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[2017] ZAKZDHC 20
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Pillay v Master of High Court, Durban and Another (5663/2016) [2017] ZAKZDHC 20 (26 April 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NA\TAL
DIVISION, DURBAN
CASE
NO: 5663/2016
In
the matter between:
LOGANATHAN
PILLAY
APPLICANT
and
THE
MASTER OF HIGH COURT, DURBAN
1ST
RESPONDENT
PERUMAL
PILLAY
2ND RESPONDENT
JUDGMENT
CHETTY
J
[1] The
applicant, the son of the late Sheila Pillay, brought an application
against his brother, the second respondent and the
Master of the High
Court, Durban for the following relief:
a.
that the document headed “Last Will and Testament of Sheila
Pillay” dated at Durban on 8th of September
2006, and attached
to the applicant’s founding affidavit as annexure “LP7”
is declared to be the Last Will of
the Late Sheila Pillay under the
estate number: 772/2010 DBN and whose identity number was [5...] and
who died on 22 January 2009.
b.
That the first respondent (Master of the High Court of South Africa,
Durban) is directed to accept the original
of the said an Annexure
‘LP7’ as described in paragraph 1 above as the Last Will
of the Late Sheila Pillay under estate
number 772/2010 DBN for the
purposes of the Administration of estates act, 66 of 1965.
c.
That the costs of the application on an attorney-client scale shall
be borne by the estate of the Late Sheila
Pillay under the estate
number 772/2010 DBN but in the event of this application being
unsuccessfully opposed by any one of the
respondents then the
respondent so opposing the application shall pay, jointly and
severally the one paying the other to be absolved,
the applicant’s
costs of this application on the scale as between attorney and
client.”
[2] The
application is opposed by the second respondent, whilst the Master
has filed a notice to abide by the decision of the Court.
[3] The
facts of the matter are largely common cause, and revolve around the
requirements of s 2(1)(a)(i) to (v) of the Wills Act
7 of 1953 (the
Act ). Section 2 of the Act provides for the following:
‘
2 Formalities required
in the execution of a will - (1) Subject to the provisions of section
3bis-
(a) no will executed
on or after the first day of January, 1954, shall be valid unless-
(i)
the will is signed at the end thereof by the testator or by some
other person
in his presence and by his direction; and
(ii)
such signature is made by the testator or by such other person or is
acknowledged
by the testator and, if made by such other person, also
by such other person, in the presence of two or more competent
witnesses
present at the same time; and
(iii)
such witnesses attest and sign the will in the presence of the
testator and of each other
and, if the will is signed by such other
person, in the presence also of such other person; and
(iv)
if the will consists of more than one page, each page other than the
page on which it ends,
is also signed by the testator or by such
other person anywhere on the page; and
(v)
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 that the will so
signed is the will 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:
Provided
that-
(aa) the will is
signed in the presence of the commissioner of oaths in terms of
subparagraphs (i), (iii) and (iv)
and the certificate concerned is
made as soon as possible after the will has been so signed; and
(bb) if the testator
dies after the will has been signed in terms of subparagraphs (i),
(iii) and (iv) but before
the commissioner of oaths has made the
certificate concerned, the commissioner of oaths shall as soon as
possible thereafter make
or complete his certificate, and sign each
page of the will, excluding the page on which his certificate
appears;
…’
(My
emphasis)
[4]
Sheila Pillay executed a document purporting to be a will on 8
September 2006. Her husband pre-deceased her in May 2001. She
died on
22 January 2009. The only asset in the deceased estate is the
immovable property being Section 11 in the Sectional
Title Scheme
known as Rainforest Gardens, situated at [...] R. P., Rainham,
Phoenix, Durban. The applicant currently resides at
the same
premises.
[5]
After the death of the deceased, a Mr Naidoo found a document
purporting to be her will and read it out on 25 January 2009 in
the
presence of the applicant, the second respondent and his wife.
The applicant contends that in terms of the document attached
marked
‘LP7’ to the founding affidavit; his mother bequeathed
her entire estate to him and nominated him as the executor
of the
estate. The disputed document in question contains the heading “Last
Will and Testament”, with the same wording
appearing on a cover
page to the document. The document contains the foreword that “Sheila
Pillay, presently residing at
[...] R. P., Rainham, Phoenix Durban
declares this to be my last Will and testament.”
