About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2008
>>
[2008] ZAWCHC 111
|
|
Marais v Botha NO and Others (5461/2007) [2008] ZAWCHC 111 (31 October 2008)
IN
THE HIGH COURT OF SOUTH AFRICA CAPE OF GOOD HOPE PROVINCIAL DIVISION
CASE
NO: 5461/2007
In
the matter between:
RUBY
CHARMAINE MARAIS
Applicant
and
JOAGEM
HENDRIK BOTHA NO
1
Respondent
THE
MASTER OF THE HIGH COURT, CAPE TOWN
2
nd
Respondent
SAREL
MARAIS
3
rd
Respondent
JACQUES
MARAIS
4
th
Respondent
DESERAY
MCKIRBY
5
th
Respondent
JUDGMENT
DELIVERED ON THIS 31
&T
DAY OF OCTOBER 2008
MEER.
J:
[1]
The applicant is the surviving spouse of the late Jacobus Petrus
Marais ("the deceased") with whom she executed
a joint
will ("the joint will") dated 26 February 1999. She seeks
an order in terms of section 2(3) of the Wills Act
7 of 1953 ("the
Wills Act"
;), that The Master of the High Court, Cape Town, the
second respondent, be ordered to accept the joint will as the will
of the
deceased for the purposes of the
Administration of Estates
Act 66 of 1965
,("the Estates Act"). It is common cause
that the deceased was murdered and that the applicant has been
indicted on
a charge of conspiracy to the murder of the deceased.
[2]
The third, fourth and fifth respondents ("the opposing
respondents") are the children of the deceased. They oppose
the
application. The first respondent is the executor of the deceased's
estate. He was appointed as such by the second respondent
at the
request of the opposing respondents, after the second respondent,
the Master, placed the validity of the joint will in
issue. It
appears that second respondent's concerns about the joint will
flowed from the fact that the signatures appended on
the last page
of the document are too far removed from the substance of the will.
Section 2
(3) of the
Wills Act vests
this court with authority in a
situation like this to direct the second respondent to accept a
document as being the valid will
of a deceased person, if the court
is satisfied that the document was in fact intended to be the
deceased person's will, even
if all prescribed formalities were not
complied with.
[3]
The opposing respondents initially took issue with the joint will
because of the stance adopted by second respondent. They
however
subsequently accepted that the joint will executed in 1999 was
intended to be the will of the deceased at the time. They
concede
moreover that in principle there is nothing that precludes this
Court from ordering the Master to accept the will, thereby
exercising its capacity in terms of
Section 2(3)
of the
Wills Act.
This
concession is properly made. See
Horn
en Andere v Horn en 'n Ander
1995
(1) SA 48
(W) at 50B and 50B-B/C;
Van
Wetten and Another v Bosch and Others
2004
(1) SA 348
(SCA) at para 27;
Schnetler
NO v Die Meester en Andere
1999
(4) SA 1250
(C) at 1260 A-E.
[4]
The opposing respondents however continue to oppose the acceptance
of the joint will and applicant's application. They contend
that the
deceased executed another will after 1999, thereby revoking the
joint will. He did so, according to them, as a consequence
of
marital difficulties and mistrust between the deceased and the
applicant. The opposing affidavit of the third respondent indicates
that he and his siblings are currently searching for the original
and a copy of the deceased's last will.
[5]
The third respondent in his opposing affidavit contends that there
is clearly a factual dispute concerning which is the last
will. He
adds that he was informed by the deceased in his last days inter
alia:
-that
the deceased suspected the applicant was trying to poison him;
-that
the deceased could not divorce the applicant as she refused to
agree
that his assets could be transferred to him;
-that
the applicant and her daughter refused to transfer the deceased's
flat
in Pretoria to him;
-that
the deceased intended to disinherit the applicant's daughter.
