THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
In the matter between: Before the Hon Madam Justice Slingers
Hearing: 05 May 2025
Judgment Delivered: 05 June 2025
MARK RICHARD ANDERSON
CHRISTINE ANN ANDERSON
and
FRANCOIS DU PLESSIS N.O.
THE MASTER OF THE HIGH COURT
BARBARA McGAVIN ROLFE
SIMON ROLFE
ANDERSON STRATHERN TRUSTEE COMPANY LTD Case No.: 12863/2024
First Applicant
Second Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
This judgment is handed down electronically by circulation to the parties' legal representatives' email
addresses. The date of hand-down is deemed to be 05 June 2025.
JUDGMENT
SLINGERSJ
Introduction
[I] Harold John Anderson ('HJA') and Karin Renate Anderson ('KRA') executed a
joint last will and testament ('joint will') during their marriage as KRA stood to
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inherit her German family's accumulated wealth following her mother's death.
The applicants. who are the children of HJA and KRA, allege that their parents
agreed on the future planning for the joint estate to inter alia ensure that KRA's
accumulated family wealth remained in the family.
[2] After KRA's death the German authorities refused to accept the joint will as valid
and binding. This caused HJA to institute proceedings in the District Court of
Kassel. In support of this application, HJA deposed to a sworn affidavit wherein
he stated that KRA and he had drawn up a joint will dated 23 June 2001 in
Kassel. He went on to depose that the testamentary disposition complied with
the requirements of the German Civil Code in terms of Section 26(1) Nos. 1, 2
and 4 of the Introductory Act to the German Civil Code. In terms of the
testamentary disposition , he had become the sole heir of the deceased KRA.
[3] HJA explicitly states in his sworn statement that he has accepted the inheritance
which included real estate property in Italy. Consequently, HJA requested that
he be granted a copy of the certificate of inheritance applied for below, with an
apostille, for use in Italy.
[4] On 28 April 2003, the District Court of Kassel found the joint will dated 23 June
2001 to be effective as a joint will on account of the applicant's South African
citizenship and that there is a binding effect in terms of the Berlin will according
to Section 2269 of the German Civil Code .
[5] HJA's sworn statement evidences his election to accept the benefits under the
joint will.
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[6] After 28 April 2003 HJA dealt with the joint estate assets entirely as if they were
part of his estate1.
[7] It is common cause that HJA commenced a relationship with and married the
third respondent. The fourth respondent is the third respondent's son from a
previous marriage.
[8] On 17 October 2018 HJA executed a new last will and testament. In terms of
this will and testament, HJA nominated the first respondent as executor of his
estate and provided for the third respondent to be the sole beneficiary of his
entire estate. In 2021 HJA executed a further last will and testament which
addressed HJA's assets situated within the United Kingdom and the Channel
Islands. Both the applicants and the third respondent are beneficiaries in terms
of this will and testament.
[9] HJA passed away on 20 May 2023 and on 5 July 2023, the first respondent was
appointed as the executor of HRA's estate in South Africa in accordance with his
2018 will and testament.
The applicant's case
[10) It is the applicants' case that massing and adiation occurred in respect of the joint
will of KRA and HJA. This follows firstly from the undisputed fact that KRA and
HJA consolidated their property into a single unit for joint disposition after the
death of the first dying spouse. And secondly from HJA's acceptance of the
benefits under the joint will as evidenced by HJA's affidavit filed in support of his
1 Founding Affidavit p 17 paras 40-43
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case in the District Court of Kassel to have the validity and binding effect of the
joint will and testament recognized2•
[11] The applicants do not seek to set aside the 2018 will and testament , nor do they
seek to have the first respondent removed as executor in terms thereof. The
applicants do seek an order directing:
(i) the second respondent to accept the joint last will and testament of Harold
John Anderson and Karin Anderson, dated 23 June 2001 to be the last will
and testament of Harold John Anderson in relation to his South African
estate;
(ii) the second respondent to accept as executor(s) of the late Harold John
Anderson 's South African estate such executors as may be nominated by
the beneficiaries under the joint will and that such executor(s) be
appointed in the place of the first respondent but only insofar as it pertains
to the 2001 last will and testament;
(iii) such executors shall wind up and distribute the estate of the late Harold
John Anderson to the extent that such estate forms part of or is derived
from the massed estate under the joint will as at the death of Karin
Anderson in 2022; and
(iv) to the extent that any assets in the South African estate of the late Harold
John Anderson were amassed after the death of Karin Anderson and were
not derived from the massed estate under the joint will, such assets be
dealt with in accordance with the provisions of the last will and testament
2 Holmes' Executor v Rawbone 1954 (3) SA 703 (AD)
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executed by the late Harold John Anderson on 17 October 2018 at
Plettenbe rg Bay.
