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[2019] ZASCA 119
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Grobler v Master of the High Court and Others (645/2018) [2019] ZASCA 119 (23 September 2019)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 645/2018
In
the matter between:
PAULA
GROBLER
APPELLANT
and
MASTER OF THE
HIGH COURT FIRST
RESPONDENT
MARTHINUS
CHRISTOFFEL BARNARD NO SECOND
RESPONDENT
(IN HIS CAPACITY
AS THE EXECUTOR OF THE
ESTATE LATE L P
GROBLER)
LEON RUDOLF
GROBLER THIRD
RESPONDENT
PIETER JOHANNES
GROBLER FOURTH
RESPONDENT
HENK JOHANNES
GROBLER FIFTH
RESPONDENT
ELSIE SUSANNA
OLIVIER SIXTH
RESPONDENT
Neutral
citation:
Grobler
v Master of the High Court & others
(645/2018)
[2019] ZASCA 119
(23 September 2019)
Coram:
Maya
P, Leach
and
Dambuza
JJA and Mokgohloa and Plasket AJJA
Heard:
28
May 2019
Delivered:
23
September 2019
Summary
:
Will – validity of unsigned draft will in terms of s 2(3) of
Wills Act 7 of 1953
– not established that deceased received,
approved and intended draft will prepared by his financial advisor to
be his last
will and testament – appeal dismissed.
ORDER
On
appeal from:
Gauteng
Division, Pretoria (Janse van Niewenhuizen J sitting as court of
first instance):
The
appeal is dismissed with costs.
JUDGMENT
Maya
P:
(Leach
and Dambuza JJA, Mokgohloa and Plasket AJJA concurring):
[1]
This is an appeal against the judgment of the Gauteng Division,
Pretoria (Janse van Niewenhuizen J). The court a quo dismissed
an
application in which the appellant, Mrs Paula Grobler, sought, inter
alia, (a) a declaration that an unsigned will of the late
Mr Leon
Peter Grobler (the deceased) constituted his last will and testament
and (b) the appointment of the appellant and Imke
Dekker Prokureurs
as the executors of his estate. The appeal is with the leave of the
court a quo.
[2]
The appellant is the deceased’s widow and second wife to whom
he was married, out of community of property, at his death.
The third
to the sixth respondents, Mr Leon Rudolf Grobler, Mr Pieter Johannes
Grobler, Mr Henk Johannes Grobler and Mrs Elsie
Susanna Olivier, are
the deceased’s biological children who were born of his
marriage to his first wife. The second respondent,
Mr Marthinus
Christoffel Barnard, is the executor of the deceased’s estate.
The only relief sought against him was that he
and the first
respondent, the Master of the High Court, Pretoria should stay the
finalisation of the deceased’s estate pending
the outcome of
the application.
[3]
It is common cause that before he died on 26 December 2015, the
deceased had signed a properly executed will on 16 April 1996,
which
was still in existence at his death. This was before he met the
appellant whom he married on 30 January 2010. It appears,
however,
that he wished to revise it because in January 2013 he instructed Mr
Siegfried Eugene Stander, a senior financial advisor
employed by Old
Mutual Life Assurance Company (SA) Ltd, to prepare a will for him.
Their exchange on this subject is contained
in a chain of email
communications, which commenced with a message dated 9 January 2013.
The deceased requested Mr Stander to provide
him with specimens of
wills dealing with bequests of movable and immovable assets to
surviving partners and children.
[4]
The correspondence between the deceased and Mr Stander and among Mr
Stander’s office staff, each one acknowledged by the
deceased
in writing, went back and forth until 8 August 2014. By then a draft
will, which had been amended a few times to incorporate
the
deceased’s various wishes, was in place. The long email trail
shows that over that period of 20 months the deceased doggedly
sought
an equitable disposition of his assets among the appellant and his
children, the respondents. The main assets were his immovable
property, the family home in Helderkruin, Roodepoort and a holiday
property in Margate, in respect of which he wanted the appellant
to
enjoy only a right of usufruct either until her remarriage or her
being in an intimate relationship that had lasted for longer
than six
months.
[5]
The last email before the deceased died, was sent to him by the
appellant on 12 August 2014. This was apparently in response
to an
email he sent to Mr Stander’s personal assistant, Ms Hannelie
van der Walt, on 8 August 2014. The deceased’s
message was
copied to both the appellant and Mr Stander and was, in turn, a reply
to Mrs Van der Walt who had recently sent him
yet another revised
draft with an invitation for his comments. He wrote as follows:
‘
Hi
Hannelie,
Thank you for the will
This, however, does not address
my property in Margate
I think it will be better to keep
both houses in Trust with Paula having sole usufruct of the house in
Helderkruin and the Margate
property for everybody’s use (Paula
and the children)
Both properties can be sold and
divided up with a greater benefit to Paula with regard to the house
at Helderkruin, if Paula and
the children reach consensus on this, at
any stage.
