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[2015] ZAGPPHC 67
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Van Vuuren and Another v Master of the High Court and Others (37901/2014) [2015] ZAGPPHC 67 (3 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case number:
37901/2014
Date: 03 March 2015
In the matter
between:
CHRISTELLE
VAN
VUUREN
............................................................................................
First
Applicant
STEPHANIE
VAN
VUUREN
..........................................................................................
Second
Applicant
And
THE
MASTER OF THE HIGH
COURT
.........................................................................
First
Respondent
CHRISTELLE
VAN VUUREN N.O
….......................................................................
Second
Respondent
STEPHANIE
VAN VUUREN N.O
…............................................................................
Third
Respondent
DANIEL
VAN
VUUREN
...............................................................................................
Fourth
Respondent
MARIUS
VAN
VUUREN
.................................................................................................
Fifth
Respondent
JUDGMENT
PRETORIUS J.
[1] In this
application the court is requested to make an order in terms of
Section 2(3)
of the
Wills Act, 7 of 1953
that the document purported
to be the will of the late Dawid Johannes van Vuuren to be declared
to be his last will. The Master
of the High Court declined to accept
the document as will, hence the present application. At the outset
counsel for the Respondent
indicated that the respondents will no
longer dispute that the deceased was the author of the document and
that he had signed the
document.
Background:
[2] On 7 July 2008
the testator handed the disputed document to Ms Prinsloo, his
secretary, and told her it was his will which he
had signed and
requested her to sign as witness. She was employed as his secretary
at Loadcell Manufacturing and Services (Pty)
Ltd, at 359 Souter
Street, Pretoria-West. She signed the document and gave it back to
the deceased.
[3] A branch office
of Loadcell Manufacturing and Services (Pty) Ltd was operated in
Johannesburg where Ms H. A. Kotze was employed
as accountant and
personal assistant to the testator. She had been working closely with
the applicant for 18 years. On the morning
of 7 July 2008 the
testator phoned Ms Kotze and enquired whether she was at her desk at
work.
After she had
answered in the affirmative the testator informed her that he was
faxing her a copy of his testament. He told her
that the contents of
his testament was confidential and instructed her to file and store
the document with his personal documents.
She filed the testament in
a filing cabinet in her office. After the testator’s death on
20 January 2014 she retrieved the
document from the filing cabinet
and handed it to the applicants’ attorney.
The document
provides:
"
07
/
07/2008
TESTAMENT
VAN
DANIEL
JOHANNES VAN VUUREN
HIERMEE LAATEK
AL MY
AARDSE
BESITTINGS AAN MY
TWEE DOGTERS,
CHRISTELLE & STEFANIE
CM VAN VUUREN
WORD
AANGESTEL AS
EKSEKUTEER
(signed
DJ van Vuuren)
(signed
AF Viljoen)”
[4] The fifth
respondent is opposing the application. He is the illegitimate son of
the deceased. The deceased had two daughters
and a son, as well as
the fifth respondent. The fifth respondent argued that the deceased
had died intestate and that the division
of the estate should take
place according to the
Intestate Succession Act 81 of 1987
.
It is so that should
the court declare the document as the last will of the deceased the
fourth and fifth respondents will be disinherited.
This court has to
decide whether the deceased intended this document to be his last
will and testament.
[5]
The
law:
The
formalities required in the execution of a will are set out in
Section 2(1)
of the
Wills Act 7 of 1953
which provides,
inter
alia:
“
(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 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.”
[6]
In
Van der Merwe v
The Master 2010(6) SA 544 (SCA)
Navsa
JA held at paragraph 14:
“
By
enacting
s 2(3)
of the Act, the legislator
was
intent on ensuring
that failure to comply with the formalities prescribed by the Act
should not frustrate or defeat the genuine
intention of testators.
2
It has rightly and repeatedly been said, that, once a court is
satisfied that the document concerned meets the requirements of
the
subsection, a court has no discretion whether or not to grant an
order as envisaged therein. In other words, the provisions
of
s 2(3)
are peremptory once the jurisdictional requirements have been
satisfied.
3
[7]
In
Olivier v Die
Meester en Andere:
in
re boedel wyle
Olivier 1997(1) SA 836 (TPA)
it
was found that there must be a document which the deceased had
compiled or executed. In the present matter it is common cause
that
the deceased had executed the disputed document.
[8] This court has
to establish that the deceased had the requisite intention when
drafting and signing the document that the document
was his final
will and testament. It is common cause that no will and testament
could be found after the deceased’s death,
apart from this
document. The applicants searched all the deceased’s documents,
but could not find the original of the document
or any other will or
testament.
