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[2015] ZAKZDHC 65
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Young v Master of the High Court, Durban and Others (8502/2015) [2015] ZAKZDHC 65 (28 August 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO.: 8502/2015
In
the matter between:
CATHERINE
LOUISE YOUNG
Applicant
and
THE MASTER
OF
THE HIGH COURT, DURBAN
First Respondent
T
R DE
MONSE
Second Respondent
R
W
YOUNG
Third Respondent
YESHAAN
NAIDOO
Fourth Respondent
S
T
CAMBIER
Fifth Respondent
K
NEAL
Sixth Respondent
Coram:
Jeffrey AJ
Heard:
25 August 2015
Delivered:
28 August 2015
Summary:
Will -
Validity
- Acceptance of document only existing in electronic format during
deceased’s lifetime as a will - Requirements –
Financial
advisor drafting document sent as an e-mail attachment - Deceased not
signing the same in hard-copy format – Evidence
not
establishing that the document was either drafted by the deceased or
intended by him to be his last will -
Wills Act 7 of 1953
,
s 2(3)
JUDGMENT
JEFFREY AJ:
[1]
This
is an urgent application
under
s 2(3) of the Wills Act No 7 of 1953 (the Act) to have an unsigned
document in electronic format attached to an e-mail declared
to be
the will of the late Arthur Ronald Halliday (the deceased) and for
further ancillary relief. The applicant is the deceased’s
widow.
[2]
The
application is unopposed and the Master abides the decision of the
Court.
[3]
The
applicant and the deceased were married to each other out of
community of property on 4 February 2013.
[4]
During
early December 2013 the deceased was diagnosed with cancer. He
was hospitalized and treated for approximately 3 months
at the
Umhlanga Hospital. In early March 2015, however, medical
opinion changed - it was considered that his earlier diagnosis
had
been incorrect and that he was actually suffering from acute myeloid
leukaemia. The deceased died a few weeks later on
4 April 2015.
[5]
Some
4½ years before his death the deceased met Mr Nazar, a
financial planner, and instructed him to attend to his insurance
and
financial matters, which he did.
[6]
During
early 2014 the deceased instructed Mr Nazar to prepare an agreement
between the deceased and his partner of their business
called Samsung
Business Solutions, Umhlanga. The partner is the fourth
respondent. This proposed agreement was intended
to provide for
the succession of the business if either the deceased or the fourth
respondent died.
[7]
At
the same time the deceased and the fourth respondent requested Mr
Nazar to draft their updated wills.
[8]
With
regard to the deceased’s proposed will, Mr Nazar has
alleged that at his request the deceased compiled an instruction
sheet setting out what his instructions were concerning the content
of the proposed will.
[9]
According
to Mr Nazar, upon receipt by him of this instruction sheet, he
drafted a proposed will for the deceased and e-mailed it
to him as an
attachment to an e-mail. He added that “on numerous
occasions” thereafter, he requested the deceased
to execute the
electronic will by “signing it in the presence of two
witnesses” and that the deceased “continually
reassured”
him that “he would attend to the same in due course”.
The deceased did not do so, according
to the applicant, because
he “fell ill and rapidly deteriorated after the acute myeloid
leukaemia infiltrated his central
nervous system … (and he)
reached a point where he was unable to see, eat or walk properly and
accordingly could not properly
execute the electronic will.”
[10]
The
instruction sheet, or a copy thereof, allegedly completed by the
deceased has not been placed before the Court. Also absent
before the Court is a copy of Mr Nazar’s covering e-mail to the
deceased attaching the proposed will that would establish
the date
when the document was sent to the deceased.
[11]
There
is also no evidence that the deceased converted the proposed will
attached to the e-mail from Mr Nazar into a hard copy format.
It is, therefore, accepted for the purpose of this judgment that the
document existed only in electronic form as an e-mail attachment
during the deceased’s lifetime.