[6]
According to the applicant the will was signed by his mother affixing
her right thumb print (RTP) above the word ‘testatrix’,
on each page of the document. Each page was witnessed by two
persons who were well known to her. As the testatrix was unable
to
sign her name, at the foot of each page and below the signatures of
two witnesses, provision was made for the signature of the
Commissioner of Oaths, P Jungbahadur, who signed each page of the
disputed document. It is not disputed that Jungbahadur
drew up
the document in accordance with the instructions of the testatrix.
[7] On
14 January 2010 the applicant reported the estate of the deceased to
the Master, and an estate number was duly allocated.
The applicant
had furnished the Master with the original of the disputed document.
[8] On
20 January 2010 the Master rejected the will of the deceased due to
non-compliance with s 2(1)(a)(v) of the Act. The founding
affidavit
does not contain a letter from the Master to this effect. The second
respondent does not dispute the initial reason tendered
for the
rejection of the will. It is not in dispute that the
certificate contemplated in terms of s 2(1)(a)(v) of the Act
was not
filed at the time of the lodging of the will.
[9] The
applicant submits that his late mother regarded ‘LP7’ as
being her last will and testament, and expressed no
intention of
revoking it. In so far as the rejection by the Master of the will,
the applicant submits that Jungbahadur omitted
to certify on the
original ‘LP7’ that he had satisfied himself as to the
identity of the testatrix and that she signed
the will in his
presence. This omission, it was submitted, constituted non-compliance
with s 2(1)(a)(v) of the Act.
[10]
Subsequent to the Master’s rejection, a certificate signed by
Jungbahadur was submitted to the Master on 8 May 2015.
The Master
rejected the certificate on 12 May 2015 citing the following reasons:
‘
The
certificate lodged by the Commissioner has been lodged on 8 May 2015,
section 2(1)(a)(v)(aa) and (bb) provides that the certificate
by the
Commissioner must be lodged a as soon as possible.’
[11]
The applicant accordingly approaches this Court to exercise its
discretion in terms of s 2(3) of the Act to declare the will
to be
valid. Prior to 1992 our Courts strictly interpreted the provisions
of the Act, and where the formalities had not been complied
with, the
Court had no discretion in the matter. See Ashe v Robertson &
Walker
1911 TPD 198
; In re Lloyd
(1895) 12 S.C. 117
at 118 and
Soobramoney and others v Moothoo & others
1957 (3) SA 707
(N).
In Ex parte Nel
1955 (2) SA 133
(C) the view was expressed that an
invalid will at a testator's death cannot be validated by adding
to it the prescribed certificate
after his death. This was
contrary to the view expressed in Arendse v The Master & others
1973 (3) SA 333
(C) where the court held that the certificate
required by s 2(1)(a)(v) of the Act can effectively be put upon a
will at any time
after the testator or anyone else has satisfied the
certifying official that the ostensible testator is indeed the
testator and
that the document involved is indeed the will of the
testator. It can be appended at any time after the will has been
'marked'
by the testator and signed by the witnesses.
[12] The
Act was amended in 1992 with the L
aw of Succession
Amendment Act 43 of 1992 which has altered the position by
introducing provisions that allow for a Court to recognise
as valid a
will that does not comply with all the formalities
by the
addition, inter alia, of sub-section 2(3) in terms of which the
formerly strict compliance with the formalities regarding
the
execution of wills were somewhat relaxed. The sub-section reads
as follows:
‘
(3)
If a court is satisfied that a document or the 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 66 of 1965), as a
will,
although it does not comply with all the formalities for the
execution or amendment of wills referred to in subsection (1).’
[13] In
light of the Master’s rejection of the will for non-compliance
with s 2(1)(a)(v) of the Act, the second respondent
contends that the
will is invalid as the Jungbahadur only filed his certificate years
later, and his opposition is fortified by
the rejection of the will
on two occasions by the Master. The second respondent dwells at
length on the issue of the valuation
of the property, and the
consequences of the will being set aside would entail that he would
then become entitled to a 50% share
in the value of the immovable
property. These matters are not relevant to the determination before
me, which is circumscribed to
a consideration of whether I am
satisfied that the document which was executed by Sheila Pillay was
intended by her to be her last
will and testament.
