WILLS & ESTATES

Facts: Mr De Kock and the deceased were married  to each  other. Their marriage was terminated by her death in 2018. Two minor children were born of the marriage. The deceased and Ms Scholtz were identical twins. Ms Scholtz is thus Mr De Kock’s former sister-in-law and the aunt of the two minor children. The minor children are the joint heirs in the estate of the deceased. In terms of the deceased’s will, Ms Scholtz is the executrix in the deceased estate. She is also a practising attorney. In 2014 the deceased was awarded R7,067,736.80 by the RAF following injuries she had sustained in a motor vehicle accident. The funds were paid into the trust account of her attorneys. The deceased instructed her attorneys to pay over the nett proceeds of R5,600,000 into the trust account of her twin sister, Ms Scholtz. The funds were transferred to an investment account managed by Ms Scholtz.

Application: Before the court of first instance, Mr De Kock brought the application in his nominal capacity as the guardian of his two minor children. He sought an order compelling Ms Scholtz to render an account for the R5,600,000 and for the debatement of that account, and for the payment to the deceased estate of whatever amount was found to be due to it. The application was dismissed by the court of first instance. On appeal to it, the full court upheld Mr De Kock’s appeal.

Discussion: The court of first instance accepted Ms Scholtz’s explanation that she had expended the payments on the specific instructions of the deceased, and that the deceased was satisfied with how the monies were disbursed. On appeal, the issue remains whether Ms Scholtz was obliged to account for the R5,600,000. Mr De Kock predicated the duty to account on his allegation that Ms Scholtz stood in a fiduciary relationship with the deceased. Ms Scholtz emphasised that she never acted as the deceased’s attorney in relation to her RAF award. The money was kept in Ms Scholtz’s trust account only for four days. Once the money was transferred to the investment account, Ms Scholtz’s mandate as an attorney, and any ancillary fiduciary relationship there might have existed, was terminated.

Findings: The records reveal that the bulk of the money was paid to the deceased. It is common cause that the twin sisters shared a warm, close and trusting relationship. The funds were under Ms Scholtz’s control for approximately four years before the deceased’s passing. This is sufficiently long enough for the deceased to have demonstrated her dissatisfaction, if any, about Ms Scholtz’s management of her funds. There is no hint of that. It is also important to bear in mind that the deceased was a person with full mental capacity. She was entitled to dispose of her assets in a manner she deemed fit during her lifetime. Her children, in whose interests Mr De Kock purports to act, have no right at law to question her financial decisions during her lifetime.

Order: The appeal is upheld with costs including costs of two counsel. The order of the full court is replaced with one dismissing the appeal.

MAKGOKA JA and MBHELE AJA (NICHOLLS JA, HUGHES JA and MOLEFE JA concurring)

Facts: Prior to his death, the testator executed his will before two witnesses. In his will the testator appointed Klassen (erstwhile executor) as an executor. In terms of the will, amongst others, the erstwhile executor was given powers to sell or rent out the immovable property of the testator. The applicants entered into a sale agreement with the erstwhile executor to the estate. In terms of the sale agreement the erstwhile executor sold two immovable properties to the applicants. The applicants took possession of the properties and are liable to pay rent until the date of the registration. The applicants remain in possession of the properties. Before the registration of transfer was affected, the erstwhile executor was removed as the executor. Due to the failure of the erstwhile executor to pass the transfer to the applicants, they instituted legal proceedings against him to enforce the terms and conditions of the agreement of sale.

Application: The applicants seeks to enforce the terms of the sale agreement that was entered into between them and the former executor, in terms of which two immovable properties were sold by the erstwhile executor to the applicants. The issue to be determined arises in connection with clause 4.1.1. of the will of the testator and the provisions of section 47 of the Administration of Estates Act 66 of 1965. The core dispute revolved around whether the provisions of section 47 override clause 4.1.1. of the will in question.

