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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 040656/2024
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates: NO
In the matter between:-
DANIEL PIETER VAN DEVENTER Applicant
and
NATASJA MELINDA ROODT N.O.
(in her capacity as executrix of the estate late
Johannes Francois Goosen)
1st Respondent
THE MASTER OF THE HIGH COURT,
PRETORIA
2nd Respondent
ALLICIA GOOSEN 3rd Respondent
ELSIE MARIS MAGRIETA GOOSEN 4th Respondent
JUDGMENT
Reid J
Introduction
[1] This is an application in which the applicant seeks an order declaring a
copy of a last will and testament purportedly executed by the late
Johannes Francois Goosen ("the deceased") on 27 November 2018 to
be the last will and testament of the deceased, and that the Master of
the High Court be ordered to accept such document for the purposes of
administering the deceased's estate.
Background
[2] The deceased passed away on 1 February 2024. He was survived by
his life partner of approximately 22 years, the applicant , his mother (the
fourth respondent), and his sister (the third respondent). The third and
fourth respondents are the deceased's sister and mother respectively,
and they oppose the relief sought.
[3] The first respondent is cited in her capacity as the executrix of the
deceased's estate. The second respondent is the Master of the High
Court, Pretoria.
[4] The central dispute concerns which document constitutes the
deceased's last will and testament. The applicant contends that the
deceased validly executed a will on 27 November 2018 which revoked
all previous wills, including a will dated 13 February 1992.
[5] Only a copy of the 2018 will survives. It is common cause that the
original will cannot be located. More significantly, it is common cause
that it is unknown who had possession of the will at the time of the
deceased’s demise.
[6] The respondents oppose the application on two main grounds:
6.1. first, that the 2018 will does not comply with the formaliti es
prescribed in section 2 of the Wills Act 7 of 1953; and
6.2. second, that it was not the deceased's intention to have the 2018
document operate as his last will. This argument is based on
the “rebuttal principle” which will be discussed here under.
[7] The applicant and the deceased resided together as life partners from
March 2003 until the deceased's death. During their relationship, they
shared a home situated at 1[...] V[...] Street, Capital Park, Pretoria,
which was purchased by the deceased in November 2004.
[8] Following the deceased's passing, the applicant searched their home
for important documents. He discovered a book containing passwords
and documents, which included a last will and testament bearing the
First National Bank ("FNB") logo.
[9] The applicant sent this document to FNB to initiate the administration
process. In May 2024, he was informed that the deceased's Ford
bakkie faced repossession by Wesbank due to unpaid instalments.
With no executor appointed at that stage, the applicant personally paid
R8,202.39 towards an instalment and R124,785.31 to settle the
outstanding loan.
[10] On 24 June 2024, the applicant and third respondent received
correspondence from Mpho Netshirembe, an estate specialist at FNB,
indicating that FNB did not have the 2018 will in its custody. Internal
FNB correspondence revealed:
"We have checked our records and confirm that the 2018 Will is
not in safe custody. According to our records the Will was
drafted in 2018 but signed Will was never received for safe
custody."
[11] The ap plicant thereafter accessed the deceased's email account and
discovered a trail of correspondence between the deceased and FNB
employees regarding the amendment of his will. The material emails
may be summarised as follows:
11.1. On 5 January 2018, FNB sent the deceased a Will Application
form.
11.2. On 11 January 2018, the deceased returned the signed
application, requesting assistance in amending his will.
11.3. On 8 March 2018, Albert Chiripanyanga of FNB requested details
of the heirs as discussed.
11.4. On 12 March 2018, the deceased provided the names and identity
numbers of his mother, sister, and the applicant.
11.5. On 12 March 2018, a draft will was sent to the deceased for his
perusal.
11.6. On 13 March 2018, the deceased requested changes, specifying
that his flat be left to his sister, his house and car to the applicant,
and that liquid assets be split 70% to the applicant and 15% each
to his mother and sister.
11.7. On 27 November 2018, the deceased sent an email to FNB's
fiduciary department and Mr Chiripanyanga stating: " Signed will
attached."
11.8. On 27 November 2018, Mr Chiripanyanga replied, acknowledging
receipt of the signed will and requesting that the original be sent
to FNB's offices for safe custody.
11.9. On 28 November 2018, the deceased responded: " I will forward
as soon as I am able. Please ensure the copy is uploaded on my
profile in the meantime."
