Van Wetten and Another v Bosch and Others (402/2002) [2003] ZASCA 85; [2003] 4 All SA 442 (SCA) (19 September 2003)

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[2003] ZASCA 85
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Van Wetten and Another v Bosch and Others (402/2002) [2003] ZASCA 85; [2003] 4 All SA 442 (SCA); 2004 (1) SA 348 (SCA) (19 September 2003)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
CASE
NO: 402/2002
Reportable
In the matter between
C E VAN WETTEN 1
st
APPELLANT
A STOKES NO
2
nd
APPELLANT
AND
K A BOSCH
1
st
RESPONDENT
THE MASTER OF THE HIGH COURT
NATAL PROVINCIAL DIVISION 2
nd
RESPONDENT
HENRY SELZER NO 3
rd
RESPONDENT
J A N BORMAN NO
4
th
RESPONDENT
CORAM
:
MPATI DP, FARLAM, LEWIS
JJA, SOUTHWOOD, VAN HEERDEN AJJA
HEARD:
21
AUGUST 2003
DELIVERED
: 19
SEPTEMBER 2003
Summary:
Section 2
(3) of the
Wills Act 7 of 1953
: intention
of deceased to make a will.
JUDGMENT
LEWIS JA
[1] The central issue in
this appeal is whether Tertius Bosch, who died on 14 February 2000,
intended a document that he had written
in September 1997 to be his
final will or merely instructions to an attorney to draft a will. If
the former, then in terms of
s 2(3)
of the
Wills Act 7 of 1953
1
the Master of the High Court must be ordered to accept the document
as a will. The section 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
(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).’
[2] The first appellant,
the first applicant in the court below (Mrs Van Wetten), sought an
order in terms of the section that a document
written by the
deceased, her brother, be recognized by the Master of the High
Court, Natal as one intended to be the deceased’s
will. (I shall
refer to the document as ‘the contested will’). The order was
refused by Booysen J in the Durban High
Court. The appeal is
pursued with the leave of that Court. The other issue to be
determined is whether Van Wetten had
locus
standi
to bring the application and to prosecute the appeal before us.
Ancillary to this is the question of costs should she be found not
to
have had standing to sue.
[3] At the instance of
the court below the second appellant was joined as a second
applicant, being appointed as a
curator
ad litem
to C.B., the minor son of the deceased and his widow, Karen-Anne
Bosch, (Bosch) the first respondent. The second, third and fourth
respondents are the Master and successive executors of the estate of
the deceased, respectively. They abide the decision of the Court.
The circumstances
surrounding the making of the contested will
[4] Some background is
required. The deceased and Bosch had been married for some six years
when the deceased, a dentist by profession,
and a sportsman and
businessman as well, died in February 2000 from septicaemia following
on contracting Guillain-Barré syndrome.
The couple had two
children, C., who was born in September 1994, and Eathan, born in
April 1998.
[5] It was assumed by
Bosch that she was the sole heir to the deceased’s estate in terms
of a joint will executed in 1995. An executor
had been appointed and
had commenced the winding-up of the estate in terms of that will.
[6] Some 18 months after
the death of the deceased Van Wetten launched the proceedings for the
acceptance by the Master of the contested
will. She alleged that she
had found the contested will in a cupboard in Bosch’s home shortly
after his death, but had not brought
it to the attention of Bosch or
the then executor because she had assumed that Bosch had been acting
in the interests of her child
C. who would, if the contested will
were recognized, be the deceased’s sole heir. The motive for the
delay by Van Wetten may of
course be called into question, and indeed
was done by Bosch: it does not, however, impact on the principal
issue – the intention
of the deceased in drafting the contested
will.
[7] Van Wetten alleged,
and this was not in dispute, that the contested will had been left in
a sealed envelope, addressed to a friend
of the deceased, Mr Jan van
der Westhuizen, which had been handed by the deceased to Van der
Westhuizen towards the end of 1997.
The envelope contained three
other envelopes. The outer envelope addressed to Van der Westhuizen
bore the words ‘(Maak net oop
as daar iets met my gebeur of ek
ander besluit!)’. The one inner envelope, containing the contested
will, was addressed to ‘Mr
Mike Nolan, Tate-Nolan Attorneys’;
another was addressed to ‘Karen-Anne’; and the third was
addressed to ‘C. op 21ste verjaarsdag!’.
