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[2017] ZALMPPHC 37
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Friedman NO v Master of the High Court Polokwane and Others (2464/2017) [2017] ZALMPPHC 37 (14 November 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CASE
NO: 2464/2017
Not
reportable
Not
of interest to other judges
Revised.
14/11/2017
In
the matter between:
ANDRE
DERECK FRIEMAND
N.O
APPLICANT
IN
RE: ESTATE LATE
ADRINA
JACOBA VAN NIEKERK
And
THE
MASTER OF THE HIGH COURT POLOKWANE
1
ST
RESPONDENT
MARY
ELIZABETH JANSE VAN RENSBURG
2
ND
RESPONDENT
MARTHA
SUSANNA
STEYN
3
RD
RESPONDENT
CHRISTOFFEL
JONANNES JACOBS
4
TH
RESPONDENT
JANETTE
SOPHIA
POLLOCK
5
TH
RESPONDENT
MARIETTE
VAN
NIEKERK
6
TH
RESPONDENT
ELMARIE
VAN
RENSBURG
7
TH
RESPONDENT
ERNA
EMSLEY
8
TH
RESPONDENT
HANNES
VAN DER
WESTHUIZEN
9
TH
RESPONDENT
JUDGMENT
M.G
PHATUDI J
[1]
This is an application in terms of which the Applicant is desirous
for an order that the decision by the Master of the High
Court,
Polokwane, (“the Master”), the first Respondent herein,
to the effect that a Codicil dated 04 February 2015
to the deceased`s
Last Will and Testament, (“the Will”) and as executed on
17 February 2015, was in fact revoked by
a latest Will of the
testator dated 17 February 2015, be set aside.
[2]
The Applicant also seeks relief that the First Respondent is directed
to accept the codicil dated 04 February 2015 together
with the
deceased’s Will dated 17 February 2015, as the last Will of the
deceased for purposes of the Administration of Estates
Act
[1]
)
(“the Act 1965”) and ancillary costs relief. The
application is opposed.
A.
BACKROUND INFORMATION
:
[3] The deceased, Andrina Jacoba Van
Niekerk (“the deceased”) died on 19 August 2015 leaving a
Will in which she nominated
the Applicant as executor of her estate.
Prior to her death, the deceased on 17 February 2015, allegedly
signed a codicil dated
04 February 2015.
In
terms, of the Will, the Second to the Ninth respondents are all heirs
of a portion of the residue available in terms of the Will.
(Annexure
“ADF”).
[4]
According to the Applicant, the codicil dated 04 February 2015 was
signed by the deceased on 17 February 2015 (Annexure ADF2).
[5]
The Applicant, the nominated executor, attended to submit the Will to
the First Respondent (“the Master”) who appointed
him as
an executor under reference No.: 008165/2015. A copy of Letters of
Executorship dated 02 December 2015 was issued in Applicant’s
favour. It appears that this was the only Will which was lodged with,
accepted and registered by the Master. No other prior Will
was ever
mentioned.
[6]
Pursuant to Applicant’s appointment as executor, the First
Respondent subsequently requested that a codicil dated 04 February
2017, which according to the Applicant was allegedly signed with the
Will dated 17 February 2015, be submitted. This was apparently
because the assets contained in the codicil were already distributed
amongst the heirs mentioned therein allegedly in accordance
with the
wishes of the testator. These were distributed despite the fact that
they were not then covered in the Liquidation and
Distribution
Account (“L & D”).
[2]
[7]
The First Respondent in its letter dated 28 March 2017 directed to
the Applicant, intimated that:-
“
The
Codicil dated 04 February 2015 and the Will dated 29 September 2014,
executed by the deceased were revoked by a latest Will
of the
deceased dated 17 February 2015. Therefore the Will of the deceased
dated 17 February 2015 is the only Will that shall be
used by the
Executor to distribute the estate”.
[3]
[8]
It was against this adverse nature of the First Respondent’s
decision that triggered the present application.
[9]
It is the Applicant’s submission that it was the deceased’s
true wishes that the codicil had to be considered when
the estate is
administered in terms of her Will dated 17 February 2015.
