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2024
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[2024] ZAECMKHC 90
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Ungerer v Ungerer and Others (2083/2024) [2024] ZAECMKHC 90 (2 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
no. 2083/2024
In
the matter between:
ANDRE
UNGERER
Applicant
and
ANDI
UNGERER
First respondent
MORNE
FOURIE
N.O.
Second respondent
THE MASTER OF THE HIGH
COURT
Third respondent
JUDGMENT
GOVINDJEE AND LAING JJ
[1]
This is an unopposed
application to have the unsigned and undated Last Will and Testament
of the Deceased, Estelle Ungerer, drafted
in 2022 (‘the 2022
Will’) declared to be valid in terms of s 2(3) of the Wills
Act, 1953 (‘the Act’), together
with consequential
relief.
Background
[2]
The second respondent was
appointed as Executor in terms of a 1999 Will, which has been
accepted by the Master. The applicant and
the deceased were married.
The first respondent is the only child born of the marriage and is
the sole heir in terms of the 1999
Will. She has been estranged from
the applicant and the deceased for some time.
[3]
It is convenient to draw from
counsel’s heads of argument in order to place the application
in its proper context.
[4]
The applicant and the deceased
utilised the services of Capital Legacy during January 2022 to assist
them in drafting their wills.
They seemingly intended to leave 100%
of their respective estates to each other, and thereafter to their
daughter in the event
of their demise. Wills were drafted according
to instructions received. The deceased had contracted cancer and was
very ill at
the time and on medication.
[5]
The application provides
details regarding the intention of the applicant and the deceased and
their financial constraints, including
the reason for leaving their
estates to one another instead of their daughter. As to the reasons
for the deceased not signing her
own will at the appointed time, the
applicant states only the following:
‘
On the day that we had to sign
our Last Wills and Testaments, my sister Annalien Botha, was visiting
us.
My sister, the deceased’s aunt,
referred to above, myself and the deceased were all together. We
decided to sign our Wills.
We did not know in what sequence we had to
sign. We had by then received the Wills drafted by Capital Legacy. My
sister signed
both our Wills as witness, but before the Deceased
could sign her Will and Living Will, she felt ill and decided to sign
her Will
at a later stage, which she never did. I continued to sign
my will, but the Deceased left it later. She left and went to our
room.
I can assure this Honourable Court, on
oath, that the 2022 Will is indeed the final Will of the Deceased,
although not signed by
her.’
[6]
The applicant’s core
argument was that the landscape had changed: the first respondent was
a minor at the time the 1999 Will
was drafted, during a time when the
applicant and deceased were both employed. At that stage the main
concern had been their daughter’s
financial well-being. At the
time the 2022 Will was drafted, however, the applicant and deceased
were both unemployed, whereas
the first respondent was employed. The
applicant’s dire financial situation was emphasized, together
with various details
pertaining to a so-called ‘family feud’.
The application is supported by the two family members who were to
witness
the signatures of the applicant and the deceased upon
signature of the 2022 Will, as well as the representative of Capital
Legacy
who took instructions from them and arranged for the wills to
be drafted in accordance with their instructions. The application
is
unopposed, also on the part of the Master.
The
issue
[7]
As indicated, the deceased
passed away before ever signing the 2022 Will. The question is
whether the court may accept that Will
on the papers before it and in
the light of the applicable legal framework.
The
legal position
[8]
S 2(3) of the Act provides:
‘
If a court is satisfied that a
document or the amendment of a document drafted or executed by a
person who has died since the drafting
or execution thereof, was
intended to be his will, or an amendment of his will, the court shall
order the Master to accept that
document, or that document as
amended, for the purposes of the
Administration of Estates Act, 1965
,
as a will, although it does not comply with all the formalities for
the execution or amendment of wills referred to in subsection
(1).’
[9]
A similar factual matrix,
broadly speaking, was considered by the SCA in
Grobler
v Master of the High Court
.
[1]
In that instance, there was a chain of email communications between
the deceased and the person who drafted the disputed will on
his
behalf. The deceased also requested that individual to provide him
with specimens of wills dealing with bequests of movable
and
immovable assets to surviving partners and children.
[2]
A draft will was eventually prepared. The drafter and the applicant
described what occurred at the final meeting which took place
with
the deceased prior to his passing. The deceased suggested further
amendments to the draft which were recorded by the drafter
on a typed
version of the draft will in manuscript. He understood this to
constitute the deceased’s final instructions that
would later
be effected electronically, after which a meeting would be arranged
for signature. In fact, the meeting never took
place, seemingly
because of the deceased’s busy schedule.
