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[1993] ZASCA 110
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Harpur NO v Govindamall and Another (730/91) [1993] ZASCA 110; 1993 (4) SA 751 (AD); [1993] 2 All SA 582 (A) (6 September 1993)
CASE NO 730/91
/ccc
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
GREGORY DAVID HARPUR
N.O.
APPELLANT
and
GOVINDAMALL
and
THE MASTER OF THE
SUPREME COURT
RESPONDENTS
CORAM
: CORBETT CJ, VAN HEERDEN, EKSTEEN JJA et NICHOLAS, KRIEGLER
AJJA
DATE HEARD
: 14 MAY
1993
DATE DELIVERED:
6 SEPTEMBER 1993
JUDGMENT NICHOLAS, AJA
:
This is an appeal against a judgment given
by
2
Howard JP in application proceedings in the Durban and
Coast
Local Division. The applicant was one
Govindamall, the widow of the
late Perumal Pillay ("the
testator") who died on 26 May 1986. She
sought an order
declaring invalid the will executed by the testator
on
25 January 1985 in terms of which the sole
beneficiaries
were his five children. She cited as first, second
and
third respondents respectively the three major
children,
as fourth respondent Mr G D Harpur in his capacity
as
curator ad litem
to the two minor children and as
fifth
respondent the Master of the Supreme Court. Howard
JP
granted an order in the following terms:
"(a) The will of the late Perumal Pillay dated 25 January 1985 is
declared to be invalid. (b) The costs of all parties, including
the curator ad
litem, shall be paid out of the estate of the late Perumal Pillay No 5132/86 on
the scale as between attorney and
client."
Leave was granted to appeal to this court but only the
3
curator ad litem
pursued the appeal.
The will read as follows:
"
LAST WILL AND TESTAMENT
This is the Last Will and Testament of Me PERUMAL PILLAY (BORN 5th AUGUST
1930), married by Antenuptial Contract to GOVINDAMALL, presently
of 42
Dubrugarth Road Merebank, in the Natal Province of the Republic of South
Africa.
1. I hereby revoke, cancel and annul all previous Wills, Codicils and other
testamentary writings, heretofore made or executed by
me.
2. I give and bequeath my entire Estate including my immovable property
wheresoever situated to my five children, in equal shares,
share and share
alike:-
1. KUMARI MUNSAMI
2. PARIMALA REDDY
3. ENDRASEN PILLAY
4. RONALD PILLAY
5. NISHALIN PILLAY
3. I nominate, constitute and appoint my daughter KUMARI MUNSAMI, to be the
Executor of this My Will and the Administrator of my Estate
and Effects, giving
and granting unto her all such Powers as are allowed by Law and especially the
Power of assumption.
4. I hereby direct that my Executor and
Administrator
4
either appointed or assumed, shall not be required to file security with the
Master of the Supreme Court or any other official for
the due fulfillment of
their duties.
5. IN WITNESS WHEREOF I HAVE hereto set my hand at Durban this 25/1/85 day
of Jan 1985 in the year of our Lord, One Thousand Nine
Hundred and Eighty Two
(1982) [
sic
] in the presence of subscribing witnesses.
SIGNED BY PERUMAL PILLAY,
the Testator of this Last Will
and Testament in the presence
of us who in his presence
and in the presence of each
other, all being present
at the same time have affixed
our signatures hereto as Witnesses.
[SIGNED] P PILLAY
TESTATOR WITNESSES:
1. [SIGNED] S R PILLAY
2. [SIGNED] SOOBRAMONEY"
The will consisted of two
pages, the first of which ended with para 4. The second page was signed by P
Pillay as testator and by S
R Pillay and Soobramoney as witnesses. The full
signature P Pillay appears three
5
times on the first page: against an alteration in one of the names in
clause 2, and on the left and right sides at the foot of the
page. Next to each
of these signatures appear what are said to be the initials SRP for S R Pillay
and the single letter S for Soobramoney.
The applicant submitted
that the will was invalid in that it did not comply with para (iii) read with
para (iv) of s 2(1)(a) of the
Wills Act
, 7 of 1953 ("the 1953
Act").
The 1953 Act was the culmination of a
long
process of development. See the
discussion by Prof B
Beinart in an article published in 70(1953) SAW 159 and
entitled
Testamentary Form and Capacity and the Wills
Act, 1953
. He stated (at 159):
"Our law relating to the execution of wills has retained many forms which
are relics of its Roman and Dutch past. Legislation in the
various Provinces has
added or partly substituted the English forms of will. As regards the older
forms
6
of will each provincial statute has manifested a different attitude. The
result has been rather a jumbled pattern, and the law has
long stood in need of
clarification, revision, simplification and
uniformity."
The 1953 Act recites that it is an act to
consolidate and amend the law relating to the execution of wills. It repealed in
whole or
in part the pre-Union statutes of the former colonies, including the
Cape
Execution of Wills Ordinance
No 15 of 1845, the Natal
Execution
of Wills and Codicils Law
No 2 of 1868, the Orange River Colony
Execution
of Wills and other Testamentary Instruments Ordinance
No 11 of 1904, and the
Transvaal
Wills Ordinance
No 14 of 1903.
The Cape Ordinance was modelled on s 9 of
the
English
Wills Act
, 1837, which
provided
"No will shall be valid unless it shall be in writing and executed in manner
hereinafter mentioned; (that is to say), it shall be
signed at the foot or end
thereof by the testator, or by
some
7
other person in his presence and by his direction, and such signature shall
be made or acknowledged by the testator in the presence
of two or more witnesses
present at the same time, and such witnesses shall attest and shall subscribe
the will in the presence of
the testator, but no form of attestation shall be
necessary."
So far as it is relevant for present
purpose, sec 3 of
the Cape Ordinance read:
"3. And be it enacted that no will or other testamentary writing...shall be
valid unless it shall be or shall have been executed in
the manner hereinafter
mentioned: that is to say, it shall be or shall have been signed at the foot or
end thereof...by the testator
or by some other person in his presence and by his
direction...and such signature shall be or shall have been made or acknowledged
by the testator...in the presence of two or more competent witnesses present at
the same time, and such witnesses shall attest and
subscribe or shall have
attested and subscribed the will in the presence of the person executing the
same; and where the instrument
shall be or shall have been written upon more
leaves than one the party executing the same and also the witnesses shall sign
or shall
have signed their names upon at least one side of every leaf upon which
the instrument shall be or shall have been
written."
