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

CASE NO: 5890 / 2009

In the matter between:

and

(in her capacity of executor of the estate of the

MASTER OF THE HIGH COURT, 

JUDGMENT   : 10 NOVEMBER 2010

[1] The applicant in this matter seeks an order declaring that a certain document ("the contested will") to be the will of the late Warden Francois Pietersen in accordance with section 2(3) of the Wills Act and condoning its non-compliance with the various provisions ot the Act relating to the drawing up of a valid will.

[2] A further order is sought authorising and instructing the fourth respondent, the Master of the High Court, to accept the contested will, in terms of the aforesaid section 2(3), as the will of the deceased.

BACKGROUND

[5] Beyond the fact that it was a result of natural causes, the circumstances of the deceased's death are somewhat obscure. It occurred while his was riding his bicycle on his way to visit members of his family. On the one hand it is described as an accident whilst other documentation indicates that he died of a heart attack. Be that as it may for the purposes of this application it must be accepted that he died of natural causes.

[6] Members of the deceased's family attended the day after his death at the offices of the first respondent who had wound up their father's estate. He advised them to search for a will. A search was conducted of the deceased's house and Ms. Oliphant emerged from his spare room with an original unsigned and undated document written in the deceased's handwriting on 3 sheets of a Unisa assignment writing pad and which reads as follows (including misspellings):
"TO ALL MY FAMILY AND FRIENDS:
Please know that I never wish or planned this tragedy to happen. I was never an angel or perfect, but strived to give only my best. Many or all of you would be disapointed, but this decision was mine. My estate After debt deductions
My House and Car, policy contributions, jewellery, clothing Including all contents eg. furniture, electrical appliance utensils etc. must go to  Mrs Tersia  Abrahams  (sister) (021)  988 9992  (Sole beneficiary). Other; 10% of my entire estate must go to: Mrs Carol-Anne Matsela, colleage, mother and friend. My remains must be cremated as I would have died a dishonourable death.
I would like to pay tribute to the following persons that impacted positively on my life in being.
Lecturer Mr Charles Rogers (Senior Lecturer, UNISA (0844677777) Employer and colleages at Spoornet Mrs Dijino Nasoro Mr Chris Sono Mr Neil Naidu. All Senior Management, Committee Members: Western Region My colleages and dedicated members of staff Loved ones
Pietersen family and other and in particular my sister Tersia Abrahams whom supported me ever since. Also the Frans Lotriet Family. There is many others, Thanks to them also. Furthermore,
I herewith declare that this writing replace all previous in respect of estate devide or last wishes expressed. Appointment as Executor of my Estate Mrs Carol-Ane Matsela (021 940 3414/083 459 3278) Immovable and Movable property (Home/Car) Must be immediately be taken in possession by Mrs Tersia Abrahams upon notice of death. Bank Accounts
Mrs Tersia Abrahams have full right to withdrawals from my bank accounts Standard Bank Savings: PIN-20182
Cheque : PIN - 34580
This will pay for the funeral ceremony."
[7] The first respondent forwarded the contested will to the fourth respondent who endorsed it as being invalid by reason of not having been signed or witnessed. Various members of the deceased's family, including the applicant and the second and third respondent, appear at times to have held differing views as to the basis upon which the deceased's estate should be wound up and differing instructions were furnished to first respondent. Applicant then engaged separate legal representation and, ultimately, this application ensued. I do not consider it material, for the purposes of this application, to detail the twists and turns of the various positions adopted by family members; suffice it to say that the papers reveal that this issue has unfortunately caused considerable dissension amongst them.

THE LAW
[8]    Section 2(3) of the Wills Act, which was amended by the Law of Succession Act 43 of 1992, provides as follows:
"If a court is satisfied that a document or the amendment of a document drafted or executed by a person who had 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 Estates 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 ss (1)"
[9] In Ex Parte Maurice 1995 (2) SA 713 Selikowitz J held that before a court can make an order pursuant to s 2(3) a Court must be satisfied that it has before it a document:
a)	which was drafted or executed by a person;
b)	who had since died; and
c)	who intended that document to be his/her will.

[12] In the present matter there is no dispute that the contested will was drafted by the deceased who died thereafter. The dispute between the parties is whether the deceased intended the document to be his will. The respondents contend that, having regard to the surrounding circumstances and, most notably, various alleged statements made by the deceased in the period before his death, he did not intend the document to be his will.

DISCUSSION

[15] This brings me to an examination of the various grounds advanced by the second and third respondents, singly or cumulatively, why the contested will, although admittedly drafted by the deceased, should not be declared to be his will. They both deny that the document was intended to be the deceased's will, first respondent pointing to the fact that it was found at his house amongst surplus notepaper and not in a place where one would expect to find any of the deceased's important documents. First respondent also relies on what she considers to be contradictory remarks made by the deceased prior to his death in which he indicated that her children would be cared for in the event that he died. Reliance is also placed by her on what she terms the "form" of the letter and its incomplete nature and the fact that shortly before his death the deceased was, according to her, under emotional stress and concerned about his health.