[12) It is the applicants' case that in terms of South African law of succession , once a
party executes a joint will with his/her spouse, and massing and adiation has
occurred on the death of that spouse, then the surviving testator is bound to the
terms of the joint will and cannot, after the death of said spouse, seek to renege
on that joint will.
[13] The joint will continue to apply to the massed estate and the surviving testator is
bound to respect the terms of the joint will. Only the new assets acquired after
the death of the spouse may be dealt with in any subsequent will. However, the
massed estate must be distributed in terms of the joint will.
The respondents' case
(14] The first, third and fourth respondents filed a notice to oppose. However, only
the third and fourth responden ts ('the respondents') filed an answering affidavit
and actively opposed the application as the first respondent subsequent ly filed a
notice to abide.
[ 15] The grounds on which the respondents opposed the application fluctuated .
Before the institution of legal proceedings and at the stage of the parties' legal
representatives exchanging correspondence, the respondents accepted the
validity of the joint will in German law. However, they disputed that the joint will
could be enforced in South Africa on the basis that it was unconstitutional as it
would restrict and limit the testator's freedom of succession and that it would
disinherit the third respondent.3
obtained which advised that: 6
This was based on a legal opinion they
'22. I am thus of the view that the 2001 -joint will of the late Mr and Mrs.
Anderson (which in any event only dealt with their assets in Germany and
Italy) has no bearing on the late Mr. Anderson's South Africa estate or on
the validity and enforceability of his South African will.'
(16] The applicants provided the respondents with a contrary legal opinion in support
of their case that South African laws recognize the binding nature of previous
joint wills where adiation and massing occurred. The respondents expressed
their disagreement with this opinion.
(17] In their answering papers, the respondents raised seven points in limine, which
were that:
(i) the applicants failed to comply with peremptory provisions of Rule 41 A;
(ii) the joinder of the 4th respondent constitutes a misjoinder as he has no
interest in the relief sought;
(iii) the application does not comply with the provisions of Rule 6(5)(b)(iii);
(iv) the annexures to the founding affidavit have not been marked according to
the identification of the same reflected in the founding affidavit;
(v) the annexure, assumably to be MA 24 and part of the annexure
assumably to be MA 4 referred to in the founding affidavit were illegible;
3 Paragraphs 19 and 20 of the opinion on page 53
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(vi) the relief sought in terms of paragraphs 1, 2 and 3 of the Notice of Motion
is untenable in law;
(vii) the 5th respondent has not waived service of the motion in terms of the
court rules and that the applicants have, as far as the 5th respondent is
concerned, not complied with the prescripts of Rule 4(3) and Rule 5(11);
and
(viii) the facts relied upon by the applicants for the relief sought are premised
entirely on unsubstantiated allegations, and inadmissible hearsay and
unauthenticated evidence.
[ 18] These points were not pursued in argument at the hearing of the matter.
[19] The respondents do not dispute the following in their answering affidavit:
(i) HRA inherited the massed estate4;and
(ii) massing and adiation occurred upon the death of KRA which resulted in
HRA inheriting the joint estate and enjoying the benefits thereof.5
[20] During the hearing of the matter, the respondents argued that the hearing could
not proceed and that the application stood to be dismissed with costs due to the
failure of the second respondent , the Master of the High Court to actively
participate in these proceedings .
[21] The answering affidavit also raised the alleged non-compliance of the 2001 joint
will with the South African formalities.
4 Paragraph 26 of the founding affidavit. page 13 read with paragraph 15 of the answering affidavit, page 103
5 Paragraph 44.2 and 44.3 of the founding affidavit, page 19 read with paragraph 25 of the answering affidavit, page 106.
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Non-compliance with Uniform Rule 6(9)
[22] The respondents took the point in limine that the provisions of Uniform Rule 6(9)
had not been complied with that the non-participation of the second respondent
in the proceedings prevented the hearing thereof.
[23] Uniform Rule 6(9) provides that:
'A copy of every application to court in connection with the estate of any person
deceased , or alleged to be a prodigal, or under any legal disability, mental or
otherwise, shall before such application is filed with the registrar, be submitted to
the Master for consideration and report; and if any person is to be suggested to
the court for appointment as curator to property, such suggestion shall likewise
be submitted to the Master for report. Provided that the provisions of this subrule
do not apply to any application under rule 57 except where that rule otherwise
provides.'
