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[2019] ZAGPPHC 135
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Outhoff and Another v Kaplan N.O and Others (A85/2017, 69475/2014) [2019] ZAGPPHC 135 (28 February 2019)
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IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
YES/
NO
(2)
OF INTYEREST
TO OTHER JUDGES: YES/
NO
(3)
REVISED
Appeal Case No: A85/2017
Court
a quo
Case No:
69475/2014
28/2/2019
In
the matter between:
JACKIE
OUTHOFF
First Appellant
(I.D
No: [….])
KIM
OUTHOFF
Second Appellant
(I.D
No: [….])
and
MORRIS
KAPLAN
N.O.
First Respondent
MARIA
DEBORAH OUTHOFF
(Born
Kritzinger)
Second Respondent
ELAINE-MARI
SEYMOUR
Third Respondent
BARRY
SEYMOUR
Fourth Respondent
THE
MASTER OF THE HIGH COURT,
GAUTENG
DIVISION, PRETORIA
Fifth Respondent
(Estate
No: 18169/2013)
JUDGMENT
Haupt,
AJ
INTRODUCTION:
[1]
On
18 February 2010, Mr Cornelis Outhoff and the second respondent, Mrs
Maria Deborah Outhoff, who were married to each other, executed
a
mutual will
(" the mutual will"
or
"will')
in which the appellants, two minor
children and the third and fourth respondents were bequeathed certain
bequests and legacies on
the death of the surviving spouse. In what
follows I shall refer to Mr Outhoff as
"the
deceased"
or
"the
testator"
and to Mrs Outhoff as
"the second respondent"
or
" the testatrix",
and
to them jointly as
"the
testators".
[2]
The
appellants are the daughters of the deceased from a previous
marriage. The second appellant was also cited in her capacity as
the
biological mother and guardian of the two minor beneficiaries.
[3]
The first respondent is the appointed executor in terms of the
provisions of the mutual
will. The third respondent is the second
respondent's daughter from a previous marriage. The fourth respondent
is the husband of
the third respondent. The fifth respondent is the
Master of the High Court, Gauteng Division, Pretoria, who did not
participate
in these proceedings. I shall refer to the first to
fourth respondents as
"the respondents"
[4]
The
appellants are appealing the whole of the judgment and order granted
by Hughes J on 17 August 2016. In essence the principal
questions on
appeal are (i) the interpretation of the mutual will, (ii) whether
the second respondent, as the surviving spouse,
is duty bound to
exercise her election, whether to adiate or repudiate the benefits in
terms of the mutual will, (iii) the effect
of the surviving spouse's
adiation or repudiation of the benefits in terms of the will and (iv)
whether the mutual will effected
a massing of the estate of the
deceased and the second respondent.
FACTUAL
BACKGROUND:
[5]
The
relevant background facts are largely undisputed and arose in the
following circumstances. Prior to their marriage, the deceased
and
the second respondent concluded an ante-nuptial contract
("ANC")
on 2 April 1974 providing for their
marriage to be out of community of property.
[1]
[6]
The
ANC provided,
inter alia,
that
each party shall be at full liberty to depose of his or her property
by testamentary disposition as he or she deems fit and
that the
second respondent shall have exclusive and uncontrolled
administration and alienation of the property she possessed before
the marriage and all other property she may possess after the
marriage.
[7]
The
clauses in the mutual will which are relevant to the dispute
regarding the interpretation of the will reads as follows:
" 1. We
do hereby appoint
as
Executor of
our
respective estates,
MORRIS
KAPLAN of Kaplan
&
Kaplan,
Johannesburg
...
3.
In
the event of the death of either party,
our
entire estate
will be
bequeathed to the remaining party
without
reserve.
4.
On
the death of the surviving party,
we
hereby give and bequeath the
undermentioned bequeaths and legacies to the following people stated
next to their names:
4.1
JACKIE OUTHOFF, daughter
of Cornelis Outhoff:
4.1.1
Owelling
at 6 Kruinsig, Kameeldoring Street, Overkruin, Heidelberg,
Mpumalanga, together with contents thereof·, and
4.1.2
20%
(twenty percent) of monetary assets held in FIRST NATIONAL BANK,
HEIDELBERG
...
and
ABN AMRO BANK, HOLLAND
.. .