[9]
In
De Reszke v
Marais and Others 2006(2) SA 277 (SCA)
Mlambo
JA explained the legal position:
“
Section
2(3)
lays down the requirements which a document which does not
comply with the formalities for the execution of a will has to meet
before a court will order the Master to accept it as a will. The
effect of an order under
s 2(3)
is that a document which is not a
will for want of compliance with certain prescribed formalities but
purports to be a will is
given effect to if the requirements of the
section have been met. For the grant of relief under
s 2(3)
a court
must be satisfied that the deceased person who drafted or executed
the document intended it to be his will. ”
[10]
In
Van Wetten and
Another v Boch and others 2004(1) SA 348(SCA)
Lewis
JA held at paragraph 16
“
In
my view, however, the real question to be addressed at this stage is
not what the document means, but whether the deceased intended
it to
be his will at all. That enquiry if necessity entails an examination
of the document itself and also of the document in the
context of the
surrounding circumstances."
[11] The court has
to be satisfied that the disputed document was drafted by the
deceased and that it was the deceased’s intent
that this is to
be his last will. The surrounding circumstances in this instance have
to be examined and considered for this court
to make a decision. The
deceased had told his secretary, Ms Prinsloo, who was employed in his
Pretoria office, on 7 July 2008 that
the disputed document was his
testament, which he had signed. At the same time he requested her to
sign as a witness, which she
did. Although he had not signed the
document in her presence, she is convinced that he had written the
document in his own handwriting
and that it was his signature on the
document.
[12] Ms Kotze is
still employed at Loadcell. At the time of the deceased’s death
she had been working in close co-operation
with the deceased in the
branch office as his personal assistant and accountant. She was
responsible for the safekeeping and filing
of the testator’s
personal documents. Her uncontested evidence is that on 7 July 2008
the testator had phoned her and told
her that he was in the process
of faxing a copy of his testament to her. Thereafter he faxed a copy
of his will to her. He informed
her that the content of the testament
was confidential and she had to store it with his personal documents,
which she did until
she handed it to the applicant’s attorney
after his death.
[13] The fifth
respondent, the illegitimate son of the deceased, contests the
document as not being the will of his father. Firstly
he relies on a
conversation he had with his late father’s sister, Mrs
Pretorius. Her evidence takes the matter no further.
[14] It is common
cause that the deceased had threatened to disinherit the fourth
respondent should he not stop smoking. The fourth
respondent deposed
to a supporting affidavit to the applicants’ replying
affidavit. He denied that he had told the fifth
respondent that the
testator drafted the 2008 will as a threat to stop the fourth
respondent from smoking. The first time the fourth
respondent
realised that his father had been serious when threatening to
disinherit him, was after the deceased had passed away.
He only
became aware of the existence of the disputed document of 2008 after
the testator’s death.
[15] The fifth
respondent provides no details of when, where and how the deceased
had threatened to disinherit the fourth respondent.
He makes a
statement stating that the fourth respondent had told him that his
father had threatened him should he not stop smoking
he would be
disinherited.
[16] The court must
conclude that this evidence of the fifth respondent cannot be relied
on. It would have been in the fourth respondent’s
interest to
support the fifth respondent if these allegations were true.
[17] The fifth
respondent further alleges that the deceased had been aware of the
requirements for drafting a valid will, as the
deceased had been the
executor in his (the deceased’s) father’s estate. I
cannot agree with this submission as it is
based on conjecture.
[18] The will, which
the deceased describes as “Testament”, provided for the
appointment of an executrix. The testator
was thus aware of the role
and function of an executor. There can be no doubt that he had the
intention that the document was legally
his will.
The
wording:
“
hiermee
laat ek my aarse (sic) besittings aan my twee dogters, Christelle en
Stefanie”
leaves
no doubt as what his intention was and that at his death his entire
estate should devolve upon his two daughters.
[19] The facts are
that, despite searching for the original document and a later will,
it could not be found. The court will not
adhere to the fifth
respondent’s submission that due to the fact that the original
document cannot be found that the deceased
had destroyed it. There is
no evidence at all that the deceased had destroyed the original
“Testament”.
[20] I am satisfied,
when considering all the facts placed before me, that the contested
will was indeed intended to be the will
of the deceased, and that the
Master should be directed to deal with the testament in terms of
section 2(3)
of the
Wills Act.
Therefor
I make the
following order:
1. It is declared
the document attached as Annexure ‘A’ to the Notice of
Motion (hereinafter ‘the 2008 Will’)
is the last will of
the late Daniel Johannes van Vuuren (‘hereinafter the
Testator’);
2. The First
Respondent is ordered to accept the 2008 Will as the Testator’s
will for the purposes of the Administration of
Estate Act, Act 66 of
1965;
3. No order as to
costs.
Judge C Pretorius
Case number:
37901/2014
Heard on: 24
February 2015
For the Applicant:
Adv. B Stoop
Instructed by: AJ
KACHELHOFFER ATTORNEY
For the Fifth
Respondent: Adv. J Schoeman
Instructed by : DE
KLERK ATTORNEYS
Date of Judgment: 03
March 2015