K.M v Master of the High Court: Free State, Bloemfontein and Others (592/2024) [2025] ZAFSHC 22 (28 January 2025)

40 Reportability
Trusts and Estates
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Brief Summary

Wills — Validity of will — Application to declare document as last will and testament — Document drafted but not signed by deceased — Evidence of deceased's intention to formalize will lacking — Application dismissed. The applicant sought to have a document drafted in 2018 declared the last will of the deceased, who died in April 2023. The fourth respondent, the deceased's alleged wife, opposed the application, arguing that the document was an unsigned draft and that the deceased had not intended it to be his will. The Master of the High Court indicated that the document had not been properly submitted as required by the Administration of Estates Act. The legal issue was whether the document could be accepted as the deceased's will despite not meeting the formal requirements of the Wills Act. The court held that there was insufficient evidence to establish that the document was intended to be the deceased's will, leading to the dismissal of the application with costs.

Comprehensive Summary

Case Note


K[…] M[…] v The Master of the High Court: Free State, Bloemfontein & Others

Case No: 592/2024

Date: 28 January 2025


Reportability


This case is significant as it addresses the application of section 2(3) of the Wills Act 7 of 1953, which allows a court to declare a document as a valid will despite non-compliance with formalities. The judgment highlights the complexities surrounding the validity of wills, particularly in cases involving disputes over the deceased's intentions and the legitimacy of relationships. The ruling serves as a precedent for future cases involving similar issues of testamentary intent and the requirements for a valid will.


Cases Cited



  • Meyerowitz, D. (2023). The Law and Practice of Administration of Estates and Their Taxation. Juta & Co.


Legislation Cited



  • Wills Act 7 of 1953

  • Administration of Estates Act 66 of 1965


Rules of Court Cited


None cited.


HEADNOTE


Summary


The case involves an application to declare a document drafted in 2018 as the last will and testament of the deceased, C[…] T[…] M[…]. The application was opposed primarily by the fourth respondent, who claimed to be the deceased's customary wife. The court ultimately dismissed the application, finding insufficient evidence to support the claim that the document was intended to be the deceased's will.


Key Issues


The key legal issues addressed in this case include the validity of a will under the Wills Act, the requirements for testamentary intent, and the implications of pending litigation regarding the deceased's marital status and the legitimacy of his children.


Held


The court held that the document in question could not be recognized as the deceased's will due to a lack of evidence supporting the claim that it was intended as such. The application was dismissed with costs.


THE FACTS


The applicant sought to have a document drafted by Old Mutual Trust in 2018 declared as the last will of C[…] T[…] M[…], who passed away on 20 April 2023. The fourth respondent, claiming to be the deceased's customary wife, opposed the application. The Master of the High Court indicated that the document had not been properly transmitted to their office as required by law. The court noted that the deceased had never signed the document, and there were ongoing disputes regarding the legitimacy of the applicant's claims to be a child of the deceased.


THE ISSUES


The court had to decide whether the document could be recognized as the deceased's will despite its lack of formal execution. Additionally, the court considered the implications of ongoing litigation regarding the deceased's marital status and the legitimacy of his children, which could affect the outcome of the application.


ANALYSIS


The court analyzed the requirements set forth in the Wills Act for a valid will, emphasizing the necessity of the testator's signature and the presence of witnesses. It found that the deceased had not signed the document and that there was no evidence to suggest that he intended for it to serve as his will. The court also considered the fourth respondent's claims regarding the deceased's acknowledgment of his children and the implications of pending litigation, which introduced uncertainty into the applicant's claims.


REMEDY


The court granted condonation for the late filing of the fourth respondent's answering affidavit and ordered that the fourth respondent pay the costs associated with this application. The main application by the applicant was dismissed with costs, including the costs of counsel.


LEGAL PRINCIPLES


The case establishes that for a document to be recognized as a will under section 2(3) of the Wills Act, there must be clear evidence that the deceased intended the document to serve as their will, despite non-compliance with formal execution requirements. The court underscored the importance of testamentary intent and the necessity of adhering to statutory formalities in the execution of wills.