Please advise
if this could be a possibility.’
[1]
[6]
The tone of the appellant’s response to the deceased was rather
sharp. The email also disclosed that this was a touchy
subject. This
may also explain why she decided to communicate with her husband,
with whom she lived, in writing
,
instead of talking to him. She wrote:
‘
You and
I have had this discussion already.
I do
NOT
want usufruct,
Margate is fine, but not Helderkruin.
Can I make a suggestion that I
pay each of the children R250 000. That would mean that I buy
the Margate house for a million.
The rest is my share. I should be
able to get a loan at the bank for R1 million. I know it is
uncomfortable talking about this,
but I will not live like a squatter
in my own house. Why are we making the house beautiful – so
that somebody else can buy
it one day?
Who is to say
that I [will not] pass away before you – then you will not have
a problem anymore and you can give the house
to whomever you
want.’
[2]
[7]
Thereafter, the deceased and Mr Stander met on 18 and 19 November
2014 and again, for the last time, at the deceased’s
home on 25
November 2014. According to the appellant and Mr Stander, at the last
meeting the deceased suggested further amendments
to the draft will.
Mr Stander recorded these on a typed version of the draft will in
manuscript and understood them to constitute
the deceased’s
final instructions that he would later effect electronically. He
would thereafter arrange a formal meeting
with the deceased and the
appellant for the signing of their final separate wills as he was
also tasked with drafting one for the
appellant.
[8]
On 17 December 2014 Mrs Van der Walt sent the draft will to the
deceased and the appellant, who were on holiday abroad. The
accompanying message requested the deceased to read the draft will
and inform Mrs Van der Walt if he wished to make any alterations.
[3]
The
draft will, inter alia, vested the appellant with lifelong usufruct,
free of the obligation to pay security, over the immovable
property
and one half of the nett profit of any sale proceeds if they were
sold, the rest to be shared among the respondents in
equal parts.
Nothing happened thereafter and all was quiet until the deceased died
a year later, whereupon the appellant approached
the court a quo in
these proceedings. According to her, the deceased and Mr Stander were
unable to meet and finalise the draft
will during 2015 because of the
deceased’s busy schedule. Nevertheless, no correspondence
confirming the deceased’s
receipt of the email of 17 December
2014, as he previously did, or setting up a meeting between him and
Mr Stander during that
entire year was produced.
[9]
The court a quo dismissed the application on the bases that the final
draft will was not drafted by the deceased and that there
was no
proof that he even received the email of 17 December 2014 and
approved the draft will. The court held that in light of relevant
case law, in particular the judgment of this Court in
Bekker
v Naude en andere
,
[4]
the
unsigned document could not be accepted as the deceased’s will
within the exceptions set out in s 2(3) of the Wills Act
7 of 1953
(the
Wills Act).
[10
]
On appeal before us, it was contended on the appellant’s behalf
that she was entitled to the declaratory relief she sought
because
the requirements of
s 2(3)
of the
Wills Act were
met. This was so, it
was argued, because the deceased ‘played an active role in the
drafting and completion’ of the
draft will and it could be
inferred in the circumstances of the matter that he did receive it.
We were urged to consider the technological
advances since the
Bekker
case,
which make it easy for people to communicate by electronic means, and
accordingly apply the relevant statutory requirements.
[11]
Section 2(1)
of the
Wills Act, which
is designed to ensure
authenticity and guard against false or forged wills,
[5]
stipulates
the formalities required in the execution of a valid will. It reads,
in relevant part:
‘
(1)
Subject to the provisions of
section 3
bis
–
(a)
no will executed on or after the first day of January, 1954, shall be
valid unless–
(i) the will is
signed at the end thereof by the testator or by some other person in
his presence and by his direction; and
(ii) such signature
is made by the testator or by such other person or is acknowledged by
the testator and, if made by such other
person, also by such other
person, in the presence of two or more competent witnesses present at
the same time; and
(iii) such witnesses
attest and sign the will in the presence of the testator and of each
other and, if the will is signed by such
other person, in the
presence also of such other person; and
(iv)
if the will consists of more than one page, each page other than the
page on which it ends, is also so signed by the testator
or by such
other person anywhere on the page; and . . . .’
[12]
However,
s 2(3)
creates an exception to these requirements and
provides:
‘
If
a court is satisfied that a document or the amendment of a document
drafted or executed by a person who has died since the drafting
or
execution thereof, was intended to be his will or an amendment of his
will, the court shall order the Master to accept that
document, or
that document as amended, for the purposes of the Administration of
Estates Act, 1965 (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).’
