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[2016] ZAGPPHC 715
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Outhoff and Another v Kaplan NO and Others (69475/14) [2016] ZAGPPHC 715 (17 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case Number: 69475/14
17/8/2016
REPORTABLE:YES
OF
INTEREST TO OTHER JUDGES: NO.
REVISED.
In
the matter between:
JACKIE
OUTHOFF FIRST
PLAINTIFF
DR
KIM
OUTHOFF SECOND
PLAINTIFF
and
MORRIS
KAPLAN
N.O. FIRST
DEFENDANT
MARIA
DEBORAH
OUTHOFF SECOND
DEFENDANT
ELAINE-MARI
SEYMOUR THIRD
DEFENDANT
BARRY
SEYMOUR FOURTH
DEFENDANT
THE
MASTER OF THE HIGH COURT
GAUTENG,
PRETORIA FIFTH
DEFENDANT
JUDGMENT
HUGHES
J:
[1]
Maria Deborah Outhoff (born Kritzinger), the second defendant, and
Comelis Outhoff (the deceased) were married out of community
of
property and concluded an ante-nuptial contract on 2 April 1974.
Comelis Outhoff died on 3 August 2013, however prior to his
death, he
and the second defendant executed a mutual will on 18 February 2010.
[2]
This is a matter that involves the interpretation of the mutual will.
The first defendant is the executor of the mutual will
which was
lodged with the fifth defendant who opted to abide by this court's
decision. The mutual will made bequests to the plaintiffs,
the second
plaintiff's minor children and the second to fourth defendant's. The
third and fourth defendants are the children of
the second defendant.
[3]
Adv. Vorster, for the plaintiff's and Adv. Klepper, for the first to
fourth defendants, elected not to lead any evidence in
this action
and closed their respective cases. The parties opted for the
determination of the dispute to be on the argument presented
by
counsel before this court.
[4]
The central issue for determination is whether on an interpretation
of the mutual will, an indication of massing, can be established
of
the estate of the deceased and the second defendant. It was pointed
out that the pivotal clauses in the mutual will are clause
3 and 4.
For easy reference I set out clause 3 and 4 below:
"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
(sic)
bequests and legacies to the following
people as stated
next
to their names...”
[5] Further, Mr Vorster
stated it was also vital to have regard to the anti-nuptial contract
between the testator and the testatrix
as reference is made to the
execution of their will or individual wills in paragraph 4 thereof,
which reads as follows:
"Fourth.
-
That each of the said intended Consorts shall be
at
full liberty to dispose of his or her property and effects, by will
codicil or other testamentary disposition,
as he
or she may
think fit."
[6] The plaintiffs
contend that they are beneficiaries in terms of clause 4 of the
mutual will and that as a consequence of massing
the second defendant
is obliged to either adiate or repudiate the benefits bequeathed in
the mutual will. If the testatrix chooses
the former she then accepts
the benefits as well as the further bequest set out in the will. The
choice of the latter will result
in the second defendant not
inheriting from the mutual will and as such she will be able to have
her own will drafted.
[7]
The first to fourth defendants submit that no massing has taken place
and as such the second defendant is the sole heir in terms
of the
mutual will. She is thus entailed to make her own will as she has
done after the death of the deceased. She has no duty
preserving the
assets of the estate of the deceased and need not adiate nor
repudiates the benefits bequeathed in terms of the
will.
[8]
Mr Vorster argued that the age old choice for an heir or legatee to
either accept (adiate) or repudiate (renunciate) a benefit
bequeathed
to him/ or her in a will was the obvious starting point He pointed
out that herein lies the second defendant's obligation
to adiate or
repudiate the benefit bequeathed in the mutual will.
[9]
In determining whether there was a necessity to adiate or repudiate
it is trite that the intention of the testator lies within
the
interpretation of the testamentary document. To this end Mr Vorster
argues that when interpreting the will of a testator, even
if there
is ambiguity and uncertainty in that will, the well-known approach of
the conventional 'golden rule', the 'plain meaning
rule' and taking
into account the surrounding circumstances as regards the will, even
in the face of current methodology as set
out in
Bothma-Batho
Transport v Bothma
&
Seun Transport
2014 (2) SA 494
(SCA)
at paragraphs [10] to [12],
the well-known benevolent approach in
interpretation of wills still reigns supreme in these modern times of
interpretation. He sought
to place reliance on
Corbett, Hofmeyer
&
Kahn
-
The Law
of Succession in South Africa Edition
at page 448,
as regards the similarities in the approach to
interpretation of statutes, contracts and wills.