Discussion: It is submitted on behalf of the respondents that the respondents as well as the other heirs to the estate of the testator were always against the sale of the properties as they wanted to protect the legacy by continuing with what the testator had started. It is also asserted that the erstwhile executor was aware of these wishes but chose to act as he deemed fit. It is strongly asserted that the consent of the beneficiaries should have been obtained prior to the sale agreement being concluded. So, the argument continues that despite the clause of the will, the heirs with interest in the property should have approved the conditions in writing. It is the assertion of the applicants that the estate, including the respondents, are bound by the agreement of sale and that the enforceability thereof has not been affected by the change in executorship. Additionally, the applicants assert that no steps have been taken by the respondents to render the agreement of sale null and void.

Findings: It is evident from a reading of the will that the testator’s intention was to give the erstwhile executor unfettered discretion as far as the sale and renting of the immovable property are concerned. The terms of the will reveal that the erstwhile executor had absolute discretion to sell or to lease the immovable property and to determine the price. The testator in his will has used words like “My executor’s decision shall be final and not reviewable in any forum.” The will is detailed as far as the powers of the executor in selling the immovable property. The testator stated in his will that the executor can deal with his immovable property as he saw fit. The use of the words "unless it is contrary to the will of the deceased", allows a testator to direct a contrary intention to the legislative limits imposed by section 47. It means that the statutory provision applies unless a contrary intention appears from the will. In other words, the provisions of section 47 do not apply if a contrary intention appears in the will. This grants the testator the powers to dispose of his property in the way he deems fit.

Order: The respondents, within 45 days from the date of the order, shall take all steps necessary which shall include, but shall not be limited to, signing all documentation to pass transfer of the immovable properties to the applicants.

NZIWENI J

Facts: The applicant, DB, married MB (the deceased) in 2006 at Oudtshoorn. She has two sons from him. She is the third wife of the deceased. The deceased had children from his other wives. The applicant instituted divorce proceedings against the deceased in 2014 and the marriage was declared by court order in 2014 to be one in community of property. The divorce was not finalised when the deceased died. The respondent is the executor of the joint estate. He was nominated executor testamentary and appointed by the Master in 2023. The respondent has been the deceased's attorney since 2013. He acted on behalf of the deceased in the divorce proceedings and further related litigation instituted by and against the applicant.

Application: The applicant seeks to remove the respondent as the executor in terms of section 54(1)(a)(v) of the Administration of Estates Act 66 of 1965. The applicant also relies belatedly on section 54(1)(a)(ii) of the Act. The Applicant seeks, in addition: an order that the respondent is precluded from receiving any remuneration for services rendered whilst he was executor; that the Master appoint a new executor; and costs on an attorney-client scale.

Discussion: In the will, the deceased asserted that the applicant had already received more than her due share through the lengthy and disgraceful divorce proceedings. The executor is well taken care of, and his fees for managing the interest of the minor sons in German and South African properties and his fees to resist the applicant's half share in the joint estate are ensured. It is difficult to believe that the respondent, who was the deceased’s lawyer for at least ten years, did not have a hand in drafting the will. The applicant alleges that the respondent assisted the deceased in drafting the will. She cites the deceased’s protracted illness, his proficiency in English, the attention to minute details in the will, and the inclusion of “vindictive and toxic” instructions as factors pointing to the respondent's hand in drafting the testament and implementing its provisions unwaveringly.

Findings: The respondent has a low threshold for threatening litigation and litigating on behalf of the estate against the applicant. He has intervened at the estate’s cost in Germany and South Africa. His attorney firm benefits from the litigation. This attitude is inconducive to the interests of the estate, to that of the heirs, as well as to the applicant. The respondent, as the attorney to the deceased, has been involved in the acrimonious litigation against the applicant, which was directed to stifle the applicant’s entitlement to a fair half share of the joint estate. The respondent acted as an attorney just before the deceased’s death in litigation that was intended to deprive her of the German assets of the deceased. The deceased expected the respondent to become immersed in the administration of the joint estate way beyond that which is ethically and legally permitted of an executor. The deceased expected the respondent to pursue the applicant with the same vigour he did while alive. The administration of this estate requires an independent executor who will bring a fresh and uncluttered mind to its resolution. This estate requires an executor who is not encumbered by the baggage of the past and will genuinely attend to his legal and fiduciary duties.