8
It seems that Natal Law 2 of 1868 in turn was modelled cm the Cape
Ordinance. Sec 1 provided, however, "that nothing herein contained
shall be
deemed to prevent a mark being a signing for the purposes hereof".
The Transvaal
Wills Ordinance
14 of 1903 also appears to have been
modelled on the Cape Ordinance, but it too provided in s 1 that "nothing herein
contained shall
be deemed to prevent a mark being a sufficient
signature".
Sec 1 of the Orange River Colony statute was
in similar terms, except that it provided that -
"The signature of a testator to a will or other testamentary instrument
shall be valid whether made by way of a signature or of mark,
provided only that
in the latter case the mark shall be made in the presence of and attested by a
Justice of the Peace and two witnesses."
It will be seen
that this Ordinance differed from the
9
laws of Natal and the Transvaal in two important
respects:
only the signature of a testator (and not
that of a witness) was
valid if made by way of a mark,
and it was then valid only if there
was compliance with
the proviso.
The 1953 Act deals in s 2(1) (a) with the
formalities required in the execution of a will.
As amended
by s 20 of the Act No 80 of 1964, but before
amendment by Act No 43
of 1992, s 2(1)(a) provided -
"2.(1) Subject to the provisions of section three [which is not here
relevant] -
(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
10
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
and by such witnesses anywhere on the page;
and (v) if the will is signed by the testator by the making of a mark or by some
other
person in the presence and by the direction of the testator, a magistrate,
justice of the peace, commissioner of oaths or notary
public certifies at the
end thereof that he has satisfied himself as to the identity of the testator and
that the will so signed
is the will of the testator, and if the will consists of
more than one page, each page other than the page on which it ends, is also
signed, anywhere on the page, by the magistrate, justice of the peace,
commissioner of oaths or notary public who so certifies."
Sec 1 of the 1953 Act provided in para (iv) before
amendment that -
"(iv) 'sign' includes in the case of a testator the making of a mark but
does not include the making of a mark in the case of a
11
witness, and 'signature' has a corresponding
meaning;"
This definition
affirms that a testator may sign a will
by way of a mark, but the legislature followed the model
of
the Orange River Colony statute by providing in s
2(1) (a) (v) for
safeguards to ensure that the mark was
genuinely that of the
testator. The definition further
restricts the meaning of the word
"sign" in the case of
a witness. For the rest the words "sign" and
"signature", which are not technical or legal terms,
must be
given their ordinary, popular meaning.
The short question for
decision in this appeal is whether initialling by a witness is a signing for the
purposes of paras (iii) and
(iv) of s 2(1) (a) of the 1953 Act.
In ordinary usage the word signature, used without qualification, means
signature by name or
12
signature by mark. That was said in
Goodman v J
Eban
Ltd
[1954] 1 Q.B. 550
(CA). The question there
was
whether a signature by means of a rubber stamp was
a
good signature for the purposes of s 65(2) of the
Solicitors Act, 1932. In his dissenting judgment
Denning LJ
said at 561:
"In modern English usage, when a document is required to be 'signed by'
someone, that means that he must write his name with his own
hand upon it. It is
said that he can in law 'sign' the document by using a rubber stamp with a
fascimile signature. I do not think
this is correct... [A facsimile] is the
verisimilitude of his signature but it is not his signature in fact.
If a man cannot write his own name, then he can 'sign' the document by
making his mark, which is usually the sign of a
cross.."
Evershed MR (with whose judgment Romer LJ
concurred)
said at 555:
"...I confess that, if the matter were res Integra, I should be disposed to
think, as a matter of common sense and of the ordinary
use of language, that
when Parliament required that the bill
should
13
be 'signed' by the solicitor, it was intended that the solicitor should
personally 'sign' the bill or letter in the ordinary way by
writing his name
(or, where appropriate, the name of his firm) in his own hand with a pen or
pencil."
He went on to add, however, that the matter was
not free
from authority. He referred to a number of
decided
cases, and concluded (at 557) that -
"In my judgment, therefore, it must be taken as established from the
citations which I have made, that where an Act of Parliament
requires that any
particular document be 'signed' by a person, then, prima facie, the requirement
of the Act is satisfied if the
person himself places upon the document an
engraved representation of his signature by means of a rubber
stamp."
The importance of
Goodman's
case for present
purposes lies in the recognition in both judgments that
the ordinary, popular meaning of the verb
sign
is
sign
by name or sign by mark. That accords with the
relevant
definitions given in the Shorter Oxford English
Dictionary:
s.v.
Sign
14
"2. To place some distinguishing mark upon (a thing or person)."
"4. To attest or confirm by adding one's signature; to affix one's name to
(a document, etc)."
"6. To write or inscribe (one's name) as a signature." s.v.
Signature
"1. The name of a person written with his or her own hand as an
authentication of some document or
writing."
Black's Law Dictionary 5th ed, p
1239, gives as the
definition of
Sign
,
"To affix one's name to a writing or instrument, for the purpose of
authenticating or executing it, or to give it effect as one's
act. To attach a
name or cause it to be attached to a writing by any of the known methods of
impressing a name on paper. To affix
a signature to... To make any mark, as upon
a document, in token of knowledge, approval, acceptance, or
obligation"
of
Signature
,
"The act of putting one' s name at the end of an instrument to attest its
validity; the name thus written... And whatever mark, symbol
or device one may
choose to employ as representative of himself is
sufficient"
and of
Mark
15
"A character usually in the form of a cross, made as a substitute for his
signature by a person who cannot write, in executing a conveyance,
will or other
legal document."
The dictionary definitions are reflected
in
the cases. In
Hindmarsh v
Charlton
(1861) 8 H.L. Cas.
160
[1861] EngR 382
; ,
(11 ER 388)
Lord Campbell L.C.
observed at 167:
"I will lay down this as to my notion of the law: that to make a valid
subscription of a witness there must either be the name or
some mark which is
intended to represent the name."
In the same case Lord
Chelmsford said at 171:
"The subscription must mean such a signature as is descriptive of the
witness, whether by a mark or by initials, or by writing the
full
name.."
