Article written by Danisha Naidu, Candidate Attorney, checked by Jayna Hira, Associate and released by Charlotte Clarke, Partner at Schindlers Attorneys.
18 August 2021
Background and Facts
In this matter, the close relatives of the Deceased brought forth an application in which they sought an order directing the Master of the High Court, Cape Town (“the Master”) to accept as the Deceased’s last will and testament, a certain bank’s Will Application Form (“Application Form”), which the Deceased populated in order to instruct the bank to draft her will.
The First Respondent is the surviving spouse of the deceased, to whom he was married in community of property. In addition, the First Respondent and the Deceased shared a minor child.
In terms of the Application Form, the Deceased had instructed the bank to draft a will in which the Deceased bequeathed her entire half-share of the joint-estate to the minor child. The Application Form was completed the day before the Deceased passed away and therefore, her instructions in relation to same had not yet been carried out.
Rule of Law
The Applicants relied on Section 2(3) of the Wills Act1 (“the Wills Act”) which states as follows:
“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 subsection1.”
The Applicants further relied on the case of Mabika and Others v Mabika and Another2, where the facts were near identical to the present case. In the aforementioned case, the Court held that the instructions to the bank were accepted as the Deceased’s intended last will and testament, in terms of Section 2(3) of the Wills Act.
Mabika and Others v Mabika and Another
In the present case, the Judge disagreed with the decision made in Mabika, noting that the learned Judge in that matter failed to consider one of the essential requirements for relief in terms of Section 2(3) – proof of the Deceased’s intention. Many scholars have criticised the decision made in Mabika for this reason.
The Judge further reasoned that there was no proof that the Deceased had intended for the Application Form to be anything other than a drafting instruction.
The Judge accepted that the Applicants instituted proceedings in the best interests of the minor child, so that he would inherit his late mother’s half-share of the joint estate, as per the instructions listed in the completed Application Form.
This approach was seen as incorrect, as the Judge suggested that the Applicants ought to have applied for the appointment of a curator ad litem to institute these same proceedings on behalf of the minor child.
The application was accordingly dismissed. However, due to the fact that the Applicants acted in the best interests of the minor child, the Judge did not issue an order as to costs.
When relying on section 2(3) of the Wills Act, all requirements must be met.
 Act 7 of 1953
Mabika and Others v Mabika and Another  ZAGPJHC 109 (8 September 2021).