[10]
Apart from the previosly and registered Will as indicated, the
Applicant somewhat introduced or makes reference to the “previous
will” of the testator. This “previous will” is
dated 29 September 2014. According to the Applicant he assisted
the deceased in drafting both her Wills on different dates. This
Will, I must mention, was undoubtedly not submitted to the First
Respondent, whatsoever for purposes of the winding –up of the
deceased estate. If one assumes for a moment that it was also
found
as one of the deceased’s Will, which in any event, was not
submitted to the Master when the deceased`s death was reported,
its
relevance becomes obscure considering that the deceased in her last
Will dated 17 February 2017 declared that:
“
1. Ek
herroep hiermee alle vorige testament, kodisille en of ander
testamentere aktes deur my voor die datum hiervan gemaak.”
[11]
What therefore stands to reason is
that the “previous will” even though had a codicil
accompanying it, had been revoked
by the latest Will of the testator
dated 17 February 2015. Consequently, all dispositions previously
made therein falls away by
virtue of this revocation. It serves no
useful purpose therefore to have any further regard to this document.
B.
THE ISSUE FOR DETERMINATION
:
[12]
I am called upon to determine whether the First Respondent (“the
Master”) was correct in deciding that the codicil
to the
deceased’s Will, was revoked by her Last Will and Testament.
[13] It seems not an issue whether the
deceased on 17 February 2015, consulted with the Applicant with a
view to “amend”
her Will so as to bequeath her household
contents and cash amounts to certain specific heirs and institutions.
It
appears that during consultation she handed to the Applicant a
document captioned “Kodisil”: Testament – Mev
A.J
Van Niekerk “dated 04 February 2015. This codicil lies at the
heart of the present dispute. I mention in passing, that
the rest of
the allegations made by the Applicant during the parties’
consultation in its founding affidavit do not enhance
the crisp issue
for adjudication in this instance.
[14] The Applicant having submitted to
the First Respondent all relevant documentation commencing the
administration of the deceased’s
estate, one Mr P.G Steyn of
the law firm P.G Steyn Attorneys issued a letter to the Applicant
dated 10 November 2013, amounting
to an objection within the purview
of Section 35 (7) of the Estates Act which provides:
Section 35 (7)
“
Any
person interested in the estate may at any time before the expiry of
the period allowed for inspection lodge with the Master
in duplicate
any objection, with the reasons therefore, to any such account and
the Master shall deliver or transmit by registered
post to the
executor a copy of any such objection together with copies of any
documents which such person may have submitted to
the Master in
support thereof.”
[15]
Prior to Mr Steyn’s objection, the L& D Account was already
received by the clerk of court, Modimolle Magistrate
court on 09
September 2016,and had lain for inspection 21 days from 19 August
2016 to 09 September 2016.
[16]
I must point out, without much ado, that the letter dated 28 March
2017 addressed to the Applicant (Annexure “
ADF
14
“
)
had thrown a dim light on how
Applicant conducted himself in handling the deceased’s estate
and its winding-up process. I
shall however refrain from expressing
any opinion on this aspect in as much as I have not been called upon
to decide on the matter.
[17]
It is crystal clear that the deceased on 17 February 2015 in the
presence of two witnesses during attestation of her Will,
revoked
“alle vorige testamente, Kodisille en of ander testamentere
aktes” made under her hand prior to that day and
date.
[18] Because of this revocation as
expressed in the testator’s Last Will and Testament dated 17
February 2015, all prior written
instruments, codicils and
testamentary dispositions made beforehand by the testator,
naturally fall away and are of no legal
consequence or effect.
In
any event, the Applicant proffers no cogent explanation as to the
reasons why he did not advise the deceased to correct the codicil
of
04 February 2015 to coincide with the “amendment” of her
last Will dated 17 February 2015. Nothing could have
restrained
the deceased or the Applicant from correcting or amending the
clerical error on the codicil either.
[19]
In addition, the confirmatory affidavit deposed to by one Walize van
Niekerk, an employee attached to the Applicant’s
practice,
again does not offer any explanation why the date of 04 February 2015
was left uncorrected. The same could be said of
the confirmatory
affidavit of a certain Chantelle Kruger which is similar to that of
Nalize van Niekerk. I take both their depositions
with a pinch of
salt, to say the least.