[10]
Fortified with the above, he argued that on an examination of clause
3 the use of the words 'our entire estate' in this clause
are
significant having regard to the fact that the testator and testatrix
were married out of community of property. The choice
of these words
is an indication that they chose to describe the bequest of the
estate as one to the surviving spouse. This, he
concludes, amounts to
massing, as the surviving spouse surrenders their right in their
separate estates and the mutual will deposes
of both the first-dying
spouse as well as the surviving spouses estates, after the survivors
death. Reference was had to the writings
of
Corbett at page 437.
[11]
The effect of massing, so the argument goes, is that the surviving
spouse is put to an election to either adiate by accepting
the
benefit or repudiate by refusing the benefit. In opting to adiate the
testatrix loses the freedom to vary or revoke her portion
of the
mutual will and she is unable to dispose of her share of the massed
estate in any manner that is in variance to the terms
set out in the
mutual will. In opting to repudiate, the testatrix retains her
separate estate and she may dispose of it as she
wishes, by will or
otherwise, but she forfeits her claim to any of the benefits left to
her in the mutual will by the first dying
spouse.
[12]
Lastly, Mr Vorster pointed out that paragraph 4 of the antinuptul
contract, as quoted above, illustrated that the testator
and the
testatrix freedom of testation had not been affected by the marriage
regime and as such the second defendant was free to
dispose of her
property as she saw fit and she did so in the mutual will. In doing
so she had exercised her power in such a manner
that places her in a
position to make an election, in terms of the mutual will, after the
deceased's death.
[13]
On the other hand, Mr Klepper submitted that the mere fact that the
spouses executed a mutual will was not indicative in itself
that
massing had taken place. He argued that the mutual will was in line
with paragraph 4 of the antinuptal contract and it was
evident
therefrom that massing was not intended, as each spouse was afforded
the right to dispose of his or her property or estate
as they saw
fit. He pointed out that this was manifested in the penultimate
paragraph of the mutual will where it was said that
freedom of
testation was to be retained until the death of the surviving spouse:
“
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...".
[14]
Mr Klepper persists that there was no massing and such the second
defendant had no obligation to adiate or repudiate. He further
argued
that from the wording of clause 3 the spouses intended that the will
was to be a mutual one bequeathing to the surviving
spouse the entire
estate without any conditions attached. He added that this was
highlighted by the use of the words 'without reserve'
in clause 3. He
was persistent that clause 4 was in conflict with clause 3. That
clause 3 was the dominate clause, as such, clause
4 should be
disregarded. The interpretation should thus be that the surviving
spouse was entitled to inherit the entire estate
without restriction
and likewise that spouse was at liberty to dispose of her estate as
she saw fit.
[15]
Mr Klepper concluded his argument by saying that nowhere in the
mutual will is the second defendant, as the surviving spouse,
requested to make an election and thus it could not be said that
massing occurred. He argued that, if there is ambiguity in the
mutual
will, as to whether massing had occurred, the proper approach to
interpreting the will lies in the principles as is set
out in
Bathma
supra
and not in the benevolent approach as suggested by the
plaintiffs.
DISCUSSION
[16]
The principle of interpretation in these modern times has been
succinctly set out in
Bathma.
I have taken the liberty to set
out the relevant extract below:
"lnterpretation
[10] In Natal Joint Municipal Pension
Fund v Endumeni Municipality
[3]
, the current state of our law
in regard to the interpretation of documents was summarised as
follows:
'Over the last century there have been
significant developments in the law relating to the interpretation of
documents, both in
this country and in others that follow similar
rules to our own. It is unnecessary to add unduly to the burden of
annotations by
trawling through the case law on the construction of
documents in order to trace those developments. The relevant
authorities are
collected and summarised in Bastian Financial
Services (Ply) Ltd v General Hendrik Schoeman Primary School. The
present state of
the law can be expressed as follows: Interpretation
is the process of attributing meaning to the words used in a
document, be it
legislation, some other statutory instrument, or
contract, having regard to the context provided by reading the
particular provision
or provisions In the light of the document as a
whole and the circumstances attendant upon its coming into existence.