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: NO
Case no: 592/2024

In the matter between:
K[…] M[…] First applicant
and
THE MASTER OF THE HIGH COURT :
FREE STATE, BLOEMFONTEIN First respondent
K[…] M[…] N.O. Second Respondent
(In her capacity as executrix of the estate of C[…] T[…] M[…],
Estate no.: 002[...])
B[...] S [...] M[...] N.O. Third respondent
(In his capacity as M aster’s Representative of the estate of S[…]
S[…] M[…], Estate no.: 000[…])
M[…] E[…] M[…] Fourth r espondent

OLD MUTUAL TRUST (PTY) LTD Fifth respondent
Coram: Opperman, J
Heard: 12 September 2024
Delivered: 28 January 2025. This judgment was handed down in
court and electronically by circulation to the parties’ representatives by email and
release to SAFLII. The date and time for hand- down is deemed to be 15h00 on 28
January 2025.
2

Summary: Application in terms of s 2(3)1 of the Wills Act 7 of 1953 to
declare document as last will and testament

ORDER

1. Condonation is granted for the late filing of the answering affidavit by the
fourth respondent. The fourth respondent to pay the costs for the condonation
application.

2. The application as per the notice of motion filed 1 February 2024 by the
applicant is dismissed with costs that includes costs of counsel.

JUDGMENT
Opperman, J
Introduction
[1] This is an application to declare a document
2 (the document) drafted in 2018
by Old Mutual Trust (fifth respondent) to be the last will and testament of C[…] T[…]
M[…] (deceased) that passed away on 20 April 2023 of natural causes.

[2] The application was, at the time of the hearing of the matter , only opposed by
the fourth respondent that is allegedly the wife of the deceased by customary
marriage. A notice to oppose was filed by the third and fourth respondents but only
the fourth respondent partook in the further litigation. The rest of the respondents did
not partake in the litigation. T he Master of the High Court: Free State, Bloemfontein
(the Master), indicated that they will abide by the ruling of the court.

[3] The Master did not join the litigation but cautioned the court in their report
dated 23 February 20243 to take cognisance of the statutory requirements for a legal
will. They also indicated that the document purporting to be the will and that is in

1 ‘2(3) 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 No. 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).
[Sub-s. (3) added by s. 3 (g) of Act No. 43 of 1992.]’
2 Annexure F, p 37-42.
3 Pages 62-64.
3

issue in casu was not transmitted or delivered to their office as contemplated in s
8(1)4 of the Administration of Estates Act 66 of 1965 (Administration of Estates Act).
This is notwithstanding the fact that the estate was registered and further, that th e
applicant was appointed as the executrix of the estate on 4 May 2023. The notice of
motion was filed on 1 February 2024 and the founding affidavit (FA) was
commissioned on 7 December 2023.

[4] The document came to the notice of the applicant on 1 June 2023.5 The fourth
respondent vehemently opposes the application. The application seems to be
premature since claims by other parties to be the biological children of the deceased
and an application to declare a marriage of the deceased to be lawful are inter alia
pending. The outcome of the claims might make this application moot.

The common cause and proven facts
[5] The application is marred by numerous facts that are common cause and
proven by the fourth respondent . These are:

a) The document was presented to the deceased in 2018 to be signed .
On numerous occasions the representative of the fifth respondent , one Mr. De
Vos (De Vos) , inquired about the neglect of the deceased to sign the
document. The deceased maintained the status quo not to sign the document
up until his demise in 2023.

b) In fact , De Vos that was involved in the drafting of the will, indicated to
the applicant that the re is not a will but only an unsigned draft. The fifth
respondent only supplied the draft document to the applicant much later.
c) The paternity of all the deceased’s alleged children, including the
applicant, is disputed. The applicant was also born out of wedlock during a
relationship the deceased had with one F[ …] A[…] (born M […]).