I do not apprehend that Lord Chelmsford was here
saying
that there were three categories of signature,
viz
by
name, by mark and by initials. As will appear,
the
trend of the English decisions is that initials are
a
form of mark. In the case of
In the goods of
Chalcraft,
16
deceased
[1948] P. 222
, Wilmer J said at 233:
"It seems to me that one ought to give a broad interpretation to the words
used by the Lord Chancellor in the case of
Hindmarsh v Charlton
in the
passage which I have read. There must either be the name or some mark which is
intended to represent the name."
In the case of
In re
Colling, deceased
, (1972) 1 WLR
1440 (Ch.D.) at 1442, Ungoed-Thomas J described the
last
sentence as "the crucial sentence".
Although they
may be used to identify the person affixing them, initials are not a signing in
the ordinary sense of the word. The
Shorter Oxford English dictionary gives
under the noun
Initial
"B2. An initial letter;
esp
. (in pl) the
initial letters of a person's name and surname" and under the verb
Initial
"v...
trans
. To mark or sign with initials, to put one's initials to
or upon."
In the Afrikaans version of the 1953 Act,
the
17
words "onderteken" and "handtekening" are used for "sign" and
"signature". In Afrikaans usage "handtekening" is distinguished from
"paraaf".
HAT gives under "paraaf", "Handtekening met voorletters, o.m. om veranderinge of
byvoegings in 'n dokument te waarmerk."
Van der Merwe,
Die Korrekte
Woord
, gives under "
paraaf
": "Wanneer jy
parafeer
, is jou
paraaf
jou naamtekening, maar eintlik net met die voorletters, want as jy
ten voile teken, praat ons van jou
handtekening
of
naamtekening
."
Die Afrikaanse Woordeboek
gives under "handtekening", "Iem. se naam, met
sy eie hand geskryf, dikw. as waarmerk om te bewys dat die geskrif wat daaraan
voorafgaan
van horn is of met sy sienswyse, begeertes of bedoelings in
ooreenstemming is; eiehandige ondertekening, naamtekening; outograaf."
Cf. Van
Dale,
Groot Woordenboek der Nederlandse Taal
, which gives under "paraaf",
"2. handtekening door middel der
18
beginletters, inz. ter waarmerking van inlassingen of bijvvoegingen in
akten", and under "ondertekenen" "...zijn naam zetten onder,
iets met zijn
handtekening bekrachtigen".
For purposes of identification,
authentication, or execution etc, in practice either a signature or initials may
sometimes be used.
That does not mean, however, that initials are a signature in
the ordinary usage of the word. In the ordinary use of language the
words "sign"
and "signature" do not, in addition to their primary meaning, signify "initial
and "initials". In his contribution on
the
Law of Succession
in the 1981
Annual Survey of SA Law, Mr Ian B Murray (who was an eminent attorney and for
many years a distinguished contributor
to the
South African Law Journal
and the
Annual Survey of South African Law
- see the preface to the 1988
Annual Survey), pointed out at 288 that
19
initials and signatures not only differ in structure,
"but are regarded, both in business and in legal practice, as performing
different functions. Initialling is the writing by a person
of the first letter
of one or more of his forenames and the first letter of his surname. Signing, in
contradistinction, is (a) the
indication by a person of one or more of his
forenames either by writing its first letter or writing it out in full (or a
recognized
abbreviation of it, as 'Geo' for 'George'), and (b) (most
importantly) the writing of the letters constituting his surname, or, at
any
rate, a writing or flourish representing or intended by him to represent the
letters making up his surname - even although, in
the words of John C Tarr
Good Handwriting
(Pan Books 1957) 7-8: 'Many signatures are an
indecipherable scrawl...' Documents are normally initialled by the parties
(often being
also initialled by the witnesses) on all pages except the last,
which is
signed
by the parties and the witnesses... In a notarial deed
the notary initials each page and signs the last one. When it enacted the
Wills
Act the legislature must have been well aware of the difference between initials
and signatures, and the practice regarding
documents other than
wills..."
No doubt there are cases where
what purports
to be a signature is illegible, and it may sometimes
be
difficult to decide ex
facie
a document whether a
20
signing is a signature or initials, but any practical difficulties which
may arise do not affect the principle.
If the noun "signature", like
the verb "sign", is ambiguous inasmuch as it may mean signature by name, or it
may also comprehend signature
by initials, recourse should be had, in order to
resolve the ambiguity, to the object and policy of the Act. Cf Steyn,
Die
Uitleg van Wette
, 5e uitgawe, 22-24.
In
Erasmus v Erasmus' Guardians and Executors
1903 TS 843
, Innes CJ said at 851:-
"Our law, like that of every civilised state, is very jealous that
satisfactory proof of its genuineness should be given by anybody
who files what
purports to be the testamentary disposition of a deceased person. And the lines
on which vigilance is generally exercised
are in the direction of strict
regulations with regard to the attestation of testamentary
instruments."
And in
Ex parte Sewnanden: In re Estate
Poolbussia
21
1948(1) SA 539(D & CLD) Selke J, after referring to
the
fact that at least in the earlier Roman Law the
prescribed rules and
formalities seem to have been
concerned as much with religious as
with other objects,
said at 543-5:
"But it is hardly conceivable that, at a very early stage, it was not
recognised that the making of provisions of the
post mortem
disposition
of a man's property furnished exceptional opportunities for chicanery and fraud.
At all events, it is apparent that in
the course of time, the religious
significance of the matter tended to fade more and more into the background, and
that the rules
and formalities became more and more directed to curtailing
opportunities for malpractice and fraud, and to securing that, so far
as
possible, the will reflected the genuine and freely made dispositions of the
testator... Thus, it seems, the formalities enjoined
by Law 2 of 1868, represent
the precautions considered necessary and adequate to protect the testator, and
to safeguard the validity
of his
dispositions."
The requirement for
signatures of witnesses to
a will provides a main safeguard against the
perpetration of frauds, uncertainty and speculation.
22
Disputes regarding the validity of a will can arise only after the death
of a testator, which may occur many years after it was executed.
Ordinarily the
only persons other than the testator who are likely to have knowledge of the
circumstances of the execution of a will
are the witnesses who, being present,
personally saw or perceived it, and can testify in that regard. That purpose
fails when the
witnesses cannot be identified. It may be impossible to identify
a witness who has signed by initials only. In the present case,
if the signature
of Soobramoney had been the letter S as written on the first page of the will or
the signature of S R Pillay had
been the hieroglyph on the first page, it seems
clear that there would have been difficulty in identifying these
witnesses.