Van der Westhuizen
confirmed that he had been given the outer envelope but stated that
he had not ever opened it. After the deceased’s
death the envelope
had been given to Bosch by Van der Westhuizen’s wife at his
request.
[8] Van der Westhuizen
also confirmed the evidence of Van Wetten that the deceased had been
distraught during the period when the
envelope had been handed to
him. The deceased had believed that Bosch had been having an
extra-marital relationship: he was in a
state of emotional turmoil.
When he asked Van der Westhuizen to keep the outer envelope, he did
not explain what he meant by saying
that it should be opened in the
event of something happening to him. Van der Westhuizen had, however,
asked the deceased what was
in the envelope. The response was ‘to
the effect that “if you don’t know better you don’t know”’.
Some time later, however,
the deceased had seemed to him to be in an
improved frame of mind, and had said that his relationship with his
wife was better. Van
der Westhuizen had forgotten that he had the
envelope until after the deceased’s death. He had attempted then to
contact Mike Nolan.
When he could not do so he asked his wife to hand
the envelope to Bosch, which she did.
[9] The contested will
and the letters addressed to Bosch and C. bear out the allegations
that the deceased had been distressed by
his wife’s conduct at the
time when he composed these documents. Because the letters throw
light on the deceased’s intention
in composing the contested will,
I shall set them out in full after reproducing the contested will
itself. Later in this judgment
I shall discuss the legal principles
to be invoked in determining the relevance and weight of these
letters.
The documents in the
outer envelope
[10] All the documents
are dated 5 September 1997, and all were written by the deceased on
the stationery used in his dental practice.
[11] The contested will
reads:
2
‘
5 September 1997 Tate &
Nolan
Durban North
Re: Will & Testament
To Mr Mike Nolan
As you are aware of the present
situation which I am finding myself I have had a long thought about
the matter and I have made the
following decisions
1 Declare all previous will &
testaments not valid from this day the 5 Sept 1997 drawn up by me or
Karen-Anne.
2 I want you (Mr Mike Nolan) the
executor of my will and cancel all previous executor’s.
3 If or when there should be a change
of plan or situation for the good (Positive) I might have a change of
heart. At present moment
it doesn’t seem to going to change. I am
just trying to see if might work out, I do care and Karen-Anne a lot
but I don’t think
I can say the same for her. I think she wants
freedom but don’t want to loose the comfortable lifestyle that she
has. Surely it
should work 50/50?
4 I want my son (CORBIN BOSCH) born on
10
th
September 1994 to be my beneficial party (Person). At this stage he
will be to small to take charge so I want Mr Nolan to executor
of his
trust that we (I) create for him.
5 All suretyship I have for Karen-Anne
Bosch (formerly Blignault) shall and must be withdrawn.
6 All policy’s should go into a
trust as C.B. as benefactor.
7 TKC action CC, I withdraw first[l]y
my suretyship as 50% holder (member) and lease holder. Karen-Anne
cannot by my share I don’t
want that to happen (I have to much
problems with this Action Cricket.
8 I want you to create a trust for him
and look at a decent monthly retainer for him to be well looked
after. I have provided school
policy’s from him to go to private
primer and secondary schools and university funds.
9 When he is 21 year old on his
birthday the trust can be fully seeded [ceded] to him and he can do
as he wishes!
10 I will if the situation changes
itself drastically, may consider changing my will & Testament but
as of today 5
th
September this is my will to be followed
Regards
Tertius Bosch
Addings to previous page to Mr Mike
Nolan.
1 I want all bank accounts to be
closed immediately
1 Credit cards
2 Current & cheque account
3 Any money to her accounts an that of
after the day be returned to drawer.
2 I will supply you with all of the
Private Investigation reports that has led me to all my decisions
3 She hurts me to much and I just
trying for my son’s sake.
4 I want you to put this money in a
trust for C..
5 Sell off own [all] my assets and
then put it in a trust.’
