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[2015] ZAWCHC 67
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Thompson v Master, Western Cape High Court and Others (13779A/2012) [2015] ZAWCHC 67; (2016) 37 ILJ 1003 (LC) (25 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO:13779A/2012
In
the matter between:
ALAN THOMAS
THOMPSON
...............................................................................................
Applicant
And
THE MASTER,
WESTERN CAPE HIGH
COURT
....................................................
1st
Respondent
CONSTANTINE
GODFREY
VARLEY
.......................................................................
2nd
Respondent
ANDREW GEORGE
BEAK
.........................................................................................
3rd
Respondent
DAVID THOMAS
BEAK
...............................................................................................
4th
Respondent
STEPHEN JOHN
BEAK
................................................................................................
5th
Respondent
Coram: Yekiso, J
Dates of Hearing:
13 October 2014, 14, 15 & 16 April 2015
Date of Judgment:
25 May 2015
JUDGMENT
YEKISO,
J
[1.1.]
In its amended notice of motion issued out
of this court, the applicant seeks the following forms of relief as
against the respondents,
these being, that the document entitled
“Last Will & Testament of Valerie Yvonne Thompson”,
dated 31 August 2007
(“the disputed Will”) be declared
invalid and revoked; that the appointment of the second respondent,
as executor under
the disputed will, be set aside and that the second
respondent be removed as executor in the estate of the late Valerie
Yvonne
Thompson(“the deceased”); that the second
respondent be directed to return to first respondent the letters of
executorship
issued to him by the first respondent; that the second
respondent be declared not entitled to receive any fees for his
services
for the period he acted as executor; that it be declared
that the document entitled “Codicil to Will” dated 28
September
2008, was intended to be the deceased’s last will and
that the first respondent be ordered to accept the codicil for the
purposes of the Administration of the Estates Act, 66 of 1965; and,
finally, that the second, third, fourth and the fifth respondents
be
ordered to pay the costs of this application, including the costs of
counsel, jointly and severally, the one paying the other
to be
absolved in the event the said respondents oppose the relief sought.
[2]
The parties are as set out in paragraphs 4 to 9 of the applicant’s
founding affidavit. Initially, the second respondent
opposed
the relief sought and had filed a counterclaim for an order that the
disputed will be accepted as the deceased’s
Last Will and
Testament. The third, fourth and the fifth respondents did not
oppose the relief that the disputed will be
declared invalid but
opposed the relief relating to the acceptance of the Codicil as the
deceased’s will. They
thus adopt the position that
the deceased died intestate.
[3]
Once the pleadings were closed, the matter
was enrolled for hearing. The matter was argued before me on 13
October 2014 and,
in the cause of hearing argument, I directed that
the proceedings be adjourned as I was of the view, at the time, that
some of
the issues in dispute would only be capable of being resolved
by hearing oral evidence. On Friday, 17 October 2014 I directed
that the matter be postponed to Tuesday, 14 April 2015 for the
hearing of oral evidence on the following issues, these being:
[3.1.]
The circumstances surrounding the signature
and/or execution of the dispute Will;
[3.2.]
The circumstances surrounding the will
signed or executed by way of a mark. In the same directions, I
directed that the following
persons be called to testify, namely,
Cecilia Buthelezi; Cecilia Brenda Machelm; Alan Thomas Thompson; and,
Constantine Godfrey
Varley. In the light of the settlement
agreement subsequently concluded between the parties the need for
Constantine Godfrey
Varley to give evidence fell away and the
evidence of the remaining witness became material solely on the
circumstances surrounding
the Will executed by way of a mark.
[4]
Following upon the postponement of the matter and, before the
resumption of the hearing on Tuesday, 14 April 2015, the matter
was
settled as between the second respondent, the applicant and the rest
of the respondents, save the first respondent who does
not oppose the
relief sought, but abides the decision of this court. On the
basis of that settlement agreement the second
respondent withdrew its
opposition to the application, as well as his counter-application
that the disputed will be accepted by
the first respondent; the
second respondent conceded that the document entitled “Last &
Will & Testament of Valerie
Yvonne Thompson”, dated 31
August 2007, (“the disputed Will”) is invalid; that the
second respondent be removed
as executor in the estate of the late
Valerie Yvonne Thompson; and that the second respondent undertakes to
return to the first
respondent the letters of executorship issued to
him by the first respondent.
[5]
In the light of the settlement agreement, the only issue I am
required to determine is whether or not the document entitled
“Codicil to Will” dated 28 September 2008 was drafted by
the deceased; whether the deceased had intended the document
to be
her will as contemplated in
section 2(3)
of the
Wills Act, 7 of 1953
;
and whether it is competent for this court to condone non-compliance
with the formalities set out in
section 2(1)(a)(v)
of the
Wills Act
in
respect of the “Codicil to the Will”, as well as the
question of costs. Once the settlement agreement was made
an
order of court, the applicant, Cecilia Buthelezi and Cecilia Brenda
Machelm were called to testify.