Whatever
the nature of the document, consideration must be given to
the language used in the 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 the light of all these
factors. The process is objective, not subjective. A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose of the document. Judges
must be alert to, and guard against, the temptation to substitute
what they regard as reasonable, sensible or businesslike for the
words actually used. To do so in regard to a statute or statutory
instrument is to cross the divide between interpretation and
legislation; in a contractual context it is to make a contract for
the parties other than the one they in fact made. The 'Inevitable
point of departure is 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.'
[11] That statement reflected
developments in regard to contractual interpretation in Masstores
(Ply) Ltd v Murray & Roberts
Construction (Pty) Ltd; KPMG
Chartered Accountants (SA) v Securefin Ltd & another and
Ekurhuleni Municipality v Germiston Municipal
Retirement Fund
[4]
I return to it and to those cases only because we had cited to us the
well- known and much cited summary of the earlier approach
to the
interpretation of contracts by Joubert JA in Coopers & Lybrand &
others v Bryant,
[5]
that:
'The correct approach to the
application of the 'golden rule' of interpretation after having
ascertained the literal meaning of
the word or phrase in question is,
broadly speaking, to have regard:
(1) to the context in which the word
or phrase is used with its interrelation to the contract as a whole,
including the nature and
purpose of the contract ... ;
(2) to the background circumstances
which explain the genesis and purpose of the contract, ie to matters
probably present to the
minds of the parties when they contracted. .
;
(3) to apply extrinsic evidence
regarding the surrounding circumstances when the language of the
document is on the face of it ambiguous,
by considering previous
negotiations and correspondence between the parties, subsequent
conduct of the parties showing the sense
in which they acted on the
document, save direct evidence of their own intentions.'
[12] That summary is no longer
consistent with the approach to Interpretation now adopted by South
African courts In relation to
contracts or other documents, such
as statutory Instruments or patents.[8] Whilst the starting point
remains the words of
the document, which are the only relevant medium
through which the parties have expressed their contractual
intentions, the process
Of interpretation does not stop at a
perceived literal meaning of those words, but considers them in the
light Of all relevant
and admissible context, including the
circumstances in which the document came into being. The former
distinction between permissible
background and surrounding
circumstances, never very clear, has fallen away. Interpretation Is
no longer a process that occurs
in stages but is 'essentially one
unitary exercise' [7]. Accordingly It is no longer helpful to refer
to the earlier approach."
[My emphasis].
[17]
Having established the requirements to interpret a statute, document
or contract I find it apt to quote section 37 of
the
Administration of Estates Act 66 of 1965 (the Act) which illustrate
what amounts to a massed estate:
"
37
Massed estates
If
any two or more persons have by their mutual will massed the whole or
any specific portion of their Joint estate and disposed
of the massed
estate or of any portion thereof after the death of the survivor or
survivors or the happening of any other event
after the death of the
first-dying, conferring upon the survivor or survivors any limited
interest in respect of any property in
the massed estate, then upon
the death after the commencement of this Act of the first-dying,
adiation by the survivor or survivors
shall have the effect of
conferring upon the persons in whose favour such disposition was
made, such rights in respect of any property
forming part of the
share of the survivor or survivors of the massed estate as they would
by law have possessed under the will
if that property had belonged to
the first-dying; and the executor shall frame his distribution
account accordingly."
[18]
From the above interpretation involves attributing meaning to the
words used in a document having regard to the context in
the light of
the document as a whole and the circumstances attendant upon it
coming into existence.
[19]
In approaching to interpret the mutual will in question I am alive to
that stated in
Corbett, Second Edition at 436,
the following
is stated: "In accordance with the principle, a joint and mutual
will of spouses has to be read as two separate
wills." The
aforesaid together with my reading of section 37 of the Act, I view
massing of estates to be a consolidation of
spouses' property into
one for the disposition of that massed estate to take place after the
death of the surviving spouse conferring
on the survivor limited
interest in the massed estate after the death of the first spouse.
[20]
In the present case the starting point of interpretation is the
mutual will its self. I agree with Mr Vorster that the will
has two
paragraphs that, in my view, reflect the intention of the parties
that being clause 3 and 4.
[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
dominate 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 and bequeath the undermentioned
(sic) bequests
.
..to the following people...
