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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION PRETORIA
CASE NO: 081849/2023
HEARD: 28 JANUARY 2025
DECIDED:18 FEBRUARY 2025
1) REPORTABLE: NO
2) OF INTEREST TO OTHER JUDGES: NO
3) REVISED.
DATE 18 FEBRUARY 2025
SIGNATURE
In the matter between:
ALANA BERENICE PERUMAL Applicant
And
ABRAHAM JACOBUS JANSE VAN
RENSBURG N.O
In his capacity as Executor of Estate
Late Robert Stanton, in terms of the
letters of executorship issued by the
Master of the High Court First Respondent
CLAUDIA LOUISE VAN DER COLF
IDENTITY NUMBER 9[...] Second Respondent
CLAUDIA LOUISE VAN DER COLF obo
SOPHIA APPLE STANTON Third Respondent
MAGDALENA GLAUDINA STANTON Fourth Respondent
ANNA RAMADIMETJA Fifth Respondent
BRONYWN ELIZABETH CARR Sixth Respondent
THE MASTER OF THE HIGH COURT Seventh Respondent
This judgment has been handed down remotely and shall be circulated to the
parties by way of email / uploading on Caselines. The date of hand down shall
be deemed to be 18 February 2025
________________________________________________________________
ORDER
________________________________________________________________
1. The application is upheld;
2. The document annexed to the applicant’s founding papers marked Annexure
“A”, is hereby declared the last will and testament of Robert Stanton.
3. The seventh respondent is directed to accept the document for the purpose of
the Administration of Estates Act, Act 66 of 1965.
4. The second respondent shall pay the applicant’s costs, with counsel’s costs
on scale B.
______________________________________________________________
JUDGMENT
________________________________________________________________
BAM J
Introduction
1. This is an application in terms of Section 2(3) of the Wills Act (the Act).
Applicant seeks an order declaring the document or amended document
marked Annexure “A”, attached to her founding affidavit, as the last will and
testament of the late Mr Robert Stanton (Stanton). She further asks that this
court direct the seventh respondent to accept the document for purposes of
the Administration of Estates Act, Act 66 of 1965. Section 2(3) enjoins the
court, upon being satisfied that a document or amended document, drafted by
a person who has since died, was intended to be that person’s last will or
testament, to order the Master to accept such document or amended
document for purposes of administration of estates, as a will.
2. Prior to delving into the background, I record that the application is resisted
only by the second respondent in her personal and representative capacity as
the biological mother and natural guardian of her minor child, Sophia Apple
Stanton, Apple. The mainstay of the resistance suggests that there are
material disputes of fact, which prevent this court from determining the
application. She further suggests, speculatively, that Stanton had not intended
the document to be his last will. This suggestion stems from the fact that
Stanton had not signed the amended will. It is common cause that the first
respondent says he had emailed the amended will to Stanton during August.
3. Whatever disputes there may be, have no bearing whatsoever on the material
matters to be determined by this court to determine the success or failure of
this application. The second suggestion — that Stanton must have changed
his mind because he never signed the will even though it had been sent to
him in August 2022 — is undermined by the established facts. I commence
with an introduction of the parties before setting out the relevant background
facts.
4. The applicant, Ms Alana Berenice Perumal, is a female skills development
facilitator. She resides in Gauteng Province and has chosen the address of
her attorneys of record for purpose of the present proceedings.
5. The Firs respondent, Mr Abraham Jacobus Janse van Rensburg N.O. is a
nominee of PSG Trust (Pty) Ltd, with his employment address set out as, The
Edge […] Floor, [...] H[...] C[...] , Tyger Waterfront, Bellville, Western Cape
Province. He is cited mainly for his interest in the matter as the executor of
the deceased estate of Stanton. The relief sought in these proceedings has
no bearing on the respondent’s appointment as executor.
6. The second respondent is Ms Claudia Louise van der Colf, a major female.
She resides at R[...] P[...], 2[...] R[...] Crescent, Rooihuiskraal, Centurion,
Gauteng. Ms van der Colf is also cited as the third respondent in these
proceedings, in her representative capacity as the mother and natural
guardian of Apple.
7. The Seventh Respondent is the Master of the High Court with its principal
place of business at SALU Building, 3[...] T[...] S[...] Street, Pretoria, Gauteng.
8. The fourth, fifth, sixth and seventh respondents took no part in these
proceedings.