[20]
Turning to the cardinal issue raised, I find myself in agreement with
the decision arrived at by the First Respondent when
it took a
decision and correctly so, in my view that the codicil dated 04
February 2015 and the Will previously executed by the
testator dated
29 September 2014 were “revoked by a latest Will of the
deceased dated 17 February 2015”.
[21]
I am unable to find fault against the directive issued to the
executor, in
casu,
the Applicant (if he remains still as such) to accept that the last
Will to be relied on to proceed with the administration of
the
deceased’s estate is the Will executed on 17 February 2015
which in essence had no codicil when the deceased’s
death was
first reported to the Master. This somewhat controversial document
was first submitted on 27 February 2017 only after
it was requested
by the Master. Furthermore, this codicil again differs in dates from
the one dispatched to Mr Steyn. On Applicant’s
own version, the
deceased authored the contested codicil, however, Mr Kruger’s
confirmatory affidavit projects a contrary
view.
[22]
Apart from the sceptical date of the initially unsubmitted codicil,
the manner in which the Applicant purported to wind up
the deceased’s
estate leaves much to be desired. Some of further criticism is that,
even though one could for a while accept
that the much contested
document was the deceased’s valid codicil, the assets mentioned
therein were not included by the
Applicant in the L& D Account.
These assets were allegedly distributed or allocated at the
deceased’s funeral by two
of her family friends, namely Drs. de
Villiers and Farrel, even before Applicant’s appointment as an
Executor.
[23] The conduct of the Applicant and
third parties was repugnant to Section 26 (1) of the Estate’s
Act which provides :
SECTION
26(1):
“
Immediately
after letters of executorship have been granted to him an executor
shall take into his custody or under his control
all property, books,
and documents in the estate and not in possession of any person who
claims to be entitled to retain it under
any contract, right of
retention or attachment”
[24]
The executor duly appointed by the Master is accordingly the only
functionary entrusted under Section 26 (1) to collate assets,
payment
of debtors and distribution of the residue thereof to qualified heirs
as beneficiaries. The role played by DRs de Viviers
and Farrel in the
allocation of assets technically forming part of the estate was not
only irregular, but also unlawful. The said
assets could only be
distributed after 21 days had expired after advertisement period
referred to in Section 29, being a notice
by executors to lodge
claims.
[25] On a semblance of the preceding
considerations, I am of the view that the decision taken by the First
Respondent that the Will
of the testator dated 17 February 2015 is
the only Will left by the deceased, and that it shall be used to
guide the executor in
winding – up the deceased’s estate
was correctly and lawfully taken. The decision cannot in any way be
faulted so as
to lean in favour of the Application. The application
falls to be dismissed with costs.
C.
COSTS
[26] A word on costs. I find no
reason, even with the bestowed discretion, to deviate from trite
practice that the costs follow
the cause. In this instance, the
Applicant should have foreseen that the objections made to his office
and that of the Master,
sounded cautionary bells. A violation by
third parties in distributing certain specified assets within the
deceased’s estate,
was a flagrant violation by third parties of
established law. The distribution as it were of certain specified
assets within the
deceased’s estate, was a flagrant violation
of the spirit of Section 26 of the Act.
The
master correctly directed the Applicant in terms of Section 35 (9) to
heed its directives, and took a dim view of the conduct
of the
Applicant in the matter. As indicated elsewhere in this judgment
(Para. 22 and 23) the Applicant’s conduct in which
he handled
the estate was dishourable.
I
find no logical reason to burden the deceased’s estate with
costs. It is, in my view, in fact the Applicant who should and
must
be burdened with costs of application.
In
the result, I make the following order:-
(a). The application is dismissed.
(b). The Applicant is personally
ordered to pay the costs including the costs occasioned by the
employment of counsel.
________________________
M.G
PHATUDI
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION
REPRESENTATIONS
1.
For Applicant : Adv. H.M.B
Instructed by : Abel Mulder &
Son, Attorneys
Modimolle
2.
For 2
nd
,
3
rd
,
4
th
and 5
th
Respondents : PG Steyn Attorneys
New Castle, KZN
c/o Pratt, Luyt And De Lange
3.
Date heard : 20 SEPTEMBER 2017
4.
Date delivered : 14 NOVEMBER 2017
[1]
Act 66 of 1965, as amended
Paginated
Index, Bundle 1 pp 30-34
[3]
Annexure “ADF14” Index bundle 1 p64 -65,