; this clause
now dictates how the dispositions would be made to family members,
including the plaintiff's, on the death of the
surviving spouse.
These two clauses direct bequest to different parties, clause 3 to
the surviving spouses at the death of the
first-dying spouse and
clause 4 to family members at the death of the surviving spouse. That
which, 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 the 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. See
Union
Government v Larkan
1916 AD 212
at 224:
'Where, as here, one
spouse with the knowledge and consent of the other, and with the view
to the disposition of their estate upon
new basis, bequeaths the
property of the other as upon such basis, then upon the death of the
testator and upon adiation and acceptance
Of the benefits by the
survivor, the latter would be bound by the provisions of the will so
disposing of his property."
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 materialise?
In
clause 3 and 4 the words
'our
and
'we'
are use
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
wills. 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 testators
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. See
Theart v Scheibert and Others
2012 (4) All
SA
278
(SCA) at para [21]
[25]
In
Theart (supra) at para [20]
reference was made to
Rhode
v Stubbs
2005
(5) SA
104
(SCA) at para [16}-(18]
I
reiterated same as regards interpretation of a mutual will as
translated version of Cloeta JA in
Theart
"[16]
When two (or more) testators make a testamentary disposition
together, grammatical uncertainty frequently arises. The
use of the
(appropriate) first person plural does not convey unambiguously to a
reader of the will whether each testator is expressing
his wishes
only on his own behalf, or also on behalf of the other testator(s).
Our law finds a solution to the problem of interpretation
to which
this structural lack of clarity gives rise in the rule that mutual or
joint wills of spouses married in community of property
must in the
first instance be read as separate wills. The person analysing such a
will proceeds on the hypothesis that he or she
is dealing with
separate wills until the contrary clearly appears. The reason for
this approach is embedded in our common law.
[17]
In
Joubert v Ruddock and
Others
1968 (1) SA 95
(E) at 98F-G,
Eksteen J quotes a passage from Van Leeuwen's Censura
Forensis
3.11.6 in which he underlines the importance of the principle
that a person ought to remain capable of changing his will until the
end of his days, and motivates this proposition by saying
(
Schreiner's
translation) . . . there is nothing to which men
are more entitled than that their power of making a last will should
be free, and
hence the rule; that no one can deprive himself of this
power'.
[18]
The proposition is not correct without qualification. A testator
can
deprive himself of the right to make a will by massing, but if
there is any doubt about his intention, the will must be interpreted
so as to leave the greatest possible freedom of testation. That gives
rise to the subordinate rule of Interpretation, the presumption
against massing, that applies when the golden rule for the
interpretation of wills, i.e. to give meaning to a testator's words
within the framework of a will, fails due to vagueness or ambiguity."
[26]
The joint will, as per clause 3, indicates that the testator's entire
estate is bequeathed to the testatrix. The words
'Our entire
estate will be bequeathed to the
remaining party without
reserve'
whilst in clause 4 certain bequests are then made after
the death of the surviving spouse to my mind creates some confusion
and
as such would amount to ambiguity.
[27]
It is not clear to me whether the bequests are derived from the
estate of the testators or from the testatrix or from both
their
estates as a whole. Clause 4 said that
'we hereby give and
bequeath the undermentioned (sic) bequests and legacies to the
following people ...'
it is not evident whether the property
bequeathed was that of the testator or testatrix. It is further not
evident if the bequest
in this clause is derived from the
consolidation of the two estates forming the joint estate from which
the testatrix could make
the disposition sought.
[28]
It is trite that if there is doubt or ambiguity of the intention of
the testator or testatrix the presumption against massing
must be
interpreted. See
Rhode para {18].
In the circumstances as it
is not clear to me that the testators estate was consolidated with
that of the testatrix in order to
make out the bequest in clause 4 I
have to apply the presumption against massing.
[29]
In the circumstances the declaratory relief sought by the plaintiffs
falls to be dismissed with costs as the presumption works
in favour
of the defendants.
[30]
Consequently the following order is made:
[30.1]
The plaintiff's action is dismissed with costs.
_______________________
W.
Hughes, Judge of the High Court
Appearances:
For
the Plaintiffs:
Adv Vorster
Instructed
by:
Jacobson Levy Inc.
For
the 1
st
- 4
th
Respondents:
Adv Klopper
Instructed
by:
J.J. Badenhorst Ayyorneys