4.2
KIM TRETHAN, daughter of
Cornelis Outhoff:
4.2.1
40%
(fourty percent) of monetary assets held in FIRST NATIONAL BANK,
HEIDELBERG and ABN AMRO BANK, HOLLAND; and
4.2.2 The current
motor vehicle owned by the surviving party.
4.3
ELAJNE..MARI SEYMOUR
daughter of Maria Deborah Outhoff:
4.3.1
All
jewellery belonging to Maria Deborah Outhoff, with exception of the 3
(three) string pearl choker. The surviving party shall
have the
discretion to award this bequest prior to their death.
4.3.2
40%
(fourty percent)of monetary assets held in FIRST NATIONAL BANK,
HEIDELBERG and ABN AMRO BANK, HOLLAND; and
4.3.3
The
lady's Rado watch and the spoon collection and cabinets.
5.6
BARRY
SEYMOUR The gent's Rado watch
5.7
KERYS TRETHAN, granddaughter:
The 3 (three) string pearl
choker in the commencement of her matric year or at the discretion of
the surviving party.
5.8
KIAN TRETHAN, grandson:
The gent's Piaget watch in the
commencement of his matric
year."
(own emphasis
added)
[8]
The mutual will concludes with the
following provision:
"We reserve to ourselves
the power from time to time and at all times hereafter to make all
such alterations in or additions
to this our Last Will as we shall
think fit either by separate act or at the foot hereof, desiring that
all such alterations or
additions so made under our own signature
shall be held to be
as
valid and
effectual as if inserted herein."
[9]
The
deceased passed away on 3 August 2013. The mutual will was
subsequently accepted by the fifth respondent as being the will of
the said two testators.
[10]
On 26 September 2014 the appellants
issued summons and attached the mutual will as Annexure "POC1"
to the particulars
of claim. In the particulars they contended that
they and the two minor grandchildren are beneficiaries in terms of
the mutual
will, that the will provides for massing of the estates of
the deceased and the second respondent (second defendant a
quo)
and/or that the second respondent,
as joint testator and surviving spouse, was put to her election (as
it relates to the bequest
in clause 3) to either adiate or repudiate
the benefits under the will of the deceased.
[11]
The appellants sought the following
relief:
"1.
That it be declared:
1.1
That
the Second Defendant is duty bound to exercise her election whether
to adiate or repudiate the benefits in terms of Annexure
"POC1"
hereto.
1.2
That
the First and Second Plaintiffs and the minor children referred to
..
.
are beneficiaries in terms of
Annexure "POC1" hereto.
1.3
That
in the event of the Second Defendant adiating the benefits in terms
of Annexure "POC1" hereto, she is not entitled
to make a
new will in which she purports to dispose to any of the assets
forming part of the separate estates of the deceased and
herself
immediately prior to the demise of the deceased, Cornelis Outhoff.
1.4
In
the event that the Second Defendant repudiates the benefits in terms
of Annexure "POC1
",
the
Second Defendant will not be a beneficiary of the estate of the
deceased and will be able to make a will in respect only of
the
assets forming part of her own separate estate.
2.
That,
in the event of the relief sought herein, not being opposed by the
defendants, that the costs of this action be paid from
the deceased
estate of Cornelis Outhoff.
3.
That,
in the event of the relief sought in this action being opposed, that
those defendants opposing the said relief be ordered
to pay the costs
of this action debonis propriis."
[12]
The
respondents (first to fourth defendants a
quo)
raised a number of defences and
factual disputes in their plea dated 6 November 2014. One of the
defences included a special plea
that the appellants lacked
locus
standi.
[13]
The
respondents abandoned these defences and factual disputes on 26 April
2016, when they replied to the plaintiffs' list in terms
of Rule
37(4) was filed. This was approximately a week before the allocated
trial date of 9 May 2016.
[14]
The
only dispute that remained for the trial court to adjudicate was the
interpretation and application of the mutual will.
PROCEEDINGS
BEFORE THE TRIAL COURT:
[15]
Mr
Vorster SC, appeared on behalf of the appellants and Mr Klopper on
behalf of the respondents when the matter came before Hughes
J on 9
May 2016.
[16]
Both
counsel elected not to lead any evidence and closed their respective
cases. A trial bundle was handed up by agreement and the
status of
the documents contained in the bundle was agreed upon between the
parties at the pre-trial held on 5 April 2016. The
agreement was that
the documents contained in the bundle or copies thereof will, without
further proof, serve as evidence of what
they purport to be, without
the correctness of the contents of such documents being admitted.