[12] The letter to Bosch
read:
‘
Karen-Anne, Ek is jammer wat ek nou
gedoen het, maar dit is maar hoe die lewe is (onregverdig).
Ek weet ek het baie dinge in die lewe
verkeerd teenoor jou gedoen, ek dink ek het genoeg daarvoor geboet!
Daarom het ek die besluite geneem wat
C. sal baie bevoordeel.
Jy bly (het) seker maar net by my
omdat dit vir sy onthalwe was, jou gees en liefde is (was) by iemand
anders. Wie ook dit al mag
gewees het, hetsy Gary; Craig of iemand
anders. Nou kan jy jou lewe geniet en doen wat jy wil met dit, jammer
oor die klein terugslag,
maar ek glo jy sal bo uitkom.
Ek moes al met Gary se tyd al gewaai
het, want jou gevoelens was nooit weer terug by my nie. Dis baie
jammer, ek het baie lief geword
vir jou, maar dit was seker maar te
laat.
Toe jy by Craig was het jy my liefde
dood, dood gemaak, maar ek het probeer vir C. se onthalwe.
Dit is moeilik om te dink jou vrou wil
jou nie eers behoorlik soen nie. Ek moes baie pes aan my hê,
moeilik om saam met dit
te lewe! Dit het my toetaal en al verskeur,
jy weet nie seer het ek binne in my gehad nie, maar dit rus nou in
vrede.
Groete
Tertius’
[13] The letter to C.
read:
‘
C., my heelwaarskynlik my enigste
seun, jammer dat ek nie by jou 21ste Verjaardag kan wees nie.
Wat ook al oor die jare goed of sleg
van my gesê, ek was baie life vir jou, al geskenk wat ek jou
kan gee is, alles wat in die
trust is en alles van die beste vir jou
toe te wens in hetsy jou sport of akademiese gebied.
Baie, baie liefde
Pappa’.
It should be borne in
mind that on 5 September 1997 C. was not yet three years old, and
that Eathan was born in April of the following
year.
The intention of the
deceased
[14] Against that
background I turn to consider whether the deceased had intended the
contested will to be a will at all.
Section 2(3)
of the
Wills Act is
clear: the court must direct the Master to accept the document in
issue as a will once certain requirements are satisfied. First,
the
document must have been drafted or executed by a person who has
subsequently died. Second, the document must have been intended
by
the deceased to have been his or her will. It is only with the latter
that this Court is now concerned. The meaning attributable
to the
phrase ‘drafted or executed’ has recently been clarified in
Bekker v
Naude en andere
:
3
the document must have been created by the deceased personally. This
requirement is not in issue here.
[15] Did the deceased
intend the document he wrote on 5 September 1997 to be his will? The
appellant urged us to interpret the document,
looked at as a whole,
in accordance with established principles of documentary
interpretation. Thus, it was argued, the Court should,
in attempting
to ascertain the intention of the deceased, have regard to the words
and language used, and only if an ambiguity or
uncertainty were to be
found, then look at the circumstances surrounding the drafting of the
document. The classic cases dealing
with contractual interpretation
were adduced as authority, notably
Delmas
Milling Co Ltd v Du Plessis
.
4
[16] In my view, however,
the real question to be addressed at this stage is not what the
document means, but whether the deceased
intended it to be his will
at all. That enquiry of necessity entails an examination of the
document itself and also of the document
in the context of the
surrounding circumstances. I shall, however, first discuss the
circumstances of the deceased, and his conduct
in handing to Van der
Westhuizen a sealed envelope containing others addressed to his wife,
to his child and to an attorney.
[17] At the time of
writing the contested will the deceased had confided to a number of
people that he was unhappy: that he suspected
his wife of infidelity.
He made it plain in his letter to her that he no longer felt loved.
She remained with him, he said, not
because she wanted to but for the
sake of C.. He found this hurtful. He had decided to give her her
freedom. The letter to C., then
three years old, also clearly
indicates that the deceased assumed that when C. turned 21 his father
would for long have been dead.