[14] It
is important to note that whilst the second respondent takes issue
with the validity of the will for compliance by reason
of the
certification provisions as contemplated in s 2(1)(a)(v), it is not
disputed by him that the will was properly witnessed
and signed by
Jungbahadur. According to him, when he approached Jungbahadur
regarding the will, the latter informed him that
the applicant failed
to collect the certificate and pay a R200 fee. As a result, the
certificate contemplated in section
2(1)(a)(v) had not been filed ‘in
time’. Mr Naidu, who appeared for the applicant offered
no excuses for the
delay. In his submission, the applicant simply
neglected to collect the certificate from the commissioner.
There is no hint
of impropriety in the conduct of the commissioner or
witnesses. Ms Mhlongo, who appeared for the second applicant,
persisted
however in her submission that the contents of the will do
not accord with the true intentions of the testatrix. The
foundation
for this argument lay in the allegation by the sister of
the testatrix, Mrs Rani Balraj, who informed the second respondent
that
his mother had been “forced into doing a will and
appointing him (the applicant) as a beneficiary of her estate”.
On this ground, it was submitted that the will cannot be declared as
valid, and to the extent that a dispute of fact emerges from
the
papers, it must be referred to oral evidence. Neither the heads
of argument nor the practice note filed by the second
respondent
avert to the potential for a dispute of fact.
Courts
must be cautious about deciding probabilities in the face of
conflicts of fact in affidavits. On the other hand, in
my view
this is a matter in which a “robust common-sense approach”
to the resolution of disputed facts can be adopted.
See
Soffiantini v Mould
1956 (4) SA 150
(E) at 154E-H. The averment by Mrs. Balraj,
relied on by the second respondent, does not say when she divulged
this information
to the second applicant, under what circumstances
and whether it was her view that the applicant wished for the second
respondent
to be excluded from benefitting at all. I am of the view
that to the extent that a dispute of fact exists, this can be
determined
on the affidavits. The alternative is that justice
would be defeated by adopting an over-fastidious approach to a
dispute
raised on affidavit. See
Essential
Judicial Reasoning
,
BR
Southwood
, 2015, p.26.
[15] Ms
Mhlongo further submitted that I should take into account the
circumstances of the matter to determine whether the will
reflected
the true intentions of the testatrix. The undisputed facts
before me are that the will came about as a result of
a request from
the deceased to the commissioner of oaths, who is a pastor, to draft
a will on her behalf. The will was drafted
on the instructions
of the deceased, and signed in the presence of two witnesses and the
commissioner of oaths on 8 September 2006.
The testatrix died
almost 25 months after the signing of her will. Mr Naidu
pointed out that if the testatrix had been forced
into signing a
will, she had ample opportunity to draw up a new will or even a
letter indicating the change of her intentions.
She did not do
so.
[16] The
high water mark of the second respondent’s case, on the papers
before me, is the delay in the filing of Jungbahadur’s
certificate. He takes no issue with the fact that the will was
properly witnessed and that the testatrix affixed her right
thumb
print in the presence of Jungbahadur. The issue for
determination is whether the delay in the submission of the
certificate
may be condoned by this Court. The starting point is
section 2(1)(a)(v) which provides that no will shall be valid
unless
a commissioner of oaths certifies that himself as to the
identity of the testator.
[17] In
Mlanda v Mhlaba & others
2016 (4) SA 311
(ECG) the court had to
determine the validity of a will where one of the grounds of
contestation was the lack of compliance with
the formalities in the
execution of a will which is signed by a testatrix by the making of a
mark. Pickering J (with Roberson
J concurring) referred to the
matter of In re Jennett NO
1976 (1) SA 580
(A) which held that
the primary object of the formalities prescribed by s 2(1)(a)(v) was
to secure evidence to establish the identity
of the testator and to
ensure that the document signed by the making of a mark is indeed the
will of the testator. The second
respondent takes no issue with
the wording of the certificate or the identity of the witnesses to
the will. There is no imputation
of fraud attributed to either
the witnesses or Jungbahadur. He does contend that the
applicant pressured his mother into
signing the will, in which she
left her entire estate to him. Galgut AJA at 583F-H stated as
follows in In re Jennett (supra):
'In
Ex parte Suknanan and Another,
1959 (2) SA 189
(N) at p 191,
BROOME, J.P., said:
“
The
reason for the certificate required by para. (v) is, because a
testator who signs by making the mark is probably illiterate,
to
ensure that he is the person who, by making the mark, he purports to
be, and that the document is his will.
In
the present case the testator was not an illiterate person.
However, that fact cannot affect the interpretation to be given
to the section.