JUDGMENT
OF THE TRIAL COURT:
[17]
On
17 August 2016, Hughes J gave judgment, dismissing the appellants'
action for declaratory relief with costs.
[18]
In
its judgment, the trial court with reference to the judgments in
Bothma Batho Transport v Bothma
and Seun Transport
[2]
and
Theart
v Scheibert and others
[3]
and to Corbett,
The
Law of Succession in South Africa
[4]
,
made the following findings:
"[21] In my view,
clause 3 is explicit that on the death of any of the signatories to
the will their entire estate is
bequeathed to the surviving spouse
without reserve. This in my view is clearly the dominant clause.
Consequently,
the
surviving spouse obtains the entire joint estate of the parties on
the death of the first dying spouse.
[22] Following on
clause 3, clause 4 commences with 'on the death of the surviving
party, we hereby give an bequeath
the undermentioned [sic] bequests
...
to
the following people
...
',
this clause
now dictates how the dispositions would be made to family members,
including the plaintiffs, on the death of the surviving
spouse. These
two clauses direct bequest[s] to different parties. Clause 3 to the
surviving spouse at the death of the first dying
spouse and clause 4
to family members at the death of the surviving spouse. That wish, in
my view, is notable from clause 4, is
the use of the words 'We' make
the bequest on the death of the surviving spouse meaning both spouses
make the bequest on the death
of the surviving spouse.
[23] Corbett at 437
[supra] states 'Where a joint and mutual will of the spouses disposes
not only of the estate of
the first-dying spouse but also of the
estate of the surviving spouse after the survivor's death, the
survivor cannot take the
benefits left in the will of the first-dying
and refuse to deal with his or her own estate in the manner set out
in the will .
. .'.
In the circumstances the
surviving spouse cannot seek to accept the inheritance from the
first-dying spouse and not comply with
the dictates of the will as
regards her estate.
[24] Did the
signatories to the will intend that massing materialised?
In clause 3 and 4 the words
'our' and 'we' are used respectively.
On
face value. in my view. this is an indicator that massing was
intended even if we consider the fact that
a
joint will
should be read as if each of the signatories had made individual
will
. The
question to be answered would be that if one was to determine whether
massing was intended one must establish from the wording
of the will
that the testatrix disposed of the testator's share of the joint
estate as well as her own share of the joint estate,
either at the
time of the death of the testator or the testatrix."
(own
emphasis added)
[19]
However,
the trial court concluded that the wording of clause 3 of
"Our
entire estate will be bequeathed to the remaining party without
reserve"
indicates that the
testator's estate is bequeathed to the testatrix, whilst clause 4
provides for certain bequeaths after the death
of the surviving
spouse and held that this creates confusion which would amount to
ambiguity.
[20]
The
confusion relates to whether the bequests are derived from the
testator's or the testatrix's estate or from both their estates
as a
whole as from clause 4 it is not evident whether the assets bequested
was that of the testator or the testatrix or derived
from the
consolidation of the two estates. The trial court therefore applied
the presumption against massing and found the presumption
to be
decisive in the present matter.
[21]
I now turn to consider the merits of the appeal.
MERITS
OF THE APPEAL:
[22]
The
essence of the applicants grounds for appeal are that the trial court
erred in (i) holding that the mutual will create some
confusion and
amounts to an ambiguity, (ii) finding that it is not clear whether
the bequests are derived from the estate of the
testator or the
testatrix, or both estates as a whole and that it is not evident if
the bequest in clause 4 is derived from the
consolidaiton of the two
estates forming the joint estate, from which the testatrix could make
the disposition sought; (iii) in
holding that it is not clear that
the testator's estate was consolidated with that of the testatrix in
order to make out the bequests
in clause 4 and that the presumption
against massing has to be applied; and (iv) in not finding that the
terms of the mutual will
put the second defendant to an election
whether to adiate or repudiate the bequests to her.
[23]
It
would be convenient to commence with the applicable principles. The
first principle relevant to the present case is that the
only choice
open to an heir in modern law relating to a benefit bequeathed to
him/her in a will, is either to accept (adiate) or
repudiate
(renunciate.)
[5]
Without an election the executor can't proceed with the process of
finalising the estate.
[24]
On
the pleadings the respondents contend that the second respondent does
not need to adiate or repudiate the benefits in terms of
the mutual
will. Mr Klepper further argued that the issue of massing is decisive
for the relief sought and that election only comes
into play if there
was massing. I do not agree with this argument.