[18] It is particularly
significant that the contested will was handed over not to the
attorney Mike Nolan, but to a friend, Van der
Westhuizen, for
safekeeping. It was to be opened only in the event of ‘something
happening’ to the deceased, or his changing
his mind. It was one of
a number of documents that were to be opened in such an event. The
parties to this dispute and Van der Westhuizen
were coy in saying
directly that they inferred from the behaviour of the deceased that
he was contemplating suicide at the time when
he wrote the documents.
But it is an obvious inference to be drawn from his letter to his
wife, from the tenor and the terms of the
contested will, and from
the remarks made by him to Van der Westhuizen.
[19] The inference that
the deceased contemplated suicide leads inevitably to the conclusion
that, when he gave the envelope to Van
der Westhuizen, it was not
intended that the latter should hand the enclosed document to
attorney Mike Nolan so as to see to the
drafting of his will. At the
time when it was envisaged that the envelope would be opened, and the
document read, the deceased would
already be dead. A dead man cannot
execute a will, and the deceased, even in a troubled frame of mind,
would have appreciated that.
This fact alone, in my view, shows that
the contested will was intended by the deceased to be his will. The
terms of the contested
will bear that out.
[20] It was argued for
Bosch, on the other hand, that the deceased had changed his mind
after 5 September 1997: that she and the deceased
had been
reconciled; that they had had another child; that she had
subsequently been designated as a beneficiary under various new
insurance policies (this is in issue since it was contended that the
existing policies had been renewed rather than new policies
taken out
after the contested will was made); and that the deceased had not
mentioned the contested will to anyone in the period
of his illness
preceding his death. He appeared to have forgotten about the
documents that he had entrusted to Van der Westhuizen.
[21] These factors are,
in my view, not relevant in determining what the deceased’s
intention was at the time of writing the contested
will. Evidence as
to subsequent conduct is relevant only in so far as it throws light
on what was on the mind of the deceased at
the time of making the
contested will (as in
Schnetler
NO v Die Meester en andere
5
).
There is no such evidence in this case.
[22] It was also argued
that the deceased could not have intended the contested will to be a
valid will, for he knew that formalities
were required for the
execution of a will. He had, after all, had one drawn up a few years
previously which had been formally executed.
The terms of the
document belie this contention, however.
[23] The contested will
is a somewhat incoherent document. It reads in part like a letter to
Nolan, the deceased sometimes recording
his decisions, sometimes
giving instructions, sometimes offering explanations for his
decisions. But what it does state very clearly
are decisions reached
by the deceased. Bosch contended that the heading – ‘re: Will &
Testament’ – indicated that the
deceased was writing a letter to
Nolan giving instructions on what should be put in his will.
Similarly, it was argued that paragraph
3, which stated that he might
change his mind in the future, showed that he had not finally settled
what he proposed to do. The explanations
for disinheriting Bosch
(also in paragraph 3) showed, it was argued, that the document was
not intended to be a will but a justification
for the instruction to
draft a will excluding Bosch. So too, contended Bosch, the ‘addings’
to the previous page, which included
a statement that the deceased
would supply Nolan with private investigation reports, indicated that
the deceased intended to provide
further information for Nolan before
his will was executed.
[24] Van Wetten argued,
on the other hand, that the proffering of explanations for
disinheriting Bosch was not inconsistent with the
intention to make a
will in the same document. Indeed, even in formally executed wills
testators might choose to explain their choices.
The ‘afterthoughts’
on the last page were no more than instructions to Nolan on what he
had to do after the deceased’s death:
the deceased could hardly
have wanted Nolan to close all bank accounts and cancel credit cards
if he were still alive. The instructions
to create a trust for C.
were also no indication that the deceased was not thereby creating
his will: he would probably not have
known that he could create a
testamentary trust.
[25] In my view, the
presence of explanations in the contested will does not in any way
detract from what are very clearly stated
decisions:
6
‘I have made the following decisions: . . . declare all previous
will and testaments not valid from this day the 5 Sept 1997 drawn
up
by me or Karen-Anne. . . . I want you (Mr Mike Nolan) the executor of
my will and cancel all previous executors . . . . I want
my son
(C.B.) . . . to be my beneficial party (person). . . . but as of
today 5
th
September this is my will to be followed’.
[26] These are not the
words of a person giving instructions for the drafting of his will.