Background
9. The following is either common cause or has not been seriously challenged:
The applicant and Mr Stanton were involved in a romantic relationship, having
met during early in January 2021. The second respondent shares a child with
Stanton, Apple. Their relationship had terminated in 2020. Apart from sharing
a child, it is common cause that the second respondent was no longer part of
Stanton’s life, after termination of their relationship. Stanton and the applicant
soon formed a close bond and were engaged on 28 July 2022. Their wedding
was planned for December 2023. Images of the couple extracted from their
wedding web page, announcing their wedding date and venue, have been
provided to the court, including images of trips they took with their branded
family.
10. Arising from a hip replacement surgery that Mr Stanton had undergone
during April 2022, his health suffered and continued to suffer throughout the
course of 2022. On 10 July 2022, Stanton made amendments to his will. The
applicant further avers that, in anticipation of their being together, she too had
met with a financial planning house to assist her with her will to make Stanton
a beneficiary. Unfortunately, she only came to check the work pertaining to
her will after Stanton’s funeral. Very briefly, a reading of the changes in the
will suggests that Stanton was aligning his will to reflect the applicant as his
life partner. The changes were made by Stanton using his laptop, with the
applicant alongside him. He thereafter sent the amended will to the first
respondent, with a message stating that the changes need to be made,
whereafter Stanton will sign, captured in the words set out here below:
‘…sien ask (sic) my testament met veranderings amend dit en stuur aub
terug via my om te teken.’
Loosely translated: See ask my will with changes amend it and please
send back via me to sign.
11. The first respondent confirms in his affidavit that he received the
amended will from Stanton on 10 July 2022. He further states that he sent the
will back on 4 August, with the changes incorporated. The applicant avers that
she has access to Mr Stanton’s emails but she could not find this particular
email from the first respondent.
12. Stanton was in and out of hospital during 2022. On 17 January 2023, he
fell and broke his femur. He was admitted to hospital and discharged on 25
February 2023. Concerned that he had not heard from the first respondent
about the will, Stanton sent a voice message, on 9 March 2023, to the first
respondent, stating that his will be sent back as he wants to get it done. In his
own words:
‘Hi Kotie, dis Rob hierso. Hoor hier Mnr ek dink nou net daaraan. Ek het
nog noe my will, my amended will, gesien of geteken nie. Um ja, so ek will
maar net hoor war is die update op daai laat ek dir gedoen kan kry voor,
nie voor nie, maar jy weet net well in advance. So laat my maar net dankie.
Loosely translated, the message states: Hi Kotie, it's Rob here. Listen here
Mr. I'm just thinking about it now. I have not yet seen or signed my will, my
amended will. Um yes, so I just want to hear what is the update on that so I
can key before, not before, but you only know well in advance. So let me
just thank you.’
13. On 8 April 2023, whilst spending time with the applicant’s family in Cape
Town, Stanton fell ill. He died in his sleep on 9 April 2023. He had travelled to
Cape Town with his mother and daughter. The facts pertinent to this case
may then be summarised thus:
(i) Stanton made amendments to his will during July 2022, using his laptop.
(ii) The first respondent has confirmed under oath that he received the will,
effected the amendments, and sent it back by email on 4 August 2022.
(iii) Two messages were sent by Stanton to the first respondent. The first
accompanied the amendments, wherein he said to the first respondent, the
amendments must be effected so that he (Stanton) signs. The second is the
voice message of 9 March 2023 for the first respondent, where Stanton says
he had not received the will, which confirms the applicant’s assertions before
this court.
(iv) Stanton died on 9 April 2023.
Applicable legal principles
14. Section 2(1) of the Act provides that:
(a) …no will executed on or after the first day of January, 1954, shall be
valid unless -
(ii) the will is signed at the end thereof by the testator or by some other
person in his presence and by his direction.
15. Section 2(3) 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 (
Act 66 of 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).’
16. It has been said that by ‘enacting section 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. It has
rightly and repeatedly been said that once a court is satisfied that the
document concerned meets the requirements of the subsection a court has
no discretion whether or not to grant an order as envisaged therein. In other
words the provisions of s 2(3) are peremptory once the jurisdictional
requirements have been satisfied.1’
17. The court in Van der Merwe pointed out that:
‘A lack of a signature has never been held to be a complete bar to a
document being declared to be a will in terms of s 2(3). In Letsekga, …,
the lack of a signature was not held to be a bar to an order in terms of s
1 Van der Merwe v Master of the High Court and Another (605/09) [2010] ZASCA 99; 2010 (6)
SA 544 (SCA); [2011] 1 All SA 298 (SCA) (6 September 2010), paragraph 14.