The virtue of a signature lies in the fact that no two persons have the
same handwriting, with the
23
result that signatures are difficult to forge. Initials, by contrast, can
often, with a little practice, be readily and convincingly
copied. In my
opinion, therefore, if there is a doubt as to the meaning of the word "sign" it
should be interpreted so as to exclude
signing by initials.
The
time-honoured form of a mark is a cross, but it may be some other character, or
may even be a description, if it is clear that
the signatory intended it to be
his signature, that is, a substitute for his name. The Irish case of
In the
goods of Kieran, deceased
[1933] I.R. 222
was cited in
Chalcraft
(
supra
) at 231. The facts were that the testator, who was in bed very
ill, tried to write his name but did not succeed in doing more than
write two
more or less indecipherable initials. In answer to a question by his solicitor
who was present, the testator accepted what
he
24
had written as his mark, and it was so endorsed on the will by the
solicitor, and was so attested by the witnesses. In that case it
was decided
that although the mark did not take the usual form of a cross, nevertheless it
was a mark acknowledged by the testator
as his own in the presence of witnesses
and, therefore, sufficient to amount to a signature under the Act. In the case
of
In the Estate of Cook (deceased)
(1960) 1 All ER 689
(Probate Divorce
and Admiralty) a testatrix had drawn a holograph will which was duly attested by
two competent witnesses. After
making certain dispositions of her property, she
concluded: "Please Leslie be kind to Dot. Your loving mother". ("Leslie" was her
son and "Dot" referred to one of her daughters.) In his judgment Collingwood J
referred to cases which laid down that the making
of a mark was a sufficient
signing under the Statute of Frauds. He also referred
25
at 691 to
Hindmarsh v Charlton
(
supra
) and to
In
the
goods of Redding (otherwise Higgins
) (1850) Rob
Eccl
339. In the latter case probate was granted of a
will
executed by a testatrix under an assumed name, as
the
court considered that the assumed name might be
regarded
as the mark of the testatrix. Collingwood J
concluded
that, applying those principles to the case before
him,
he was satisfied that the words "Your loving
mother"
were meant to represent the name of Emma Edith Cook,
the
testatrix, and he accordingly held that the will
had
been properly executed.
The rationale for recognizing initials as a
signature is that they are, or are in the nature of, a
mark.
See Jarman on Wills, 8th ed, Vol I p 126:
"
Signature by Testator:
The next condition prescribed for the validity of a will is that it should
be signed, which suggests the inquiry what amounts to a
'signing' by the
testator. It has been decided that a mark is sufficient, even if the testator is
able to
26
write...A mark being sufficient, of course the initials of the testator's
name would also suffice..."
and p.134
"VII
Attestations and Subscription by
Witnesses
:
A mark has been decided to be sufficient
subscription... The initials of the witnesses also
amount to a sufficient subscription, if placed for
their signatures, as attesting the
execution..."
According to Halsbury's Laws of England,
4th ed, Vol 50,
para 265, p 136:
"To make a valid attestation a witness must either write his name or make
some mark intended to represent his name. A will may be
subscribed by marks even
though the witnesses are capable of writing. The initials of an attesting
witness may be sufficient, unless
placed on the will merely for the purpose of
identifying alterations."
In the case of
In the Goods
of Blewitt
5 P.D. 116
the
question was whether the signature and subscription by
initials only were sufficient. The President said (at
117):
"A mark is sufficient though the testator can
27
write:
Baker v Dening
.
Initials, if intended to represent the name, must be equally good... In
Christian's Case
the initials of the witnesses were held sufficient,
although if merely placed to attest the alteration they will not serve as an
attestation of the will itself:
Re Martin
,
deceased
."
Jarman (op
cit
at 134) states
that a mark by an attesting witness is a sufficient subscription, but adds that
"it is never advisable, where it can
be avoided (and, now that the art of
writing is so common, seldom necessary), to employ marksmen as
witnesses."
The matter has received judicial attention in South
Africa.
In
Van Vuuren v Van Vuuren
(1854) 2 Searle 116
, a
will was written upon two leaves (that is, four pages covered with writing). The
testator and witnesses signed their names at
the bottom of the will and wrote
their initials on the first leaf, except that one of the witnesses wrote his
signature in full on
the first leaf.
28
Wylde CJ and Ebden J felt constrained to hold that the solemnities
required by law were wanting. Bell J dissented in a carefully considered
judgment. In regard to the word "signed" as used in the 1845 Ordinance he said
that it was impossible to avoid giving to it a popular
interpretation. At 122 he
cited
inter alia Baker v Deninq
(1838) 8 A and E 94
[1838] EngR 548
;
(112 ER 771)
and
Harrison v Harrison
(1803) 8 Vesey 185
[1803] EngR 504
;
(32 ER 324)
as showing that a will
attested
by the mark of a witness
was validly attested and subscribed. He
said at 124 that if a
mark
will do, he did not see why initials should
not be sufficient either at the end or on the other leaves of the will.
The view of Bell J prevailed in
In re Trollip
(1895) 12 S.C. 243
,
which overruled the decision in
Van Vuuren's
case. The testatrix and
witnesses duly signed at the foot of a will written upon more pages than
one,
29
but the only signature of the testatrix to the first
leaf was made by means of her initials just above the
initials of the witnesses. De Villiers CJ said at 246
that
the only question was whether the requirement of
the 1845 Ordinance
in regard to signing was complied
with by a signature by means of
initials. He said that
the requirement was that the testator and witnesses
should "sign", not write, their names.
"What is the original meaning of the term 'sign'? It is a 'mark' from the
latin
signum
. To sign one's name, as distinguished from writing one's
name in full, is to make such a mark as will represent the name of the person
signing the document. For that purpose it is no more necessary to write one's
surname in full than it is to write one's Christian
names in
full."
The decision in
Trollip
accorded with the
English law as it had been developed: the initials
constituted a mark which represented the names of the
person
who signed the will.
30
That decision would not, however, be authoritative in a case to be
decided under the 1953 Act, which provides that "sign" includes
in the case of a
testator the making of a mark, but does not include the making of a mark in the
case of a witness.
