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[2009] ZAGPPHC 191
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Matabane and Others v Master of the High Court, Pretoria and Others (8473/07) [2009] ZAGPPHC 191 (20 May 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
DATE: 20/05/2009
CASE NO: 8473/07
In
the matter between:
RAMADIMETJE
MAGDELINE MATABANE
…...............................................
FIRST
APPLICANT
MOLEBOGENG
EMILY MATABANE
….....................................................
SECOND
APPLICANT
MORAMMOFO
SIPHO
MATABANE
.................................................................
THIRD
APPLICANT
vs.
THE
MASTER OF THE HIGH COURT,
PRETORIA
....................................
FIRST
RESPONDENT
SEBILETSO
MOTONE MATABANE
….................................................
SECOND
RESPONDENT
ISSY
WILLIAM GUNDELFINGER N.O
…....................................................
THIRD
RESPONDENT
KHESWA
ROSIE FLATER
…..................................................................
FOURTH
RESPONDENT
MATABANE
MALEROTHO GILBERT
….....................................................
FIFTH
RESPONDENT
MATABANE
PERCY
TSIDISHO
...................................................................
SIXTH
RESPONDENT
JUDGMENT
BOTHA
J:
In
this matter the applicants apply for an order declaring a document
marked RRM1 to be the last will and testament of the late
William
Ntinyane Matabane (the deceased). In the alternative the court is
asked to declare his previous will, marked RRM3, revoked.
The
main relief is claimed in terms of section 2(3) of the Wills Act,
1953 (Act 7 of 1953). The alternative relief is claimed in
terms of
section 2A of that Act.
The
three applicants are all relations of the deceased. They would be
beneficiaries if RRM1 is accepted as the deceased’s
will.
The
first respondent is the Master of the High Court, Pretoria.
The
second respondent is the deceased’s ex wife. She is the sole
heir of his estate in terms of RRM3.
The
third respondent is the duly appointed executor of the deceased’s
estate. There is an ancillary prayer that the applicants’
attorney, Mr Mendelow, be appointed in his place.
The
third to sixth respondents are also relations of the deceased.
The
deceased and the second respondent were divorced on 11 April 2006
after they had been together for 40 years. On that day only
the
divorce was granted. The patrimonial issues between the parties were
settled on 30 June 2006 in terms of a deed of settlement.
The
deceased and the second respondent had no children.
On
14 April 1976, whilst living in exile in the United States of
America, the deceased signed the will, RRM3, in which he bequeathed
his half of the joint estate to the second respondent.
In
2004, after the deceased and the second respondent had returned to
South Africa, the second respondent instituted divorce proceedings
against the deceased in the Witwatersrand Local Division.
The
matter was set down for hearing on 10 February 2006, but it had to be
postponed due to the deceased’s state of health.
The
deceased’s attorney, Mr Mendelow, went to visit the deceased in
the Carstenhof Clinic to discuss a settlement proposal.
After the
settlement proposal had been discussed, the deceased produced in
draft a will that he had drawn up in his own handwriting.
It was
unsigned. The deceased also had a copy of RRM1, RRM8, that he showed
to Mr Mendelow.
RRM1
in its original state reflected the following distributions of the
estate of the deceased:
First
applicant: 60%;
Fifth
respondent: 10%
Second
applicant: 10%;
Third
applicant: 10%;
Fourth
respondent: 5%;
Sixth
respondent: 5%.
In
the case of each beneficiary a motivation of the bequest was given.
The
deceased told Mr Mendelow that he would type up his will. Mr Mendelow
advised the deceased that because he was critically ill,
it would be
advisable for him to sign it and for Mr Mendelow to witness it. He
advised him that the will would then be capable
of being accepted as
his will even though it did not conform with the
Wills Act. The
deceased then indicated that he would sign it and he did sign it at
the bottom of each page.
Mr
Mendelow signed as a witness on each page. After signing Mr Mendelow
left with RRM1 and RRM8.
The
deceased recovered to the extent that he was discharged from the
clinic.
On
10 May 2006 the deceased met Mr Mendelow in his office in order to
discuss settlement proposals. When the issue of the deceased’s
will came up for discussion, Mr Mendelow took out RRM1 and told the
deceased that they had to get “moving on it”. By
that Mr
Mendelow mean that it had to be typed up. The deceased then told Mr
Mendelow that he wanted to make some changes to RRM1.
Mr Mendelow
advised him that it would be better to make the changes there and
then. The deceased then amended page 4-7 of RRM1
to the following
effect;
(a)
In the case of the first applicant the figure 60 was changed to 50.
(b)
In the case of the fifth respondent the figure 5 was changed to 10.
(c)
In the case of the third applicant the figure 10 was changed to 20.