[13]
Condonation of non-compliance with the testamentary formalities set
out in s 2(1) is, therefore, possible in terms of these
provisions as
they empower courts to validate a document that would otherwise not
pass muster as a will due to a technical flaw
in its attestation. The
purpose of the provisions is to avoid thwarting the lawful wishes of
the deceased would-be testator. However,
the document must have been
drafted or executed by the deceased whose will it purports to be, ie
created or prepared by the deceased
personally.[6]
Furthermore, the court must be satisfied on a
preponderance of probabilities that the deceased intended it to be
his or her will.[7]
And once satisfied that
the document meets the requirements of s 2(3), the court is obliged
by these peremptory provisions to order
the Master to accept it as
the deceased’s will.[8]
[14]
The question relating to the first jurisdictional requirement ie
whether the draft will was drafted by the deceased, presents
no
difficulty. The answer is an unequivocal ‘No’. It is
clear from the evidence that the document was prepared by Mr
Stander.
The amendments which followed were also effected by him. The deceased
was then presented with the draft will under cover
of Mrs Van der
Walt’s message which expressly anticipated further
consideration and alterations. And as the court a quo rightly
found,
there is simply no indication on the record that the deceased
received the document sent on 17 December 2014 and accepted
it as his
will, which merely awaited signature. The uncertainty is heightened
by the apparent discord between the deceased and
the appellant
regarding the nature of the latter’s inheritance of the
deceased’s immovable property and the lapse of
a whole year
with no tangible move by any of the parties to finalise the exercise.
In the absence of evidence that establishes
that the deceased
received, perused and approved all the contents of the draft will, I
am unable to find that he intended it to
be his will. The appeal must
accordingly fail.
[15]
In the result the following order is made:
The
appeal is dismissed with costs.
________________________
MML Maya
President of the
Supreme Court of Appeal
APPEARANCES:
For
the Appellants: Adv C Goosen
Instructed
by: B J Erasmus Pieterse Attorneys
Honey
Attorneys, Bloemfontein
For
the Third and Fourth Respondents: Adv H Fraser
Instructed
by: Pieter Coetzee Attorneys
Martins
Attorneys, Bloemfontein
[1]
The original Afrikaans text
reads:
‘
Hi Hannelie
Dankie vir die testament
Dit spreek egter nie my eiendom
in Margate aan nie
Ek dink dit sal beter wees om
beide huise in Trust te hou met vrug gebruik uitsluitlik aan Paula
tov die Helderkruin huis en [g]ebruik
aan almal [Paula en kinders]
tov die Margate eiendom
Beide eiendomme kan verkoop word
en verdeel word, met n groter voordeel vir Paula –m.b t die
Helderkruin huis se opbrengs,
as Paula en kinders konsensus het oor
die verkoop, op enige stadium
Adviseer
asb of dit moontlik sal wees.’
[2]
The original Afrikaans text
reads:
‘
Ek en jy het mos nou al
gepraat hieroor
Ek wil NIE vruggebruik he NIE
Margate is fyn, maar nie Helderkruin
Kan ek eerder `n voorstel maak
dat ek dan die kinders elk R250 000 betaal Dit beteken ek koop
die huis vir 1 Miljoen Die
res is my gedeelte Ek behoort seker `n
lening van R1 miljoen by die bank te kry
Ek weet dis ongemaklik om
hieroor te praat, maar ek gaan nie soos `n bywoner in my eie huis
bly nie Hoekom maak ek en jy
nou die huis mooi – sodat
iemand dit eendag kan koop?
Wie se dalk gaan ek voor jou
dood – dan het jy nie meer `n probleem nie en kan die huis
bemaak aan wie jy wil’.
[3]
The original Afrikaans text
reads: ‘Ek heg die veranderde testament vir u aandag hierby
aan. Lees asseblief die dokument
deur en kontak my asseblief indien
daar enige veranderinge ens aangebring moet word.’
[4]
Bekker
v Naude en andere
2003
(5) SA 173
(SCA)
.
[5]
Van der Merwe v The Master &
another
[2010] ZASCA
99
;
2010 (6) SA 544
(SCA) para 13.
[6]
Bekker v Naude
,
ibid para 9;
Van
Wetten & another v Bosch & others
2004
(1) SA 348
(SCA) para 14.
[7]
Letsekga v The Master &
others
1995 (4) SA
731
(W) at 735F-G.
[8]
Van der Merwe v The Master &
another
, ibid, para
14;
Stolz ID v The
Master & another
1994
(2) PH G2 (E);
Back &
others NNO v Master of the Supreme Court
[1996]
2 All SA 161
(C).