[17] Ms. Oliphant furnished an affidavit on behalf of the respondents in which she describes the stormy and abusive nature of their relationship. She states that the deceased told her in 2007 that, whilst considering suicide, he had written a letter to his family arising out of a dispute which he had with second respondent and in which letter he favoured certain family members. She stated that the deceased had then changed his mind and had torn up the letter in question in front of her.

[18] Ms. Oliphant also refers to assurances from the deceased shortly before his death in 2007 that he would look after her and all members of her family in the event of his death. She described how she found the contested will, stating that she looked in all the places where the deceased normally kept his documents but eventually found it amongst his study notes. Ms. Oliphant adds that she got the impression that it was a draft document which the deceased had written with the view to expressing his thoughts before writing the letter to his family which he had torn up in front of her. She does not, however, state her reasons for forming this impression or whether she had even read the letter which the deceased tore up in front her. Ms. Oliphant states further that the deceased did not draw up the contested will after he tore up the letter to his family but once again furnishes no reasons for making this claim. She also expresses the opinion that the deceased would not have left what he regarded as his will unsigned and unwitnessed amongst his study notes. According to her he would have put it amongst his important documents or in his safe. Her reasoning in this regard is that she knew the deceased as a well-organised and educated person who knew well what the requirements were for a valid will. Again, however, this broad assertion is not substantiated in any way.

[20] Even accepting that the deceased told various members of his family in the weeks and months before his death that they would be looked after upon his death, in contradiction of the terms of his contested will, this does not in itself cast any real doubt on his apparent intention as expressed by him in writing. There is, for example, no evidence that he was aware how his estate would devolve in the event of his dying intestate. Furthermore, these assurances were in most instances vague or generalized, never witnessed by more than one person, and with no clear indication that they were sincerely meant.

[21] The evidence given by Oliphant regarding the tearing up of the letter is, in my view, significant. It underlined the deceased's realisation that anything which he committed to writing was important and, by implication, that if he changed his mind in regard thereto the destruction of that document was desirable, if not necessary. Significantly, however, the deceased did not destroy the contested will but retained it amongst his private papers. First respondent referred to the contested will being found amongst the deceased's surplus notepaper but it is clear that she did not personally witness Oliphant finding the document. The latter's description is less dismissive, namely, that she found it amongst the deceased's study notes. The evidence regarding what important documents the deceased kept and where he kept them is scanty, if not non-existent, and I do not consider that an adverse inference can be drawn from the spot in which the contested will was found. It is also of some significance that, as is clear from the papers, for at least some period of time most, if not all, members of the family, including second and third respondents, regarded the contested will as expressing the deceased's last wishes. This can be inferred from the terms of a letter written by first respondent, at the time when he enjoyed the confidence of all of the parties, to the fourth respondent on the 20 July 2006. In it he asked whether the Master would support a planned application to court declaring the contested will valid.

[23] Taking a broad view of the surrounding circumstances, I do not consider that any of the various assurances made by the deceased plays a decisive role in the determination of whether he intended the document to be his will. What must carry much greater weight are the terms of the contested will which unequivocally point towards the deceased's intention that it would constitute his will. A further weighty factor is that although the deceased destroyed another document relating to his view of his family members shortly before his death, he did not destroy the contested will but kept it in a place of sufficient prominence for it to be found without any difficulty after his death.

[24] Taking all these factors into account and the undisputed evidence, I am satisfied that annexure "TA1" to the applicant's founding affidavit should be declared to be the deceased's will, nothwithstanding its lack of compliance with the formalities prescribed by the Wills Act. It follows that fourth respondent must be directed to accept annexure "TA1" as the deceased's will.

[25] There remains the question of costs. There is of course no question of any costs order against the first and fourth respondents who abided the Court's decision. The remaining parties were in agreement that whomsoever failed in the application should not have to bear the costs of the successful party, but that such costs should rather be costs in the estate. The second and third respondents have been unsuccessful in their opposition. However, I do not consider that it was unreasonable of them to oppose the relief sought by the applicant and in the circumstances I considered that the proposed costs order would be appropriate. The relief sought by applicant relating to condonation of the non-compliance with the formalities prescribed by the Wills Act is superfluous and subsumed by an order directing fourth respondent to accept the contested will.

[26]   In the result the following order is made:
1. The Master of the High Court, Western Cape Provincial Division, is ordered to accept the document marked "TA1" annexed to the founding affidavit of the applicant, as the last will and testament of Warden Francois Pietersen for the purposes of the Administration of Estates Act 66 of 1969.

2. The costs of the application, including the costs of second and third respondents, shall be costs in the winding up of the deceased's estate.

				JUDGE OF THE HIGH COURT