[12]
The
Act was amended in 1992 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]
The
relevant formalities required for the valid execution of a will are
set out in sub-section 2(1)(a) as follows:
“
(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 so signed by
the testator or by such other person
anywhere on the page …”
[14]
It
is unnecessary for the purposes of this judgment to traverse the many
difficulties faced by the Courts in the past in the application
of
the controversial provisions of sub-section 2(3). This is
particularly so in this instance where this application has
been
brought on an urgent basis on the grounds, so the applicant alleges,
that an executor must be appointed by the Master urgently
in order to
finalize an agreement of sale of certain immovable property owned
jointly by the deceased and the applicant so as to
relieve the
deceased’s estate financially which, the applicant says, is
burdened with “a mountain of debt which presently
stands in
excess of R6 million.”
[15]
In
van
der Merwe v The Master and Another
2010
(6) SA 544
(SCA) 548c at para [14] Navsa JA stressed that the
provisions of sub-section 2(3) are peremptory; so, once a Court is
satisfied
that the document concerned meets the requirements of the
sub-section, it has no discretion whether or not to grant an order as
envisaged therein.
[16]
The
requirements of the sub-section are: first, whether the document
concerned was drafted or executed by the deceased; and second,
whether it was intended by him to be his will.
[17]
Turning
to the first requirement, since the decision in
Bekker
v Naude en Andere
2003
(5) SA 173
(SCA) the issue was settled of whether on the one hand,
the sub-section required the deceased to personally draft the
document
- as was held in for instance
Ramlal
v Ramdhani’s Estate
2002
(2) SA 643
(N); or, on the other, whether a document was properly
drafted if it was prepared by a third party on the instructions of
the deceased
and was subsequently approved by him – as was held
in for instance
Back
and Others NNO v Master of the Supreme Court
[1996]
2 All SA 161
(C). The Court in
Bekker
found
that the word “drafted” in the sub-section required the
personal drafting of the document by the deceased.
In that case
the
deceased
had instructed a bank to draft a will, which it did using the
deceased's instructions, but also added its own wording and
standard
clauses to the draft. In these circumstances the Court found that it
could not be said that the draft will was 'drafted'
by the
deceased.
[18]
In
this application, as I have said, the deceased’s instruction
sheet to Mr Nazar has not been placed before the Court.
Apart
from the deceased not being the actual draftsman of the document
concerned, it has not been established and consequently
cannot be
said with any confidence, that the document concerned accurately
reflects the deceased’s instructions to Mr Nazar.
[19]
In
the premises I am not satisfied that the deceased drafted the
document concerned within the meaning of sub-section 2(3). I
find accordingly.
[20]
In
addition, in regard to the second jurisdictional requirement of
sub-section 2(3), in the absence of the deceased’s instruction
sheet given by him to Mr Nazar, I am not satisfied that the document
concerned was intended by the deceased to be his will.
It is
insufficient for Mr Nazar to allege that after he had sent him the
e-mail attaching the will,
“
on
numerous occasions” thereafter, he requested the deceased to
execute the document concerned by “signing it in the
presence
of two witnesses” and that the deceased “continually
reassured” him that “he would attend to the
same in due
course”. If the deceased gave him the alleged assurances
then the deceased could not have been too ill
at that stage to have
executed the will had he intended to do so. There is, in any
event, no indication on the papers when
these assurances were given
and, indeed, no copy of the covering e-mail was placed before the
Court from which the time of these
assurances could possibly be
inferred. The meaning of the assurance given by the deceased
that he would “attend to
the same in due course” is
equivocal. It does not only mean that he would execute the
document concerned. It
could equally mean that he would
consider the document concerned to see whether it in fact met his
instructions to Mr Nazar.
[21]
I
may add that I find it astonishing that the deceased’s
financial advisor can misplace not only the deceased’s
instruction
sheet concerning his proposed will especially when the
deceased was terminally ill, but also be unable to produce a copy of
the
e-mail sent to the deceased attaching the proposed will that he
drafted.
[22]
For
the above reasons the application must fail.
[23]
I
make the following order:
The
application is dismissed.
__________________
JEFFREY AJ
Appearances:
Counsel for the applicant
:
Mr C B Edy
Applicant’s
attorney
:
Eduard de Lange
Attorneys
Date of
hearing
:
25 August 2015
Date of
judgment
:
28 August 2015