THE
EVIDENCE OF THE APPLICANT
[6]
The applicant testified that he is the only surviving sibling of the
deceased. He recalled discussing the deceased’s estate
with her
on many occasions and, in particular, that the deceased had said she
did not mind dying without a will. At that
stage the applicant
and the deceased were under the impression that if the deceased died
intestate, her entire estate would devolve
to the applicant. It
was only when she had to be admitted at Mountview Care Facility
(“Mountview”) did it become
necessary for her to make a
will. The deceased also wished to leave money for her carer,
Cecilia Buthelezi. In the
disputed will, which has already been
conceded to be invalid, the deceased made provision for Cecilia
Buthelezi for a monthly income
in an amount of R1,000-00 for a period
of two years after her death.
[7]
The deceased had to move to Mountview as she had had a series of
unreliable night nurses and her carer, Cecelia Buthelezi, was
unable
to spend every night with her when required to step in. The
deceased stayed at Mountview for a period of about two
months.
At the time the deceased moved to Mountview, her condition
deteriorated significantly to an extent that in March
2008 she had
had to move into the SenCit Home (“Sencit”) in Strand
where Mrs Machelm was the matron. It was only
when deceased was
admitted to SenCit Home in March 2008 that the applicant became aware
that she wanted to change her Will.
He describes in his
evidence efforts made to get the second respondent, who was the
deceased’s financial advisor at the time,
to come to SenCit for
this purpose. Several efforts were made by way of telephone messages
to get the second respondent to see
the deceased at SenCit to no
avail.
[8]
The second respondent did not respond to several messages left for
him to come to SenCit. On 28 September 2008 the
applicant
was telephoned by Mrs Machelm who told him that the deceased’s
condition had deteriorated considerably. Mrs
Machelm was
concerned that she would pass away without her wish having been
realised.
[9]
The
applicant described how the deceased communicated in general.
This was by nodding her head, opening or closing an eye
or grunting
when spoken to. As at the time of the execution of the Codicil,
the deceased’s health had deteriorated
to an extent that she
could not sign her signature, could not speak properly and only
communicated by opening or closing her eyes
or grunting when spoken
to. The applicant re-iterates in his evidence that the deceased
had indicated to him on several occasions
that she intended to
bequeath her entire estate to him. The applicant was advised by
a retired attorney, who was also resident
at SenCit, how the desired
change in her will could be made and even suggested words that could
be used to effect the desired change.
[10]
On the date of
the execution of the Codicil the applicant had asked of the deceased
“Do you want to leave all your worldly
possessions to your
brother Alana Thomas Thompson?” The deceased responded by
grunting. After such confirmation the applicant
proceeded to type the
document described as “Codicil to Will” on the computer
at SenCit. Once the document was
typed, he handed the typed
page to Mrs Machelm. As he was the beneficiary in terms of the
Codicil, he thought it advisable
that he should not be present when
the document was signed. It transpired later in the evidence
that the deceased had to
be assisted to place her fingerprint on the
Codicil. The wording of the Codicil was as advised by the
resident retired attorney.
The will was read to the deceased
whereafter the deceased was assisted to affix her fingerprint
thereon. The applicant
kept the document so signed.
He gave it to the second respondent after the death of the deceased.
THE
EVIDENCE OF THE OTHER WITNESSES
[11]
The salient
features of the evidence of the other witnesses merely confirms that
the document entitled “Codicil to Will”
was indeed typed
by the applicant; that once the applicant had typed the document, he
handed it to Mrs Machelm; Mrs Machelm and
Mrs Buthelezi assisted the
deceased in placing her thumbprint on the document; and that both Mrs
Machelm and Mrs Buthelezi signed
as witnesses
[12]
The witnesses further corroborate the evidence of the applicant on
the efforts made to get the second respondent to visit the
deceased
at SenCit to change her Will. All three witnesses who testified
made it clear in their evidence that the Codicil
was the only way
they could try to ensure that the deceased’s wishes were
carried out, given that the second respondent would
not come as had
been requested by the deceased. They claim in their respective
evidence that they acted in the deceased’s
interest, that their
actions were reasonable and what they did was what the situation
required, given the deceased’s particular
circumstances.
[13]
Section 2(1)(a)(v)
of the
Wills Act
requires
that a will signed by the testator by the making of a mark
should be signed before a commissioner of oaths; that the
commissioner
of oaths should satisfy himself as to the identity of
the deceased; and that the will so signed is the will of the
deceased.
