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RATSHIBVUMO DJP:
Delivered : This judgment was handed down electronically by circulation to the
parties' representatives by email. The date and time for hand -down is deemed to be
on 16 May 2025 at 09H00.
[1] Background
Year 2020 was ushered in like any other . The world was least prepared for the
pandemic that came with it, in the form of Covid -19 virus (the virus) . In no time,
regulations were imposed internationally, through which movements and
gatherings were strictly restricted in an attempt to curb the massive deaths
resulting from contracting the virus. South Africa was not spared either, with
regulations being passed from the highest office . The virus had no respect for
gender, race, age, rank or status , for when it was finally brought under control
more than a year later, millions had succumbed to it , from the royal houses to
the servicemen . Many were not able to pay their last respect s due to restrictions
in number s of people permitted at funerals and traveling across the provincial
borders owing to the regulations imposed . The ripple effect of this pandemic are
still with us and will be felt for many years to come in various forms.
[2] The devastating impact of this pandemic and all the sad memories it left behind
came back to life in the facts of this application . Mr. Patrick Marie Stanislas
Henri Reniers (the deceased) and his wife of 15 years , Mrs. Francina Elizabetha
Reniers (the First Respondent) , came face to face with the hardship described
in the paragraph above when in July 2021 , they both contracted th e virus . The
deceased was immediately admitted at Medi clinic Hospital , Mbombel a, but the
First Respondent was not so lucky, as there were no more beds for her to be
taken in too . She therefore resorted to self -medicati on whilst at home. As fate
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would have it, s he lived to see another day while her husband succumbed to the
virus on 30 July 2021.
[3] Prior to his death, the deceased and the First Respondent saw the devastating
consequences of contracting th e virus from all those that surrounded them , and
came to terms with the real possibility that the y might not survive . They then
decided to write a joint will . They asked Mr. LS Giorgio (Giorgio), a financial
advisor working for Liberty Standard Bank Group, to draft a will for them.
Giorgio drafted a document , printed and delivered it to the First Respondent
with instructions that she should arrange have it signed by herself and the
deceased in the presence of two witnesses , who should also sign it .
[4] On 26 July 2021, the First Respondent took the same document and gave it to
Mr. B Macaulay (Macaulay), a broker working for OUTsurance , with
instructions that he should take it to the deceased in hospital. According to the
First Respondent, she signed it before handing it over to hi m, and this she did
in his presence . She alleges that she signed it at her home which is in White
River . Macaulay took the document to Mediclinic Hospital where , following a
lengthy process, he was finally allowed into a hospital ward where the deceased
was being kept alone , under oxygen supply.
[5] Once in side, Macaulay handed over the three paged document and a pen to the
deceased, who signed all the pages without reading and handed it back to him.
Macaulay added his own signature and also completed the date and place on the
last page . Although the deceased was weak, he lightly talked about braai he
planned have with hi m upon h is discharg e from the hospital. This was however
not to be , for u nbeknown to him, his time on earth was on the fourth day
countdown.
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[6] From the hospital, Macaulay took the document home where his wife co-signed
as a second witness. This she did, in the absence of the deceased and the First
Respondent. The document was then taken back to the First Respondent who
kept it believing it to be a joint will , attested to by the deceased and herself . It
is this document that was presented to the Master of the High Court (the Second
Respondent ) when the deceased passed on , who accepted it as the last will of
the deceased.
[7] The Applicant, a daughter of the deceased from his first marriage was aggrieved
by the acceptance of the will by the Second Respondent . She f ound it hard to
accept that her father would bequeath nothing to her or any of his children
whereas in his will dated 05 July 1987, he had all his children as his
beneficiaries. She is also concerned over some inaccuracies in the will which
according to her, make it highly unlikely that the deceased could have desired
to have this document as his last will . She casts doubts on whether the deceased
is the person who caused th e document to be drafted in its current form .
[8] First of these inaccuracies is the reference to the type of marriage the deceased
and the First Respondent had. The Applicant attache d a pre-nuptial contract
dated 03 May 2006 which clearly reflects that the First Respondent and the
deceased were married out of community of property without the accrual. In the
joint will, the deceased and the First Respondent classify their marriage as
having been entered out of community of property , with the accrual.
[9] Another inaccuracy is to be found in how the deceased nominated four of his
grandchil dren as conditional beneficiaries. Their names were provided as Marco
Groenewald, Lexi Groenewald, Laurica Reynolds and Odin Reynolds. The
undisputed fact is that the deceased did not have a grandchild known as Lexi
Groenewald. Instead, his grandchild is Lexi Du Plessis. The last inaccuracy is
in the spelling of the name of Laurica (Reynolds) whose correct spelling is
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Laurika. The First Respondent admits that these are indeed inaccuracies, but she
classif ies them as typos.
