs occasioned by the opposition of the application are
to be paid by the first to the fifth respondents jointly and
severally, the one paying, the other to be absolved.
Judgment
van heerden JA (
Navsa
and Mhlantla JJA and Kroon and Tshiqi AJJA concurring
)
:
Introduction
In
about August 1999, acting on the instructions of Mr Francesco Franco
Cammisa, Mr Ronald Nes (‘Nes’), an accountant and
a partner of
the second respondent, PKF (Cape Town) Incorporated (‘PKF’),
drafted two wills, one for Mr Cammisa and the other
for his wife,
Mrs Jessie Agnes Maria Cammisa.
(For the sake of
convenience, Mr and Mrs Cammisa will be referred to hereafter in
this judgment as ‘Franco’ and ‘Jackie’,
respectively.)
On 15
September 1999, the couple met with Nes and his colleague, Ms Erica
Swailes (who had typed up the wills on Nes’ instructions),
in
PKF’s boardroom.
These
four persons were present at all times during the gathering. The
Cammisas carefully read through their respective wills
and Nes and
Swailes explained to them in detail the contents of each of the
wills. As Franco and Jackie were satisfied with their
wills, they
then proceeded to sign them, Nes and Swailes signing each of the
wills as witnesses.
Unbeknown
to any of the persons concerned, however, the wills must have got
mixed up in the process of explaining and reading
them.
A
silly – and most unfortunate – mistake occurred and Franco and
Jackie each inadvertently signed the will prepared for the
other.
All the other formalities prescribed by law for the execution of
wills were duly complied with and, on the face of it,
each will
appeared to be perfectly valid.
This error only
came to light after the respective deaths of both Franco and Jackie,
which occurred on 19 October 2004 and 5 January
2005, respectively.
In the meantime, on 10 November 2004, the Master of the High Court
accepted and registered the will prepared
for Franco, but signed in
error by Jackie, as Franco’s last will in terms of s 8 of the
Administration of Estates Act 66 of
1965 (‘the Estates Act’).
As
a witness to a will is prohibited from being appointed executor of
the deceased estate concerned,
1
Nes could not be appointed executor of Franco’s deceased estate
and the Master thus appointed the first respondent, Mr Michael
Giles
(a director of PKF), in his stead.
Is it
possible for the will signed by Franco to be rectified so that his
estate can devolve in the manner in which he undoubtedly
intended or
has he died intestate? This is the question that confronts us in the
present appeal.
The proceedings in the court below
The
Respondents applied to the Cape High Court to rectify the two wills
– annexed to the Notice of Motion as ‘RN1’ (the
will drafted
for Jackie and in her name, but signed by Franco) and ‘RN2’ (the
will drafted for Franco and in his name, but
signed by Jackie) –
‘so as to reflect the true intention of’
Franco and
Jackie, respectively, ‘in relation to [each’s] last will and
testament’. They sought an order in the following
terms:
‘
1.That the document (will) annexed as “RN1” to
the affidavit of Ronald Nes filed herewith be rectified by deleting
the undermentioned
words and/or clauses therefrom and substituting
them with the words and/or clauses also referred to hereunder from
annexure “RN2”
to the said affidavit of Ronald Nes . . . . :
(a) Delete clause 2 of “RN1” and substitute the
same with clause 2 of “RN2”;
(b) Delete clause 3 of “RN1” and substitute the
same with clause 3 of “RN2”;
(c) Delete the first sub-clause “5.1” and the
second sub-clause “5.1” of “RN1” and substitute the same
with the (two)
respective sub-clauses “5.1” of “RN2”;
(d) Delete the words just above the heading “Clause
1” on the first page of “RN1”, namely “I, the undersigned
JACKIE
CAMMISA, married out of community of property to FRANCO
CAMMISA, do hereby make and execute my Last Will and Testament”;
and substituting the same with the words “I, the
undersigned FRANCO CAMMISA, married out of community of property to
JACKIE
CAMISSA, do hereby make and execute my Last Will and
Testament”.
2. That the document (will) annexed as “RN2” to the
affidavit of Ronald Nes filed herewith be rectified by deleting the
undermentioned
words and/or clauses therefrom and substituting them
with the words and/or clauses also referred to hereunder from
annexure “RN1”
to the said affidavit of Ronald Nes . . . . :
(a) Delete clause 2 of “RN2” and substitute the
same with clause 2 of “RN1”;
(b) Delete clause 3 of “RN2” and substitute the
same with clause 3 of “RN1”;
(c) Delete the first sub-clause “5.1” and the
second sub-clause “5.1” of “RN2” and substitute the same
with the (two)
respective sub-clauses “5.1” of “RN1”;
(d) Delete the words just above the heading “Clause
1” on the first page of “RN2”, namely “I, the undersigned
FRANCO
CAMMISA, married out of community of property to JACKIE