In
Ex parte Sookoo: In re Estate Dularie,
1960 (4) SA 249
(D),
CANEY J., followed Soobramoney's case, sup cit. At p. 252 he is
reported as saying:
"The
object of the legislation must include the avoidance of fraud by
impersonation of testators and by misrepresentation
to them of the
nature of the documents put before them.”
I
am in respectful agreement with the above dicta by the learned
Judges. The object of the section is to ensure that the document,
signed by the making of a mark, is the will of the testator.'
[18]
Neither the Master nor the second respondent takes issue with the
contents of Jungbahadur’s certificate. It is
only the
time delay in the submission of his certificate that caused the
Master to reject the will as being invalid. Is there
anything
untoward that can be inferred from the delay? In my view, there
is not. The will was signed on 8 September
2006. The
certificate is dated on the same date. It was only filed with
the Master on 8 May 2015, five (5) years from
the date when the
original will was filed. The explanation for this delay is to
be found in a letter from attorneys Mervyn
Gounden and Associates,
dated 8 May 2015, addressed to the first respondent. The letter,
which was attached to the second respondent’s
answering
affidavit states the following:
‘
We
have been instructed to attend to the winding up of the aforesaid the
estate. We can also advise that the former attorneys Monica
Nagouran
and Associates who were instructed in this matter has ceased
practising and this firm of attorneys no longer exists.
We
have been instructed that the will of the deceased dated 8 September
2006 was rejected as the will did not comply with
section 2(1)(a)(v)
of the
Wills Act. We
have canvassed this matter at length with the
son of the deceased Loganathan Pillay. We had been instructed that
the Commissioner
of Oaths, Mr P Jungbahadur had inadvertently omitted
to attach the certificate that he had executed at the time the
deceased had
a fixed her complaint to the will. We now
accordingly enclose the original certificate herewith and humbly
request that you
accept the will.’
[19] The
explanation tendered, in my view, is entirely reasonable and
plausible. The basis of the Master’s rejection is not
that he
is unsatisfied with the document sent to him on 8 May 2015. The
requirement in terms of
s 2(1)(a)(v)
provides that where a will is
signed in the presence of the commissioner of oaths, the certificate
must be made as soon as possible
after the will has been so signed.
To the extent that there has been any prejudice suffered by the
applicant, such prejudice
has not been sketched out at all in the
founding affidavit. Any error made by the executor or the
attorney winding up the
estate, in not filing the certificate at the
same time when the will was initially lodged with the Master, should
not be allowed
to override the testamentary intention of the
deceased. The Master performs an administrative act in
accepting the will.
His decision to accept the will or
reject it has no bearing on the issue of validity as only the Court
has the power to pronounce
on this. For this reason,
section
2(3)
provides the High Court with the power to condone the failure to
comply with the formalities required for the execution of a valid
will.
[20] A
perusal of ‘LP7’ indicates that all the formalities
prescribed in the Act have been complied with, except for
the delay
in sending through the certificate to the Master’s Office.
As set out above, there is no inkling of fraud
on the part of the
applicant or Jungbahadur. The second respondent’s concern
is that an Order declaring the will’s
validity would be
detrimental to his cause – the entire estate including the
house will be left to the applicant. That,
however, is to
honour and uphold the testamentary wishes of the deceased, which is
consistent with the rationale of s 2(3).
[21] As
regards costs, the applicant was obliged to come to Court as a
consequence of the Master’s rejection of the will.
The
second respondent, although opposing the application, merely threw
his weight behind the Master’s reasons for rejection.
In
my view, I do not consider it appropriate to saddle the second
respondent with costs.
[22] I
therefore make the following order:
a.
It is declared that the document executed by the late Shelia Pillay
on 8 September 2006 is her last will and testament
and First
Respondent is directed to register and accept it and to give effect
thereto;
b.
The costs of the application shall be borne by the estate late Shelia
Pillay.
_____________
CHETTY
J
APPEARANCES
FOR THE
APPLICANT:
K NAIDU
INSTRUCTED
BY:
YVONNE SINGH & ASSOCIATES
VICTORIA EMBANKMENT
031 502 7285
FOR THE
2ND RESPONDENT: P N MHLONGO
DURBAN JUSTICE CENTRE
031 304 3290
REF: MS P N MHLONGO/X
DATE OF
HEARING:
30 MARCH 2017
DATE OF
JUDGMENT:
26 APRIL
2017