4 ‘8. Transmission or delivery of wills to Master and registration thereof. —(1) Any person who has
any document being or purporting to be a will in his possession at the time of or at any time after the
death of any person who executed such document, shall, as soon as the death comes to his
knowledge, transmit or deliver such document to the Master.’
5 FA paras 63-67, p 22- 23.
4

d) There is litigation pending to declare a customary marriage with the
fourth respondent, apparently celebrated on 17 December 2022, lawful and to
be registered as such . This marriage is confirmed by , inter alia , the
deceased’s brother and uncle.6

e) It is the evidence of the fourth respondent that the deceased
acknowledged all his biological children to her . Nothing prevented him from
signing and formalising the purported will. It is the evidence of the fourth respondent that t he deceased would have wanted his children and his mother
to benefit from his estate.
f) There does not seem to be any evidence that the deceased was
married to anybody else since the death certificate states: ‘N ever married’.
g) Important is that the fourth respondent , that was acknowledged by the
applicant to be in the least the girlfriend of the deceased, stated in her affidavit
that they opposed the appointment of the applicant as executrix. The other
children were apparently misled by the applicant and the applicant reported
herself as child and beneficiary of the deceased’s estate to the Master . It is
clear that the applicant had herself appointed as executrix of the estate
without the knowledge of some that might have been beneficiaries thereto.
The documents filed on record also show that a formal complaint was lodged
against the applicant with the Master for falsely presenting herself as the only child and beneficiary of the estate of the deceased.
h) This is what the fourth respondent declare d:

‘50. … I pause to highlight that my late husband and I do not have children of
our own, however, he had five children, three are co-applicants in this matter,
the Applicant and P […] who is a minor 16-year -old minor child.’7

i) It is a fact proven by the fourth respondent that much occurred
between the drafting of the document and the demise of the deceased that

6 Answering Affidavit (AA) fourth respondent paras 39 and 41, p 8-9.
7 Also see paras 49-55 of the AA. The matter that is referred to is the opposition of the applicant as
executrix.
5

contradicts the proposition that the deceased intended for the document to be
his last will and testament.

The law
[6] The Wills Act 7 of 1953 (the Act) stipulates formalities required for a valid will,
which are briefly as follows:

a) The will must be in writing;

b) The will must be signed at the end by the testator (the person making
the will) . If the will has more than one page the testator and witnesses must
sign on every page;
c) Signature of the testator must be made in the presence of two or more
competent witnesses;
d) The above -mentioned witnesses must attest and sign the w ill in the
presence of the testator and each other;
e) Where a testator marks with a mark or where the testator instructs
another person to sign on his or her behalf a commissioner of oaths must be present and certify to the identity of the testator and that the document signed is the will of the testator;
f) The person making the will must be 16 years or older and not mentally
incapacitated.
[7] Notwithstanding the directions
8 as to the signing of a will that was appended
to the draft w ill and some prompting by De Vos over the period from 2018 to 2023;
the deceased did not sign and formalise the will nor was it attested to by witnesses
and so signed. The deceased was not a layperson. He was a politician that rose to become the Second Deput y Secretary General of the South African Communist
Party in South Africa. He also apparently pursuit doctoral studies in the Republic of
China.

8 2023: D Meyerowitz , The Law and Practice of Administration of Estates and Their Taxation, 2023
Edition, Juta & Co at 4.2.
6


[8] In terms of s 2(3) of the Act, if a court is satisfied that a document or an
amendment, drafted or executed by a person who has since died, was intended to
be that person’s will or an amendment thereto, the court shall order that the M aster
accept that document as a will, in spite of the fact that it does not comply with the
prescribed formalities.

[9] The prerequisites to the declaration by the court of a document as a will are:
a) The document must be served to the court; b) the said document must be proven
to have been drafted or executed by a person that subsequently died; and c) the said
deceased person intended the document to be his will although it does not comply
with all the formalities for the execution or amendment of the will required by the
Wills Act.9
Conclusion [10] In light of the evidence adduced the court cannot find that the document was
drafted by the deceased nor that the document is his will. There is just too much
uncertainty that overwhelms the case for the applicant.

Order
[11] The following order is made:
1. Condonation is granted for the late filing of the answering affidavit by
the fourth respondent. The fourth respondent to pay the costs for the
condonation application.
2. The application as per the notice of motion filed 1 February 2024 by the
applicant is dismissed with costs that includes costs of counsel.

Opperman, J

Appearances
For applicant : S Ngombane

9 Ibid at 4.3 and footnotes 31-39 therein.
7

Cape Town
Instructed by: Thebe Attorneys Incorporated
Bloemfontein

For fourth respondent: TM Ngubeni
Bloemfontein
Instructed by: Zwelibanzi N gququ Incorporated
Bloemfontein

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