CAMMISA, do hereby make and execute my Last Will and Testament”;
and substituting the same with the words “I, the
undersigned JACKIE CAMMISA, married out of community of property to
FRANCO
CAMISSA, do hereby make and execute my Last Will and
Testament”.’
In the
alternative, the respondents applied, in terms of
Section 2(3)
of
the
Wills Act 7 of 1953
, for “RN2” and “RN1” to
“be
declared the last will and testament”
of Franco and of Jackie,
respectively.
The
respondents prayed that the costs of the application be paid from
Franco’s deceased estate. However, in the event of the
application
being opposed, they applied for an order that ‘the costs
occasioned by the opposition . . . be paid by such party
or parties
opposing the same jointly and severally’.
The
appellant, Elizabeth Henriques, and her four siblings (the
adult children of Douglas Jackson, Jackie’s son from a previous
marriage)
(‘Jackie’s grandchildren’) – the five respondents
in the court below –
opposed this application
on two grounds. The first was that, as the ‘wills’ drafted by
Nes did not comply with
ss 2(1)
(a)
(i),
(ii), (iii) and (iv) of the
Wills Act 7 of 1953
,
2
they were invalid and could not be rectified. The second was that,
as neither Franco nor Jackie personally drafted or executed
these
‘wills’,
s 2(3)
of the
Wills Act
3
was
not applicable.
As
regards the second ground, b
oth before the
court a quo and in this court, counsel for the respondents conceded
that it could not be said that either of the
Cammisas
personally
‘drafted’ either of the wills in question (see
Bekker
v Naude & andere
).
4
It is thus not necessary to say
anything more in this regard.
Jackie’s grandchildren also made a counter-application for an
order:
setting aside ‘Franco’s will’ (‘RN2’), which on 10
November 2004 had been accepted and registered by the
Master of the High Court (the fourth respondent in the
counter-application);
and
that the costs of the counter-application be paid by PFK (the
second respondent in the counter-application).
The
Master of the High Court indicated in his Report to the court a quo
that, should the main application for rectification of
‘RN1’
fail, then he supported the counter-application. Apart from this, he
abided the court’s decision.
Carlo
Cammisa, the third respondent before us (‘Carlo’), is Franco’s
adult son from a previous marriage. He was cited as
the sixth
respondent in the main application. In terms of the will prepared
for Franco (‘RN2’), Carlo is Franco’s sole
residuary heir.
There
were
factual disputes on the papers in
relation to Jackie’s testamentary capacity at the time of her
signing ‘RN2’ on 15 September
1999.
5
The
court below granted the relief sought in prayers
1 and 2 of the main application, but ordered Jackie’s
grandchildren to pay
the costs of the application – and not just
the costs occasioned by their opposition to the application, as had
been requested
by the present respondents – jointly and severally.
Goliath J dismissed the counter-application with costs, and also
ordered
that the issue of Jackie’s testamentary capacity be
referred to oral evidence. The present appeal against the judgment
of the
court a quo serves before us with the special leave of this
court.
Rectification
South
Africa has no legislation on the rectification of wills and the
ambit of our courts’ powers to rectify mistakes in a will
has been
the subject of considerable judicial disagreement. While there has
never been any dispute in regard to the court’s
power to correct
clerical errors
6
or an erroneous description of a beneficiary or a benefit in a
will,
7
or to delete from a will words or provisions included in it by
mistake,
8
there were conflicting decisions concerning the court’s power to
rectify a will by inserting words or provisions which have
been
omitted in error or by substituting the correct words or provisions
for incorrect ones which have been mistakenly included
in a will.
9
It is now generally accepted that the South African courts do have
this latter power:
10
Rectification
is an equitable remedy, the purpose being to give effect to the true
intention of the relevant parties or of the
testator or testatrix concerned. A court will rectify a will where,
due to a mistake,
be it on the part of the testator or testatrix or
on the part of the drafter, the will does not correctly reflect
their testamentary
intention. The applicant for rectification must
establish that (a) the alleged discrepancy between expression and
intention was
due to a mistake; and (b) what the testator or
testatrix really meant to provide. The onus, which must be satisfied
on a balance
of probabilities, is on the party seeking
rectification.
11
The
appellant contended that it is not competent to rectify a contract
or a will that is invalid for non-compliance with prescribed