It is common cause that the Codicil was not executed
before a Commissioner of Oaths and, as such, does not comply with the
statutory
formality set out in
section 2(1)(a)(v)
of the
Wills Act,
in
that, at the time the document was executed, the identity of the
deceased was not confirmed by a Commissioner of Oaths nor did a
Commissioner of Oaths satisfy himself that the document so signed is
the will of the deceased.
SECTION
2(3)
OF THE
WILLS ACT
[14
]
The document described as “Codicil to
the Will” and signed by the deceased by way of a thumbprint is
clearly defective
as it does not comply with the provisions of
section 2(1)(a)(v)
of the
Wills Act. In
terms of
section 2(3)
of the
Wills Act the
court has the power to condone the failure to
comply with any one of the formalities set out in
section 2(1)
of the
Wills Act. Section
2(3) of the
Wills Act provides
:
“
(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, 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 sub-section
(1).”
[15]
What is thus clear on a proper analysis of
this provision, is that it embodies three requirements, these being,
in the first instance,
the existence of a document in question; the
drafting or execution of such a document by the deceased; and the
intention by the
deceased that such document should be his or her
will. The latter two requirements have commonly been referred
to by academics
and commentators as the drafting requirement and the
intention requirement, respectively. (See
Annual
Survey of South African Law
2003 p528).
[16]
There has been a
divergence in the approach adopted by the courts in the
interpretation and the application of the provisions of
section 2(3)
of the
Wills Act leading
to conflicting decisions, some courts
favouring a strict and literal interpretation and application of that
provisions, whilst
some favoured a broad and flexible approach.
Authorities such as
Webster v The Master
& others
1996(1) SA 34 (D);
Anderson & Wagener NNO & another
v The Master & others
1996 (3) SA
779
(C);
Henwick v The Master &
another
1997 (2) SA 326
(C) are but
some of the authorities where a strict and literal approach was
preferred. On the other hand,
Back
& others NNO v The Master of the Supreme Court
[1996]
2 All SA 161
(C);
Ex Parte Laxton
1998
(3) SA 238
(N);
Ndebele & others NNO
v The Master & another
2001 (2) SA
102
(C) are but some of the authorities where a broad and flexible
approach is followed.
[17]
It has been
suggested in academic circles that the hallmark of the strict
approach is to apply the power of condonation cautiously,
as opposed
to the flexible approach, which has been characterised by a more
robust interpretation and the application of the section.
Commentators go further to suggest that in instances where a more
flexible approach is adopted, the overriding consideration has
been
whether the intention requirement has been met, whilst in instances
where a strict approach has been adopted, the tendency
has been to
give more focus to the drafting requirement. (
Annual
Survey of South African Law,
supra at
p.529)
[18]
Mr
De
Bruyn,
for the third, fourth and the
fifth respondent makes a point in his submissions that it is not
competent for this court to grant
the order contemplated in
section
2(3)
of the
Wills Act in
as much as the document which the applicant
seeks the Master to be ordered to accept as the deceased’s will
was not drafted
or executed by the deceased and that the deceased
could not have intended the document to be her will. Mr
De
Bruyn
makes a point in this regard that
nowhere in the document is it indicated that the deceased, in causing
the document in dispute
to be drafted, had intended to revoke the
earlier will.
[19]
In support of
this submission Mr
De Bruyn
relies
heavily on the judgment of the Supreme Court of Appeal in the matter
of
Bekker v Naudé & another
2003 (5) SA 173
(SCA). In
that matter the facts were briefly as follows cited from the headnote
of the judgment of the court
a quo
in
Bekker v Naudé & others
2002
(1) SA 264
(WLD):
“
The
plaintiff and her husband (the deceased) had during 1993 gone to the
local branch of their bank, where they requested an official
to
prepare a will according to a set of instructions given by them.
The official completed a form containing the instructions
and sent it
to Pretoria, where the will was drawn up, returned to the original
branch, thence posted to the plaintiff and the deceased
for their
signature in the presence of two witnesses. The will so
prepared complied with the instructions given by the plaintiff
and
the deceased, but five years later, when the deceased died, the will
had not yet been signed. The deceased had previously
been
married to the first defendant, with whom he had during 1983 executed
an earlier joint will, and the issue that the court
had to decide was
whether the 1993 will was valid and thus superceded the earlier one.
Arising from this fact, the first
question that the court had to
determine was whether the unsigned document containing the 1993 will
had been “drafted of
executed” by the deceased as
contemplated in
section 2(3)
of the
Wills Act.”
[20
]
In concluding
that the draft will did not satisfy the requirements of
section 2(3)
of the
Wills Act, the
court
a quo
followed the strict approach adopted by
the courts in authorities such as
Webster
v the Master & others,
supra, and
expressly rejected the flexible approach followed in authorities such
as
Beck & other NO v the Master,
supra.
[21]
The Supreme
Court of Appeal confirmed the decision of the court
a
quo
in
Bekker
v Naudé & others,
supra.
