About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2019
>>
[2019] ZAFSHC 129
|
|
Kameel v Master of the High Court Bloemfontein and Another (A230/2018) [2019] ZAFSHC 129 (1 August 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Appeal
Number: A230/2018
In
the matter between:
MAMOKETSE
ALINA
KAMEEL
Appellant
(in
her capacity as executor of the Estate Late SS Monyane)
and
MASTER
OF THE HIGH COURT BLOEMFONTEIN
1st
Respondent
MALEFANE
MONYANE
2nd
Respondent
CORAM:
MUSI, JP
et
MOLITSOANE,
J
et
MOROBANE, AJ
JUDGMENT:
MOROBANE, AJ
HEARD
ON:
27 MAY 2019
DELIVERED
ON:
1 AUGUST 2019
[1]
This is an appeal, with the leave of the court a
quo,
against a
judgment of a single judge of this division arising from an
application in terms of section 2(3) of the Wills Act 7 of
1953 ("the
Act"). The first respondent ("Master") was served with
the court papers and he abides the decision
of the court. The appeal
is opposed by the second respondent.
[2]
During her lifetime, SS Monyane ("the
deceased") deposed to two affidavits on 23 January and 24
January 2015 respectively.
In each affidavit a police officer acted
as a commissioner of oaths and the deceased signed by way of a mark,
her thumb print,
in the presence of some family members. Four months
later on 13 May 2015, the deceased executed another document that
purports
to be her last will ("the purported will"). The
purported will was executed at attorneys' offices. She had also
signed
the purported will by way of a thumb print. After her death on
16 March 2016, the appellant was appointed as the Master's
representative
in terms of
section 18(3)
of the
Administration of
Estates Act 66 of 1965
. The Master confirmed in his report that the
appellant was incorrectly cited as the executor of the estate in the
application.
The appellant's appointment was after the Master had
rejected the affidavits and the purported will for the reasons as
fully set
out below.
[3]
The appellant, who is the daughter of the
deceased, submitted the purported will to the Master for purposes of
the
Administration of Estates Act 66 of 1965
. In the purported will
the deceased revoked all previous Wills and left her entire estate to
the appellant on condition that the
house remained a family home. On
the face of it, the purported will complied with all formal
requirements of executing a will.
However, it was rejected by the
Master for non-compliance with
s 2(1)(a)(v)
, which provides:
'if the will is signed by
the testator by the making of a mark or by some other person in the
presence and by the direction of the
testator, a commissioner of
oaths certifies that he has satisfied himself as to the identity of
the testator, and each page of
the will, excluding the page on which
his certificate appears, is also signed, anywhere on the page by the
commissioner of oaths
who so certifies.'
[4]
The purported will was rejected because the
commissioner of oaths failed to certify that she had satisfied
herself as to the identity
of the testator.
[5]
Later. the second respondent submitted to the
Master the two affidavits of the deceased for purposes of the
Administration of Estates Act. In
terms of the affidavits, the
deceased 'handed over' to her grandson the stand and the house
situated at 30 Boitumelo street, Malebogo,
Hertzogville. These
affidavits were also rejected by the Master for the same reason as
that of the purported will. This was the
only reason given by the
Master for rejecting the affidavits. As a result, the second
respondent applied to the Court to declare
the two affidavits as the
last will of the deceased.
[6]
The deceased was the owner of the stand with a
house built on it. This house was demolished by the second respondent
who is her
grandson. He then built a bigger and modern house for the
deceased on the same stand. This house forms part of the assets in
the
estate of the deceased.
[7]
The appellant contends that the court a
quo
misdirected itself in its findings declaring
the affidavits of the deceased as her last will
and
testament, although the documents did not comply with all formalities
for the execution of wills. She alleged that the court
a
quo
erred in its findings. In her notice of
appeal, she relied on the grounds of appeal which are summarised as
follows:
(a)
The learned judge erred in finding that the
second respondent complied with the requirements as set out by
section 2(3) of the Act;
(b)
That she erred in finding that the deceased
intended to leave a final will when she deposed to the affidavits;
and
(c)
That she erred in finding that the deceased had
no intention to leave her estate to the appellant despite her having
executed the
purported will on 13 May 2015.
[8]
The provisions of section 2(3) of the Act reads:
'If a court is satisfied
that a document or an amendment of a document drafted or executed by
a person who has died since the drafting
or execution thereof, was
intended to be his will or an amendment of his will, the court shall
order the Master to accept that
document, or that document as
amended, for the purposes of the Administration of Estates Act, 1965
(Act No. 66 of 1965) as a will,
although it does not comply with all
the formalities for the execution or amendment of wills ...'
[9]
The party
seeking an order in terms of section 2(3) of the Act bears the onus
to satisfy the Court that the testator intended the
document to be
his will. In
Van
Wetten v Bosch
[1]
Lewis
AJ laid down the test that the real issue is not what the document
means, but whether the deceased had intended it to be his
will at
all. In that enquiry the court must examine the document itself and
also the document in the context of the surrounding
circumstances. It
is trite that documents purporting to be a will cannot be rejected
simply because of their form and the words
used to express the
intention of the deceased. A court is empowered to rescue a document
as a will if it is satisfied that the
requirements as stipulated by
the Act have been met.
