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[2024] ZAFSHC 343
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F.Z.M v S.M and Others (2995/2024) [2024] ZAFSHC 343 (31 October 2024)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable Yes/No
Case No:
2995/2024
In
the matter between:
F[…]
Z[…] M[…]
Applicant
And
S[…]
M[…]
First
Respondent
T[…]
E[…] obo
N[…]
O[…] U[…] MA[…]
Second
Respondent
ADV
CHRISTOFFEL JACOBUS HENDRIKS N.O.
obo
L[…] M[…] M[…]
Third
Respondent
MASTER
OF THE HIGH COURT, FREE STATE
DIVISION
Fourth
Respondent
CORAM:
Hefer AJ
Heard
:
10 October 2024
Delivered:
31 October 2024
Summary:
ORDER
1.
The Master of the High Court, Free State,
Bloemfontein, is ordered to accept the document marked ‘H’
annexed to the
founding affidavit of the applicant, as the last will
of M[…] J[…] M[…].
2.
Each party is to pay its own costs.
JUDGMENT
Hefer AJ
[1]
‘As appears from the terms of s 2(3) of the Wills Act, before a
Court can make an order
pursuant thereto, a Court must be satisfied –
in a case such as the present where a will is in issue, as opposed to
an amendment
– that it has before it a document: (a) which was
drafted or executed by a person; (b) who has since died; and (c) who
intended
the document to be his/her will.’
[1]
[2]
It is common cause that M[…] J[…] M[…] (the
deceased), passed away during
March 2023 after he had been diagnosed
with cancer a mere two months before.
[3]
Approximately four months after the deceased had passed away, the
applicant lodged all necessary
documents to report the estate with
the Master of the High Court, Free State, Bloemfontein, such being
the fourth respondent before
Court.
[4]
These documents included a document titled ‘Will and Final
Testament’ dated 28 February
2023 and which had, according to
the applicant, been signed by the deceased as well as two witnesses,
the identity of whom had
been provided by the applicant. This
document will hereinafter be referred to as ‘the Will’.
The fourth respondent
rejected the Will as the Will does not comply
with the provisions of s 2(1)
(a)
(iv) of the Wills Act 7 of
1953 (the Act) in that the Will consists of more than one page and
only the last page thereof had been
signed by the deceased and the
witnesses.
[5]
The first respondent, who is the biological daughter of the deceased,
opposes the application
by the applicant for relief sought in terms
of s 2(3) of the Act, being the rescue provision of the Act in terms
of which a Court
may order the Master to accept a document as the
valid will of the testator, although it does not comply with all the
formalities
as set in s 2 of the Act.
[6]
The second respondent, being the deceased’s ex-wife from whom
he had been divorced since
June 2017, the third respondent, being the
curator ad litem
on behalf of the minor child born from the
erstwhile marriage between the deceased and second respondent, as
well as the fourth
respondent do not oppose the relief sought.
[7]
The crux of the first respondent’s opposition to the
application is that the applicant has
failed to prove that the Will
contains or is a true reflection of the deceased’s intentions.
The first respondent effectively
disputes the requirements that the
Will was drafted by the deceased and that he intended it to be his
will.
[8]
Mr Rawson, appearing on behalf of the first respondent, referred me
to the matter of
Smith
v Parsons NO and Others
[2]
in
which Lethuli AJ held that ‘a great measure of certainty is
required to show that it was actually the intention of the
testator
that the document in question be his will.’
[3]
[9]
Lethuli AJ further referred to the matter of
Schnetler
NO v Die Meester and Andere
,
[4]
in which it was held that what had to be decided was, whether on the
basis of the facts as set out and the circumstances surrounding
the
drafting of the document, it could convincingly be said that the
document was meant to be the deceased’s will.
[10]
The first respondent contends that the deceased could not have
intended the purported Will to be his last
will and testament on two
inter-related grounds namely:
(i)
The applicant has failed to prove on a
balance of probabilities that the deceased would have had the
intention to give his entire
estate to the applicant and thereby
depriving all of his children of their right to inherit in terms of
the intestate succession;
and
(ii)
The applicant has failed to prove on a
balance of probabilities that the deceased was in his right state of
mind and mentally capable
of appreciating the legal effect of signing
the purported Will.
[11] Mr
Rawson
argued that the Will could not have been drafted and
executed by the deceased because the contents of the Will appears to
be ‘
professionally drafted, complying with formalities,
using legal jargon and explicitly identifying assets’
.
[12] In
this regard, it is the version by the applicant that on the day in
question, being the 28
th
of February 2023, the deceased
called his biological uncle, Mr E[…] M[…] to come to
their house as the deceased wished
to draft his Will. Mr E[…]
M[…] arrived and they discussed the content of the deceased’s
Will. After their
discussion, the deceased, according to the
applicant, personally typed his Will on his laptop in the presence of
his uncle and
the applicant. When the deceased finalized his Will, he
saved it on a memory stick as his laptop was not connected to a
printer
and requested the applicant to print the Will from another
laptop which was connected to a printer. The applicant then handed
the
hard copy of the Will to the deceased and his uncle. After they
had read through the Will, a certain Mr Daniele Mpayiphieli was
called to come to the deceased’s house. The deceased then
signed the Will in the presence of the said Mr E[…] M[…]
and Mr Mpayiphieli.