statutory formalities and that the present wills, having each been
signed by the ‘wrong’ testator and testatrix, respectively
(a
so-called ‘crossed wills’ situation), are invalid in that they
do not comply with the provisions of
ss 2(1)
(a)
(i) and
(iv) of the
Wills Act.
12
In
respect of contracts, it is indeed so that South African courts will
not order rectification of a document which purports to
constitute a
contract for the validity of which statutory formalities are
required if, on the face of the document, it does not
comply with
the prescribed formalities – a nullity cannot be rectified.
13
Statutory
formalities for the execution of wills are intended to ensure the
authenticity of the relevant document and provide
evidence of the
testator’s or testatrix’s intention.
14
In deciding whether to rectify a will, courts must be equally astute
to ensure that these objects are not jeopardised.
On the
facts of the present case, it is
clear that
Franco and Jackie each signed a will as testator and testatrix,
respectively, and that all the other statutory formalities
for the
execution of wills were complied with. On the face of it, both wills
are formally valid. In each case, the surname
of the
testator and the signature is the
same.
T
he
mistake lies therein that, as a result of the erroneous
‘cross-signing’ of the wills, the incorrect party is described

as the testator in the heading of each of the wills, and clauses 2
and 3, as well as the two sub-clauses numbered 5.1, of each
will
have been incorrectly included/omitted. The remaining clauses of the
two wills are identical. These mistakes are, however,
not matters
relating or fatal to the formal validity of the will. It is, for
instance, well accepted that the incorrect description
of the
testator or of an heir, is a matter which is capable of
rectification. If, therefore, Franco’s name had been incorrectly

spelt or the wrong initials erroneously reflected in his will, such
mistakes could undoubtedly be rectified, even if the evidence

disclosed that there was another person (even a potential heir) with
the ‘misspelt’ name or with the ‘wrong’ initials
in
existence.
It
is true that Franco signed the will prepared for Jackie and vice
versa. Allowing rectification in the particular circumstances
of the
present case, where there is no doubt whatsoever about Franco’s
testamentary intentions, achieves a just result. To
insist that this
would amount to an impermissible ‘rectification of signatures’,
as was argued by counsel for the appellant,
would in my view be to
sacrifice testamentary intention to excessive and needless
formalism.
Indeed, one cannot imagine
clearer evidence of a mistake regarding the true intention of a
testator than what happened in this
case, where everything was
recorded in writing and ‘attested’ to.
In
my view, allowing rectification of ‘RN1’
to
reflect Franco’s true testamentary intention in the manner sought
in prayer 1 of the application would not in any way do
violence to
the established principles governing rectification of documents, nor
would it defeat any of the functions of testamentary
formalities. It
follows that I am of the view that the appeal against the order of
Cape High Court for the rectification of ‘RN1’
should fail.
This
conclusion also accords with international jurisprudence. Although s
20 of the United Kingdom Administration of Justice Act
1982 permits
rectification of a will only if the court is satisfied that a will
is so expressed that it fails to carry out the
testator’s
or
testatrix’s intention in two specified instances, namely a
clerical error or a failure to understand the testator’s
instructions,
15
this has been criticised as being unduly restrictive. The trend in
other jurisdictions, such as New Zealand, Australia, Canada
and the
United States of America, more specifically in ‘crossed wills’
cases analogous to the present matter, has been to
allow
rectification of a will whenever the court is satisfied that the
will is expressed in a manner which fails to give effect
to the true
testamentary intentions of the testator or testatrix.
16
Thus, for example, in the judgment of the Court of Queen’s Bench
for Saskatchewan in
Re McDermid Estate
17
where a husband and wife had each inadvertently signed the will
prepared for the other, the court, in effectively ordering the

rectification of the will signed by the husband (the first-dying),
stated the following:
18
'Here, the will intended to be signed by the deceased
was prepared by him for his signature and execution in the presence
of two
witnesses. Here, as is evident from the materials before me,
a will in substantially the same form, except for the designated

beneficiary and personal representative, was prepared for the
signature and execution of the deceased's wife in the presence
of
the same two witnesses. The requirements of s 7 of said The
Wills
Act were
fully complied with with the exception that each of the
deceased and his wife inadvertently executed the will intended for
the
signature of the other. The deceased's intention to leave all
of his real and personal estate to his wife, and for her to act
as
the executrix of his estate, if she should survive him, as she did,
is clear and unequivocal.
. . .
The last will and testament actually prepared for the
signature of the deceased, but inadvertently signed by his wife,
clearly
embodies the testamentary intentions of the deceased.
Except for the fact that the deceased signed the wrong document, the
last
will and testament actually prepared by him for his signature
in all other respects fully complies with the requirements of said