[25]
In the present case, irrespective of
whether a massing of the estate of the deceased and the second
respondent had taken place,
or not, the second respondent had to
exercise a choice. In this regard the reference by Corbett
supra
to the author Lee
[6]
and the doctrine of election
[7]
is of particular significance:
"..
.[A]s RW Lee remarked:
'The conclusion to be drawn
from
a
careful
consideration of the cases is that the essential question is not
whether there has been massing, but whether the surviving
spouse has
been put to his or her election."'
and at 444:
"The effect of massing and
adiation is but one instance of the general doctrine of election.
Stripped down to its essentials,
the doctrine is
a
simple one: where
strings are attached by
a
testator to a
testamentary benefit, the beneficiary cannot take the benefit and
ignore the strings. Thus, when appointing an heir
or legatee the
testator may, by way of modes or otherwise, impose an obligation upon
the beneficiary
...
In all these
cases, the heir or legatee
.,..
has to make a
choice: acceptance of the benefit entails comp/lance with the
testator's directions
...
Thus
a
surviving spouse
may be put to an election even though there has been no massing, or,
for the matter, joint and mutual will."
[26] In
the present case the decision or choice to accept or repudiate is of
crucial importance. The appellants'
contention is that, in the event
that the second respondent adiates, she is not entitled to make a new
will in which she purports
to dispose of any of the assets forming
part of the separate estates of the deceased and herself prior to his
passing.
Alternatively,
in the event that the second
respondent repudiates, she will not be a beneficiary of the estate of
the deceased and will be able
to make a will in respect of only the
assets that form part of her own separate estate.
[27] In my
view for the reasons as more fully dealt with later in the judgment,
I agree with the argument
on behalf of the appellants that the second
respondent, as joint testator and surviving spouse, was put to an
election (in relation
to the bequest in clause 3 of the will) to
either adiate and thereby accepting the benefit under the will of the
deceased with
the strings attached (in relation to the clause 4) or
to repudiate same.
[28]
The second relevant principle relates to
the current approach to the interpretation of documents as elucidated
in
KPMG v Securefin Ltd
[8]
,
Natal Joint Municipal Pension Fund v Edumeni Municipality
[9]
and
Bothma-Batho
Transport
supra
which
resulted in a change to the conventional approach to the
interpretation of wills. The conventional approach rested on the
so-called
"golden rule"
and
"plain meaning rules"
and
the rule that the court will have regard to the surrounding
circumstances when the will is ambiguous or uncertain.
[10]
[29]
The
current approach indicates that 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 in the light
of the document as a whole and the circumstances
attended upon its
coming into existence. Further, consideration must be given to the
language used in light of the ordinary rules
of grammar and syntax;
the context in which the provision appears, the apparent purpose to
which it is directed and the material
known to those responsible for
its production. Where more than one meaning is possible, each
possibility must be weighed in light
of all these factors and the
process is objective not subjective. The inevitable point of
departure is thus the language of the
provision itself read in
context and having regard to the purpose of the provision and the
background to the preparation and production
of the document.
Interpretation is therefore no longer a process that occurs in stages
but is
"essentially one unitary
exercise".
[11]
[30]
Lastly, as the document to be
interpreted is a will, the well-known benevolent approach in
interpreting wills is also applicable.
This entails that the court
will do its best to ascertain the testator's true intention however
poorly expressed and will not invalidate
a dispossession on the
grounds of uncertainty, unless confusion leaves no other choice.
[12]
[31]
Applying the aforementioned principles
to the facts before us, I firstly deal with the reference in clause 3
and in particular the
words
"our
entire estate"
and
"without
reserve".
We were not referred
to any reported judgment in which the phrase
"
without reserve"
has been
interpreted in the context of a will. Therefore the meaning of the
phrase has to be determined having regard to the context
provided by
reading the particular provision in light of the mutual will as a
whole and the circumstances attended upon its coming
into existence.
The phrase cannot be considered in isolation. In my view, the context
of clause 4 cannot simply be ignored when
the meaning of clause 3 is
considered.
[32]
Despite the provisions of the testators'
ANC and the fact that they were married out of community of property,
they elected to execute
a mutual will. The second respondent
exercised her freedom of testation as did the deceased when they
executed the mutual will,
wherein they specifically provided for two
phases.