2(3) of the Act. Ex parte Maurice 1995 (2) SA 713 (C) decided in the same
year as Letsekga was to the same effect. In Thirion v Die Meester &
andere 2001 (4) SA 1078 (T) an unsigned document drafted by a person
shortly before he committed suicide was held to be a valid will and
declared as such in terms of s 2(3). In that case the deceased had
executed a prior will that had complied with all the prescribed formalities.
The very object of s 2(3), as pointed out above, is to ameliorate the
situation where formalities have not been complied with but where the true
intention of the drafter of a document is self-evident.’2
18. In order to succeed in an application in terms of section 2(3), the
applicant must prove, on a preponderance of probabilities that:
‘(a) that the document, annexure JN4, was drafted or executed by the
deceased;
(b) that the deceased had died since the drafting of the document; and
(c) that the document was intended by the deceased to be his will.3
19. It can be accepted that (a) and (b) have been met in the circumstances of
the present case. The applicant’s irrefutable evidence is that the amendments
to the will were effected by Stanton. The amendments were sent to the first
respondent who has also confirmed receiving Stanton’s email. Stanton has
since demised. The real question is (c), whether Stanton intended that the
document be his will and testament.
20. The sole contention raised by the second respondent is this, because Mr
Stanton had not signed the will after the first respondent sent it back to him,
on 4 August 2022, he had no intention to have this document as his last will
and testament. He had changed his mind . But this speculation is completely
destroyed by the indisputable fact that on 9 March, exactly one month before
Stanton passed on, he sent the voice message to the first respondent, urging
2 Id, paragraph 16.
3 Ndebele N.O. and Others v Master of the Supreme Court and Another (10338/96) [1999]
ZAWCHC 9 (15 December 1999), paragraph 18.
for an update regarding his amended will. He made the point that he had not
seen his amended will.
21. In conclusion, Stanton’s intention to have Annexure A as his last will and
testament is established from the following undisputed facts:
(i) Stanton personally drafted amendments to his will in July 2022 and sent it to
the first respondent;
(ii) The words used in Annexure A, describe the applicant as his life partner.
Provision is further made for her in the will to reflect the applicant’s status in
his life;
(iii) When sending the amendments to the first respondent, Stanton sent a
message, indicating that the changes need to be made in order for him to
sign.
(iv) Thirty days before he died, Stanton left a voice note for the first
respondent, on 9 March 2023, enquiring about the amended will, and
pointing out that he had not seen it and he wanted an update.
(v) The voice message confirms the applicant’s version that Stanton had not
received the first respondent’s email of 4 August.
22. The voice message of 9 March 2023 cannot be seen as conduct of a man
who had changed his mind about his will. On the contrary, not only had
Stanton intended to make Annexure A his last will and testament, one may go
so far as adding that there was even a sense of urgency in his words. The
requirements of section 2(3) in my view have been met. They are: (i) Stanton
drafted the changes to his will; (ii) He has since passed on; and (iii) Based on
19 (i) to (v) Stanton intended that the amended will, annexure A, be his last
will and testament. Consequently, in terms of section 2(3) of the Act, this court
is enjoined to order the Master to accept Annexure A as Robert Stanton’s last
will and testament, for purposes of the Administration of Estates Act.
Costs
23. All that remains is the issue of costs. Ordinarily, it is desirable in matters
of this nature to have the costs declared costs in the administration of the
estate. But I am not persuaded that such an order would be appropriate in the
circumstances of this case. The second respondent chose to oppose the
application without legal grounds other than to frustrate and hurl insults at
applicant. It was not reasonable of the second respondent to come to court
offering that there are disputes of fact based on her speculation about what
the deceased had intended. It is only appropriate that the second respondent
be ordered to pay the applicant’s costs.
Order
1. The application is upheld.
2. The document annexed to the applicant’s founding papers marked Annexure
“A”, is hereby declared the last will and testament of Robert Stanton.
3. The seventh respondent is directed to accept the document for the purpose of
the Administration of Estates Act, Act 66 of 1965.
4. The second respondent shall pay the applicant’s costs, with counsel’s costs
on scale B.
N.N BAM
JUDGE OF THE HIGH COURT,
GAUTENG DIVISION, PRETORIA
Date of Hearing : 28 January 2025
Date of Judgment: 18 February 2025
Appearances:
Counsel for the Applicant: Adv L van Gass
Instructed by: Van der Merwe & Associates
Waterkloof, Pretoria
Counsel for Second and Third
Respondents : Adv R de Leeuw
Instructed by: DLBM Incorporated
Wapadrand, Pretoria