They are the words of a person who has
made a decision to which
immediate effect is to be given. They are his will. The very words
used by the deceased are thus also decisive
of the question before
the Court: the deceased intended the document to be his will. The
surrounding circumstances, and in particular,
as I have said, the
handing over of the documents in sealed envelopes to Van der
Westhuizen, to be opened only should something happen
to him, lead to
the same conclusion.
[27] I am satisfied
therefore that the contested will was indeed intended to be the will
of the deceased, and that the Master should
be directed to deal with
it in terms of
s 2(3)
of the
Wills Act. The
appeal should thus
succeed.
Locus standi
of Van Wetten
[28] When Van Wetten
launched the application for the order that the contested will be
accepted by the Master, the court of first
instance considered that
she had no
locus
standi.
However, the second appellant accepted appointment as the
curator
ad litem
for the minor child C. and was joined as an applicant in that
capacity. He is before us as the second appellant. Counsel for Van
Wetten appeared for him also. Counsel submitted initially that Van
Wetten did have
locus
standi
in that she had an interest both as C.’s aunt, and because she
might, if he were to die intestate, be an heir. It was conceded
that
the latter possibility was extremely remote, and gave her no direct
interest in the litigation. And it was eventually conceded
as well
that Van Wetten should have brought an application in the first
instance for the appointment of a
curator
ad litem
and that her application for the relief that she did seek was
ill-advised. Similarly it was conceded that Van Wetten should not
have
pursued the appeal before this Court save in so far as the
adverse costs order against her in the court below was concerned.
Moreover,
since the matter is before this Court at the instance of
the second appellant as well, the lack of standing on the part of Van
Wetten
is relevant only to the order of costs in the court below.
Costs
[29] In dismissing the
application the court below ordered Van Wetten to pay Bosch’s
costs, and that the fees of the
curator
ad litem
be paid from the deceased estate. It was argued in this Court that
Van Wetten should not be penalized by a costs order against her
if
the appeal were to succeed. Even though she had not had
locus
standi
,
she had in fact served the interests of C. in bringing the
application. Although the procedure adopted by her was incorrect she
had nonetheless placed the matter before the court. Moreover, it was
argued, no additional costs were incurred in the launching of
the
application, or the prosecution of the appeal, through Van Wetten’s
initiative than were incurred in any event by the curator.
[30] It was argued for
Bosch, however, that Van Wetten’s conduct warranted an adverse
costs order even should the appeal succeed.
When she launched the
application she had made a number of attacks on the character and
conduct of Bosch, asking for orders related
to these allegations. Yet
the relief sought in respect of the allegations of misconduct was
subsequently abandoned.
[31] In my view, Van
Wetten was not entitled to a costs order in her favour in the Court
below: she had no standing to bring the application.
But that she had
made allegations about Bosch that were unwarranted, and sought relief
in respect thereof that was subsequently abandoned,
is not reason
enough to visit her with a punitive costs order. The main relief that
she sought – that the Master be ordered to
accept the contested
will under
s 2(3)
– is to be granted, albeit not to her.
[32] The curator’s
costs in the court below were ordered to be paid from the deceased
estate. That order was not appealed against.
Order
[33] (a) The appeal,
including the first appellant’s appeal against the costs order, is
upheld with costs.
(b) The order of the
court below dismissing the application and directing the first
appellant to pay the first respondent’s costs
is replaced with the
following:
‘
The Master of the High
Court, Natal Provincial Division, is ordered to accept the document
marked “H”, annexed to the founding
affidavit of the first
applicant, as the last will and testament of Tertius Bosch for the
purposes of the Administration of Estates
Act 66 of 1969.’
___________
CH Lewis
Judge of Appeal
CONCUR:
Mpati DP
Farlam JA
Southwood AJA
Van Heerden AJA
1
I
nserted
in the Act by s 3(g) of Act 43 of 1992.
2
The exact
wording,spelling and punctuation are reproduced.
3
A
s
yet unreported decision of the SCA: case 179/01, judgment handed
down 31 March 2003.
4
1955 (3) SA
447
(A) at 454F-55C.
5
1999 (4) SA 1250
(C).
6
The precise
wording and punctuation are set out above, and are not reproduced
here.