[33]
On applying the principles of
interpretation to the present case it is clear that the deceased and
the second respondent envisaged
two phases when they executed the
will. The first as provided for in clause 3, is in the event of one
spouse surviving. The second,
as provided for in clause 4, is when
the surviving spouse passes away. Reading the mutual will as a whole
and the context in which
the provisions appear, in my view there is a
logical and practical symbiotic flow between clause 3 and 4 and
consequently they
are of equal importance.
[34]
The respondents contend that the words
"without reserve"
indicate
an intention that the surviving spouse would be entitled to do with
the entire estate as he/she pleases. If this was the
case, then the
inclusion of clause 4 and the second phase envisaged by the parties
with such particularity as to specified assets
going to specific
beneficiaries, makes no logical sense given the context in which
clause 4 appears, the apparent purpose to which
it is directed and
the material known to those responsible for its production. It was
the second marriage for both the deceased
and the second respondent.
They both had children from their previous marriages. The
beneficiaries that would receive a bequest
in terms of clause 4,
refer to the parties' respective children or family in relation to
assets that belonged to the respective
spouses.
[35]
I agree with the argument on behalf of
the appellants that the respondents' approach boils down to the words
"without reserve"
being
interpreted to entitle the surviving spouse to deal with the estate
as he/she pleases and that as clause 3 is the dominant
clause and
clause 4 contradicts clause 3, clause 4 is thus to be ignored. This
approach is not in accordance with the authorities
that indicate that
where two dispositions seems to conflict, an attempt should be made
to reconcile them.
[13]
[36]
The content of clause 4 is very specific
pertaining to particular assets being bequeathed to specific
beneficiaries. When the ordinary
rules of grammar and meaning of the
word
" reserved"
is
considered it is evident that it has a host of possible meanings,
including
"something kept back
or stored for future use".
[14]
The dictionary of legal words and phrases describes
"
reserve"
as
"that
which is held back from present disposal".
[15]
The Oxford Dictionary includes the
meaning of the word
"reserve"
to mean,
inter
alia,
"a
thing
or place
set
apart
for
a
specific
purpose".
[16]
[37]
I agree with the submission on behalf of
the appellants that properly interpreted, the words
"without
reserve"
mean, within this
context,
"without anything held
back".
[38]
Although clause 3 further refers to
"our
entire estate",
which may
render the phrase
" without
reserve",
tautologous or
superfluous if interpreted to mean
"without
anything held back",
the
authorities indicate that the courts recognise that tautology is not
unknown in written documents and that the importance of
the
presumption against tautology should not be over emphasised.
[17]
[39]
It is not uncommon that testators' use
superfluous words and the present case is no exception. For example
in clause 4 the testators
used superfluous words such as
"give
and bequeath"
in clause 4.
[40]
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.
[18]
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.
[19]
[41]
In
Receiver
of Revenue v Hancke
[20]
as referred to in Corbett
supra
[21]
,
Innes CJ remarked as follows:
"The two elements then
which must concur in order to deprive the survivor of the right to
revoke the mutual will are
a
disposition
of the survivor's property or
a
specific
portion after the survivor's death, and an acceptance by the survivor
of some benefit under the will. Upon electing to
take the benefit he
automatically assents to the bequest.
On
the other hand if he elects to reject the benefit, he reverts to his
legal position before the testator1s death, the mutual arrangement
falls away, and the will of the first dying operates only upon his
share of the property."
(own
emphasis added)
[42]
In my view in the present case the
mutual will executed by the deceased and the second respondent,
provides a good example of massing.
Clause 3 and 4 are comparable to
an example of massing as referred to by Corbett
supra
where parties are married out of
community of property:
"Where the joint and
mutual will
of
the spouse is
disposed not only of the estate of the first dying spouse but also of
the estate of the surviving spouse after the
survivor's death, the
survivor cannot take the benefits left in the will of the first dying
and refuse to deal with his or her
own estate in the manner laid down
in the will.
....................................................................................................
......................................................................
In a typical case of massing,
the surviving spouse surrenders his or her right
...,
where the
spouses are married out of community, to his or her
separate
estate. to the children of the spouses in return for
a
usufuctory
fiduciary, or other limited interest in the estates of both
spouses.
[22]
(own
emphasis added)
[43]
Clause
4 provides, that the deceased and the second defendant intended to
depose of each other's assets at the death of the survivor.
If the
parties were not making disposition of each other's assets, why then
did they use the word
" we"
in clause 4:
" On the death of the
surviving party, we hereby give and bequeath
...