[10] The Applicant also finds it odd that the deceased would name all his
grandchildren as beneficiaries and leave out just one, named Tyler. The First
Responde nt claims that this was a deliberate act by the deceased as he had not
met or seen Tyler since his birth.
[11] The Applicant challenges the validity of the deceased and First
Respondent’s will on the basis that it was not signed in the presence of the two
witnesses . An order is sought by her in the following terms :
11.1The last will testament of Patrick Marie Stanislas Henri Reniers (the deceased)
and the First Respondent dated 26 July 2021 , be declared void ab origine .
11.2The last will and testament of Patrick Marie Stanislas Henri Reniers (the
deceased) and the First Respondent dated 26 July 2021 , be disregarded in
totality by the 2nd respondent in the administration of the Deceased ’s estate.
11.3Cost of suit against the First Respondent on an attorney and client scale in the
event of the application being opposed , alternatively , cost of suit on party and
party scale against the First Respondent .
[12] The application is opposed by the First Respondent . According to her, the
application should be dismissed with costs on attorney and client scale . This
cost order is sought even if the application was to be granted by the Court . In
the event that the Court would find that the will is invalid for having not been
executed in the presence of two witnesses, then the Court should consi der her
counterapplication . In the counter application , the First Respondent prays that
the Court should condone her and the deceased ’s non-compliance with the
formalities provided in section 2(3) of the Wills Act, No. 7 of 1953 (the Act).
The relief sought is crafted in the following terms:
12.1An order in terms of the provisions of section 2 (3) of the Wills Act 7 of 1953
condoning the noncompliance with the formalities of the execution of a valid
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will and specifically non -complian ce with Section 2 (1)(a)(ii) and (iii) of the
said Act;
12.2An order declaring the joint will executed by the First Respondent and the
deceased dated 26 July 2021 valid ;
12.3Ordering that the cost of this application be paid by the applicant on an
attorney and client scale.
[13] The First Respondent ’s answering affidavit was brought together with a
request for condonation for having been filed out of time. The condonation is
not opposed by the Applicant.
[14] The application is not opposed by the Seco nd Respondent.
[15] The law .
The relevant parts of s ection 2 of the Act provide as follows ,
“2 Formalities required in the execution of a will .
(1) Subject to the provisions of section 3 bis-
(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
…
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(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 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).
2A Power of court to declare a will to be revoked
If a court is satisfied that a testator has -
(a) made a written indication on his will or before his death caused such indication
to be made;
(b) performed any other act with regard to his will or before his death caused such
act to be performed which is apparent from the face of the will; or
(c) drafted another document or before his death caused such document to be drafted ,
by which he intended to revoke his will or a part of his will, the court shall declare
the will or the part concerned, as the case may be, to be revoked .” [My emphasis].
[16] Discussion.
From the wording of section 2(3) of the Act, it appears plain ly clear that the
Court is empowered to condone non-compliance with the formalities for a valid
will, thereby rescuing a will that otherwise would be invalid . It however could
not have been the intention of the Legislature to validate a document which did
not comply with any of the formalities provided in section 2(1) of the Act .1
There appears to be t hree prerequisites for th e rescue provision to become
operational. First the document must have been non -compliant with one or more
of the listed formalities . Secondly, the document must have been drafted by a
testator . Lastly , circumstances should show that the testator intended the
document to be his or her last will.
1 Webster v The Master and Others 1996 (1) SA 34 (D) at 42F.
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[17] Undisputed facts of this case are to the effect that neither the d eceased not
the First Respondent signed the will in the presence of the two witnesses.
Macaul ay denie d that the First Respondent signed it in his presence. In line with
the Plascon -Evans rule, this Court must decide this application with all the
disputed facts being consid ered in favour of the Respondent. A final order can
be granted only if the facts averred in the applicant's affidavits, which have been
admitted by the respondent, together with the facts alleged by the latter, justify
such order .2 For purposes of this judgment, the Court would therefore presume
that the First Respondent signed the document in the presence of Macaul ay.
[18] This leaves the will still non -compliant with the formalities . In terms of the
formalities, it is required that it should be signed in the presence of two
witnesses. To be signed in the presence of just one witness and while the
testators were separate from each other , and in different areas, falls far too short
to be considered valid . Even the one witness in whose presence the First
Respondent claim s to have signed the document in his presence, he did not sig n
it in her presence as required, but in the presence of just the deceased . The
situation is worse when it comes to the second witness, Macaul ay’s wife who
signed the document in the absence of the two testators.
[19] The purpose of section 2(3) was noted by the Supreme Court of Appea l
(the SCA) in Van der Merwe v The Master and Another3 when it held, “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. It has rightly and repeatedly been said, that,
once a court is satisfied that the documen t concerned meets the requirements of
2 See National Director of Public Prosecution v Zuma 2009 (2) SA 277 (SCA) at para 26.
3 2010 (6) SA 544 (SCA) at para 14.