The
Wills Act.
In
particular circumstances, it is in my view appropriate to direct, as
I do, that the said last will and testament inadvertently
signed by
the deceased be attached to the last will and testament prepared for
his signature so that his signature thereto will
become and for
purposes of this application will be part of his intended will for
probate purposes.’
The counter-application
Counsel for the appellant contended that the counter-application
(for an order setting aside ‘RN2’ which had, on 10 November

2004, been registered and accepted by the Master of the Cape High
Court as Franco’s will for the purposes of the Estates Act),

should have been heard and granted by the court below before the
main application was even argued. According to counsel, this
was the
sequence that had to be followed because, even if the court were
ultimately to order the rectification of ‘RN1’ in
terms of
prayer 1 of the application, the Master would not be able to accept
and register Franco’s rectified will for the purposes
of the
Estates Act while ‘RN2’ remained registered and recorded in the
Master’s Office as Franco’s will.
Appellant’s
counsel pointed out that, as Goliath J correctly stated in her
judgment, acceptance by the Master of a will in terms
of s 8 of the
Estates Act does not
per se
mean that the will has been
determined to be valid. The Master merely performs an administrative
act in registering and accepting
the will and this must not be
equated with the recognition of the will’s validity.
Notwithstanding registration and acceptance,
all questions of the
validity or legal effect of the will fall to be determined by the
court.
19
Interested parties can apply to court to set aside a will or to have
it declared invalid notwithstanding the Master’s endorsement
of
the will to the effect that it has been registered and accepted.
20
Thus, according to counsel, even if the appeal on the issue of
rectification were to fail, the appeal on the dismissal of the

counter-application should succeed with costs, and the order of the
court a quo in this regard should be amended accordingly.
I agree
with counsel for the appellant that, from a procedural point of
view, the registration and acceptance of ‘RN2’ by
the Master
will have to be set aside before the Master is ordered to accept
‘RN1’, as rectified, as Franco’s will for the
purposes of the
Estates Act. Nonetheless, it is abundantly clear from the affidavit,
deposed to by the appellant in support of
the counter-application,
that the sole purpose of the counter-application was to have ‘RN2’
(described in the counter-application
as ‘the Will of FRANCESCO
FRANCO CAMMISA dated 15 September 1999’) – and
not
simply
the registration and acceptance of such will by the Master – set
aside so that Franco’s estate could devolve on intestacy
to the
benefit of Jackie’s grandchildren.
Counsel’s
contentions concerning the correct sequence to be followed, while in
my view correct, were (on the papers before us)
certainly not wholly
or even in part the purpose for which the counter-application was
launched. Despite counsel’s arguments
to the contrary, the thrust
of the appellant’s affidavit in support of the counter-application
was indeed to the effect that
‘if Franco’s will was set aside,
it would mean that Jackie’s estate would be an intestate
beneficiary of half the proceeds
of Franco’s estate’, to the
ultimate benefit of Jackie’s grandchildren as Jackie’s intestate
heirs. The procedural aspect
was only raised in argument before the
court a quo and was then expanded upon before us, to the extent of
counsel filing supplementary
heads of argument in this court dealing
with that aspect.
To
correct the procedural problem in the Master’s Office was thus
not
why Jackie’s grandchildren brought the counter-application and I
am not persuaded by counsel’s attempts to persuade us otherwise.