Order: The respondent is removed from his office as executor in terms of section 54(1)(a)(v) of the Act. He shall be entitled to claim his fees as executor from the date of his appointment to the date of this judgment, however, the respondent or his attorney firm shall not be entitled to claim any legal costs relating to the intervention in the matters involving the applicant in Germany from the date of his appointment as executor to the date of this judgment. The respondent shall pay the costs of this application. Counsel’s fees will be recovered and taxed on the “C” scale.

BHOOPCHAND AJ

Facts and issue: Application for payment of the sum of R4,700,000 together with interest thereon and costs. The applicant’s claim is alleged to arise from a donatio mortis causa. The applicant’s version is that the sum was intended as an inheritance for the respondent, and it was paid to the respondent. The respondent’s version is that after her mother received the funds from her late husband’s estate, she expressed to the respondent that the money would be a means to improve all their lives, and her mother wished to purchase a property. This property was to be a gift to the respondent and her husband as donation and serve as an early inheritance.

Discussion: As a main defence, the respondent alleges that although the property was viewed as an early inheritance, this was not done based on a donatio mortis causa but as a gift, an inter vivos donation. Ms Morris, for the respondent, argued that the donation took place during the applicant’s lifetime and had vested as opposed to a donatio mortis causa, where the donor retains ownership of the item, and the vesting of the donation only takes effect on the death of the donor. The donatio mortis causa is made in contemplation of the death of the donor, and one of the special features of the donatio mortis causa is that it may be revoked by the donor at any time prior to his/her death. A donatio mortis causa to be executed in accordance with the statutory formalities which apply to the execution of a will. The donation by the applicant was not executed in this manner. The cash sum of was never paid to or received by the respondent even on the applicant’s own version. The funds were transferred into the nominated conveyancer’s account and the applicant knew that the property would be purchased with the money. The parties agree that the donation was intended as early inheritance, but the donation had vested upon the transfer of the immovable property. The fact that a donation is intended as early inheritance does not preclude such a donation from being one inter vivos.

Findings: There are no allegations by the applicant that the donation would only vest in the respondent upon the applicant’s death, to the contrary the applicant says that the respondent already received the money as inheritance. Whether or not the applicant had knowledge of the entity in which the property was purchased has no bearing, as even on her own version she accepts that she paid the money to purchase the property for the benefit of the respondent. This is not alleged to have been contingent on the happening of any other event, so there is no evidence that the vesting of the donation was to be postponed until the death of the applicant. The presumption that the donation was made inter vivos must accordingly prevail. The donation therefore did not constitute a donatio mortis causa and the application for payment cannot succeed on that basis.

Order: The application is dismissed with costs.

Facts and issue: The applicant entered into a written instalment sale agreement with deceased in respect to a vehicle. The deceased died in 2023. The outstanding balance payable in terms of the agreement is R315,971.93. The respondent is the surviving spouse of the deceased and is currently in possession of the vehicle. The applicant alleges that the respondent is in unlawful possession of the vehicle, as neither she nor the estate has settled the full outstanding balance owing on the vehicle. The respondent refuses to surrender the vehicle.

Discussion: The applicant contended that the purpose of an interim attachment order is to protect the owner of the goods against deterioration and damage pending the finalisation of the main proceedings between the parties. The alternative relief sought is for the return of the vehicle which is to be placed in the applicant’s approved storage facility until such time as the estate has been finalised or permission to sell granted or provided. This appears to be a sensible approach. The applicant has made the essential averments necessary for relief sought in the alternative. It is unrefuted that the vehicle is being used by the respondent to the potential risk of the applicant and the deceased estate as the vehicle is not insured. The applicant is entitled to cancel the agreement. The relief for the amendment to the chassis number under these circumstances will not be prejudicial to the applicant or the deceased estate.

