Summary of Judgment

1. Introduction

This matter concerned an unopposed motion application in the High Court of South Africa, Northern Cape Division, Kimberley. The applicant sought a declaratory order to have a photostatic copy of a will declared to be the last will and testament of the deceased, and to authorise the Master of the High Court to accept that copy for purposes of administering the deceased estate.

The applicant was Maria Johanna Christina Uys N.O., the surviving spouse of the deceased, and she acted in her capacity as executrix of the deceased estate. The respondents were Hendrik Johannes Uys (first respondent) and Elizabeth Cloete (second respondent), being children of the marriage between the applicant and the deceased; Vivian Di Scala (third respondent), described as the applicant’s and deceased’s son-in-law; and the Master of the High Court: Northern Cape Division (fourth respondent), cited in an official capacity due to the relief sought concerning acceptance of the document for estate administration purposes.

The procedural context arose because the Master had registered the copy of the will but declined to accept it on the basis that it was “slegs afskrif” (only a copy). The court (Majiedt R) granted the relief in the motion court and reserved reasons, which were later furnished in this judgment.

The general subject-matter was the law of succession, specifically the treatment of a lost original will and whether a copy could be recognised and implemented as the deceased’s will, notwithstanding the evidentiary presumption that may arise when an original will cannot be found after death.

2. Material Facts

The court proceeded from the position that the application was not opposed, and it focused on the facts necessary to determine whether the common-law requirements for reliance on a copy of a lost will had been met.

It was common cause on the papers that the document relied upon (annexure “B”) was a photostatic copy of a six-page document headed “Uiterste Wil en Testament”, dated 2 November 2000 at Daniëlskuil, and that it reflected a will executed as a joint will by the deceased and the applicant. On the face of the document, it contained provisions under which the estate would devolve upon the survivor, and it further regulated devolution in the event that the survivor died within seven days of the first-dying spouse.

The applicant stated that after the deceased’s death she found the original will in their home and delivered it to the First National Bank branch at Daniëlskuil for onward transmission to the relevant trust/estate administration division in Bloemfontein. A copy of the original was made by bank officials at Daniëlskuil and sent to Mr Eugene Venter at First National Asset Management and Trust Company (Pty) Ltd in Bloemfontein, which, on the will’s terms (clause 9), was intended to handle the estate administration. The original will, however, was retained at the Daniëlskuil branch and subsequently went missing while in the bank’s custody.

The court relied on evidence that a thorough search had been conducted for the original without success, supported by a confirmatory affidavit from a former bank official, Ms Els, indicating that despite intensive searches the original could not be found. The applicant also stated that shortly before his death the deceased and the applicant discussed the will, and the deceased was satisfied that the will was in order and that his affairs were properly arranged.

The court recorded that, if the application were refused, the first, second, and third respondents would stand to benefit by intestate succession, which explained their joinder as interested parties. The applicant, as joint testatrix, deposed unequivocally that annexure “B” was a true and correct copy of the original will, and the court treated this confirmation of content as material given her first-hand knowledge of the joint instrument.

3. Legal Issues

The central legal question was whether the court should, under the applicable principles, declare a photostatic copy of a will to be the deceased’s valid last will and testament where the original had been lost, and whether the Master should be authorised to accept it for estate administration.

The dispute was primarily one of the application of legal principles to largely undisputed facts. The key evaluative component concerned whether the evidence sufficiently rebutted the presumption that arises when an original will that existed and was in a testator’s possession cannot be found after death, namely the presumption that it was destroyed animo revocandi (with the intention to revoke).

A further legal issue arose from the Master’s report, which treated the application as if it depended on section 8(4B) of the Administration of Estates Act 66 of 1965 (relating to a “duplicate original” will). The court had to determine whether the matter in fact turned on section 8(4B), or rather on the common-law mechanism permitting proof and recognition of a lost will by means of a copy.

4. Court’s Reasoning

The court identified and applied the common-law position that where a will existed and was in a testator’s possession but cannot be found after death, a presumption arises that the testator destroyed it with intent to revoke. The court accepted, however, that a party wishing to rely on a lost original will may approach a court for relief to have a copy declared valid, thereby rebutting the presumption of revocation. The judgment set out the requirements expected of such a party.