[12] Attached to the email of 27 November 2018 was a scanned document
purporting to be the deceased's last will and testament. The document
comprises four pages. Page 4 bears what app ear to be the signatures
of the deceased and two witnesses, Dennis Chetty and Yogan
Covidasanny. Each page is initialled.
[13] Despite diligent searches, the original of this document has not been
located. The applicant searched the family home, and the fourth
respondent also conducted a thorough search. On 24 September 2024,
the fourth respondent addressed a letter to the Master stating:
"I have been informed that I am required to submit the original
last will and testament of my son. Unfortunately, despite d iligent
efforts, only a copy of the will, dated 27/04/2018, could be
located. A copy of the will is attached as annexure 'A'. The
original was held with FNB, but they have confirmed that the
document has been lost, and only a copy remains."
[14] Confirmatory affidavits have been obtained from both witnesses who
signed the 2018 will . Dennis Chetty deposed to an affidavit confirming
that he witnessed the deceased's signature on the 2018 will. Yogan
Covidasanny deposed to a confirmatory affidavit on 28 May 2025, i n
which he confirms that on 27 November 2018, the deceased asked him
to witness his last will and testament; that the deceased signed a four -
page document, initialling each page and signing on the last page; and
that he thereafter initialled and signed the document in the presence of
the deceased and Dennis Chetty.
[15] The fourth respondent opposes the application. Her opposing affidavit
raises the following contentions:
15.1. The application is based on hearsay evidence and should be
dismissed.
15.2. There exists a "gl aring dispute of fact" which should be resolved
by way of viva voce evidence.
15.3. The 2018 document does not meet the formal requirements of
section 2 of the Wills Act.
15.4. The deceased may have contemplated changing his will but never
finalised such changes.
15.5. The fourth respondent enjoyed a close relationship with her son
and they often discussed his last wishes. She contends that the
deceased intended the 1992 will to be his final will.
15.6. The letter she wrote to the Master in September 2024 was written
under "pretence" that the applicant unduly induced and bullied her
during a period of grieving, and she now denies its contents.
[16] The third respondent, the deceased's sister, supports the fourth
respondent's opposition.
The issues
[17] The issues for determination before this Court are:
17.1. Whether there exists a genuine dispute of fact requiring referral to
oral evidence.
17.2. Whether the hearsay evidence tendered by the applicant should
be admitted.
17.3. Whether the 2018 document, though only a copy, should be
declared the deceased's last will and testament.
17.4. Whether the presumption of revocation arising from the non -
production of the original will has been rebutted.
Evaluation
Dispute of fact
[18] The respondents contend that there is a "glaring dispute of fact"
necessitating a referral to viva voce evidence. However, they fail to
articulate with any precision what the disputed facts are.
[19] In Wightman t/a JW Construction v Headfour (Pty) Ltd and
Another 2008 (3) SA 371 (SCA) at paragraph [13], the Supreme Court
of Appeal held:
"A re al, genuine and bona fide dispute of fact can exist only
where the court is satisfied that the party who purports to raise
the dispute has in his affidavit seriously and unambiguously
addressed the fact said to be disputed. There will of course be
instances where a bare denial meets the requirement because
there is no other way open to the disputing party and nothing
more can be expected of him. But even that may not be
sufficient if the fact averred lies purely within the knowledge of
the averring party an d no basis is laid for disputing the veracity
or accuracy of the averment. When the facts averred are such
that the disputing party must necessarily possess knowledge of
them and be able to provide an answer (or countervailing
evidence), if they be not true or accurate but, instead of doing
so, rests his case on a bare or ambiguous denial the court would
generally have difficulty in finding that the test is satisfied…"
[20] The respondents have not "seriously and unambiguously" addressed
the facts said to be in dispute. The fourth respondent makes vague
allegations about discussions with the deceased but provides no
particulars of when, where, or what was discussed. She claims the
2018 will is missing pages and lacks witness signatures, yet the copy
before court comprises four complete pages bearing three signatures,
two of which appear under the witnesses' heading. Both witnesses
have confirmed under oath that they signed the document in the
presence of the deceased.
[21] As held in Robert Victor Benyon v Rhodes University and Another 2017
4 BLLR 423 (ECG) at paragraph [29], it is undesirable for a court to
take all disputes of fact at face value where this would enable a
respondent to raise fictitious issues in avoidance. The court must
examine whether the alleged disputes are real or can be resolved
without oral evidence. This was phrased as follows:
“It should be emphasised that whilst generally undesirable to attempt
to decide an application on affidavit where there are material facts in
dispute, it is equally undesirable for a court to take all disputes of fact
that the face value which would enable a respondent to raise
fictitious issues of fact in avoidance. It is necessary then to examine
the alleged disputes and determine whether they are real or can be
satisfactorily resolved without the aid of oral evidence.”