Findings: The legislated possession of the asset in terms of section 11 of the Administration of Estates Act 66 of 1965, cannot trump the vindicatory common law right of the applicant. The respondent has failed to show that she has some right that is enforceable against the applicant. The court is not persuaded that the respondent’s asserted entitlement to possession of the vehicle under the veil of section 11 of the AEA can be sustained, which requires the vehicle to be kept in safe custody or preservation.

Order: The application succeeds.

Facts: The plaintiff in this action, Miss M, a chartered accountant and a retired pilot, is contesting the validity of several wills executed by her deceased father a few months prior to his demise after he was diagnosed with pancreatic cancer and in terms of which the plaintiff was excluded, and in her stead an ex-wife divorced from the deceased for 17 years was appointed as a beneficiary. The wills revoked a will which included the plaintiff as a beneficiary that was executed by the deceased prior to his diagnosis. The deceased’s testamentary capacity at the time of execution of the impugned wills is put in issue. The testator’s attorney at the time of execution of the will is accused of failure to act in the deceased’s best interest to the detriment of the plaintiff. The plaintiff is one of the deceased’s only two daughters. The plaintiff’s action is brought against Mr Porkroy, the first defendant, who was the deceased’s old friend and attorney. He was the drafter and the nominated executor of all the deceased’s wills. On the demise of the deceased, he was appointed as an executor of the deceased’s estate. The deceased’s widow, Ms W, is the second defendant. She is named as a beneficiary in the last three wills contested by the plaintiff.

Application: The deceased executed a will (the first will) in terms of which he bestowed all his estate in equal shares to his only offspring, the plaintiff and B. Three days after the deceased was diagnosed with pancreas cancer, Ms W, from whom the deceased was divorced, reappeared and moved into the deceased’s home. Five weeks after Ms W’s reappearance, the deceased revoked the first will by executing another will (the second will). He in terms of the second will bequeathed his whole estate on Ms W, B and the deceased’s grandson in equal shares to the total exclusion of the plaintiff. The deceased executed a fourth will, three days before his demise, leaving his whole estate to Ms W and B, again disinheriting the plaintiff. The plaintiff seeks an order directing the Master of the High Court to accept in terms of section 2(3) of the Wills Act 7 of 1953, the first will as the last will and testament of the deceased. The plaintiff further seeks the removal of Mr Porkroy as executor.

Discussion: The evidence is that the deceased was emaciated and very weak and would just sit on the chair. He couldn’t ambulate properly at the time it is alleged Pretorius had visited him. B was there on the same day and observed the deceased being confused and exhibiting mental vulnerability which could be attributable to acute brain failure which according to Colin may emanate from the withdrawal of morphine. Pretorius was not seen by anybody, and he also saw nobody. Potgieter’s evidence was staged. It was unlikely that the deceased would have been jovial, opening doors for him and strong enough to drive his car out of the garage with his challenges and swollen feet. The deceased had already sold his house so the comment that he said he can now sell his house cannot be true. His allegation that he was at the wedding and there was no alcohol is also false. Not only is it clear from the factual and medical evidence that the deceased was mentally challenged such that even though he seemed to understand the nature of his act, that he was making a will, and the extent of his property, he however lacked the comprehension and appreciation of who his natural heirs were, that is the people with a claim on his estate and on whom he might consider bestowing his assets. He therefore lacked the testamentary capacity to execute a valid will.