In
Dempers & Others v The Master and
Others
(1) 1977(4) SA 44 (SWA), a will consisting of four pages had been
signed by the testator at the end and at the foot of each page,
but the
witnesses had signed only the last page; at the foot of the other pages they had
placed their initials. The question arose
whether the witnesses to the will
attested and signed it in accordance with the requirements of paras (iii) and
(iv) of the 1953
Act. After quoting dictionary definitions, Hart AJP said at 50A
that there was a significant difference between the meaning of "to
sign" and of
"to initial", as also between the meaning of "signature" and
31
"initials". At 56 he found that the answer to "this
perplexing problem"
"...lies in the fact that nor the initials
per se
of the witnesses do
not constitute their ordinary or normal signatures which appear clearly at the
end of the will... from which it
would logically follow that they did not 'sign'
or affix their 'signatures' at any place on any of the first four pages of the
will."
This reasoning is fallacious. What followed from
the
premise was that the witnesses did not affix
their
ordinary or customary signatures
on the first
four pages
of the will. Furthermore, the premise was false.
The
1953 Act does not require that witnesses should sign
with
their ordinary or customary signatures, nor does it
require that they should sign in the same way on every
page.
(Compare
Jhajhbai & Others v The Master & Another
1971(2) SA 370 (D & CLD), where on the first page
the
witnesses signed their normal signatures and on the
second page each of them printed his name after the
32
attestation clause because, they said on affidavit,
the
testator asked them to do so in order that their
names
might be clearly legible). Hart AJP did not decide
the
real question, which was whether the subscribing of
initials constituted a signature within the meaning of
the
1953 Act.
In
Ex parte Singh
1981(1) SA 793(W)
Vermooten
J decided that where a testator or witness signs a will
with
his initials only, that is a sufficient compliance
with the
requirements of s 2(1)(a)(iv) of the 1953 Act.
In reaching this conclusion, the learned judge relied on
Trollip
(
supra
), saying (at 796 C-D) that there is
a
remarkable similarity between the Cape Ordinance, the
1953 Act and the English Wills Act of 1837. He said (at
798 E) that the English decided cases were of
assistance, and concluded by saying -
"In view of the judicial authority both here and in England with which I
respectfully agree, I think
33
it can now be stated that where a testator or a witness signs with his
initials only, then that will be sufficient compliance with
the requirements of
the
Wills Act 7 of 1953
to sign the will provided he intends it to be his
signature."
No doubt English decisions do provide
assistance in the
solution of problems arising under the 1953 Act,
but
they should be applied with discrimination, because
in
South African law, differing in this respect as in
other
respects from English law, "sign" does not include
the
making of a mark in the case of a witness. In my
respectful opinion, therefore, the conclusion of
Vermooten J
was wrong.
The next case is that of
Mellvill &
Another
NNO v The Master & Others
1984(3) SA 387(C). There
Friedman J (Fagan J concurring) held, after a careful,
comprehensive and critical review of the authorities,
that when the 1953 Act requires a testator and the
witnesses
to "sign" the will, what is required is a
34
signature and not initials.
The judgment in
Melvill
did not persuade
Vermooten J that he had been wrong in
Singh
.
In
Ex
parte Jackson NO: in re Estate Miller
1991(2) SA
586(W),
he said at 589 E-I:
"In a recent decision the Cape Provincial Division had occasion to consider
the legal issue which also arises in the present case.
In
Mellvill and
Another NNO v The Master and Others
1984(3) SA 387 (C) Friedman J (Fagan J
concurring) held that signatures cannot be constituted by initials. In arriving
at his decision,
Friedman J who gave the judgment, does not regard himself bound
by the English cases on the point, nor by the pre-Union cases decided
in respect
of the pre-Union Cape Ordinance, which were decided when the relevant
legislation did not contain the present distinction
between a 'signature' and a
'mark'. Thereupon the learned Judge comes to the following conclusion at
396D:
'It is accordingly no longer
necessary, as it
was before the Act was passed, and as it
was
under the Cape Ordinance and still is under
the
English Act, to construe a signature
widely so as to incorporate
within its ambit a
mark
or initials
.'
With great
respect to the learned Judge the
conclusion sought by him, in my
opinion, does not
follow. The word 'signature' should be
construed
35
as widely as the common law prescribes, except insofar as the Legislature
expressly restricted such a construction. In s 1 of the
Act the Legislature
chose to legislate about 'marks' and chose not to legislate about writings on
wills other than marks. Such other
writings include initials, which are not
marks. These writings must be interpreted in terms of the common law applying to
such writing
before the introduction of the Act."
I do
not understand the learned judge's reference to the
common law. As pointed out above, the word "signature"
does not bear a technical or legal meaning, but must be
interpreted in its ordinary, popular sense. In that
sense
there are two ways of signing: signing by writing
one's name and
signing by making one's mark. To the
discussion on this point which
appears earlier in this
judgment may be added a reference to
Van Niekerk v Smit
& Others
1952(3) SA 17(T), which was cited in
Jackson
at
588 C. This was not a wills case. Murray J said at 25
D-E:
"Signature does not necessarily mean writing a
36
person's Christian and surname but any mark which identifies it as the act
'of the party' -
Morton v Copeland
[1855] EngR 539
;
16 C.B. 517
per
Maule, J., at
p. 535. To sign, as distinguished from writing one's name in full, is to make
such a mark as will represent the name
of the person signing. (
In re
Trollip
,
12 S.C. 243
at p. 246,
per
Lord de
Villiers.)"
For the reasons given above I do not agree
that initials
are not marks, and I do not agree that writings on
wills
which are not marks, or signatures in the ordinary
sense, may be regarded as signatures.
In my respectful
opinion, the conclusion in
Melvill
was right. That was also the view of
Howard JP in his judgment in the court a
quo
in the present case. It
follows that in my view the appeal should be dismissed.
I come to this conclusion with regret because its effect is to defeat the
intention of the testator. It appears that the will is genuine,
and that the
initials on the first page were in fact affixed by the
37
witnesses
animo attestandi
. Moreover, in consequence of
the amendment effected by s 2(e) of the
Law of
Succession Amendment Act
43 of 1992, the definition of
"sign" in s 1 of the 1953 Act has now been amended to
read -
"'
sign
' includes the making of initials and, only in the case of a
testator, the making of a mark and 'signature' has a corresponding
meaning."