[6]
The affidavit of the third respondent emphasises that the applicant
has been charged in connection with the murder of the
deceased and
that in the event of her being convicted, she will not be allowed to
inherit in terms of the joint will. In that
instance, should the
other will not be found, the third respondent and his siblings will
inherit under intestacy. It would be
in the best interests of the
estate if the independent executor currently appointed, remains in
office.
[7]
The applicant counters that the respondents have failed to produce
the later will and to satisfy the onus upon them to prove
that such
will exists. Mr van der Merwe, for the applicant, submitted that
there was, in the circumstances, no dispute of fact
concerning the
existence of such later will. Mr van der Merwe moreover characterised
the submissions of third respondent pertaining
to what the deceased
informed him during the latter's last days, as inadmissible hearsay
evidence. I do not believe this to be
so. I am satisfied that such
evidence is admissible under
Section 3(1)
of the
Law of Evidence
Amendment Act 45 of 1988
. It is also well established that a
deceased's statements of his testamentary intentions may in certain
circumstances, be admissible.
See
R
v Basson and Others
1965
(1) SA 697
CPD at 699C-H and 700 A-G. See also
R
v Foreman
1952
(1) SA 423
(SC).
[8]
Nor do I accept there to be no material dispute as contended on
behalf of Applicant. On the opposing respondents' version, considered
in its totality and even absent the production of the later will,
there exists a dispute as to whether there was a later will.
The fact
that the later will, which the opposing respondents contend for, was
not produced or yet found, does not, in my view,
detract from such
material factual dispute which runs central to this matter.
[9]
The applicant elected not to file any replying papers in which she
responded significantly to the allegations of third respondent
or
placed such allegations in any context. Nor did she adduce additional
information in the light of such allegations as might
have been
expected from a litigant in her position. The fact that she baldly
denied the existence of the later will in an opposing
affidavit to
the joinder application (brought by the opposing respondents) does
not detract from her failure to significantly reply
in the main
application
[10]
Having found there to be a material dispute of fact, and applying the
general test as formulated in
Plascon-Evans
v Van Riebeeck Paints
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634 (H-l), the application stands to be adjudicated
on the opposing respondents' version. In assessing the facts as
stated
by the opposing respondents, together with those facts by the
applicant, which the opposing respondents admit, I am inclined to
agree with Mr Moller, for the opposing respondents, that respondents'
version, considered within the context of marital strife,
animosity
and distrust lends itself to the inference that the deceased may well
have made another will. It can be said that the
opposing respondents
have shown, on a preponderance of probabilities, that there may be a
new will. The application accordingly
cannot succeed.
[11]
I note also that a finding for the applicant would indeed be contrary
to the recognized Roman-Dutch law maxim of
"de
bloedige hand neemt geen erf'.
Applicant
is nominated as executor in the joint will. A finding in her favour
could possibly lead to her being appointed executor
of the joint
will, and thereby in her capacity as such receiving a benefit under
the will. It is so that to be appointed executor
of an estate under a
will, is tantamount to receiving a benefit under the will. See
Thomas
and Another v Clover NO and Others
2002
(3) SA 85
N at 92C-E. Were applicant to be appointed executor, she
would benefit. Given that applicant has been charged with conspiracy
to
the murder of the deceased, this could not be countenanced. In the
unreported judgement of
Pu
& Others v Ranchod NO and Another
2005
JOL 15767
(ZH) at p.5 it was held to be repugnant to all notions of
justice and public policy for a person to be appointed executor to
the
estate of a person he has killed or has been accused of killing.
The analogy in my view must logically apply to a person charged
with
conspiracy to murder in respect of the deceased, as is the case with
applicant. The office of executor is moreover a fiduciary
one, for
which a person indicted in connection with the murder of the
deceased, is in my view ill equipped to occupy.
[12]
The opposing respondents did not seek costs against the applicant
personally in the event of the application being dismissed.
An
appropriate cost order they submitted would be one requiring costs to
be borne by the deceased estate
[13]
In view of all of the above I grant the following order:
The
application is dismissed;
The
costs of the application are to be borne by the estate of the late
Jacobus
Petrus Marais.
MEER, J