IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO: 14970/2010

JUDGMENT					JUDGE A.G. Binns-Ward

FOR THE PLAINTIFFS			ADV A.D. Brown

INSTRUCTED BY				Chris Fick & Associates 

						Waalburg Building 
						28 Wale Street 
						Cape Town

DATE OF HEARING 				6 August 2010

JUDGMENT					13 August 2010

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

REPORTABLE
Case No: 14970/2010

Summary:

	Narrow construction of the word 'drafted' in s 2(3) of the Wills Act applied, in conformity with the interpretation of the provision in Bekker v Naude & andere 2003 (5) SA 173 (SCA).
	Alternative relief granted in terms of the common law

JUDGMENT 
Delivered on 13 August 2010

BINNS-WARD J:

[1] The facts in this matter are not in contention. The question in issue is whether on those facts the relief sought by the applicants in terms of s 2(3) of the Wills Act No. 7 of 1953 ('the Act') can be granted.

[2] Just over a month before his demise, the testator executed a codicil to his last will and testament. The codicil was executed in a manner fully compliant with the formalities prescribed in terms of s 2(1 )(a) of the Act. The duly executed codicil was thereafter delivered to the offices of the testator's attorney for safekeeping. It was taken there by a messenger in the testator's employ. It was enclosed in a large (B4) envelope. The receptionist at the attorney's office was able to recall the messenger in question delivering an envelope to the attorney's office, but she had no knowledge of what it contained. Unfortunately, no-one can say what became of the envelope or its contents after their delivery to the attorney's offices. When the codicil was called for after the testator's death it could not be found despite diligent search.

[3] The provisions of the codicil can be precisely established because the document executed by the testator had been drafted by his attorney in accordance with the instructions conveyed to him on the testator's behalf by the latter's wife. The resultant draft had thereafter been emailed to the testator's residence. There is therefore an electronic record of the text of the document in existence. A print-out of the emailed draft codicil was duly executed by the testator at his home in the presence of his wife and one of his close friends, who is a co-executor testamentary of his estate. Also present when the document was executed were two entirely disinterested persons, who signed the codicil as witnesses. Affidavits confirming the aforementioned facts have been made by all the persons who were present when the codicil was executed.

[4] The intended effect of the codicil was to substantially increase the value of the bequests made in the testator's last will and testament to each of his daughters. It left unaffected the bequest of the residue of his estate to his wife. It also left unaffected two comparatively minor bequests to the only other beneficiaries in terms of the will. The only person whose proprietary interest might in a sense be adversely affected by the changes wrought by the codicil would appear to be the first applicant.

[5] The first applicant is the testator's widow, who is a co-executor testamentary of the deceased estate. The second applicant is the family friend and co-executor testamentary, mentioned earlier, who had been present when the codicil was executed. They seek an order in the following terms:

That the Master of the High Court, Cape Town, be ordered to accept the First Codicil to the will of the late Stanley Allan Porter ('the deceased'), a copy of which is annexed to the Founding Affidavit of the First Applicant, marked as Annexure 'B', as his valid First Codicil to his last will and testament for the purposes of the Administration of Estates Act, 66 of 1965, in terms of section 2(3) of the Wills Act, 7 of 1953.

Annexure B to the founding affidavit is a print out of the email attachment that had been sent by the drafting attorney to the testator's wife; in other words, it is a replica of the document that was duly executed by the testator, but it does not bear his signature, or those of the witnesses.

[6] The third co-executor of the estate has filed an affidavit recording that he has no direct knowledge of the relevant facts, but has no objection to the court granting the relief sought by his co-executors. The Master has filed a report abiding the judgment of the court.

[7]     Section 2(3) of the Act reads 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 subsection (1).'

[9] For completeness, however, I shall deal briefly with the basis upon the applicants' counsel sought, nevertheless, to persuade me that the matter should be accepted as falling within the ambit of s 2(3) of the Act.

[10] Counsel accepted that there was 'a difficulty' in the way of any attempt to persuade the court that the document the applicants seek to have the Master directed to accept had been executed by the testator. In a written note submitted at my invitation after the conclusion of the hearing, counsel implied that 'there may be some debate...as to the ambit of the word "execute" in the section', but he did not advance any argument in furtherance of the postulated debate. The argument that was advanced focussed instead on the word 'drafted'. Relying on a series of reported cases which adopted a generous construction of the ambit of s 2(3) of the Act, counsel submitted that by causing his attorney to have drafted the codicil the testator must, in the context of the evidence that he had adopted the resultant text, be taken to have himself 'drafted' the document, in the sense of that word as employed in s 2(3) of the Act.

[13]   The following order is made

The Master of the High Court, Cape Town, is authorised to accept a copy of the unsigned draft annexed, marked 'B,' to the founding affidavit of the first applicant as the first codicil to the last will and testament of the late Stanley Allan Porter for the purposes of the administration of the deceased's estate in terms of the Administration of Estates Act, 66 of 1965

2.