[10]
The court
a
quo
dismissed the
application. On appeal, it was argued that the unsigned will ought to
be accepted because the deceased ‘played
an active role in the
drafting and completion’ of the draft will and it could be
inferred in the circumstances of the matter
that he had received the
final version.
[3]
Maya P emphasized that the purpose of s 2(3) of the Act was to ‘avoid
thwarting the lawful wishes of the deceased would-be
testator’.
The learned judge added as follows:
‘
However, the document must have
been drafted or executed by the deceased whose will it purports to
be, i.e. created or prepared
by the deceased personally. Furthermore,
the court must be satisfied on a preponderance of probabilities that
the deceased intended
it to be his or her will. And once satisfied
that the document meets the requirements of s 2(3), the court is
obliged by these
peremptory provisions to order the Master to accept
it as the deceased’s will.’
[4]
[11]
As in the present
circumstances, the disputed will had clearly not been drafted by the
deceased, but by someone else, and there
was simply no indication on
the record that the deceased accepted the final document presented
and accepted it as their will.
[5]
The position has been described as follows:
[6]
‘
The difference between a
document which is intended by its maker to be his will … on
the one hand, and an instruction by
him to another person to draw a
will or an amendment to a will, is neither merely technical nor
insubstantial: in my view it is
fundamental. In the former case, the
maker of the document intends it to constitute the final expression
of his wishes as regards
the disposal of his estate. It is not
subject to change, save, perhaps by means of a subsequent and
entirely fresh and separate
amendment or codicil. In the latter case,
the maker of the document does not vest it with the same intention of
finality: he anticipates
that another document will, in due course,
be prepared and placed before him for his consideration and approval,
which he may or may not sign
or alter, as he may wish, when it is presented to him
.’
(Own emphasis.)
[12]
Similarly, in
Bekker
v Naude en andere
,
[7]
the appellant and the deceased had approached a bank and requested it
to draft a joint will for them. They had explained to a bank
employee
what they wanted. The notes made by that employee were sent to the
bank’s head office where other officials used
the bank’s
standard clauses to draft a draft will which was sent to the
appellant and deceased for their signature. In fact,
the draft will
was never signed. As such, the SCA held that the key question was
whether the draft will was ‘drafted’
by the appellant and
the deceased. When compared to the notion of ‘caused to be
drafted’, the court concluded that
the legislature had
preferred the stricter requirement of personal drafting, so that the
instructions given to the bank could not
be said to amount to the
will being ‘drafted’ by the deceased. An appeal against a
decision declaring the will to be
invalid was refused.
[13]
As Maier-Frawley J explained in
Sono and another v Master of
the High Court, Johannesburg and others
,
[8]
the upshot of
Bekker
is
that it will not be possible for an unexecuted document, drafted by
an attorney or other advisor, to be rescued from invalidity
using
s
2(3)
of the
Wills Act. Where
the document is indeed executed (by the
act of signing it), then it will be irrelevant who drafted it.
[9]
Analysis
[14]
The formalities prescribed by
ss 2(1)
and
2
(2) in relation to the execution of a will and
amendments thereto are to ensure authenticity and to guard against
false or forged
wills.
[10]
By enacting s 2(3) of the Act, the legislature was ‘intent on
ensuring that failure to comply with the formalities prescribed
by
the Act should not frustrate or defeat the genuine intention of
testators’.
[11]
In
Van der Merwe v The
Master
,
[12]
also a case involving a disputed, unsigned will, Navsa JA held that
in circumstances where there was no opposition to an application,
a
court should guard against uncritical acceptance of the appellant’s
version. That decision also explains the two-pronged
nature of the
enquiry. The first question to be considered is whether the document
in question was drafted or executed by the deceased.
Following on
this is the question whether the deceased intended it to be their
will.
[13]
[15]
On the authority of
Grobler
,
in the absence of evidence that establishes that the deceased
approved
all the contents of the draft will, a court will be unable to find
that they intended it to be their will.
[14]
It is, strictly speaking, unnecessary to make a firm decision
regarding the deceased’s intention in the present
circumstances.
The disputed will was neither drafted by the deceased,
nor executed by her, so that the subsequent enquiry into intention
does
not arise.
[15]
[16]
Nothing more needs to be said
in that regard other than to observe that the applicant provided no
adequate explanation for the deceased’s
failure to have signed
the will during the intervening period of eight months between the
date upon which the disputed will was
presented to her for signing,
22 February 2022, and the date of her passing, 11 October 2022. The
applicant merely averred, vaguely,
to ‘the pressing
arrangements being made to relocate on 17 July 2022’ and to
‘her failing health’. If the
deceased had truly intended
the 2022 Will to have been her final will, then it would have been
expected that she would have signed
it, especially in view of her
terminal decline and impending demise. On a preponderance of
probabilities, however, the deceased
changed her mind to avoid
leaving her daughter, the first respondent, with nothing until the
applicant’s eventual passing.