"
[44]
Where
there has been a massing for joint disposition, the surviving spouse
is put to an election. The surviving spouse may adiate
by accepting
the benefits under the will and in doing so will lose the freedom to
vary or revoke his/her own portion of the joint
will insofar as it
relates to the massed estates or to dispose of his/her share in the
massed estates in any manner at variance
with the term or he/she may
repudiate. In the event of the surviving spouse repudiating he/she
retains his/her separate estate
and may then freely dispose of it by
will or otherwise, but forfeits his/her claim to any of the benefits
left to him or her in
the will of the first dying spouse
[23]
.
[45]
I,
disagree with the finding of the trial court that the joint will with
reference to clauses 3 and 4 creates some confusion and
amounts to an
ambiguity and that it is not clear whether the bequests are derived
from the estate of the testator or the testatrix
or from the
consolidation of the two estates.
[46]
The
trial court was informed at the hearing that it was common cause
between the parties that the Kruinsig dwelling, referred to
in clause
4.1.1, was the property of the testator. From the record it is
evident that Mr Klepper, during argument, referred to
the Deed of
Transfer of the Kruinsig dwelling. The trial bundle included a copy
of a Deed of Transfer and a preliminary inventory
of the deceased's
estate. The Deed of Transfer indicated the deceased as the registered
owner of the immovable property
("
the Kruinsig dwelling'')
referred to
in clause 4.1.1 of the mutual will.
[47]
The
preliminary inventory signed by the first respondent, in his capacity
as the nominated executor of the deceased's estate on
11 November
2013, indicated the deceased's assets as,
inter
alia,
the Kruinsig dwelling, money
held at FNB Heidelberg and two Rado watches (a lady's and gent's).
These assets are respectively referred
to in clauses 4.1.1, 4.1.2,
4.2.1, 4.3.2 and 4.3.3 and 5.6 of the mutual will. The jewellery
referred to in clause 4.3.1 clearly
belongs to the second respondent
and which is then bequeathed to the second respondent's daughter
(third respondent) and the children
of the second appellant. In my
view it is clear that there was a disposition in the joint will of
not only the second respondent's
property but also of the deceased's
property and that it is a classic situation of massing that occurred.
[48]
In
my view therefore there is no ambiguity and uncertainty and therefore
the presumption against massing is not applicable.
CONCLUSION:
[49]
Regarding the issue of costs, the
appellants seek an order that the costs should be paid by the second,
third and fourth respondents,
joint and severally, as it relates to
the costs in the court a
quo
and
in the appeal. It is further contended that it would not be
appropriate to burden the estate with the costs of this litigation.
[50]
From the reading of the pleadings, it is
evident that the first to fourth respondents raised numerous
spurious, if not frivolous,
defences and placed facts in dispute only
to abandon these defences and denials very close to the trial date.
In my view, the defences
and denials raised by the respondents, such
as that the appellants lacked
locus
standi,
that the claim was premature
and their interpretation of the will is opportunistic, that the
attached copy of the mutual will was
not accepted by fifth
respondent, and that terms and clauses of the will was quoted
incorrectly, was ill-considered and ill-advised.
[51]
I agree with the contention that the
estate should not be burdened with costs in the event of the appeal
being upheld. Fortunately
for the first respondent, the appellants
are not persisting with a costs order
de
bonis propriis
against him. In my
view, as executor the first respondent should have remained impartial
and neutral. He should not have become
embroiled in the personal tone
that the litigation took if regard is had to the correspondence
addressed by the respondents' attorney.
It is unfortunate that he did
not obtain his own independent advice and representation separate
from that of the second to fourth
respondents when it became apparent
that the beneficiaries mentioned in the will had different
interpretations of the will. If
he had done so, it might have
curtailed some of the disputes in particular relating to the raising
of frivolous defences and denials
which only fuels unnecessary
litigation and costs.
[52]
The following order is made:
1.
The
appeal is upheld.
2.
The
order granted by Hughes J on 17 August 2016, dismissing the
appellants/plaintfifs' action with costs, is hereby set aside.
3.
