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[2016] ZAFSHC 26
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Opperman v Opperman and Others (3659/2015) [2016] ZAFSHC 26 (3 March 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 3659/2015
In
the matter between:-
LOWIKA
OPPERMAN
Applicant
and
JONATHAN
OPPERMAN
1
st
Respondent
CHRYS’ANNE
NEL
2
nd
Respondent
ALEACIA
OPPERMAN
3
rd
Respondent
WENDY
MYBURGH
4
th
Respondent
MASTER
FOR THE HIGH COURT, BLOEMFONTEIN
5
th
Respondent
JUDGMENT
BY:
VAN
DER MERWE, J
HEARD
ON:
4
FEBRUARY 2016
DELIVERED
ON:
3
MARCH 2016
[1]
Mr Jonathan Jan Daniël Opperman (the testator) passed away on 28
May 2015. The question in this application and
counter-application is which of several documents should be declared
to be the testator’s last will.
[2]
The applicant is the surviving spouse of the testator. They
were married to each other out of community of property.
The
first, second and third respondents are the children of the testator
born of a previous marriage (the testator’s children).
The fourth respondent is the daughter of the applicant born of a
previous marriage. The fifth respondent is the Master of
this
court. Only the testator’s children opposed the
applicant’s application and they launched the counter-
application.
[3]
On 4 August 1989, prior to his marriage to the applicant on 14
January 1995, the testator executed a document entitled “LAST
WILL AND TESTAMENT” (the 1989 document). The 1989
document was clearly drafted by a professional and was signed on
each
page thereof by the testator as well as by two witnesses. In
terms of the 1989 document the testator’s children
were
appointed the sole and universal heirs of the entire estate of the
testator.
[4]
It is common cause that the testator personally drafted a document
entitled “LAST WILL AND TESTAMENT” that was signed
on 1
May 2006 (the 2006 document). The 2006 document consisted of
three pages. The testator signed each page thereof
in the
presence of the applicant and of Ms Daisy Levena Vorster, a neighbour
and close friend of the testator and the applicant.
The
testator requested the applicant and Ms Vorster to sign the 2006
document as witnesses. In the presence of the testator
and each
other, the applicant and Ms Vorster signed the document as witnesses
on the last page and initialled the first two pages
thereof.
The testator sealed the 2006 document in an envelope and wrote the
following on the front of the envelope: “LAST
WILL AND
TESTAMENT J J D OPPERMAN ID 481007 5030 088”. He handed
the envelope to Ms Vorster for safe-keeping and requested
her to make
it available to his bank after his death. During 2010 Ms
Vorster moved to Bloemfontein. From time to time
thereafter Ms
Vorster visited the testator and the applicant. On these
occasions she brought the envelope with her and enquired
from the
testator as to what she should do with the envelope. On each
occasion he said that she should continue to keep it
with her.
[5]
In terms of the 2006 document the testator essentially provided, in
lay terms, that after his death the applicant would be entitled
to
the use of his house and motor vehicles and would be entitled to the
interest on all monies accruing to the estate, which were
to be
placed in trust. He further provided that upon the death of the
applicant, the entire remainder of his estate should
be liquidated
and divided equally between the first to fourth respondents.
The last paragraph of the 2006 document read:
“
This
Will and Testament will supersede/revoke any other will previously
drawn-up in the name of Jonathan Jan Daniel Opperman –
Id No:
481007 5030 088 and this Will and Testament cannot be changed,
altered or replaced by any other Will or testament except
with the
written approval of J J D Opperman ID NO: [.........].”
[6]
The first respondent said that shortly before the testator had to
undergo surgery, he emailed a document to the first respondent
on 13
November 2009 (the 2009 document). The email also contained
instructions to the first respondent as to how the latter
should deal
with the document. Counsel for the applicant correctly conceded
that it must for present purposes be accepted
that the 2009 document
had been drafted by the testator. It was also drafted in lay
terms. No signature was appended
to the 2009 document. It
did not purport to revoke any previous will. The contents of
the 2006 document and 2009 document
were essentially the same, save
that in terms of the latter all monies accruing to the estate had to
be paid into a money market
account in the name of the first
respondent. The 2009 document made it very clear, however, that
the first respondent would
be obliged to deal with the monies in the
account only in accordance with wishes of the testator, that is, to
pay the interest
on the account to the applicant during her lifetime
and after her death, to distribute the monies in the account in equal
shares
to himself and second to fourth respondents.
[7]
After the death of the testator the applicant found a further
unsigned document entitled “TESTAMENT” on the testator’s
desk (the 2015 document). It appears from the evidence that the
2015 document was drafted by an attorney on the instructions
of the
testator and sent to the testator by email on 25 February 2016.
In terms of 2015 document the house of the testator
and the cash in
his estate were bequeathed to the testator’s children in equal
shares, subject to the lifelong usufruct of
the applicant in respect
thereof. Clause 4 thereof
inter
alia
provided:
“
Aan
my stiefdogter WENDY MYBURGH bemaak ek twee present van enige
beskikbare vondse maar enige rente daarop is ook onderworpe aan
‘n
lewenslange vruggebruik ten gunste van haar moeder LOWIKA OPPERMAN.”
Counsel
for the testator’s children submitted that the correspondence
indicated that the quoted paragraph had been inserted
by the testator
and that he had thus amended the draft will prepared by the
attorney. I am prepared to accept that this submission
is
correct. The 2015 document (in amended form) was also in
possession of the first respondent, as it had been emailed to
him by
the testator on 28 March 2015, but without comment or instruction.