From the exchange of
communication between the deceased and the first respondent it is
apparent that the deceased was desperate
for mother and daughter to
set aside their differences and to achieve reconciliation before she
departed. This would go some way
towards explaining her failure- or
refusal- to sign the disputed will. In the end, however, there was
simply no evidence on the
papers to demonstrate the intention as
alleged by the applicant.
[17]
Section 2(3) is cast in
peremptory terms and does not permit the exercise of judicial
discretion absent compliance with the stipulated
requirements.
[16]
This is because it represents an exception to the rigorous
requirements for a valid will stipulated in s 2(1), so that it must
be strictly interpreted.
[17]
In the circumstances, broader considerations of justice, fairness,
equity, distinguishable features of the applicant’s position
and the like are beyond the scope of the enquiry.
[18]
This court is bound by the doctrine of
stare
decisis
to implement the
law as it has been expressed by the SCA. As Thring J held in
Anderson
:
[19]
‘
Whilst the pursuit of equity
(sometimes erroneously confused by laymen with “justice”)
and the elimination of hardships
are consummations devoutly to be
wished, their attainment can often not be justified if it entails the
sacrifice of certainty and
legal principle. I do not think that the
Legislature had such a sacrifice in mind when it placed s 2(3) on the
statute book…’
Order
[18]
The following order is issued.
1.
The application is dismissed.
2.
There is no order as to costs.
A
GOVINDJEE
JUDGE
OF THE HIGH COURT
JGA
LAING
JUDGE
OF THE HIGH COURT
Heard:
30
July 2024
Delivered:
02
August 2024
Appearances:
For the Applicant:
Adv A Knoetze
Pitjie
Chambers, Johannesburg
Instructed by:
Wheeldon
Rushmere & Cole Inc.
Applicant’s
Attorneys
Matthew
Fosi Chmabers
119
High Street
Makhanda
Email:
todd@wheeldon.co.za
[1]
Grobler v
Master of the High Court
2019
JDR 1772 (SCA) (
Grobler
)
paras 2–4.
[2]
Ibid para 3.
[3]
Ibid para 10.
[4]
Ibid para 13,
references omitted.
[5]
Ibid para 14.
[6]
Anderson and
Wagner NNO and another v The Master and others
1996 (3) SA 779
(C) (
Anderson
)
at 784H –785B.
[7]
Bekker v Naude
en andere
2003
(5) SA 173
(SCA) (
Bekker
).
[8]
Sono and
another v Master of the High Court, Johannesburg and others
2023 JDR 2538 (GJ) (
Sono
).
[9]
Ibid para 15;
Mdlulu
v Delaray and others
1998 (1) All SA 434
(W) at 442f–h. Signature by a witness in
the absence of the deceased does not constitute a will that was
‘executed’
within the meaning of that word in the
section. The testator must be involved in the ‘execution’
process, even in
marginal respects: Hofmeyr, G and Paleker, M
The
Law of Succession in South Africa
(3
rd
Ed) (2023) (Juta) at 111, 114.
[10]
Van der Merwe
v The Master
2010 (6) SA 544
(SCA) (
Van
der Merwe
)
para 13.
[11]
Ibid para 14.
[12]
Ibid para 7.
[13]
Ibid para 15.
[14]
The greater the
non-compliance with the prescribed formalities, the more it would
take to satisfy a court that the document in
question was intended
to be the deceased’s will:
Van
der Merwe
above n 10 para 16.
[15]
Sono
above
n 8 para 8.
[16]
Van der Merwe
above
n 10 para 14.
[17]
See
Anderson
above
n 6. The relevant parts of s 2(1)
(a)
provide:
‘
(a)
no will executed on or after the first day of January, 1954, shall
be valid unless –
(i)
The will is signed at the end thereof by the testator or by some
other person in his presence and by his direction; and
(ii)
Such signature is made by the testator or by such other person or is
acknowledged by the testator and, if made by such other
person, also
by such other person, in the presence of two or more competent
witnesses present at the same time; and
(iii)
Such witnesses attest and sign the will in the presence of the
testator and of each other and, if the will is signed by
such other
person, in the presence also of such other person; and
(iv)
If the will consists of more than one page, each page other than the
page on which it ends, is also so signed by the testator
or by such
other person anywhere on the page; and …’
[18]
Sono
above n 8 para 17–18.
[19]
Anderson
above
n 6 at 785G–H.