[10]
From the wording of this section, the court must be satisfied that
the following requirements are met:
(a)
There must be a document;
(b)
The document should have been drafted or executed
by a person who has since died;
(c)
The deceased should have intended the document to
be his/her will.
(d)
The document does not comply with all the
formalities for the execution of wills.
[11]
In
Horn
v Horn
[2]
the
court said that once the above requirements have been satisfied the
court had no discretion but to recognise the document as
a will.
Similarly, in
Logue
v The Master
[3]
the
court found that the provisions of section 2(3) are peremptory rather
than directory.
[12]
The purported will should be examined in the
light of the surrounding circumstances. Indeed, a document titled
'Laaste wil en Testament van Selloane Susana
Monyane'
was executed by the deceased on 13
May 2015. She signed it by way of a thumb print in the presence of
two witnesses. The commissioner
of oaths (an attorney) certified that
the right thumb print is that of the deceased. Lastly, the intention
of the deceased is found
in the introductory part of the purported
will which she declared to be her last will. In the context of the
surrounding circumstances,
the purported will is similar to a will in
its form and content. In fact, it complied with all the formalities
of a valid will,
but one.
[13]
The court a
quo
found,
at para 16, that 'although there was another purported will submitted
and rejected by the Master, no evidence has been led
to prove the
authenticity or validity of the will, or even the identity of the
testator.'
[14]
The Court a
quo
also
found, at para 31, that 'since the Master rejected the purported will
because of the lack of s 2(1)(a) certificate, it does
not qualify as
a will for purposes of the administration of the estate and therefore
would not revoke the January affidavits should
the Master in terms of
s
2(3) be ordered to
accept them as the Deceased's last will and testament.'
[15]
The court a
quo
misdirected itself by making a finding as
though the rejection of the affidavits was based on their form and
the words used by the
deceased. That was not the case as explained at
paragraph [5] above.
[16]
The court
a quo
overlooked
the fact that a testator has a right to revoke his will at any time.
This principle has two exceptions which are not
relevant to this
appeal. For instance, a revocation may be expressly done or may be
implied. In this case, the purported will consists
of a revocation
clause expressed as follows:
'2.
Herroeping van
vorige Testamente
Ek herreop hiermee alle
vorige Testamente en/of Kodisille en verklaar hierdier my laaste wil
en Testament te wees.'
[17]
The court a
quo
considered
the intention of the deceased at the time she deposed to and signed
the affidavits. It ordered the Master to accept the
affidavits as the
last will of the deceased. The intention of the deceased may be
contained in her affidavit. However, the court
a
quo
overlooked the very intention of the deceased
which was expressed in the purported will. That is, the purported
will is a subsequent
document executed approximately four months
after the affidavits were signed. It also contains a revocation
clause in which all
previous wills were revoked.
[18]
Section 2A of the Act provides that:
'If a court is satisfied
that a testator has-
(a)
Made a written indication on his will or before
his death caused such indication to be made;
(b)
Perform any other act with regards to his will or
before his death caused such act to be performed which is apparent
from the face
of the will; or
(c)
Drafted another document or before his death
caused such document to be drafted, by which he intended to revoke
his will or a part
of his will, the court shall declare the will or
the part concerned, as the case may be, to be revoked.
[19]
According
to
Horn
v Horn,
[4]
a
later document which was not even a will could revoke an earlier
will. In terms of s 2A of the Act, the court is also empowered
to
declare the will or the part concerned to be revoked if it is
satisfied that the testator drafted another document by which
he
intended to revoke his will.
[20]
Both the
affidavits and the purported will do not comply with the formalities
of executing a will. In considering the said documents,
the question
that arises is whether or not the subsequent document can validly
revoke an earlier document. The answer is in the
affirmative as
alluded to earlier. The yardstick to be applied is whether the
subsequent document was intended to revoke an earlier
will or not.
According to
Van
Wetten v Bosch,
[5]
the intention of the testator must exist at the time the document was
drafted or executed.
[21]
In the light of the aforegoing, the court a
quo
misdirected itself when it condoned
non-compliant affidavits to be the will of the deceased in light of
the revocation clause in
the subsequent document. Under the
circumstances, I see no reason why the appeal should not succeed.
There was no court application
to declare the purported will the last
will and testament of the deceased. Nothing prevents the appellant
from bringing such application.
[22]
I would make the following order:
1.
The appeal is upheld with no order as to costs.
2.
The judgment of the Court
a
quo
is set aside and replaced with the
following:
(i)
The application is dismissed with no order as to
costs.
___________________
V.M.
MOROBANE, AJ
I
concur, and it is so ordered.
__________________
C.J.
MUSI JP
I
concur.
__________________
P.E. MOLITSOANE, J
On
behalf of the appellant: Ms IL de Wet
Instructed
by:
Legal
Aid South Africa
BLOEMFONTEIN
On
behalf of the second respondent: Adv PS Mphuloane
Instructed
by:
Mphafi
Kgang Inc
BLOEMFONTEIN
[1]
Van Wetten & Another v Bosch & Others
2004 (1) SA 348
(SCA)
at 354H - I
[2]
Horn v Horn
1995 (1) SA 48
(WLD) at 49H-J
[3]
Logue v The Master 199
5 (1) SA 199
(NPD) at 203G
[4]
At 50C-E
[5]
At 354H-I