Findings: It is evident that due to his vulnerability, Ms W’s dominance, and his susceptibility to capitulate under pressure and instigation, his wishes were replaced with the wishes of Ms W, such that the will does not reflect his wishes but that of Ms W who was actively involved in the arrangement for the execution of the wills, deciding on the beneficiaries and the manner of devolvement of the deceased’s estate, whereupon through deception and exertion of pressure on the deceased, she is one of the beneficiaries under the will to the exclusion of the deceased’s other natural heirs. Through her instigation she also stands to benefit more. The will therefore also stands to be declared invalid due to the improper and undue influence. Her conduct not only was improper but tantamount to coercion and should disqualify her from inheriting. It is evident that Mr Porkroy was not only aware of the illness of the deceased and the extent thereof but also of the procedures that he underwent and the outcomes, as he was always kept abreast by the plaintiff. His outright denial that he was aware, put a serious dent on his integrity. Mr Porkroy’s lackadaisical behavior extended relentlessly to the manner in which he handled the administration of the deceased’s estate.

Order: The wills purportedly executed by the deceased in October 2015, January 2016, and February 2016 are declared invalid. The will executed by the deceased on 14 May 2014 (the first will) is declared to be the last will and testament.

KHUMALO J

Facts and issue: Application in terms of Section 2(3) of the Wills Act 7 of 1953, to have the Will of the Late Mr Mavuso declared a valid Will and to have the appointment of the second respondent declared invalid. The applicant and the second respondent are siblings and sons of the deceased. The applicant submitted the Will to the Master of the High Court, who rejected same on the grounds that it does not comply with 2(1)(a)(v) in that although it had been signed by deceased with a mark (or thumb print) there was no accompanying commissioner’s certification.

Discussion: Section 2(1)(a)(v) essentially provides that where the testator has signed the will by using a mark, or in this case a thumb print, a commissioner of oaths must certify that he has satisfied himself as to the identity of the testator and that the will so signed is the will of the testator. The applicant seeks an order that the first respondent be ordered to accept the will in terms of section 2(3). This brings into play section 2(3) of the Act and the court is therefore called upon to determine whether the noncompliance, which is now common cause, should be condoned. A court must order the acceptance of a non-compliant Will buy the Master once it is satisfied that the Will was drafted or executed by the deceased who intended it to be his last Will. The applicant argued that it is through no fault of the deceased that the required certification was not done as required by the section and that this will prejudice the beneficiaries of his will.

Findings: The evidence proves that the mark or thumb print on the impugned Will was made by the deceased, the court is accordingly satisfied that the document represents the last Will of the deceased. Having been satisfied that the document represents the last will of the deceased, the court, in the light of section 2(3), has no discretion but to grant the condonation. In the result the condonation for the non-compliance of the Will with the formalities prescribed by section 2(1)(a)(v) of the Act should be granted.

Order: The failure of the deceased to comply with the formalities set out in section 2(1)(a)(v) of the Wills Act 7of 1953 is condoned. The Will made and signed by the deceased is declared the Last Will and Testament of the deceased.

Facts: The applicant and the deceased were married. The first respondent (Andi) is the only child born of the marriage and is the sole heir in terms of the 1999 will. She has been estranged from the applicant and the deceased for some time. The applicant and the deceased utilised the services of Capital Legacy during January 2022 to assist them in drafting their wills. They seemingly intended to leave 100% of their respective estates to each other, and thereafter to their daughter in the event of their demise. Wills were drafted according to instructions received. The deceased had contracted cancer and was very ill at the time and on medication. The application provides details regarding the intention of the applicant and the deceased and their financial constraints, including the reason for leaving their estates to one another instead of their daughter. As to the reasons for the deceased not signing her own will at the appointed time, the applicant states only that on the day that they had to sign the wills, the applicant’s sister was visiting. The deceased passed away before ever signing the 2022 will.

Application: To have the unsigned and undated last will and testament of the deceased, Ungerer, drafted in 2022, declared to be valid in terms of section 2(3) of the Wills Act 7 of 1953, together with consequential relief. The question is whether the court may accept the will on the papers before it and in the light of the applicable legal framework.