[22] Taking into account all the facts mentioned in paragraphs 7 to 16
above, I am satisfied that no genuine dispute of fact exists that requires
referral to oral evidence. The respondents' contentions are either bald
denials, palpably implausible, or contradicted by the objective
documentary evidence.
Hearsay evidence
[23] The applicant concedes that portions of his evidence, particularly the
email correspondence, constitute hearsay. He invokes section 3 of the
Law of Evidence Amendment Act 45 of 1988, which provides that
hearsay evidence may be admitted if the court, having regard to
various factors, considers it in the interest of justice to do so.
[24] The relevant factors include the nature of the proceedings, the nature
and probative value of the evidence, the reason why the evidence is
not given by the person upon whose credibility its value depends, and
any prejudice to a party.
[25] In this matter, the email correspondence is of considerable probative
value. It reveals a clear trajectory: the deceased initiated the process of
amending his will in January 2018; he provided detailed instructions
regarding the distribution of his assets in March 2018; and on 27
November 2018, he expressly stated the words "(that the) Signed will
(is) attached" and forwarded a scanned copy of the executed document
to First National Bank (FNB).
[26] The reason the author of the emails cannot testify is self -evident: the
deceased has passed away. The FNB employee, Mr Chiripanyanga, is
no longer with the bank and his whereabouts are unknown.
[27] The respondents' suggestion that the emails might be the product of
artificial intelligence is speculative and unsupported by any evidence.
[28] The correspondence forms part of a coherent chain spanning se veral
months, with consistent references to the deceased's personal
circumstances and relationship with the applicant . There is no factual
basis to doubt its authenticity.
[29] In my view, it is manifestly in the interest of justice to admit the hearsay
evidence. The respondents suffer no prejudice beyond the legitimate
forensic disadvantage of being unable to cross -examine the
deceased—a disadvantage inherent in any application of this nature. In
addition, t he fourth respondent's own affidavit is replete with hearsay
regarding alleged conversations with the deceased.
The validity of the 2018 will
[30] Section 2(1) of the Wills Act 7 of 1953 prescribes the formalities for a
valid will as follows:
“2 Formalities required in the execution of a will.
(1) Subject to the provisions of section 3bis-
(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
…
(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).
[31] The document considered by the respondents as the deceased’s valid
will, namely the 2018 will , are compliant with these formalities: it is
signed at the end by the testator; each page is signed or initialled; and
two witnesses have attested and signed in the presence of the testator
and each other, as confirmed by their affidavits.
[32] Section 2(3) of the Wills Act 7 of 1953 further provides a power of
condonation:
“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.”
[33] The enquiry under section 2(3) is whether the deceased intended the
document to be his will. This requirement was clearly set out by the
Supreme Court of Appeal in De Reszke v Maras and Others 2006 (2)
SA 277 (SCA) at paragraph 11 as follows:
“[11] Section 2(3) lays down the requirements which a document
which does not comply with the formalities for the execution of a
will has to meet before a court will order the Master to accept it
as a will. The effect of an order under s 2(3) is that a document
which is not a will for want of compliance with certain prescribed
formalities but purports to be a will is given effect to if the
requirements of the section have been met. For the grant of
relief under s 2(3) a court must be satisfied that the deceased
person who drafted or executed the document intended it to be
his will. That intention, in my view, must have existed
concurrently with the execution or drafting of the document
(Harlow v Becker NO and Others 1998 (4) SA 639 (D). It is with
this exposition of the legal position that I return to the facts.”
[34] The evidence that the deceased intended the 2018 document to be his
will is overwhelming. He initiated the process, provided detailed
instructions, reviewed drafts, requested amendments, and ul timately
communicated to FNB that the signed will was attached. The document
itself reflects his signature and those of two witnesses. The witnesses
have confirmed the circumstances of execution under oath.
[35] The respondents' contention that the deceased "never went through
with making the final alterations" is contradicted by the deceased’s
email of 27 November 2018, which attached the signed will. The fact
that the original was never received by FNB for safe custody does not
negate the deceased's intention at the time of execution. The deceased
instructed FNB to upload the copy to his profile "in the meantime" ,
indicating his expectation that the document would be given effect
pending delivery of the original.