This being so, it is in my view not appropriate, either to order PKF
to pay the costs of the counter-application, or to order
the
respondents in the appeal in the counter-application to pay the
costs of such appeal. To my mind there should be no order
as to
costs in either of these instances.
Jackie’s testamentary capacity
As
indicated above, the Cape High Court granted the relief sought in
prayer 2 of the application by ordering the rectification
of ‘RN2’
(the will prepared for Franco, but signed by Jackie). The court also
referred the issue of Jackie’s mental capacity
at the time of
signature of ‘RN2” for oral evidence, holding that there was a
clear dispute of fact on the papers concerning
this issue. It is
obvious that these two orders cannot co-exist. One of the
requirements for rectification is that the applicant
must show what
the testatrix really
intended
to provide (once it has been
established that the alleged discrepancy between what the will
provides and what the testatrix actually
intended was due to a
mistake).
21
As Jackie’s mental capacity at the time of her signing ‘RN2’
was in dispute and was referred by the court a quo for the
hearing
of oral evidence, the appellant clearly could not be said to have
proven what Jackie’s real testamentary intention
at that time was.
Failing such proof, the appellant did not discharge the onus of
proving the requirements for rectification
of ‘Jackie’s will’.
The order for rectification of ‘RN2’ made by Goliath J thus
cannot stand and must be set aside.
Costs
I have
already given my reasons for the conclusion that there should be no
order as to costs in respect of either the counter-application
in
the court below, or the appeal in respect of the dismissal of the
counter-application before this court. As regards the costs
order
made by Goliath J in respect of the application, counsel for the
respondents conceded that this order against Jackie’s

grandchildren went too far and should be limited to the costs
occasioned by their opposition to the application.
Order
For
the reasons set out above, the following order is made:
1. Save for the setting aside of paragraph 2 of the order of the
court below, the appeal is dismissed with costs, such costs to

include the costs occasioned by the employment of two counsel.
2. The appeal against the dismissal by the court below of the
counter-application succeeds to the extent set out below, with no

order as to costs.
3. The order of the court a quo is set aside and replaced with the
following:
3.1 The counter-application succeeds to the extent set out in 3.2
below, with no order as to costs.
3.2 The acceptance and registration, on 10 November 2004, by the
Master of the High Court, the fourth respondent in the
counter-application,
of the will annexed as ‘RN2’ to the founding
affidavit of Ronald Nes as the will of the late Francesco Franco
Cammisa in terms
of
s 8
of the
Administration of Estates Act 66 of
1965
, is set aside.
3.3 The application succeeds in part and the will annexed as
‘RN1’ to the founding affidavit of Ronald Nes, signed by the late

Francesco Franco Cammisa on 15 September 1999, is rectified by:
(a) The deletion of clause 2 of ‘RN1’ and the substitution
of same with clause 2 of Annexure ‘RN2’ to the founding affidavit

of Ronald Nes;
(b) the deletion of clause 3 of ‘RN1’ and the substitution
of same with clause 3 of ‘RN2’;
(c) the deletion of the first sub-clause numbered 5.1 and of the
second sub-clause numbered 5.1 of ‘RN1’ and the substitution
of
same with the two respective sub-clauses both numbered 5.1 of ‘RN2’;
(d) the deletion of the words above the heading ‘Clause 1’
on the first page of ‘RN1’, namely ‘I, the undersigned JACKIE

CAMMISA, married out of community of property to FRANCO CAMMISA, do
hereby make and execute my Last Will and Testament’ and the

substitution of same with the words ‘I, the undersigned FRANCO
CAMMISA, married out of community of property to JACKIE CAMMISA,
do
hereby make and execute my Last Will and Testament.’
3.4 The Master of the High Court, Cape Town, is ordered to accept
‘RN1’, as rectified in terms of 3.3 above, as the last will
of
the late Francesco Franco Cammisa for the purposes of the
Administration of Estates Act 66 of 1965
.
3.5 The issue relating to the testamentary capacity of the late
Jessie Agnes Maria Cammisa at the time of her signing Annexure ‘RN2’

