| The matter before the Supreme Court Appeal (the “SCA”) dealt with the question of whether an unsigned will constituted the deceased’s last will and testament. |
The Appellant in this matter is the deceased’s widow (his second wife) and the Respondents are the deceased’s biological children, born of his marriage to his first wife, as well as the executor of the deceased’s estate. The deceased had died on 26 December 2015 and had signed a properly executed will on 16 April 1996, which was still in existence at the time of his death. The will in question was executed before the deceased had met and married the Appellant. During or about January 2013, it appeared that the deceased wished to change his will as he has employed and instructed a senior financial advisor to prepare a will for him. During this period the deceased and the financial advisor has exchanged various emails wherein they considered different ways to bequeath movable and immovable assets to surviving children and partners. The exchange of correspondence between the parties dealing with the deceased’s will went on until 8 August 2014 and it was clear that the deceased had acknowledged the aforementioned exchanges. At this stage a draft will, which had been amended several times, set out the deceased’s wishes. From the various versions of the will it was clear that the deceased sought an equitable disposition of his assets among the Appellant and his children.
The last email sent from the deceased to the financial advisor concerning his will, which the Appellant was copied in, requested that provision of one of the deceased properties be included in the will. Following this the deceased and financial advisor met in person in November 2014, where further amendments to the will were requested by the deceased. The financial advisor recorded the amendments on a hard copy of the draft will, which changes he would later effect electronically. Thereafter, in December 2014 the financial advisor sent the finalised will to the deceased and Appellant and requested that they read through the will and advise of any alterations that they wished to have effected, however they were abroad on holiday. The financial advisor did not hear from the parties following this, with the deceased dying a year later, whereupon the Appellant approached the Court a quo in these proceedings.
The Court a quo dismissed the Application on the basis that the final draft of the will drafted by the financial advisor was not drafted by the deceased and that there was no proof that he even received the email in December 2014 and/or approved the draft will (Bekker v Naude en andere 2003 (5) SA 173 (SCA) (“Bekker”)). The Bekker casedealt with and considered the meaning of the word “drafted” for the purposes of section 2(3) of the Wills Act 7 of 1953 (the “Wills Act”). The requirement of a document personally drafted by the testator guarantees a degree of reliability because it requires evidence of personal conduct by the testator out of which his or her intention can be clearly deduced. However, it is clear from Bekker that handwritten drafting is not required either. Accordingly, although the intention of the legislature was to confer on the courts a power of condonation, with the enactment of section 2(3), this clearly did not mean that all prerequisites were thrown overboard. Accordingly, it is not the function of the court to ascertain whether or not the document before it was drafted or executed by the deceased, but merely whether it was intended to be the deceased’s will.
On appeal the Appellant argued that she was entitled to declaratory relief due to the fact that Section 2(3) of the Wills Act, were satisfied in light of the fact that the deceased “played an active role in the drafting and completion” of the draft will and it was from this that it could be inferred that he received the final draft sent by the financial advisor in December 2014. Moreover, in the circumstances, credence must be given to the technological advances that have been made since the handing down of the Bekker judgment which has made it easier for people to communicate by electronic means.
Section 2(1) of the Wills Act was designed to ensure authenticity and guard against false or forged wills by setting out the requirements for a valid will, however on the other hand Section 2(3) creates an exception to these requirements by empowering a Court to instruct the Master to accept a document as constituting the last will and testament of a deceased for the purposes of administering the estate in question should it be satisfied that the document which was drafted or executed by a person who has since died is intended to be the deceased will or amendment to his/her will. Accordingly, should a document not pass the muster as a will in terms of section 2(1) Section 2(3) allows for said document to be validated by the Court (Van der Merwe v The Master & another  ZASCA 99, 2010 (6) SA 544 (SCA)).
The Court must be satisfied on a preponderance of probabilities that the deceased intended it to be his/her will (Letsekga v The Master & another 1995 (4) SA 731 (W)). Once it has been established that the document meets the requirements of section 2(3) the Court is obliged to order the Master to accept it as the deceased’s will.
Ultimately, the SCA could not condone the draft as constituting the deceased’s last will and testament as it is clear from the evidence that the document was prepared by the financial advisor and not the deceased, moreover the amendments which followed were also effected by the financial advisor. That being said, the draft sent by the financial advisor was sent in anticipation of same having additional amendments and not constituting the final will. There is accordingly no indication that the deceased received the email enclosing the draft in December 2014, nor was there an indication that same was accepted by the deceased and merely awaited his signature. The lapsing of a whole year without the deceased making any tangible move towards the finalisation of the will further supports this finding.Accordingly the appeal was dismissed with costs.
This case confirms that position of the Bekker case, which is trite law, and reiterates that it is the intention of the deceased that it paramount when considering section 2(3) of the Wills Act.
Written by Kirsten Chetty Checked by Omphile Boikanyo
10 October 2019