In doing so, it followed the strict and the literal approach in
interpreting the provisions of
section 2(3)
holding that for the
deceased to have drafted the document which the applicant seeks to
have accepted as the deceased’s will,
the deceased personally
ought to have drafted the document in question. It held that such an
interpretation does not result in
an absurdity as
section 2(3)
of the
Wills Act contemplates
that the deceased should personally have
drafted the document.
[22]
In support of
the strict literal approach the court relied on a comparison of the
provision of
section 2A
of the
Wills Act. Section
2A of the
Wills
Act, under
the heading “Power of court to declare a will to be
revoked” provides:
“
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.”
[23]
Section 2(3)
and
2A
of the
Wills Act were
inserted into the
Wills Act by
the same
amending piece of legislation in the form of the Law of Succession
Amendment, Act 43 of 1992. In view thereof,
the Supreme
Court of Appeal held, the use by the legislature of the phrase
“drafted or caused to be drafted” in section
2A, as
opposed to the use of the term “drafted” is evidence of a
clear intention by the legislature to ascribe a narrow
meaning to the
term “drafted” in
section 2(3)
of the
Wills Act.
Based
on this approach the Supreme Court of Appeal held that adopting
the literal approach in interpreting
section 2(3)
is the correct
approach as it, amongst other things, has the desired effect of
preventing potential fraud. In the light of that
approach the court
did not find it necessary to deal with the intention requirement in
section 2(3)
thus confirming the decision of the court
a
quo
in adopting the narrow and literal
approach in the interpretation of that provision. This
court, in
De Reszke v Maras & others
2003 (6) SA 676
(C) at para 8 p 683
followed that approach.
[24]
Ms
Fitz-Patrick
,
for the applicant, in argument before me, sought to persuade me that
in the light of the deceased’s condition at the time
the
“Codicil to the Will” was drafted, (the deceased could
hardly speak and could not even append her signature to
the Codicil)
that the legislature could not have intended to exclude persons
in the condition of the deceased at the time
the Codicil was drafted
from the ambit of the provision of
section 2(3).
In view of the
circumstances prevailing at the time the Codicil was drafted, so I
understood the argument,
section 2(3)
cannot be interpreted in a
manner that excludes a person in the position of the deceased at the
time the Codicil was drafted from
the relief contemplated in
section
2(3).
Thus, her submission boils down thereto that in view of
what could be described as exceptional circumstances at the time the
codicil was drafted, a broad and flexible approach in interpreting
section 2(3)
should be preferred. This is especially so because the
deceased could hardly speak or write at the time the Codicil was
drafted.
In the circumstances of this matter, so I understood
the argument, it cannot be said that the drafting requirement was not
met.
[25]
If the submission by Ms
Fitz-Patrick
could be followed it would mean that
“exceptional circumstances” referred to in her submission
should be read into the
provisions of
section 2(3)
of the
Wills Act.
Affordable
Medicines Trust v Minister of
Health
[2005] ZACC 3
;
2006 (3) SA 247
(CC) is
authority for the proposition that reading in words in conformity
with its stated objectives into an instrument is permissible
in our
law. Even if “exceptional circumstances” could be
read into the instrument, such an approach would not
breathe life
into the document especially when it is not stated in the document in
dispute that the deceased had intended thereby
to revoke the earlier
will. Thus, even if exceptional circumstances were to be
read into the instrument, the intention
requirement in
section 2(3)
of the
Wills Act would
still not be met. That said, it follows
that the application falls to be dismissed.
[26]
In as far as the
question of costs is concerned Mr
De
Bruyn
makes a point in his submissions
that in view of the fact that the applicant’s legal
representatives were made aware of the
Bekker
v Naudé
decision as far back as
during October 2014 when the respondent’s heads of argument
were handed to them, the applicant nonetheless
chose to proceed with
oral evidence. In these circumstances, so the submission goes,
it would not be fair if the estate would
be ordered to bear the costs
of either of the parties. I do not agree. Despite the
fact that the applicant’s
legal representatives would have been
made aware of the
Bekker v Naudé
decision as far back as October 2014, it cannot be said that the
applicant’s decision to pursue this matter further was
vexatious or frivolous. I do accept that the
circumstances surrounding the “drafting” of the Codicil
to
the Will are exceptional so that it cannot be said that the
applicant’s decision to proceed with oral evidence had no
merit.
Having said that, I am of the view that it would be
fair, in the circumstances of this matter, if the estate were to be
ordered
to bear the costs of the respective parties.
[27]
In the result,
the following order is made:
(1)
The application is dismissed;
(2)
The estate of the deceased shall
devolve in accordance with the rules of Intestate succession.
(3)
The costs of each one of the parties
in these proceedings shall be borne by the estate.
____________________
N
J Yekiso
Judge
of the High Court