on 15 September 1999 is referred to oral evidence.
3.6 Subject to 3.7 below, the costs of this application are to be
paid from the estate of the late Francesco Franco Cammisa.
3.7 The costs occasioned by the opposition of the application are
to be paid by the first to the fifth respondents jointly and
severally, the
one paying, the other to be absolved.
______________________
B j van heerden
JUDGE OF APPEAL
Appearances:
For Appellant: J Whitehead SC
Walkers Attorneys
Cape Town
Instructed by: Claude Reid
Bloemfontein
For Respondent: R S Van Riet SC
On behalf of 1
st
CHJ Maree
2
nd
Respondents:
Mac Gregor Stanford Kruger Inc
Cape Town
Instructed by: E G Cooper
Bloemfontein
On behalf of 3
rd
Respondent:
Heuer & Associates
Cape Town
Instructed by: Lovius Block
Bloemfontein
1
Section 4A(1)
, read with
s 4A(3)
, of the
Wills
Act 7 of 1953
, as inserted by
s 7
of Act 43 of 1992.
2
The relevant provisions of s 2(1), as amended by the Law of
Succession Amendment Act 43 of 1992, read as follows:
‘(1) Subject to the
provisions of section 3
bis
–
no will executed on or after the
first day of January, 1954, shall be valid unless –
the will is signed at the end
thereof by the testator . . . ; and
such signature is made by the
testator . . . in the presence of two or more competent witnesses
present at the same time; and
such witnesses attest and sign
the will in the presence of the testator and of each other .
. . ; and
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
. . . anywhere on the page . . . . ’.
3
Section 2(3), added by s 3
(g)
of Act 43 of 1992, provides
that ‘[i]
f a court is satisfied that a document
drafted or executed by a person who has died since the drafting or
execution thereof, was
intended to be his will …, the court shall
order the Master to accept that document, … 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 … of
wills referred to in subsection (1).’
4
2003 (5) SA 173
(SCA) para. 20.
See also
Reszke v Maras
& others
2003
(6) SA 676
(C) paras 10-14 and
Van
Wetten & another v Bosch & others
2004
(1) SA 348
(SCA) para 14.
5
Jackie’s grandchildren maintained
that
she had suffered from Alzheimer’s disease since 1995 and that, at
the time of the meeting in PKF’s boardroom on 15 September
1999,
she lacked the mental capacity to execute a will.
This was vigourously disputed by the respondents.
6
Such as, eg, where owing to a typing mistake, the
sum of ‘R10 000’ has been reflected as ‘R1 000’ or ‘R100
000’, where
erf number ‘3489’ has become erf number ‘3498’,
or where ‘my immovable property’ has been rendered as ‘my
movable
property’: see MM Corbett, HR Hahlo & Ellison Kahn
The
Law of Succession in South Africa
2ed
(2001) 498.
7
Corbett et al op cit 499.
8
Corbett et al op cit 498-500 and the other authorities cited by
these writers.
9
The various different decisions in this regard
are discussed in some detail by Corbett et al op cit 500-504. See
also
Van Zyl v Esterhuyse NO &
andere
1985 (4) SA 726
(C) at
730B-733F;
Will NO v The Master
above (note 6) at 213G-215F and
Hotz NO
v Goodman NO
1994 (2) SA 186
(C) at
187I-189I, where the relevant authorities are reviewed.
10
Op cit 504. See also DT Zeffertt, AP Paizes &
A St Q Skeen
The South African Law of
Evidence
(formally Hoffmann and
Zeffertt)
(2003)
343and 347-348.
11
See, eg,
Will NO v
The Master & others
1991 (1) SA
206
(C) at 213H-I and, generally, Corbett et al op cit (note 6)
498-505 and the other authorities cited by these writers.
12
The wording of which sections is set out in note 2 above.
13
See, eg,
Intercontinental Exports (Pty) Ltd v
Fowles
1999 (2) SA 1045
(SCA) paras
10-18 and
Inventive Labour Structuring (Pty) Ltd v Corfe
2006 (3) SA 107
(SCA) paras 4-11. For critical discussion of this
approach and of the manner in which it has been applied by the
courts, see
Schalk van der Merwe, LF Huyssteen, MFB Reinecke &
GF Lubbe
Contract: General Principles
3ed (2007) 182-185.
14
On the functions of formalities for the execution of wills, see
John
H Langbein ‘Substantial Compliance with the Wills Act’ (1975) 88
Harvard LR
489
at 492-497 and also the South African Law Commission (now called the
South African Law Reform Commission)
Report
on Project 22
Review of the Law of
Succession
(June 1991) paras 2.1-2.6.
15
Ellison
Kahn
1994
Supplement to the Law of Succession in South Africa
by
MM Corbett, HR Hahlo, Gys Hofmeyr & Ellison Kahn (1980) 128-129.
16
The relevant cases are discussed in some detail
by the Royal Court of Jersey in
In the
Estate of Vautier (née McBoyle)
2000
JLR 351 at 356-361, a case where a husband and wife by mistake each
signed the will drafted for the other and where rectification
of the
will signed by the first-dying (the wife), by the substitution and
alteration of words ‘so as to accord with her clear
intentions’,
was ordered by the court.
17
1994 CanLII 4950 (SK Q.B.).
18
At 4-5.
19
See in this regard
Meyerowitz
on Administration of Estates and Estate Duty
(2007 edition) para 3.7 and Corbett et al op cit (note 6) 117-118.
20
Ibid.
21
See para 15 above.