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[2014] ZAGPPHC 426
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Beukes N.O. and Another v Master of The High Court, Pretoria and Another (21324/13) [2014] ZAGPPHC 426 (7 March 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case No: 21324/13
Date: 7 March 2014
In the matter
between:
DAAN BEUKES
N.O
...................................................................................................................
First
Applicant
R[...] A[...] H[...]
H[...]
..............................................................................................................
Second
Applicant
and
THE MASTER OF THE
HIGH COURT,
PRETORIA
.....................................................................
Respondent
R[...] M[...] H[...]
M[...]
.............................................................................................................
Intervening
Party
and
In the counter
application of
R[...] M[....]
H[...]
M[...]
............................................................................................................
Intervening
Party
and
DAAN BEUKES
N.O
................................................................................................................
First
Respondent
R[...] A[...]
H[...]
....................................................................................................................
Second
Respondent
THE MASTEROF OF THE
HIGH COURT,
PRETORIA
......................................................
Third
Respondent
JUDGMENT
BAM J
1.
The
first applicant in the main application is the executor of the estate
of the late Mr R[...] M[...] M[...]. Initially the first
applicant
was also the executor in the estate of the late Ms J[...] G[...]
M[...]. The second applicant is a grandson and the intervening
applicant a son of the two deceased. The intervening party replaced
the first applicant as executor of the estate of Ms M[...].
2. The main
application is aimed at the review of a ruling by the Master that the
estate of the late Mr M[...] should devolve intestate
and an order is
sought that the said will should be confirmed and slightly amended.
The intervening party seeks an order for the
setting aside of the
Master's ruling and that the will should be confirmed and slightly
amended, but differently from the way sought
in the main application.
3. The main issues
in this matter turn upon the inheritance of the estate of the late
R[...] M[...] M[...] who passed away on 5
July 2009. At the time of
his death Mr M[...] was married to Ms J[...] G[...] M[...], who
subsequently passed away on 9 August
2010.
4. Mr M[...] left a
will signed on 29 October 2008. It is in type written form and
entitled: LAST WILL AND TESTAMENT OF R[...] M[...]
M[...]. The
parties are at loggerheads in regards to the question whether the
will is indeed in law a valid will, the interpretation
of certain
clauses ofthe will, and including, what the intention of the testator
was.
5.
It is of importance that on the same date, 29 October 2008, Ms M[...]
similarly attested to a will entitled: LAST WILL AND TESTAMENT
OF
J[...] G[...] M[...]. Save for the names of the two testators, the
two wills are exact copies of one another. Ms M[...] attested
to the
testament of Mr M[...] as a witness and
vice
versa
Mr
M[...] signed as a witness to the testament of Ms M[...].
It
appears that there can be no question that both testators were
acutely aware ofthe contents of the respective wills. This is
in any
event corroborated by the fact that the two wills were drafted by the
same person, Mr C[...] A[...] H[...] M[...] H[...],
a grandson of the
two deceased, who co-signed the two wills as a witness and whose name
is mentioned in paragraph 6.4 in both wills.
6. Although the will
of Mr M[...] were at some time amended by hand to reflect that it was
actually a joint will of the two testators,
the amendment reflecting
that purported situation does not comply with the requirements of
such amendment in that it was not attested
by the testator's
signature. However, save for the lack of technical compliance to the
requirements of a joint will, it is clear
that both testators were of
the same intention as to how and in what manner their estates should
devolve. There can be no doubt
that the two testators were ad idem in
all respects. Accordingly, but for the lack of the formal
requirements of a joint testament,
it was clearly the intention of
both testators to let their estates devolve in exactly the same way.
Therefore, in regards to the
testators' intention, it can be inferred
that they actually intended to jointly decide about the devolvement
of their estates.
7. On 27 September
2010 the first applicant in the main application, a practicing
attorney and appointed executor of the estates
of Mr and Ms M[...],
forwarded the Liquidation and Distribution account, referred to as
the liquidation and distribution account
of the joint estate of the
said deceased to The Master. After having received the said account
The Master made the following ruling:
"(3) The
provisions of the Will of the Late Mr RM M[...] dated 29 October are
not applicable in this estate. The estate must
devolve intestate.