In his judgment in
Ex parte Goldman & Kalmer NNO
1965(1) 464(W), Galgut J held that it was clear that the
testatrix intended to sign the will in that case and
said that it seemed to him that it was proper at that
stage of the proceedings to hold that
prima facie
the
"sign" made by her on the will was her signature. He
said that in coming to this conclusion he was also
influenced because the facts showed that the will
certainly appeared to be genuine and represented the
real intention of the testatrix, and he referred to Ex
38
parte Nel
1955(2) SA 133 (C) at 136 (See p. 469 G).
In
Nel's
case Steyn J said that in coming
to
the conclusion that the will there was invalid, he had
not
overlooked the tendency by our courts to uphold a
will rather than
declare it invalid for want of due
execution, adding -
"That is a consideration which weighed with me particularly because this
appears to be a genuine case for relief. This consideration
is, however, not
strong enough to overcome what I conceive to be the directions of the
Legislature for the execution of a valid will."
That
accords with the approach of the Lord Chancellor in
Hindmarsh v Charlton
(
supra
) when he said at
the
beginning of his speech (at 166):
"My Lords, these are very distressing cases for Judges to determine. I may
honestly say that we have a strong inclination in our minds
to support the
validity of the will in dispute, which the parties
bona fide
made, as
they believed, according to law, and where there is not the smallest suspicion
in the circumstances of the case. But we
must obey the directions of the
Legislature, and we are not at liberty to introduce nice
distinctions
39
which may bring about great uncertainty and
confusion"
and at the end (p.168)
"I regret very much that we are compelled to hold this instrument to be an
invalid will, but we are constrained to do so by the Act
of
Parliament..."
See also the remarks of Lord Cranworth
(at 168-9) -
"I concur with my noble and learned friend in having a sort of personal
feeling of regret that this will cannot be sustained as a
valid will. It appears
to be a reasonable will, and a will as to which there is not the least suspicion
of anything like fraud or
imposition. But for the security of mankind, the
legislature has thought fit to prescribe certain forms and rules which are
necessary
to be complied with, in order to authorize a distribution of property,
different from that which the law would make if there was
no will; the
legislature, in truth, on these forms being complied with, putting into the
hands of the party who is making a will,
power to dispose of his property in a
way contrary to what, but for the will, would be the provision of the
law."
Counsel on both sides were agreed
that if the
appeal should be dismissed, there should be no order as
to
costs.
40
The appeal is
dismissed.
NICHOLAS,
AJA
CORBETT CJ )
EKSTEEN, JA ) CONCUR
KRIEGLER, AJA
)
VAN HEERDEN JA
:
2
The late Perumal Pillay ("the deceased") died on 26 May 1989. He was
survived by his wife (the respondent in this appeal), their minor
child as well
as three major children and one minor child born of a previous marriage. On 25
January 1985 and at Durban the deceased
had signed a document ("the will")
bequeathing his estate to his five children. After his death that document was
accepted by the
Master as the will of the deceased. It consisted of two pages.
Each page had been signed by the deceased and the second page also
bore the
signatures of two witnesses, but those signatures did not appear on the first
and crucial page of the will. It had, however,
been initialed by the
witnesses.
Because of that alleged deficiency the respondent in this
appeal brought an application in the Durban and Coast Local Division. The
respondents cited by her were the aforesaid three major children,
3
the appellant in his capacity as
curator-ad-litem
for the two minor
children and the Master. She sought an order setting aside the will. Her
interest in the application stemmed from
her capacity as an intestate heir of
the deceased. The court a
quo
(Howard JP) allowed the application but
granted the major children and the appellant leave to appeal to this court.
Subsequently
those children withdrew their appeals. Hence the
curator-ad-litem
is the only appellant before us.
Relying
mainly on the judgment in
Mellvill v The Master
1984 (3) SA 387
(C),
Howard JP found that the writing of initials does not qualify as a signature for
the purposes of
s 2(1)(a)
of the
Wills Act 7 of 1953
. That subsection provides
that no will executed on or after 1 January 1954 shall be valid unless certain
formalities are complied
with. So, for instance, the will must be
signed
at the end
4 thereof by the testator (or by another person acting on
his direction), and two or more competent witnesses must attest and
sign
the will.
S 2(1)(a)
(iv) then prescribes that if the will consists of more than
one page, each page other than the page on which it ends, must also be
signed
by the testator (or by the above person) and by such witnesses
anywhere on the page.
These provisions must be read with the
definition of "sign" in
s 1.
In terms of that definition the word " includes in
the case of a testator the making of a mark, but does not include the making of
a mark in the case of a witness". And if a testator signs his will by making a
mark on it,
s 2(1)(a)(v)
requires that it be certified by a magistrate, justice
of the peace, commissioner of oaths or notary.
In setting out the
above provisions I have ignored the amendments brought about by the Law
of
5
Succession Amendment Act 43 of 1992. I have done so, and shall continue
to do so, because s 15 of that Act prescribes that its provisions
are not
applicable to a will where the testator died before the commencement of the
Act.
The question whether the requirements of
s 2(1)(a)
of the
Wills
Act are
complied with if the testator or a witness places his initials on one or
more pages of a will, has given rise to a sharp division
of judicial and
academic opinion. In three cases the courts have either expressly or
inferen-tially answered the question in the
affirmative:
Ex parte Goldman and
Kalmer NNO
1965 (1) SA 464
(W); Ex
parte Singh
1981 (1) SA 793
(W),
and
Ex parte Jackson NO: In re Estate Miller
1991 (2) SA 586
(W). The
reasoning in
Jhajbhai v The Master
1971 (2) SA 370
(D) also appears to
support this view. An opposite conclusion was reached in
Dempers v The
Master
(1)
6
1977 (4) SA 44
(SWA), in
Mellvill
and, of course, in the
judgment of the court a
quo
.
Before analysing the reasoning in those cases it is convenient to give a
brief resume of relevant pre-Union legislation and
decisions.
Ordinance 15 of 1845 (Cape), Law 2 of 1868 (Natal),
Ordinance 14 of 1903 (Transvaal) and Ordinance 11 of 1904 (Orange River Colony)
all required the last page of a will to be
signed
by the testator and
witnesses. The Transvaal and Orange River Colony enactments moreover prescribed
that every sheet of a will had
to be so signed, whilst the Cape Ordinance
required one side of every leaf of a will to bear the signatures of the testator
and witnesses.