[8]
The case for the applicant is that the 2006 document is the last will
of the testator and should be given effect to. The
testator’s
children ask for an order declaring the 2015 document, alternatively
the 1989 document, to be the last will of
the testator.
[9]
Section 2(1) of the Wills Act 7 of 1953 (the Act) sets out the
formalities required in the execution of a will. For present
purposes it is only necessary to refer to the following: In
terms of section 2(1)(a) of the Act no will executed after 1
January
1954 shall be valid unless the will is signed by the testator at the
end thereof and anywhere on each page other than the
page on which it
ends, in the presence of two or more competent witnesses present at
the same time. In terms of section 1
of the Act “sign”
includes the making of initials. The witnesses must sign the
will in the presence of the testator
and of each other.
However, the witnesses need only sign the last page of the will, they
do not have to sign all the pages
thereof. (See Section
2(1)(a)(iv) of the Act;
The
Law of South Africa
,
2
nd
edition, p179, para 262, footnote 13; Corbett, Hofmeyr and Kahn,
The
Law of Succession in South Africa
,
2
nd
edition, p56, footnote 53).
[10]
Section 2(3) of the Act provides:
“
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).”
[11]
It has been held that the meaning of the phrase “a document
drafted or executed by a person” is that the document
must have
been created by the deceased personally. (See
Bekker
v Naude en Andere
2003 (5) SA 173
(SCA).) The two requirements for relief in
terms of section 2(3) are therefore that the deceased person must
have personally
drafted or executed a document and must have intended
that document to be his will. (See
Van
Wetten and Another v Bosch and Others
2004 (1) SA 348
(SCA) at 354, para [14]) The absence of a
testator’s signature is, however, not an absolute bar to the
unsigned document
being declared a will in terms of section 2(3).
(See
Van
der Merwe v The Master and Another
2010 (6) SA 544
(SCA))
[12]
There is no averment or evidence in the affidavits of the testator’s
children that the testator personally drafted the
2015 document.
I agree with counsel for the applicant that this in itself puts an
end to the reliance on section 2(3) in
respect of the 2015 document.
In any event, I do not think that it could be said that the testator
personally created the
2015 document. He amended a
comprehensive will prepared by his attorney by the insertion of a
single sentence in clause 4
thereof. The affidavits also do not
contain any averment or evidence that the testator intended the 2015
document to be his
will. The testator did not sign it. He
gave no notice or instruction in respect thereof as he did in respect
of the
previous documents, but simply left it on his desk from 28
March 2015 until his death some two months later. These are
strong
indications on the probabilities that the testator did not
intend the 2015 document to be his will. I conclude that the
counter-application
in respect of the 2015 document must fail.
[13]
It will be recalled that the testator’s children did not ask
for an order declaring the 2009 document to be the testator’s
will. As I see it, this stance is justified by sound reasons.
Despite the fact that the testator emailed the 2009 document
to the
first respondent and therefore at least had it in his possession on
his computer, it was not found in his possession after
his death.
In these circumstances there is a rebuttable presumption that the
testator destroyed the 2009 document
animo
revocandi
(See
The
Law South Africa,
supra
,
p208, para 298;
Ex
parte
Warren
1955 (4) SA 326
(W)). The presumption was not rebutted.
On the contrary, the conclusion that the testator destroyed or
abandoned the
2009 document is materially supported by the evidence
that on more than one occasion since 2010, the testator requested Ms
Vorster
to continue safe-keeping of the 2006 document. In
addition, the conclusion is supported by the fact that the 2009
document
did not differ from the 2006 document in any material
respect.
[14]
The 2006 document was signed by the testator and the witnesses at the
end thereof and by the testator on each preceding page.
Even
though not required by the Act, the preceding pages were also
initialled by the witnesses. The 2006 document therefore
complied with all the formalities in terms of the Act. The 2009
document did not purport to revoke the 2006 document.
The 2006
document should therefore be declared to be the testator’s last
will.
[15]
One matter remains. Section 4A(1) of the Act provides that any
person who signs a will as a witness shall be disqualified
from
receiving any benefit from that will. However, section 4A(2)(a)
provides that notwithstanding the provisions of subsection
(1), a
court may declare a person referred to in subsection (1) to be
competent to receive a benefit from a will if the court is
satisfied
that the person did not defraud or unduly influence the testator in
the execution of the will. It is clear that
the applicant did
not defraud or unduly influence the testator in respect of the
execution of the 2006 document. Counsel
for the testator’s
children rightly did not offer any objection to an order in terms of
section 4A(2)(a) in favour of the
applicant, in the event of a
finding that the 2006 document was the last will of the testator.
[16]
In the exercise of my discretion in respect of costs, it is in my
view appropriate to order that the costs of the application
and
counter- application be paid from the testator’s estate.
[17]
In the result the following order is issued:
1.
It
is declared that the document executed by the late Jonathan Jan
Daniël Opperman on 1 May 2006 is his last will and the fifth
respondent is directed to register and accept it and to give effect
thereto.
2.
It
is declared in terms of
section 4A(2)(a)
of the
Wills Act 7 of 1953
that the applicant is competent to receive a benefit from the will of
the late Jonathan Jan Daniël Opperman dated 1 May 2006.
3.
The
counter-application is dismissed.
4.
The
costs of the application and counter-application shall be paid from
the estate of the late Jonathan Jan Daniël Opperman.
_________________________
C.
H. G. VAN DER MERWE, J
On
behalf of the applicant: Adv. N. Snellenburg SC
Instructed
by:
Phatshoane
Henney
BLOEMFONTEIN
On
behalf of the first, second
and
third respondent:
Adv. A. Berry
Instructed
by:
Hugo &
Bruwer Attorneys
BLOEMFONTEIN
/eb