Though Mrs M[...] signed the will as a witness and disqualified in
terms of Section 4(A)(1), when read with
section 4(A)(2)(b) is
entitled to inherit intestate. Therefore this estate should devolve
as follows: Mrs M[...] is entitled to
her half share in terms of
marriage in community of property, together with child's share in
terms of
Intestate Succession Act 81 of 1987
. The remaining child's
share must be bequeathed to the late Mr RM M[...] and Mrs M[...]'
children or their issue by representation
in terms of the
Intestate
Succession Act."
8. The
effect of the
Master's ruling is that the assets of Mr M[...]' estate should be
divided amongst all the heirs who would be entitled
to inherit
intestate.
9. It is indeed
correct that
Section 4(A)(1)
of the
Wills Act, No 7 of 1953
, provides
that a witness to a will, in this instance as far as the testament of
Mr M[...] is concerned, Ms M[...] and the grandson
of the testator,
the aforementioned C[...] A[...] H[...] H[...] shall be disqualified
from receiving any benefit from that will.
However
Section 4(A)(2)(a)
of the said Act provides that a court may declare such a witness to
be competent to receive a benefit from that will if the court
is
satisfied that such person did not defraud or unduly influence the
testator in the execution of the will.
10.
The ruling by the Master that Ms M[...], in terms of the provisions
of
section 492(A)(2)(b)
was disqualified to inherit anything in terms
Mr M[...]'s will but that she would have been entitled to inherit
intestate, is
prima
facie
correct
in law. The disqualifying provision in that section is however
subject to a possible court order in terms of
section 4(A)(2)(a).
This latter subsection provides as follows:
"Notwithstanding
the provisions of subsection (1)-
(a) A court may
declare a person or his spouse referred to in subsection (1) to be
competent to receive a benefit from a will if
a court is satisfied
that that person or his spouse did not defraud or unduly influence
the testator in the execution of the will;"
11.
Section 4A(1)
is
further subject to the provisions of
section 4A(2)(b)
of the Act,
which reads as follows:
"A person or
his spouse who in terms of the law relating to intestate succession
would have been entitled to inherit from the
testator if that
testator has died intestate shall not be thus disqualified to receive
a benefit from that will: Provided that
the value of the benefit
which the person concerned or his spouse receives, shall not exceed
the value of the share to which that
person or his spouse would have
been entitled in terms of the law relating to intestate succession."
12. The applicants
in the main application, not satisfied with the ruling by The Master,
as alluded to above, applied for an order
to review and set aside the
said ruling by The Master, and to substitute the ruling with the
following paragraph:
"Mrs M[...]
is entitled to her half share in terms of the marriage in community
of property. The remaining 50% (fifty percent)
share in the Estate
late R[...] M[...] M[...] (Estate number 2[...]) should devolve to
R[...] A[...] H[...] H[...]."
Alternatively that
par 6.3 of the will be deleted and substituted by an amended
paragraph 6.3, reading as follows:
“
6.3
The remainder of my estate shall devolve in equal shares upon my
grandsons and should my spouse J[...] G[...] M[...] become
deceased
before or after me, then and in that event, I bequeath my share in
the house in equal shares to my grandsons, C[...] A[...]
H[...]
H[...] and R[...] A[...] H[...] H[...]."
13. The Master did
not oppose the application and it can be assumed that The Master
abides the Court's decision.
14.
A provisional order was granted and a Rule
nisi
issued.
Subsequently, as referred to above, an intervening party, R[...]
M[...] H[...] M[...], a son of the late Mr and Ms M[...],
opposed the
application in the main application and lodged a counter application
seeking an order that the ruling by the Master
should be set aside
and replaced with an order that reads as follows;
"That
the estate of the late R[...] M[...] M[...] devolves testate upon his
spouse, the late JOY GLADYS Miles, subject to the
provisions of
Section 4A(2)(b) of the
Wills Act, no
7
of 1953
."
15. Should the main
application succeed it will have we implication that Mr M[...]'
estate will devolve upon one or both grandsons
of the two testators
mentioned in clause 6.3 of Mr M[...]'s testament.
16. The counter
application lodged by the intervening applicant includes a prayer for
the following declarator:
"That the
Estate ofthe late R[...] M[...] M[...] devolves testate upon his
spouse, the late J[...] G[...] M[...], subject to
the provisions of
Section 4A(2)(b)
ofthe
Wills Act, No 7 of 1953
."