Discussion: The disputed will had clearly not been drafted by the deceased, but by someone else, and there was simply no indication on the record that the deceased accepted the final document presented and accepted it as their will. In the absence of evidence that establishes that the deceased approved all the contents of the draft will, a court will be unable to find that they intended it to be their will. It is unnecessary to make a firm decision regarding the deceased’s intention in the present circumstances. The disputed will was neither drafted by the deceased, nor executed by her, so the subsequent enquiry into intention does not arise. Section 2(3) is cast in peremptory terms and does not permit the exercise of judicial discretion absent compliance with the stipulated requirements. This is because it represents an exception to the rigorous requirements for a valid will stipulated in section 2(1), so it must be strictly interpreted.

Findings: The applicant provided no adequate explanation for the deceased’s failure to have signed the will during the intervening period of eight months between the date upon which the disputed will was presented to her for signing, 22 February 2022, and the date of her passing, 11 October 2022. If the deceased had truly intended the 2022 will to have been her final will, then it would have been expected that she would have signed it, especially in view of her terminal decline and impending demise. On a preponderance of probabilities, however, the deceased changed her mind to avoid leaving her daughter with nothing until the applicant’s eventual passing. From the exchange of communication between the deceased and Andi, it is apparent that the deceased was desperate for mother and daughter to set aside their differences and to achieve reconciliation before she departed. This would go some way towards explaining her failure, or refusal, to sign the disputed will. In the end, there was simply no evidence to demonstrate the intention as alleged by the applicant.

Order: The application is dismissed.

GOVINDJEE J and LAING J

Facts and issue: The applicant was married to Mr. Nieman, in community of property. They made a joint last will and testament. Mr. Nieman’s health deteriorated to the extent that curator ad litem was appointed on his behalf. The applicant appointed with certain powers. Mr. Nieman passed on. The report of the curator ad litem proposed that a curator bonis be appointed for Mr. Nieman and identified the applicant to be so appointed. The last will and testament of the applicant and the late Mr. Nieman made provision for who should inherit and nominated their attorney, Mr. Olivier, to be appointed as executor of their testate. The relief sought is that the Master of the High Court be interdicted and restrained from appointing Mr. Olivier, the nominated executor, as executor of the estate.

Discussion: The rationale is that the legislature gave specific powers to the Master to remove an executor upon certain grounds. What the legislature did not do is to give the Master the power and authority to determine whether a nominated executor should not be appointed when it concerns the undesirability to appoint such a person as executor or not. That discretion is reserved for the court. Emphasis needs to be placed on the word remove which means that after the appointment as an executor testamentary, she may be removed by the court ‘for any other reason’. The argument goes, that if the court has the power to remove ‘for any other reason’ an appointed executor, why can’t the court interdict the appointment of a nominated curator who is for one or other reason undesirable to be so appointed? Why must the nominated executor first be appointed and then removed, whereas the court can, based on acceptable evidence of the undesirably, interdict the appointment in the first place? This contention is assailed on the basis that if the legislature wanted to give the court such power, it would have specifically said so. This it did not do. Therefore, this contention is bad in law. The court does not have the statutory power to interdict the appointment of a nominated executor testamentary on that basis.

Findings: A procedure is enacted for the Master to appoint a nominated executor testamentary. It was not left open for the courts to do so. It is the removal of an appointed executor ‘for any other reason’, as the court may deem it undesirable that such a person continues to be an executor. Not before the appointment or to interdict the appointment. This is no noval issue and it was already decided in some cases. If the legislature wanted to give the power to the court to interdict the appointment of a executor testamentary, it would have expressly stated it in the Act.

Order: The application is dismissed.

Facts and issue: This is a legal action in which the plaintiffs seek to have the testatrix and the testator’s joint will, declared invalid because they lacked testamentary capacity. In addition, the plaintiffs seek an order that the court must set aside the testator’s Cradlestone Agreement. The plaintiffs’ counsel submitted that evidence shows that there exists reasonable doubt as to the mental fitness of the testatrix to execute the joint will, which, in any event, was not signed in the presence of the witnesses.