It
is declared:
3.1
that
the second defendant is duty bound to exercise her election whether
to adiate or repudiate the benefits in terms of Annexure
"POC1"
to the particulars of claim;
3.2
that
the first and second plaintiffs and the minor children referred to in
paragraph 2.2 of the particulars of claim, are beneficiaries
in terms
of Annexure "POC1" to the particulars of claim;
3.3
that
in the event of the second defendant adiating the benefits in terms
of Annexure "POC1" to the particular of claim,
she is not
entitled to make a new will in which she purports to dispose of any
of the assets forming part of the separate estates
of the deceased
and herself immediately prior to the demise of the deceased, Cornelis
Outhoff;
3.4
in
the event that the second defendant repudiates the benefits in terms
of Annexure "POC1" to the particulars of claim,
the second
defendant will not be a beneficiary of the estate of the deceased and
will be able to make a will in respect only of
the assets forming
part of her own estate.
4.
The
second, third and fourth defendants are ordered, jointly and
severally, to pay the costs of the action including the costs of
the
appeal.
L
C HAUPT (AJ)
Acting
Judge of the High Court
I
agree and it is so ordered.
R
G TOLMAY
Judge
of the High Court
I
agree and it is so ordered.
D
NAIR
Acting
Judge of the High Court
I
agree and it is so ordered.
HEARD
ON:
7 November 2018
DATE
OF JUDGMENT:
28
February 2019
APPELLANTS'
COUNSEL:
J P Vorster SC
RESPONDENT'S
COUNSEL:
J A
Klopper
APPELLANTS'
ATTORNEY:
Jacobson & Levy Inc.
FIRST
TO FOURTH
RESPONDENTS'
ATTORNEYS:
JJ Badenhorst Attorneys c/o Louis
Ben
Attorneys
[1]
The accrual system only became into operation 10 years after the
party's marriage on 1 November 1984, with the enactment of
Matrimonial Property Act, 88
of 1984
[2]
2014 (2) SA 294
(SCA) at paragraphs 10 - 1 2 in relation to the
requirements to interpret documents
[3]
2012 (4) All SA 278
(SCA} at paragraph 21 in relation to the correct
approach to the interpretations of a joint/mutual will as laid down
in
Rhode v Stubbs
2005 (S} SA 104 (SCA} at paragraphs 16 - 18
[4]
Corbett, Hofmeyer and Kahn
The Law of Succession in South
Africa
(2
nd
edition) (Juta) at 236 - 237
[5]
See: Corbett
supra
at 17
[6]
At 437 and footnote 8
[7]
At 444
[8]
2009
(4)
SA 399 (SCA) at paragraph 39
[9]
2012 (4) SA 593
(SCA) at paragraph 18
[10]
Corbett
supra
.it 451 - 461
[11]
Bothma-Batho Transport
supra
at paragraph 10 and 12
[12]
Corbett
supra
at 448:
"The problems encountered in
the interpretation of a will do not basically differ from those
encountered in the interpretation
of other documents. Many of the
canons of construction that are applied when a statute or contract
has to be Interpreted are
also applied in the interpretation of a
will
...
But there are important differences between wills,
on the one hand, and statutes and contracts, on the other, which
must needs
effect the process of interpretation
...
This
explains why since time in memorial judges have adopted a benevolent
approach in interpreting wills. They will do their best
to ascertain
the testators true intention, however poorly expressed, and will not
invalidate a dispossession on grounds of uncertainty
unless
perplexity leaves them no other choice. It also explains why, in the
interpretation of a will, the courts will try harder
to unravel the
testator's subjective intention from its objective manifestation
than in the interpretation of a contract. As
Van Den Hever JA put it
in Crookes NO v Watson:
'In
interpreting and putting into effect the provisions of a will the
testator's wishes are of paramount importance ... Whereas
a
contracting party is sternly held to his intention as expressed."'
[13]
See: Corbett
supra
at 462 and the authorities cited in
footnote 112
[14]
The new shorter Oxford English Dictionary
[15]
2
nd
Edit ion , p R- 69 and W-34
[16]
6
th
Edition, Volume 2
[17]
Christie,
The Law of Contract in South Africa
(6
th
edition ), p 229; Se e also
Rhode v Stubbs
2005 (5) SA 104
(SCA) at paragraph 16
[18]
Joubert v Ruddock
1968 (1) SA 95
(El at 98 E-G;
Rhode v
Stubbs
supra
at paragraph 16 to 17
[19]
Rhode v Stubbs
supra
at paragraph 18
[20]
1915 (AD) 64 at 72
[21]
At 440. See also 439 and 440 relating to the effects of massing.
[22]
See also: The further examples listed in footnote 9 on 437
[23]
Receiver of Revenue v Haneke
191S (AD) 64
supra;
Corbett
supra
at 440