[24] In the commentary to Erasmus, it has been noted that the objective of Uniform
Rule 6(9) is to avoid applications being enrolled only to be postponed so that a
court can have the advantage of the Master's assistance. The commentary goes
further to note that the subrule does not operate when the Master's involvement
is neither legally necessary nor of assistance to the court.
[25] In the present matter, the Master of the High Court has been cited as the second
respondent and has been served with the application. It is undisputed that on 18
September 2024 the second respondent penned an email wherein it stated that
the current application must be finalised before the executor would be able to
proceed with the liquidation and distribution account. Thus, the court does have
the input of the second respondent. Furthermore , the relief sought is of such a
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nature that while it does require the second respondent's compliance, nor does it
require his assistance .
[26] In the circumstances, there is no merit to the point in limine based on the alleged
non-participation of the second respondent.
Constitutionality of the last will
(27] In the respondent's heads of argument , they accept that massing does not per se
result in the unconstitutional limitation of the right of testation.6 Consequen tly, I
need not deal with this aspect further.
lack of compliance with the formalities required by SA law
(281 Section 3bis(1 )(a)of the Wills Act, Act 7 of 1953 provides that
'A will, whether executed before or after the commence ment of this section, shall-
( a) not be invalid merely by reason of the form thereof, if such form complies
with the internal law of the state or territory-
(i) in which the will was executed;
(ii) in which the testator was, at the time of the execution of the will or
at the time of his death, domiciled or habitually resident; or
(iii) of which the testator was, at the time of the execution of the will or
at the time of his death, a citizen.'
[29] In Tomlinson v Zwirchmayr7the court found that the common law position which
required compliance with either the /ex loci actus or /ex situs had been codified
by section 3bis of the Wills Act. Thus, a last will and testament would be valid
66 Paragraph 26.3 of the respondent 's heads of argument
7 1998 (2) SA 840
10
even where it failed to comply with the requirements of the /ex situs but complied
with the requirements of the /ex loci actus.
(30] Therefore , based on the decision by the District Court of Kassel on 28 April 2003
that the joint will was valid and binding read with section 3bis of the Wills Act,
there is no merit in challenging the vaiidity of the joint will on the grounds that it
failed to comply with the formal requirements of South African law.
Two wills
[31) The respondents argued there cannot be two valid wills in respect of an estate.
The respondents relied on section 2(3) of the Wills Act and section 14(1) of the
Administration of Estate's act to support this submission. In contrast the
applicants argued that there is no statutory obstacle or prohibition against two
wills being valid and applicable to the administration of a single estate, but rather
that there is a statutory prohibition against two estates.
(32] As set out above, HJA executed a 2018 and a 2021 will and testament to
address different assets, some ·of which are located in different jurisdictions. The
third respondent is a beneficiary in terms of both the 2018 and the 2021 wills.
The first respondent has been appointed as the executor in terms of the 2018
will.
(33) It would be absurd to accept that because the assets are located in different
jurisdictions that HJA had multiple estates which required winding up on his
death. The fact that a testator has assets located in different jurisdictions does
not detract from the fact that his assets constitute a single estate which has to be
administered by his testamentary documents.
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[34] It is apparent by the appointment of the first respondent as executor in terms of
the 2018 will that the respondents accept the validity of both the 2018 and the
2021 will. This fact is destructive to the respondents' argument that there cannot
be multiple valid wills applicable to the administration of an estate.
Massing and adiation
[35] Section 37 of the Act states as follows-
"If any two or more persons have, by their mutual will, massed the whole or any
specific portion of their joint estate and disposed of the massed estate or of any
portion thereof after the death of the survivor or survivors or the happening of any
other event after the death of the first-dying, conferring upon the survivor or
survivors any limited interest in respect of any property in the massed estate,
then upon the death after the· commencement of this Act of the first-dying ,
adiation by the survivor or survivors shall have the effect of conferring upon the
persons in whose favour such disposition was made, such rights in respect of
any property forming part of the share of the survivor or survivors of the massed
estate as they would by law have possessed under the will if that property had
belonged to the first-dying ; and the· executor shall frame his distribution account
accordingly."