Discussion: The mental testamentary capacity ought to be determined when the testator and testatrix entered a will. The plaintiff could have obtained evidence of a doctor who was taking care of Joyce for his opinion, although there is no evidence of what type of medical doctor he was. The plaintiffs’ evidence confirms the caretaker or domestic worker's evidence that there are no medical records for 2009. It was alleged that Joyce suffered from aneurysm. Aneurysms may be located in many areas of the body, such as the brain, aorta, neck, intestines, kidney, spleen, and legs. Aneurysms can be treated with surgery. Some people live a long life without knowing they have aneurysm. There is no medical evidence or observable facts to prove that Joyce was not in her right mind when she executed the joint Will in 2009. Challenges to a will that, on the face of it, appears to be valid based on testamentary capacity remain an evidentiary burden for the challenger. No evidence suggests that Joyce was not in her sound and sober mind when she executed her last Will and testament. Furthermore, the plaintiffs' argument is speculative and not supported by medical evidence. The court is enjoined to decide cases based on evidence and not on speculation and conjectures.

Findings: The court concludes that the main claim fails. The testator and the testatrix possessed the necessary testamentary capacity when they signed their wills. As a result, the joint will, and the Codicil and the Cradlestone Agreement were valid.

Order: The plaintiff's case is dismissed with costs.

Facts: The applicant was married to the deceased. The applicant and deceased entered an ante-nuptial contract, with exclusion of the accrual system, prior to their marriage. The clause which is relevant to this matter is clause 5, in terms of which the deceased undertook to cede to the applicant the right of habitatio in respect of their communal home, upon their becoming divorced or upon his death. In clause 5.2 of his last will, the deceased gave effect to clause 5 of the ante-nuptial contract by bequeathing to the applicant the right of habitatio in respect of the communal home at the farm. The second respondent, Maree, who is the nephew of the deceased and a beneficiary in the deceased estate, objected to the applicant's claim for habitatio and maintenance as reflected in the L&D account. The Master upheld the Maree's objection and directed the executor to amend the L&D account in respect of the habitatio claim. The dispute between the parties is whether the Master upheld the objection to the habitatio claim only, as contended by the applicant, or the whole objection in respect of the habitatio claim and the claim for maintenance, as contended by the respondent. The deceased confirmed, in his will, the provisions of clause 5 of the ante-nuptial contract and stipulated certain conditions upon which the applicant may exercise the right of habitatio.

Application: The applicant seeks that the decision of the Master to uphold the second respondent's objection against the first and final liquidation and distribution account in respect of the applicant's claim for habitatio be set aside in terms of section 35(10) of the Administration of Estates Act 66 of 1965, alternatively be reviewed and set aside. Further that the Master's decision be substituted with a decision in terms of which the second respondent's objection against the first and final liquidation and distribution account be dismissed.

Discussion: The Master appears to agree with Maree's contention that the real right of habitatio was not registered against the title deed of the communal property and was therefore not enforceable in law. The Master also referred to clause 5.2.2 of the deceased's will, asserting that the applicant, in his view, waived her right to habitatio when she consented to the sale of the farm Diepwater on which the communal home was situated. She was therefore able to approach the Elmar Trust in terms of clause 5.2.2 of the will to provide accommodation for her. The Master therefore asserted that his decision should not be reviewed. The Master did not mention or deal with the claim in respect of spousal maintenance at all and gave direction to amend the L&D account only in respect of the habitatio claim. The applicant therefore proceeded on the basis that the maintenance claim was upheld by the Master and launched this application for review only in respect of the Master's decision relating to the habitatio claim. In support of her contention that the Master upheld only the objection in respect of habitatio, the applicant contends that the Master did not mention the maintenance claim in his decision communicated, nor did he mention or give any direction in respect thereof in his reasons. The Master's reasons were filed after the founding papers in this application were served on him, hence he was eminently aware that the applicant sought to review and set aside only his decision in respect of the habitatio claim.