(d)
In the case of the fourth respondent the figure 5 was changed to 10.
(e)
The bequest to the sixth respondent was deleted.
The
figure 10 against the name of the second applicant was left intact.
After
these amendments were made the deceased told Mr Mendelow that one of
his family members would type the will and that he would
contact Mr
Mendelow in order to effect proper compliance with the formalities.
Mr Mendelow then handed a copy of RRM1 to the deceased.
On
30 June 2006 the deceased and the second respondent signed a deed of
settlement in which they settled all their patrimonial disputes.
On
18 July 2006 the deceased died. At the time of his death the deceased
had not vacated the communal home.
It
appears that the deceased had an alcohol dependency problem and that
that was the reason why the second respondent insisted on
a divorce.
According to the second respondent the relations between her and the
deceased were cordial after the settlement of the
patrimonial issues.
The deceased told her that he still loved her. When the deceased
retired he started drinking. He appeared to
resent the fact that she
continued to work in a high profile position. The deceased then
sought refuge in a relationship with the
first applicant. She annexed
three notes that she received from the deceased in which he expressed
his love for her. The last two
were received on 2 June 2006 and 8
June 2006 respectively.
When
the deceased died they were still living together. She did not accept
that the deceased wanted to benefit the applicants as
alleged by
them.
Mr
Mendelow, in the replying affidavit, stated that RRM1 was signed on 8
February 2006. Then, as well as on 10 May 2006 it was the
intention
of the deceased that the signed document should be his will. In his
view the deceased did not want the second respondent
to inherit his
estate in addition to what she had received in terms of the
settlement agreement, which he considered to be unfair
to him.
The
test is whether RRM1, as amended, was intended by the deceased to be
his will.
RRM1
was entirely in the handwriting of the deceased. It clearly purports
to be a will that supersedes and nullifies all previous
wills. It was
intended to be typed eventually as can be seen from the typing
instructions.
Ms
Foulkes-Jones SC, who appeared for the second and third respondents,
stressed the fact there were typing instructions and that
it was the
intention of the deceased to have RRM1 typed up and finalized as a
will.
What
makes it clear that RRM1 was intended to have the force of a will in
the mean time, was the advice that Mr Mendelow gave the
deceased and
his reaction thereto.
The
deceased was under no illusions that RRM1 was not a valid will, but
he was told that in view of his precarious health, he should
sign it,
and if he signed it, it would be capable of being accepted by a court
as his will.
In
my view the probabilities show that the deceased had made up his mind
that the second respondent should not inherit his estate.
He
wanted to be bequeath his estate to his relatives with the first
applicant, with whom he had a relationship, being the major
beneficiary. The motivation he gave for the bequest to her makes it
perfectly clear.
It
is improbable that the deceased would have intended that the second
respondent should inherit his entire estate after she had
already
received her share of the joint estate in terms of the settlement
agreement dated 30 June 2006.
The
intention of the deceased not to make the second respondent his heir
was confirmed by the alterations he effected to RRM1 on
10 May 2006.
The scheme remained the same: to bequeath his estate to his relations
with the first applicant receiving the largest
percentage.
The
fact that the amendments were not signed or initialled does not
detract from the fact that the amendments reflected the intention
of
the deceased at the time.
They
were intended as amendments to RRM1 which the deceased had been
advised would be capable of being accepted as valid.
There
is something that I should stress in this matter. There is hardly a
dispute of fact. The bona fides of Mr Mendelow is not
questioned at
all. If his version is accepted - as I believe it must - it is clear
that the deceased intended RRM1 to be his will
even though it was
intended to be typed up. It is not a case where there is any danger
of the substitution of a fraudulent document.
See Ndebele and Others
NNO v The Master and Another 2001(2) SA 102(C) at 110F.
In
my view the relief claimed should be granted.
It
was not contended that if RMM1 is accepted as the will of the
deceased relief should not be granted in terms of prayers 3 and
4.
Even though Mr Mendelow signed RRM1, there is no reason why he should
not be appointed as executor in terms of
section 4A(2)(a)
of Act 7 of
1953. It is clear that the deceased trusted him and that the
initiative to appoint him as executor came from the deceased.
The
applicants had to approach the court for relief. Where it cannot be
said that the opposition was unreasonable, it would only
be fair if
the costs of opposition be paid by the estate of the deceased. See
Ndebele and Others NNO v The Master and Another supra
at 111J-112B
In
the result the following order is made:
1.
An order is granted in terms of prayers 1, 2, 3, 4 and 5 of the
notice of motion.
2.
The costs of the application, including the costs of opposition, are
to be paid by the estate of the deceased.
C.
BOTHA
JUDGE
OF THE HIGH COURT