Unlike that Ordinance, the other enactments expressly provided
that a mark was an acceptable form of signature. In terms of s 1 of
the Orange
River Colony Ordinance, however, only the testator could sign by
7
way of making a mark, and in such a case the mark
had to be made in the presence of, and be attested by, a justice of the peace.
All
four enactments remained in force until the inception of the
Wills
Act.
Apart
from the Cape there were no reported decisions on the
meaning of the word "sign" in the pre-1953 enactments. In the Cape Colony there
was initially some divergence of judicial views. In
Van Vuuren v Van
Vuuren
2
S 116
, the majority of the Cape Supreme Court held that a will was
invalid because the testator and one of the witnesses had written their
initials
on the first page. However, in
Troost v Ross, Executrix of Hohenstein
4
Searle 211
, it was held that the making of a mark by a testator constituted a
compliance with the requirements of Ordinance 15 of 1845 relating
to the signing
of a will. A similar conclusion was reached in
Re Le Roux
3 SC 56.
And in
In re Trollip
12 SC 243
, the
(
8
majority judgment in
Van Vuuren
was overruled. The court held that
a will had been validly executed although a page of a leaf had not been signed
by the testatrix
who had, however, placed her initials on that
page.
The later Cape decisions were probably influenced by the trend
in England. As regards statutory requirements relating to the subscription
of a
will, the English courts have consistently held that a "subscription" means a
signature which is descriptive of the person signing,
whether by a usual
signature, a mark or by initials. (See the cases referred to in
Mellvill
at p 391.)
Trollip
was decided in 1895. There are no later
Cape decisions which are in point, and it would therefore appear that at the
time of the
enactment of the
Wills Act the
Trollip
interpretation of the
word "sign" in legislation pertaining to wills had for a
9
period of nearly 60 years been regarded as the last word on the subject,
not only in the Cape but also in the other colonies (and
later
provinces).
Before dealing with the arguments advanced in support of
a different construction of the word "sign" in the
Wills Act, it
is apposite to
consider an aspect of the approach of Vermooten J in
Singh
and
Jackson
. In
Singh
he said (at p 798) that "where a testator or a
witness signs with his initials only, then that will be sufficient compliance
with
the requirements of the
Wills Act
... to sign the will
provided he
intends it to be his signature
".
The qualification in the phrase
underlined by me was criticized by Friedman J in
Mellvill
at p 396. He
said, rightly in my view, that intention cannot make a signature of something
which is not a signature, and that if
the intention of the testator - and
obviously also a witness - was to be the
10 decisive factor, any mark or sign made by him could be construed as a
signature if he intended that mark or sign to be his signature
whether or not it
complied with the meaning of the word "signature".
Adverting to this criticism in
Jackson
at pp 589-590 Vermooten,
then AJ, explained his use of the above underlined phrase. His approach may be
thus summarized:
(a) The word "signature" should be con
strued as widely as
the common law permits, except in
so far as the legislature
expressly restricted such a
construction.
(b)
Writings on a
will, other than marks, must be interpreted in terms of the common law applying
to such writings before the introduction
of the
Wills
Act.
(c
)
Effect must be given
to the presumption
that the legislature
does not intend to alter the
11 common law.
(d) Since the intention of a signatory is the
criterion in terms of the common law, that criterion must be applied in
interpreting
the
Wills Act.
I
have experienced considerable
difficulty in attempting to ascertain which rules or criteria of the common law
Vermooten AJ had in
mind. There is indeed no reference to a common law authority
in his judgment. And, as Beinart,
Testamentary Form and Capacity and the
Wills Act
>, 1953, 70 SALJ 159, 171, points out, signatures on a will did not
play a significant role in Roman or Roman-Dutch Law. Some support
for
proposition (d) may, however, be derived from Schrassert,
Consultation
4.36. A Dutch statute apparently provided that an antenuptial contract had to be
signed by the parties and witnesses. One of the
questions raised in the advice
given by Hendrik ...
12
Schrassert (presumably Johan Schrassert's father) and one Westenberg, was
whether the making of a mark sufficed. In answering in the
affirmative the
consultants rhetorically asked (at p 180):
"... wat is openbaarder dan dat 't woord ondertekenen, 't geen d.i. art.
gebruikt word, in 't generaal genomen het haelen en tekenen
van een merkteken
includeert".
And (at p 181):
"Oock als men omtrent de woorden niet te veel wil subtiliseren, wat isser
bekender, dan dat de waarheid van 't gepasseerde soo wel
kan afhangen van de
characteren van een handmerk, dat bewijs is, als van de characteren van de naam.
Dewyl en het merkteken en de
naam beide alleen dienen om te verkonden dat sulks
in dervoegen voor die tekenaars gepasseert is."
With reference to Huber 2.12.43 the consultants also pointed out that
because the making of a mark was a customary form of signature,
the Court of
Friesland had approved of wills to which the testator, and even a witness, had
appended his mark. It
13
does not appear from Huber, however, why such wills
had been held to be valid. For Huber says (Gane's
translation, vol 1, p 154):
"However, since signature by mark is very customary here, the Court has
approved various testaments, in which the mark of the maker
appeared alone, with
a note in the hand of another to show whose mark it was, and there is now no
longer any doubt about this; indeed
we notice the same thing in the case of the
witnesses themselves to a solemn testament, to the effect that in addition to
the writer
of the will at least two witnesses should be found, who had signed
the same with their names; that, however, is too great a departure
from the
written law."
It will be observed that the. courts did not merely equate a mark with a
signature but required that a testator' s mark had to be
authenticated by
somebody else.
I have been unable to establish whether a similar
rule was applied in Holland, and it would therefore be somewhat rash to deduce
from
Schrassert and the decisions of the Court of Friesland the
14 existence of a recognized rule of the common law to the effect that a
"signature" included a "mark", or that any form of writing
intended to be a
signature, or to be indicative of a name, was to be equated with a
signature.
It may be that when he spoke of a rule of the common law
Vermooten AJ had in mind the interpretation of "sign" adopted in the later
Cape
cases. Those decisions were not, however, based on the common law but solely on
a construction of a statutory provision. As
such that interpretation can hardly
be said to have become part of the common law.