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the subsection, a court has no discretion whether or not to grant an order as
envisaged therein. In other words, the provisions of s ection 2(3) are peremptory
once the jurisdictional requirements have been satisfied. ”
[20] Over time, sight was lost of the fact that the court’s powers to condone is
derived from the statute and that for that reason alone, the prerequisites in that
statute had to be met before the court can assume the condonation powers . In
giving meaning to the purpose referred to in Van der Me rwe, courts in various
Divisions focused on the question on whether the testator may have intended
the document to be his/her last will . Little or no value was att ached to the first
requirement to the effect that the document must have been drafted by the
testator.4
[21] As a result of this approach, the statutory provision empowering the courts
to condone non -compliance where “a document was drafted or executed ” by a
person who has since died , was given a wider interpretation, not limited to
drafting by the testator personally .5 In some of these decisions, courts proceeded
to condone the non -compliance of a will , even after making a finding to the
effect that it was not drafted by the testator.6 There are however, those
judgments that took a narrower or stricter interpretation of the wor s, “drafted”
such as in Ramlal v Ramdhani Estate7, where the court refused to grant
condonation where the document was drafted by an attorney on the instructions
of the testator .
[22] The string of conflicting decisions was ended (or should have ended) with
the SCA judgment in Bekker v Naude8 where the court made a clear distinction
4 See Ex Parte Laxton 1998 (3) SA 238 (N) and Back and Others NNO v Master of the Supreme Court [1996] 2 All
SA 161 ( C).
5 See for example Ndebele and Others v The Master and Another 2001 (2) SA 102 (C) .
6 See Mdlulu v Delarey and Others [1998 ] 1 All SA 434
7 2002 (2) SA 643 (N) .
8 2003 (5) SA 173 (SCA).
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between drafting a document and causing a document to be drafted. In that
matter, Olivier JA, writing the unanimous judgment was critical of Back9 where
Van Zyl J had preferred a broader interpret ation of “drafting” relying on the
recommendations by the South African Law Commission, which
recommen dations were rejected by the Legislature.
[23] In giving ordinary interpretation to the statute , the SCA ruled that the
Legislature was alive to the difference between drafting a document and causing
a document to be drafted. The Legislature did not just reject the
recommendation by the South African Law Commission on how section 2(3) of
the Act should be worded . It went on to accept that wording in respect of section
2A of the Act which section was inserted into the Act together with section 2(3)
thereof, through Act no. 43 of 1992 . Section 2A which came into operation on
the same date as section 2(3) provides that “if the court is satisfied that the
testator drafted another document or before his death caused such document to
be drafted , by which he intended to revoke his will or a part of his will, the court
shall declare the will or the part concerned, as the case may be, to be revoked .”
[24] The SCA held , rightly so in my view, that if the Legislature intended that
even the documents that were not personally drafted , but ‘caused to be drafted ’
by the testator , should be considered for condonation of an invalid will , it would
have provided so as it did under section 2A of the Act. The omission by the
Legislature could not have been an error as the recommendations to the contrary
were before it when the legislation was passed . As Olivier JA reasoned, the
requirement that the document should have been drafted by the testator is stated
in unambiguous language, and for good reason. The formalities of a will have
been set for centuries to try to eliminate fraud, and disputes after the death of
the testator. Even when a 'power of condonation' was granted to the courts , this
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aim was kept alive . The requirement that the document be drafted by the testator
himself guarantees a degree of reliability because it requires proof of a personal
act of the testator, from which his intention can be clearly deduced.10
[25] My understanding of the above is that once a court finds that the document
was not personally drafted by the testator, its powers to condone an invalid will
are automatically excluded . The second leg inquiry on whether the testator
intended the document to be his last will shall therefore fall away. The
Legislature found no excuse for any document the testator caused to be drafted,
not to comply fully with the formalities of a valid will.
[26] The only room available to c hallenge these provisions would be if an
aggrieved party challen ges its constitutionality , which in casu does not e ven
arise . The intention of the Legislature therefore stands to be upheld .
[27] Conclusion.
It is therefore this Court’s finding that the deceased’s will does not comply with the
formalities of a will , for reason that it was not signed in the presence of two
witnesses and was also not signed by the two witnesses in the presence of the
testators. For that reason, i t should be declared invalid. For the reason of this finding
in respect of the first leg of inquiry, it is unnecessary to proceed to the second leg
to consider if the said document was intended to be the last will by the deceased .
[28] As for the costs, I see no reason why costs should not follow the outcome.
A case has not been made for punitive cost to be awarded as prayed for by both
parties . I will therefore make the order in the following terms
[29] The Order:
10 See Bekker supra at paragraph 16.
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INSTRUCTED BY : L ÜNENBURG JANSE VAN
VUUREN ATTORNEYS
MBOMBELA
DATE HEARD : 06 MAY 2025
JUDGMENT DELIVERED: 16 MAY 2025