Findings: It appears from the Master's reasons that he relied on the reasons tendered by Maree for his objections to the habitatio claim and paid little or no heed to the executor's reasons for admitting the claim. The Master's reasons do not reflect a careful examination or consideration of the legal position relating to the right of habitatio in the light of the second respondent's objections and the executor's response thereto. Such an exercise would have assisted the Master to conclude that the grounds of the second respondent's objections were misplaced. Paragraph 9 of the Master's reasons bear out the point that he merely accepted and repeated the objections of the Maree, without properly considering the merits thereof, in the light of the applicable legal principles. He avers that the applicant waived her right of habitation by consenting to the sale of the property, which is not the correct position. The Master did not consider the enforceability of clause 5.2.2 of the deceased's will, which stipulates that in the event of the applicant terminating her right of habitation, she could approach the Elmar Trust, which would be obliged to purchase a three­ bedroomed dwelling for her in the northern suburbs of Bloemfontein. The grounds of the Maree’s objections against the applicant's habitatio claim are without merit and fall to be dismissed. Similarly, the Master was correct in his refusal to uphold the objection in respect of the applicant's maintenance claim.

Order: The decision of the Master, to uphold the second respondent's objections to the applicant's claim for habitatio, is set aside in terms of section 35(10) of the Estates Act. The second respondent's objections to the first and final liquidation and distribution account are dismissed.

NAIDOO J

Facts: Ms Masilo passed away in 2020 and was survived by her children: the applicant, the first respondent, the second respondent and the third respondent; as well as by her grandchildren, the fourth and fifth respondents, being the children of the deceased’s son, Mr Masilo, who died in 2007. There was a document dated in 2013 and headed “Last Will and Testament of Aletta Lipuo Masilo.” The will is signed by the testator and witnesses only on the last page. The first page (of the two-page will) does not reflect the signatures or initials of the testator and witnesses. The will is accompanied by a certificate issued by a commissioner of oaths.

Application: The Master did not accept the will as it does not comply with the formalities recorded in section 2(1)(a)(iv) of the Wills Act 7 of 1953, which requires that if the will consists of more than one page, each page other than the page on which it ends, must also be so signed by the testator or by such other person anywhere on the page. If the first page of the will had borne the initials of the testator and witnesses, it would have been accepted as a valid will. The applicant seeks that the document be declared to be the last will of Ms Masilo and an order directing the Master to accept the will.

Discussion: The applicant confirms that the deceased informed her and the second respondent that she had executed a will and nominated the applicant as the beneficiary of her property. She also told a relative, Mr Mpiti. The deceased also spoke to members of her community forum and informed them that she had executed a will and bequeathed her house to the applicant. Affidavits by these three individuals were provided in which they also confirmed the deceased showed them a copy of the will which recorded that the property was bequeathed to the applicant. There is a dispute of fact over the events shortly before the deceased’s death in 2020. The core of the dispute relates to the conduct of the second respondent. The fourth respondent insists on the formalities of the Wills Act being enforced. He accepts that the deceased signed the will on the second page. He does not contend that her signature was forged. He also does not contend that the deceased was unable to read or that she would have been unable to understand the content of the document.

Findings: The central question to be answered in this matter is whether the threshold set by section 2(3) of the Wills Act has been met such that the court will order the Master to accept the document. The critical factual inquiry must be directed at whether the deceased signed the will and, if so, whether she intended the will to be her last will and testament. On applying the well-established test for interpretation, there can be no doubt that when she signed the will, the deceased intended it to be her last will and testament. This is apparent from the heading on the document, the revocation of all previous wills and the appointment of an heir. The intention is also confirmed by the existence of the certificate by the commissioner of oaths, which is also not alleged to be fraudulent. The admissible and uncontroverted evidence satisfies the requirements of section 2(3) of the Wills Act. There is consequently no need to resolve the factual dispute in relation to the conduct and involvement of the second respondent in order to decide the central issue in the case. The validity of the will is not affected by that dispute.

Order: The document headed “Last Will and Testament of Aletta Lipuo Masilo” is declared to be the last will of the late Ms Masilo. The Master is directed to accept the document as her last will. The costs of this application are to be borne by the fourth respondent on the party and party scale.

TURNER AJ