I turn to the main reasons put forward
in
Mellvill
,
Dempers
and the judgment of the court a
quo
for the conclusion that the word "sign" in
s 2(a)
of
the
Wills Act does
not include the writing of
initials. They are as follows:
15
(1) That word does not have a
technical
meaning in legal nomenclature, and must
accordingly
be construed according to its ordinary,
popular
sense. In that sense "sign" means to write
one's
initials (or one of them) and surname. By
contrast
the word "initial" bears a completely
different
meaning; i e to write one or more of one's
initials
as well as the first letter of one's
surname.
(2) The Act is intended to eliminate as far
as
possible the perpetration of fraud. A signature
is less easy to copy
than initials, and there will
consequently be less scope for fraud
if "sign" is
construed to exclude the writing of initials.
Given
the design of the legislature there is accordingly
an
added reason to interpret "sign" according to
its
popular and normal sense.
(3) Since the Act draws a
distinction
between a signature and a mark and makes
specials
16 provision for signing by means of a mark, it is unnecessary to
construe "sign" widely so as to include the making of a mark or
initials. Cases
decided in the Cape Colony on the meaning of the same word in s 3 of the Cape
Ordinance are therefore no longer of
assistance.
I shall deal consecutively with the above considerations:
Ad
(1)
It is true that when "sign" is contrasted with the writing
of initials a tolerably clear distinction can be drawn between the meanings
of
those words or concepts. Even so, a signature or an initialing can take on
various forms. So, for instance, one person may sign
by writing his name and
only one of his initials, or even only his surname, whilst another may write his
surname preceded by all
his initials or even his full, forenames. Again,
a
17
signature may consist of no more than an illegible scrawl, squiggle or
flourish. And should a woman write out a will leaving her whole
estate to her
only daughter and append at the end thereof, in her handwriting, the words "your
loving mother", there would be much
to be said for the view that she signed the
will (cf Law Reform Commission of British Columbia, Report on the Making and
Revocation
of Wills, p 29). An initialing, in turn, may consist of the writing
of the first letter of one or more of a person's forenames and
the first
letter(s) of his surname(s), but also of the appending of only the first
letter(s) of his forename(s).
The important point, however, is that
when the two concepts are not thrown in contrast, "sign" has an extended or wide
meaning which
embraces the writing of initials. A signature can therefore be
either a full or an abbreviated signature. That much
18
is borne out by dictionaries. So, for instance, the Oxford English
Dictionary defines "initial" as "to mark or sign by initials".
And HAT gives the
following meaning of "paraaf": "handtekening met voorlet-ters". (And cf
Matanda and Others v Rex
1923 AD 435
, 436 and
Putter v Provincial
Insurance Co Ltd
1963 (3) SA 145
(W) 148-9.)
The distinction
between "sign" and "initial" also becomes blurred in the case of a person who,
because of some or other temporary
affliction, can only write his initials and
not also his full surname. In such a case an initialing by him whilst so
disabled would
surely have to be regarded as his temporary
signature.
I am therefore of the view that whilst in its narrow and
more usual sense "sign" does not include the writing of initials, it does
so in
its wider meaning.
19
Ad (2)
This is undoubtedly a weighty consideration
since, as a rule, it may be easier to forge a person's initials than his
signature in
the narrow sense. On the other hand some testators' or witnesses'
signatures may well be more susceptible to forgery than the initials
of others.
Ad (3)
I am by no means convinced that the
Wills Act does
draw a clear
distinction between a signature and a mark. The fact that "sign" is defined in s
l(iv) to include, in a case of a testator,
the making of a mark, is not
indicative of the legislature's appreciation that, absent that definition, the
word "signature" would
not include a mark. I say so because given the
legislature's design that a testator's mark, but not that of a witness, should
qualify
as a signature, it was obviously necessary to incorporate
20
s l(iv) in the Act.
A more important consideration is this.
If a signature does not include an initialing the anomalous result would be
that, subject
to certain safeguards, provision has been made for a testator to
"sign" his will by making a mark on, but not by initialing, a will.
And it is
indeed not easy to grasp why the legislature would have wished to afford
solemnity to a certified mark than to a certified
initialing. True, a mark is
normally made by an illiterate person, but a semi-literate testator who has been
taught to write his
initials, but not to sign his name in full, may well prefer
to initial his will rather than making a mark on it.
In the final analysis, however, the
most
important pointer to the lawgiver's intention is
to
be found in the interpretation of the word
"sign"
which was eventually adopted by the Cape
courts.
21
According to that interpretation "sign" in the Cape Ordinance included
the writing of initials and the making of a mark. The same
word appeared in
s 2
of the
Wills Act. Since
the legislature must have been aware of the
authoritative interpretation adopted in
Trollip
in 1895 which was not
challenged in the other colonies (later provinces) - as could have been done in
regard to the initialing of
a will - a presumption arises that the word "sign"
in the
Wills Act was
intended to bear the meaning assigned to it in
inter
alia Trollip
(see
Ex parte Minister of Justice: In re Rex v Bolon
1941 AD 345
, 359-60). Admittedly s l(iv) of the
Wills Act does
not recognize a
mark made by a witness as a valid signature, but, as I have pointed out, this in
itself does not throw significant
light cm the legislature's appreciation of the
meaning of the word "sign". The legislature may well have thought that that
meaning
was wide
22
enough to include the making of a mark, but that for
reasons of policy it should be curtailed by the
provisions of s l(iv). On the other hand, since the
legislature was aware of the aforesaid authoritative
interpretation it is to my mind hardly conceivable
that if it was intended that "sign" should not
include the writing of initials, this would not have
been
made clear. The legislature could have done so
easily enough by casting s l(iv) in the following
form:
" 'sign' includes in the case of a testator the making of a mark but does
not include the making of a mark in the case of a witness,
or the writing of
initials in the case of a testator or a witness...."
Although the matter is by no means free from difficulty, I am
consequently of the view that for the purposes of
s 2(1)
of the
Wills Act "sign
"
includes the making of initials.
I would therefore uphold the appeal, order
23
that the costs of both parties be paid out of the deceased's estate, and
substitute the following for the contents of para (a) of
the order of the court
a quo
:
"The application is dismissed."
H J O VAN HEERDEN JA