17. In the event
ofthe counter application succeeding it will mean that Mr M[...]'
estate will devolve testate. Ms M[...]' estate
will then, in terms of
the provisions of
section 4A(2)(b)
inherit the share ofthe estate to
which Ms M[...] would have been entitled in terms ofthe law relating
to intestate succession.
In this regard the applicable subsection
Section 1
ofthe
Intestate Succession Act, No. 81 of 1987
, provides as
follows:
"1.
intestate
succession -
(1) If after the
commencement of this Act a person (hereinafter referred to as the
"deceased") dies intestate, either
wholly or in part, and
-(d) is survived by a spouse as well as a descendant-
(i) such spouse
shall inherit a child's share ofthe intestate estate or so much ofthe
intestate estate as does not exceed in value
the amount fixed from
time to time by the Minister of Justice by notice in the Gazette,
whichever is the greater; and
(ii) such
descendant shall inherit the residue (if any) ofthe intestate
estate;"
18. Clause 6 ofthe
will, dealing with the inheritance ofthe estate reads as follows:
"I hear by
leave and bequeath my estate, means and effects, whether in
possession or expectancy, and where-so-ever situated,
nothing
excluded and after settlement ofthe Estate's liabilities and
expenses, as follows:
6.1 My share of
our house shall devolve upon my surviving spouse currently at: 6[...]
K[...] Street, S[...], H[...].
6.2 In the event
ofthe my surviving spouse not having adequate income to maintain the
lifestyle to which she is accustomed; she
shall receive a comfortable
and adequate income from the assets of R[...] Family Trust and this
duty shall be administered by the
trustees.
6.3 Should my
spouse J[...] G[...] M[...], predecease me, the whole of my estate
shall devolve in equal shares upon my grandsons
C[...] A[...] H[...]
H[...] and R[...] A[...] H[...] H[...]."
6.4 Should my
grandsons C[...] A[...] H[...] H[...] and R[...] A[...] H[...]
H[...], predecease me I bequeath the residue of my
estate to in equal
shares to their heirs.
6.5 With
reference to clauses 17 and 27 of the Trust deed I request that the
assets of the R[...] Family Trust be left in full to
my
abovementioned grandsons in equal shares.
6.6 1 hereby
appoint C[...] A[...] H[...] H[...] to take my place as Trustee of
the R[...] Family Trust. If he is not available,
I then appoint
R[...] A[...] H[...] H[...] in his place."
19. It was submitted
by Mr Meijers, appearing on behalf of the applicants in the main
application that it was the intention of Mr
M[...] that his estate
should actually devolve upon the two grandsons mentioned in clause
6.3 of his testament. It was argued by
Mr Meijers that from the
wording in paragraph 6.1 it is clear tht Mr M[...] did not have the
intention that the whole of his estate
should devolve on his spouse,
Ms M[...]. Not surprisingly, Mr Gouws, appearing for the intervening
party, disagreed.
20. Both parties
were however in agreement that this Court should set aside The
Master's aforementioned ruling, however, as alluded
to above, with a
totally different result in mind.
In regards to the
ruling of The Master, I am in agreement with the submissions by the
parties that the Maters Ruling should be and
set aside and that an
order should be made that Mr M[...]' estate should devolve testate. I
will revert to this issue herein below.
21.
Firstly it is of cardinal importance to determine what the intention
of Mr M[...] was pertaining to the question about the devolvement
of
his estate. It has been re-stated over many years that the
'Golden
Rule'
in
this respect is as follows:
"[T]he
golden rule for the interpretation of testaments is to ascertain the
wishes of the testator from the language used."
See
Robertson v
Robertson's Executors
1914
AD 503
at 507.
22. In considering
this question it must be kept in mind that Ms M[...]' testament of
the same date pertaining to clauses 6.1 to
6.4 reads exactly the
same, save for the interchanging of the names of the two testators.
It appears therefore that although the
two testators did not
contemplate to make a joint will, they were ad idem in regards to
their intention with the devolvement of
the estate. It would not have
made a difference which testator would have been the first to pass
away. The surviving testator would
have benefitted in the same way
from the other's will.
23.