The presumption of revocation
[36] The respondents rely on the common law presumption that when a will
last known to be in the testator's possession cannot be found, the
testator is presumed to have destroyed it with the intention of revoking
it.
[37] This presumption was considered by the Supreme Court of Ap peal
in Theart v Scheibert and Others [2012] 4 All SA 278 (SCA). At pa ge
288 the following was held in paragraphs [25] to [27]:
“[25] The second respondent’s Counsel relied on the
rebuttable presumption that when a will that was last
known to be in the testator’s possession cannot be found,
the testator is presumed to have destroyed it with the
intention of revoking it: In re Beresford, Ex parte
Graham (1883) 2 SC 303; Ex parte Slade 1922 TPD
220; Ex parte Warren 1955 (4) SA 326 (W) [also reported
at [1955] 4 All SA 352 (W) – Ed]. But the argument falls to
be rejected on both the facts and the law.
[26] So far as the facts are concerned, in order to be effective,
revocation would have had to take place before the
testatrix’s death. But there is no apparent reason for her
to have done so. On the contrary, the evidence points the
other way. According to the appellant, the relationship
between her and the testatrix “was de facto that of a
mother and daughter. It was a close and loving
relationship, and remaine d so until her death”. This
evidence is supported by the evidence of the appellant’s
erstwhile sister -in-law, who deposed to an affidavit in
which she stated:
…
The appellant has admitted that some two years after the
testatrix’s death, her relationship with the testator did
deteriorate. The second respondent has attempted to put
the date earlier by asserting that the appellant’s
relationship with both the testator and the testatrix had
deteriorated during the testatrix’s lifetime; but according
to the a ppellant, he was not in a position to comment on
her relationship with the testatrix, because he only started
visiting the testator after the testatrix had died. The
affidavits of other persons on which the second
respondent relies, also relate to the period after the
testatrix had died. There is, accordingly, no conflict of fact
on this point and the evidence of the appellant stands
uncontroverted. In addition, there are the following facts.
The appellant was, on the death of her brother, the
testatrix’s o nly surviving descendant. The testatrix gave
the appellant a copy of the mutual will at about the time it
was executed. Having made a will, there is no apparent
reason why she would have decided to disinherit the
appellant and to die intestate. On the other hand, there
was every reason why the testator would seek to destroy
the will after the testatrix’s death because he did not wish
the appellant to inherit anything – and that state of mind
may explain the late filing of the death notices and the
inventory with their incorrect contents, and may further
explain why the testator did not disclose the existence of
the mutual will to the persons who drew up his three
subsequent wills.
[27] For these reasons, even if the presumption applied, it was
in my view (and contrary to the tentative view of the High
Court) clearly rebutted. But in order for the presumption to
apply, it must be established that the will was last known
to be in the testator’s possession – because the
presumption, according to the first and t hird authorities to
which I have already referred in paragraph 25 above,
does not apply if the will was in the hands of a third party.
The High Court held that:
…
But the first passage quoted by the High Court from the
letter sent by the appellant’s attorneys is preceded by the
letter sent by the appellant’s attorneys is preceded by the
words: “To the best of our client’s knowledge”. Those
words clearly indicate that the appellant was unable to
say one way or the other what the actual position was.
There was simply no evidence to indicate who was in
possession of th e mutual will before the testatrix’s
death. The presumption, accordingly, did not arise.”
(own emphasis)
[38] In the present case, there is no evidence as to who was in possession
of the original will directly before, or at the time of, the deceased's
death. The presumption of revocation does accordingly not arise.
[39] Further factors taken into account against the presumption of
revocation, is that t he deceased's email indicates that the signed will
was in his possession on 27 November 2018 when he attached it to his
email. He clearly had the intention to draw a new will.
[40] What became of the will thereafter is unknown. It may have been
dispatched to FNB and lost in transit; it may have been misplaced; it
may have been destroyed without the deceased's knowledge. The
fourth respondent herself, in her letter to the Master, indicated that FNB
had confirmed the document was lost and only a copy remains.
[41] In Ex Parte Ntuli 1970 (2) SA 278 (W), the court accepted that an
original will was irretrievably lost and issued a rule nisi calling upon
interested parties to show cause why a draft should not be accepted.