[36] The following are the requirements for statutory massing-
(i) the first dying testator must have died on or after 2 October 1967,
being the date on which the Administration of Estates Act 66 of
1965 came into operation ;
(ii) there must be two or more persons as parties to the mutual will;
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(iii) the parties must make a mutual will (a mutual will is a joint will in
which two or more testators have mutually benefitted one another
in the same document);
(iv) the parties must mass the whole or part of their separate estate
assets into a consolidated unit, and this unit must be disposed of in
the mutual will;
(v) the mutual will must grant the survivor ·a limited right' in respect of
any property which has been massed;
(vi) the disposition of the massed estate must take place sometime
after the death of the first dying;
(vii) the survivor must adiate on the death of the first dying.
[37] The undisputed facts of the matter ~re:
(i) KRA died in 2002;
(ii) there were two parties to the joint will, namely KRA and HJA;
(iii) KRA and HJA executed a joint will;
(iv) KRA and HJA consolidated their separate estates into a single unit, which
would be administered in terms of the joint will;
(v) HJA was granted and received benefits in terms of the joint will;
(vi) the disposition of the consolidated estate occurred after the death of KRA,
as the first dying spouse; and
(vii) HJA elected to receive benefits in terms of the joint will after the death of
KRA.
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[38] Thus, on the undisputed facts it has to be accepted that the statutory
requirements for massing have been met. In any event, the respondents did not
deny or contest the issue of massing in the answering affidavit. On the contrary,
they accepted that both massing and adiation had occurred.
[39] Furthermore, they did not dispute that the massed estate was part of the current
estate.
[40] It is trite that the acceptance of any benefit under the will of the first dying
amounts to adiation and that this adiation prohibits the survivor from altering or
revoking his or her own dispositions in terms of the joint will in regard to the
massed estate.8 Once an election to adiate (or repudiate) is made, it is
irrevocable .9
[41] In terms of South African law, a survivor cannot accept the benefits left to him or
her in terms of a testamentary document of the first dying and then thereafter
refuse to deal with his own estate in the manner set out in that testamentary
document.10
(42] Thus, adiation of any benefit under the will of the first dying amounts to adiation
which prohibits the survivor from altering or revoking his or her own disposition in
the joint will in so far as it pertains to the massed estate.11
[43] When HJA accepted the inheritance, as set out in his sworn statement filed in the
District of Kassel, he adiated. Thus, HJA's ability to deal with that portion of his
estate which formed part of the joint estate was limited as a result of his election
to accept his inheritance under the joint will.
8 Holmes' Executor v Rawbone 1954 (3) SA 703 (AD)
9 Corbett et al The Law of Succession in South Africa 2nd edition, page 455
10 Union Government v Larkan 1916 AD 212 at 224
11 Corbett et al, The Law of Succession in South Africa 2nd edition, page 439
14
[44] Given that both massing and adiation have occurred, there is no reason to hold
that the terms of the 2001 joint will were not binding on HJA and does not apply
to the disposition of the joint estate to the extent that it existed at the time of the
death of KRA and has continued to grow and accumulate since then. To the
extent that HJA acquired a new estate, those assets would be regulated by the
provisions of the 2018 Will. To find otherwise would be contrary to the principle
of fairness and would allow a party ta resile from an obligation to perform in
terms of a promise after receiving benefits under that promise.12
[45] Therefore , based on the facts and the applicable legal principles, the applicants
have established that:
(i) massing and adiation in terms of the 2001 joint will occurred;
(ii) the joint will and testament is valid and binding in South Africa.
[46] Furthermore, the respondents have failed to establish any factual or legal
grounds to show that the applicants are not entitled to the relief they seek.
(47] In the circumstances, I make the follpwing orders:
(i) the second respondent is directed to accept the joint last will and
testament of Harold John Anderson and Karin Anderson , dated 23
June 2001 to be the will and testament of Harold John Anderson in
relation to his South African estate;
(ii) the second respondent is directed to accept as executor(s) of the
late Harold John Anderson's South African estate such executors
as may be nominated by the beneficiaries under the joint will and
that such executor(s) be appointed in the place of the first
12 Applicant's heads of argument
15
respondent but only insofar as it pertains to the 2001 last will and
testament ;
(iii) such executors shall wind up and distribute the estate of the late
Harold John Anderson to the extent that such estate forms part of
or is derived from the massed estate under the joint will as at the
death of Karin Anderson in 2022; and
(iv) to the extent that any assets in the South African estate of the late
Harold John Anderson were amassed after the death of Karin
Anderson and were not derived from the massed estate under the
joint will, such assets be dealt with in accordance with the
provisions of the last will and testament executed by the late Harold
John Anderson on 17 October 2018 at Plettenberg Bay;
(v) the costs of the application shall be born by the third and fourth
respondents jointly and severally, one paying to absolve the other,
such costs shall be costs on a party party scale on Scale C.