The original, now aggrieving, clause 6.3 (of both wills) is in my
view clear and unambiguous. In regards to the will in question,
it is
clearly stated that in the event of Ms M[...]
predeceasing
Mr
M[...], the whole of the testators' estate would have devolved upon
the mentioned grandsons, in equal shares. In view thereof
that Ms
M[...] did not predecease Mr M[...], it follows that it was clearly
the intention of Mr M[...] that Ms M[...] should inherit
the whole
estate. There is no other possible interpretation. Accordingly any
contention that Mr M[...]'s intention was that the
estate should
devolve upon the two grandsons is without any substance.
24. Mr Meijer's
contention that it was not Mr M[...] intention that Ms M[...] should
inherit the whole of the estate, based on the
wording of clause 6.1
in regards to the devolvement of the testators half share in the
house to the surviving spouse, is in my
view evenly without
substance. The correct interpretation of clause 6.1 seems to be that
the testator, realizing that one half
of the residence already
belonged to Ms M[...], he only had to specify in the will how his
share in the residence should devolve.
Although this clause is not on
its own absolutely clear, it has to be read in context, and what is
expressly stated in clause 6.3.
25. What remains is
the question whether Ms M[...], after having attested to Mr M[...]'
will as a witness, was without any remedy
disqualified to inherit
testate from that will. In this regard the provisions of
section
4A(2)(a)
becomes relevant. There is no reason why the provisions of
the said section should not be made an order of court in favour of
the
deceased Ms M[...]. There is no suggestion that Ms M[...]
defrauded Mr M[...] or that he was unduly influenced by her.
See
Theron and Another
v Master of the High Court [2001J3 All SA 507 NC
at
516 a -f.
26. The question
arising however is whether in the event of this Court making an order
in terms of
Section 4A
(2)(a) declaring that Ms M[...] was entitled
to inherit testate from the will of Mr M[...], whether the provisions
of
section 4A(2)(b)
will be applicable. The implications of the
latter sub-section is clear. If it is indeed applicable Ms M[...]'
right to inherit
testate from Mr M[...]' will would have been limited
in terms of the provisions of
section 1
of the intestate Succession
Act No. 81 of 1987. This is apparently what The Master had in mind in
making the abovementioned ruling.
27.
In my view court order made in terms of section 4A(2)(a) entails that
the right of an affected person, like Ms M[...], to inherit
testate
from the will of Mr M[...] will not be limited at all. This will in
any event be consistent with the intention of Mr M[...]
that Ms
M[...] should inherit the whole estate. In this regard I am in
respectful agreement with what is stated by the learned
authors
M
J DE WAAL
and
M C SCHOEMAN-MALAN
in
their publication
ERF
REG,
at
pl29, where the following appears:
"Daar is nie
'n beperking op die bedrag wat wat 'n person kan erf indien die hof
horn ingevolge artikel 4A(2)(a) bevoeg verklaar
om te erf nie. Indien
die persoon egter sou verkies om slegs sy intestate deeI ingevolge
artikel 4A(2)(b) te neem, is daar nie
'n hofbevel nodig soos in
artikel 4A(2)(a) vereis nie."
28. It follows that
Ms M[...] was in law entitled, after having inherited the whole
estate in terms of the will after the death
of Mr M[...], to do with
the estate whatever she was inclined to do. It appears that she in
fact made another will bequeathing
her entire estate to the
intervening applicant.
29. The relief
claimed by the applicants in the main claim, save for the setting
aside of the Masters ruling, cannot succeed. The
order sought by the
intervening party, including the setting aside of The Master's
ruling, succeeds. There is no reason why the
order as to costs should
not follow the result of the finding on the merits.
30. Accordingly the
following order is made:
(1) The main
application, save for the order in (2)(i), is dismissed with costs.
(2) The counter
claim of the intervening party succeeds to the following extent:
(i) The Master's
ruling in the matter of the Estate Late Roger Mervyn Miles, dated 25
October 2012, is set aside.
(ii)In terms of the
provisions of Section 4A(2)(a) of Act 7 of 1953 the late Joy Gladys
Miles is declared to have been competent
to receive a benefit from
the testament of the late Roger Mervyn Miles dated 29 October 2008.
(iii) The whole of
the estate of the late Roger Mervyn Miles devolved testate upon his
spouse, the late Joy Gladys Miles.
(3) The applicants
in the main application are ordered to pay the costs of the
intervening party, jointly and severally, the one
paying the other to
be absolved.
AJ BAM
JUDGE OF THE HIGH
COURT
5 March 2014