The approach in t he Ntuli matter recognises that the non -production of
an original will does not automatically defeat a claim for the acceptance
of the will where the evidence establishes that the testator had the
intention to change the original will.
[42] Moreover, the following circumstances surrounding the 1992 fortif y the
conclusion that the deceased intended the 2018 will to be operative:
42.1. The 1992 will was executed when the deceased was 19 years old.
His father, Pieter Johannes Goosen, who is named in that will,
passed away in 2017.
42.2. It is inherently improbable that the deceased, having lived with the
applicant for nearly 22 years and acquired significant assets
during that period, would have intended his estate to be
administered in terms of a will executed in his youth, particularly
after he had taken active steps to amend it.
[43] The respondents' reliance on the presumption is further undermined by
the fourth respondent's own conduct. In September 2024, she wrote to
the Master requesting that the copy of the 2018 will be accepted. Her
subsequent attempt to resile from that letter on the basis that she was
"induced" and "bullied" by the applicant is unconvincing.
[44] The letter was written seven months after the deceased's passing. It is
a formal communication to the Master, not a hastily composed note. If
the fourth respondent genuinely believed the 1992 will represented her
son's last wishes, she would not have re quested the Master to accept
the 2018 copy.
[45] The respondents also rely on the full court decision set out in
Westerhuis and Another v Westerhuis and Others (A276/2017) [2018]
ZAWCHC 85 (27 June 2018) for the proposition that the party alleging
intention must show unequivocally that the intention existed
concurrently with the execution or drafting of the document.
[46] In this matter, the applicant has done precisely that. The deceased's
intention at the time of execution is established by the document itself,
the confirmatory affidavits of the witnesses, and the contemporaneous
email correspondence.
[47] In Du Plessis v Reniers and Another (952/2024) [2025] ZAMPMBHC 39
(16 May 2025) the court declared the latest will invalid on the basis that
it could not be established whether the deceased was indeed
personally involved in the drafting of the will. It is distinguishable from
this case in casu as the deceased is not disputed to be the author of
the last will. Here, the deceased's personal involvement is amply
demonstrated by the email trail spanning several months and the
confirmatory affidavits of the attesting witnesses. The following was
held in the Du Plessis matter:
“[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 do cument the testator caused to be
drafted, not to comply fully with the formalities of a valid
will.”
[48] I am satisfied that the deceased intended the document executed on
27 November 2018 to be his last will and testament. The document
complies with the formalities prescribed in section 2(1) of the Wills Act.
The absence of the original is satisfactorily explained by the diligent but
unsuccessful searches conducted, and the presumption of revocation
has been rebutted by the totality of the evidence.
Conclusion
[49] The applicant has made out a proper case for the relief sought. I am
satisfied that the 2018 will represents the deceased's last testamentary
wishes.
[50] It would be unjust to permit his estate to be administered in terms of a
will executed when he was 19 years old, particularly when the evidence
demonstrates that he took deliberate and considered steps to give
effect to his changed circumstances and relationships in the 2018 will.
Costs
[51] In relation to costs, the general rule is that costs follow the result.
[52] However, the second respondent (the Master) has adopted a neutral
stance and should not be burdened with costs.
[53] The first respondent, as executrix, is obliged to administer the estate in
accordance with the valid will. I hold the view that she and the
deceased’s sister did not oppose the application with mala fide
intentions, but with the intention to ensure that the correct will is
executed.
[54] The opposition by the third and fourth respondents has necessitated
this application. In normal opposed applications it would attract a cost
order and normally the unsuccessful part ies should bear the costs
incurred in the application.
[55] It is important to remember that the loved ones of the deceased might
have a relationship that exceeds the life of the deceased. As such, and
in consistency with the practice in matters of this nature, I make an
order that the costs of the application should be costs in the estate.
ORDER
[56] In the instance, I make the following order:
(i) The last will and testament made and sign ed by the late
Johannes Francois Goosen on 27 November 2018, a copy of
which is annexed to the founding affidavit as "FA9", is declared
to be the last will and testament of the late Johannes Francois
Goosen.
(ii) The Master of the High Court, Pretoria, is ordered to accept the
said document as the last will and testament of the late
Johannes Francois Goosen for the purposes of the
Administration of Estates Act 66 of 1965.
(iii) The costs of this application shall be costs in the estate of the
late Johannes Francois Goosen.
________________________________
FMM REID
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
DATE ARGUED: 2026-02-10
DATE OF JUDGMENT: 2026-06-10
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