|This appeal, against the decision of a single Judge, to the full bench of the High Court, dealt with authenticity of various documents executed by SS Monyane (“the deceased”), and whether they were intended to be her last will and testament.
The appellant, the deceased’s daughter, was appointed as the Master’s representative in terms of section 18(3) of the Administration of Estates Act 66 of 1965. The appellant submitted a document purporting to be the deceased’s last will (“the purported will”) to the Master, which was executed at the offices of the deceased’s attorneys, and signed by way of a mark (her thumb print). The purported will revoked all previous wills, and left the entire estate to the appellant, provided the house remained a family home. The Master rejected the purported will for non-compliance with section 2(1)(a)(v) of Act 7 of 1953 (“the Wills Act”), as the commissioner of oaths failed to certify that she had satisfied herself as to the identity of the testatrix.
Following the rejection of the purported will, the second respondent, the deceased’s grandson, submitted two affidavits to the Master, which were deposed to four months prior to the purported will, before a commissioner of oaths, signed by way of a mark (her thumb print), and in the presence of some family members. The affidavits disposed of the deceased’s stand and house to the second respondent. The affidavits were also rejected for non-compliance with section 2(1)(a)(v) of the Wills Act.
The court a quo upheld the second respondent’s application that the affidavits be declared as the last will of the deceased. The appellant appealed to the High Court on the grounds that it had erred in finding that the second respondent had complied with the requirements of section 2(3) of the Wills Act.
ection 2(3) of the Wills Act provides that a court must recognise a document as a will, even if the document does not comply with the formalities for executing a will, if it is satisfied that (Horn v Horn):
- there is a document;
- the document was drafted or executed by the deceased; and
- the deceased intended the document to be his/her will.
The court also considered section 2A of the Wills Act, which provides that a court is empowered to declare a will, or part thereof, revoked if it is satisfied that the testator drafted another document intending to revoke his/her will (Horn v Horn). To determine the intention of the deceased, the court must examine the document itself, in light of the surrounding circumstances, together with the intention of the testator at the time the document was drafted or executed (Van Wetten v Bosch).
The High Court held that although the court a quo considered the intention of the deceased, at the time that the affidavits were deposed to, it overlooked the intention of the deceased as expressed in the purported will. In light of the revocation clause contained in the purported will, which was executed subsequent to the affidavits, the affidavits cannot be declared the will of the deceased. The High Court upheld the appeal, setting aside the court a quo’s finding, declaring that the affidavits were not the deceased’s last will.
This case highlights the courts discretion with regard to declaring a document to be the last will of a deceased person in circumstances where the formal requirements to execute a valid will have not been complied with. The court must always consider the testator’s intention at the time the document was executed and in light of the surrounding circumstances.
Written by Wesley Pons and Charlotte Clarke