The court summarised these requirements as proof, on a balance of probabilities, of four elements: that a valid will had been executed; the circumstances in which the original was lost and that a full search had been conducted; that there was no animus revocandi; and the contents of the original will.

Applying these principles, the court reasoned that annexure “B” constituted evidence that a valid will had been executed, and that the circumstances of loss were satisfactorily explained on the papers. The loss was attributed to the bank’s handling of the original after the applicant delivered it for transmission, and confirmatory evidence established that an intensive search had been undertaken without locating it. On the issue of revocation intent, the court placed weight on the applicant’s evidence that the deceased had recently discussed the will with her, expressed satisfaction with its provisions, and that the will was found at home after his death and then transferred to the bank for safekeeping/transmission. In that context, the court considered there to be sufficient evidence to rebut the presumption of intentional destruction and revocation.

As to the will’s contents, the court accepted the applicant’s sworn statement that annexure “B” was a faithful reproduction of the original. The court considered it significant that she was a joint testatrix, and therefore able to confirm first-hand what the will contained.

The court then addressed the complication introduced by the Master’s report. The Master had proceeded on the basis that the application was brought under section 8(4B) of the Administration of Estates Act 66 of 1965, which permits the Master to accept a duplicate original will. The Master’s refusal was based on the view that the photostatic copy did not qualify as a duplicate original. The court considered this to be a misconception as to the foundation of the application: it was not brought under section 8(4B), but under the common law. The court explained that section 8 did not displace the common-law position that a court can, in appropriate circumstances, declare a copy to be the will where the original is lost. The court also observed that, while the Master was correct that the copy did not qualify as a duplicate original, that conclusion was not determinative because the relief sought was grounded in the common-law approach to lost wills.

On that basis, the court concluded that the application was straightforward in substance: the applicant had proved the necessary requirements on a balance of probabilities, and the court therefore granted the declaratory relief and the related authorisation directed at the Master.

5. Outcome and Relief

The court declared that the photostatic copy attached as annexure “B” to the founding affidavit, being a six-page document with nine clauses titled “Uiterste Wil en Testament” dated 2 November 2000 at Daniëlskuil, was the last will and testament of the deceased, Mr Hendrik Johannes Uys (identified by ID number in the order).

The court further authorised the Master of the High Court for the Northern Cape Province to accept the document as the deceased’s will for purposes of section 8 of the Administration of Estates Act 66 of 1965 and to administer and finalise the estate accordingly.

The judgment, as reported in the reasons and the reproduced order, did not record any costs order.

Cases Cited

No reported case law was cited by name in the judgment.

Legislation Cited

Administration of Estates Act 66 of 1965, section 8(4).

Administration of Estates Act 66 of 1965, section 8(4B).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, despite the loss of the original will and the Master’s refusal to accept a mere copy as a “duplicate original” under section 8(4B), the applicant was entitled under the common law to an order declaring the photostatic copy to be the deceased’s last will and testament. The court held that the applicant proved, on a balance of probabilities, that a valid will had existed, that the original was lost despite a proper search, that the presumption of revocation animo revocandi was rebutted on the facts, and that the contents of the will were established by the copy and the applicant’s confirmation as joint testatrix. The Master was authorised to accept the document for purposes of administering the estate under section 8 of the Act.

LEGAL PRINCIPLES

A presumption arises that where an original will that existed and was in a testator’s possession cannot be found after death, the testator destroyed it animo revocandi. That presumption is rebuttable, and a party may seek judicial recognition of a copy of the will where the original has been lost.

A party seeking to rely on a copy of a lost will must prove on a balance of probabilities that a valid will was executed, explain the circumstances of the loss and show that a proper search was conducted, establish that there was no intention to revoke, and prove the contents of the original will.

Section 8 of the Administration of Estates Act 66 of 1965 does not, on the court’s approach, displace the common-law power of a court to declare a copy of a lost will to be operative. A copy that does not qualify as a “duplicate original” under section 8(4B) may nonetheless be declared valid as a will under the common law where the evidential requirements are met.