[13]
The fact that because the signatures of the deceased and the
witnesses were omitted from the first page of
the Will does not, as
contended by Mr Rawson, ‘. . . that as lay-people, they were
not sure of the prescribed formalities
to execute a valid will’,
as opposed to the fact as already mentioned and relied upon by the
first respondent, that the Will
appeared to be professionally drafted
complying with the formalities, provide a basis for a finding that
the Will was not drafted
and executed by the deceased.
[14]
The same applies to the contention by Mr Rawson regarding the
applicant’s maiden name as contained
in the Will. At that
stage, a customary marriage only had been concluded between the
deceased and the applicant. It was only after
the death of the
deceased that an abridged marriage certificate has been issued by the
Department of Home Affairs.
[15] As
far as all the grounds advanced by the first respondent are
concerned, there exists no factual basis upon
which the version by
the applicant, stands to be rejected. Her version is also confirmed
by the two witnesses who signed the Will,
the most important being
the deceased’s uncle who was present when the Will was drafted
by the deceased.
[16]
According to Mr Rawson, the applicant has failed to allege and prove
sufficient surrounding circumstances
to support her claim that the
deceased executed the Will or intended the Will to contain his
testamentary wishes. This is also
not correct.
[17]
The uncontested facts show that the applicant concluded a customary
marriage with the deceased during October
2019, which customary
marriage was confirmed by the Department of Home Affairs by the
issuing of the abridged marriage certificate.
[18]
Approximately four years later the deceased was diagnosed with
cancer. Soon thereafter he decided to execute
a Will which resulted
in the document currently before Court. There is no reason as
contended by Mr Rawson why the deceased must
or should have discussed
his intention to bequeath his entire estate to his wife before
executing the Will. In fact, bequeathing
one’s estate to your
spouse is nothing out of the ordinary.
[19]
First respondent’s further contention that it is improbable
that the deceased would have had the intention
to bequeath his entire
estate to the applicant and thereby depriving all of his children of
their right to inherit in terms of
intestate succession, can also not
be upheld.
[20]
The minor child, N[…] O[…] U[…] M[…], as
represented by her biological mother,
does not oppose the relief
sought. Provision was in any event made for maintenance for this
minor child in the deed of settlement
concluded at the time of the
divorce action between the deceased and the second respondent in her
personal capacity.
[21] As
far as the minor child, L[…] M[…] M[…] is
concerned, Adv Hendriks, the appointed
curator
ad litem
for
this child, correctly pointed out that the deceased estate is liable
for the child’s maintenance and that the obligation
of the
estate of the deceased parent to support a minor child takes priority
over all bequeathals. Should either or both
the parents pass
away, the obligation to support the child to claim maintenance from
the estate of the deceased parent continues.
This, of course, also
applies to the minor child, N[…].
[22] As
far as the first respondent herself is concerned, on her own version,
the deceased already has made her
one of the beneficiaries of his
Sala Pension Fund.
[23] In
conclusion, taking into account all the surrounding circumstances, I
am satisfied that the applicant has
succeeded in showing that the
Will was drafted by the deceased with the intention to be his last
will and testament.
[24]
It is further common cause that the deceased drafted his Will a mere
two months after he had been diagnosed with
cancer.
[25] I
accept, as alleged by first respondent, that since being diagnosed
with cancer, the deceased may have experienced
some ‘bad days’.
Taking into account the relatively short period of time since he had
been diagnosed, there is however,
on a balance of probabilities,
nothing to conclude that the deceased was not in his right state of
mind or not mentally capable
of signing the purported Will. The
diagnoses of cancer does not mean that it affected the deceased’s
mental capacity.
[26] As
far as costs are concerned, as the successful party, the applicant is
entitled to be awarded costs in
her favour. However, Mr Berry,
appearing on behalf of the applicant, on his own accord and
graciously, indicated that the Court
should consider an order in
terms of which each party is to pay its own cost. He has done so with
reference to the fact that the
first respondent was represented by
the UFS Law Clinic. I consider this concession by Mr Berry to be
admirable and on that basis,
costs are to be awarded on the basis
that each party is to pay its own cost. At this point, I also wish to
commend Mr Rawson, from
the UFS Law Clinic, in particular, for the
manner he presented his argument before Court.
Order
Therefore, I make the
following order:
1.
The Master of the High Court, Free State,
Bloemfontein, is ordered to accept the document marked ‘H’
annexed to the
founding affidavit of the applicant, as the Last Will
of M[…] J[…] M[…].
2.
Each party is to pay its own costs.
J J F HEFER, AJ
Appearances:
On
behalf of the applicant:
Adv
AP Berry
Instructed
by:
HJ
Booysen Attorneys Inc.
Bloemfontein
On
behalf of the first respondent:
Mr
C Rawson
UFS
Law Clinic
Bloemfontein
[1]
As per Selikowitz J in
Ex
Parte Maurice
1995
(2) SA 713
(CPD) at 715E-H.
[2]
Smith
v Parsons NO and Others
[2009] ZAKZHC 2; 2009 (3) SA 519 (D).
[3]
Ibid at 525B-C.
[4]
Schnetler
NO v Die Meester and Andere
1999 (4) SA 1250
(C).