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

Case No 14436/2009

In the matter between:

and

HANS-PETER WOLFGANG

JUDGMENT
CLOETE AJ:

INTRODUCTION

[1] This is an application in which the applicant seeks an order declaring that the will of the late Kristian Jens Korsgaard ("the testator') dated 15 March 2008 ("the new will") is invalid and unenforceable to the extent that it purports to dispose of assets that constituted a part of the erstwhile matrimonial estate of the testator and his late wife Isabel Louisa Wilhelmina Korsgaard ("the testatrix"); and that the will of the testator and testatrix dated 28 March 1983 ("the joint will") is the will in terms of which their erstwhile estate should devolve.

[2) In the alternative, the applicant seeks an order declaring that the new will is invalid and unenforceable insofar as it purports to dispose of one half of the assets which constituted a part of the erstwhile matrimonial estate of the testator and testatrix. Coupled to the alternative relief sought are claims that (a) the joint will be declared to be the will in terms of which the aforementioned one half of such assets must devolve; and (b) the master (as third respondent) be directed to accept the joint will for this purpose.

[3] The applicant also claims costs jointly and severally against those of the respondents who oppose the relief sought together with an order for costs against first respondent in respect of an interlocutory application launched by the applicant during August 2010.

[4] An application by the applicant to strike out certain portions of the first and second respondents' answering affidavit as being scandalous and vexatious was abandoned by the applicant during the course of argument and thus need not be dealt with further.

[5] Just short of a week after the conclusion of argument, and after the matter was adjourned for judgment, the applicant delivered an application for condonation for late filing of certain confirmatory replying affidavits. To my mind, the applicant has failed to provide any explanation at all for the length of time she has taken to bring this application, particularly in light of the clear indication from the respondents that they objected to the late filing of the affidavits in question. At the very least, I would have expected an indication from applicant's counsel prior to the conclusion of argument that the applicant still intended to formally apply for condonation. No such indication was given and I consider it to be inappropriate for the application to be delivered at such a late stage. However, and in any event, whether condonation would or would not have been granted is to all intents and purposes irrelevant in light of my findings as set out below, and I accordingly do not deem it necessary to deal with the condonation application.

[6] Central to this matter and the relief sought by the applicant is the immovable property situated 19 Dysart Road. Green Point ("the immovable property"). This is the main asset of the testator's estate and was also the only asset of any value in the erstwhile matrimonial estate of the testator and testatrix.

[7] The application is opposed by the first and second respondents (for purposes of convenience, they will be referred to collectively in this judgment as "the respondents"). The third and fourth respondents do not oppose the relief sought in this application.

THE FACTS WHICH ARE COMMON CAUSE

[8] The testator was born on 26 October 1908 in Norway. He evidently arrived in South Africa in the early 1940's. whereupon he took up employment as a whaler, working on whaling vessels based near Cape Town. Sometime in the mid-1940 s the testator gave up whaling and took up employment as a rigger in the Cape Town harbour. Towards the end of 1946 the testator purchased the immovable property and it was registered in his name on 26 February 1947.
[9] On 11 March 1947 the testator and testatrix were married. The testatrix was the applicant's maternal grandmother, and the testator thus became the applicant's step grandfather. The immovable property was the matrimonial home of the testator and the testatrix. The testator continued to reside there after the death of the testatrix, until his own death.

[10] On 28 March 1983 the joint will was executed. On 11 February 1990 the testatrix passed away. It was only almost eight years later (on 4 December 1997) that two death notices were signed by the testator and one Maria Brink (a friend of the testatrix), and thereafter filed with the Master. The notice signed by Brink reflects, inter alia, that the testatrix had not left a will and was married by antenuptial contract. The notice signed by the testator also reflects that the testatrix had not left a will and specifically states that the parties were married out of community of property. Apart from any interest which the testatrix might have had in the immovable property, she had no other assets of any value. Her estate was finalised on 2 July 1998 when the Master addressed a letter to the testator advising that as the inventory filed with him reflected no assets at all. the estate was regarded as finalised.

[11] On 5 October 2005 the testator executed a will in which he bequeathed his entire estate to the second respondent, and failing him the applicant's daughter, one Tanya Gordon. The second respondent is the testator's nephew who resides in Norway.

[12] In April 2006 the testator engaged the applicant's attorneys of record to draw up another will, which they duly did. On 6 December 2006 the testator executed this will, in which the second respondent was appointed the sole heir of his estate and all reference to the said Tanya Gordon was removed.

[13] On 15 March 2008 the testator consulted with attorneys Scheibert & Associates and caused the new will to be executed in terms of which he again left his entire estate to the second respondent but, failing him, to the daughter of the second respondent, one Janne-Gry Sundby. In terms of the new will, the first respondent was appointed as executor. The testator passed away on 6 May 2008.

ISSUES TO BE DETERMINED

[14] The issues to be determined in respect of the main relief are the following:

14.1.   Whether the joint will is valid and has not been revoked:
14.2. If the joint will is valid and has not been revoked, whether the joint will is to be interpreted as reflecting a massing of the estate or estates of the testator and testatrix;
14.3. If the will is to be interpreted as reflecting a massing of such estate or estates, whether there was an adiation on the part the of the testator.

[15] If the applicant does not succeed in the main relief, whether the alternative relief sought is competent against the estate of the testator.

[16] Which party or parties should bear the costs, including those relating to the interlocutory application.

BURDEN OF PROOF

WHETHER THE JOINT WILL IS VALID AND HAS NOT BEEN REVOKED

[23] The joint will may have been destroyed by the testators before the death of the testatrix or indeed after her death by the testator. If the joint will destroyed after the testatrix's death and after adiation by the testator than that purported revocation would of course be ineffective. The respondents argue that there are a number of facts which point to the conclusion that the joint will was revoked (presumably by destruction) before the death of the testatrix, and in support of this submission they rely upon the following:
23.1. The testatrix's estate was reported to the Master by the testator on the explicit basis that she had died intestate;
23.2. There is no evidence that the testator was appointed as the executor of the testatrix's estate as is provided for in the joint will;
23.3. For the 18 years following the testatrix's death nothing was said or done by anyone (including the applicant) which in any way points to the recognition or existence of the joint will as an ongoing testamentary disposition;
23.4. The testator dealt with the immovable property (and his estate) in a manner which was at variance with the joint will;
23.5. The testator did not disclose the existence of the joint will to his erstwhile attorneys (the applicant's current attorneys), presumably as he knew that it was revoked in the past and that it did not bind him;

[26] It is clear that the onus rests upon the applicant to rebut the presumption that when a will which was last known to have been in the possession of the testator cannot be found upon his death he is presumed to have destroyed it with the intention to revoke it. However, for the reasons which follow hereunder, I do not believe it necessary to make a finding as to whether the applicant has discharged this onus, although, to my mind, the indications are that she probably has not.

WHETHER THE JOINT WILL REFLECTS A MASSING OF THE ESTATE(S)

[29] Before turning to the provisions of the joint will in the instant matter, it is useful to consider other cases in which the courts have been called upon to interpret whether the provisions of a will constitute a massing.

[35]   There is no provision in the joint will to this effect in the instant matter.

[37] From the authorities cited it is clear that a court will be reluctant to interpret a will as establishing a massing of estates if, read as a whole, the will does not express that intention clearly. Thus in the case of doubt, a massing will not be established.

[38] In the instant matter the joint will makes provision for two separate eventualities. These eventualities are contained in clauses 3 and 4 of the joint will.

[39] Clause 3 provides that in the event of the first-dying, the other would become the sole heir (or heiress) of the whole of the estate of the deceased (and would also be the executor of the deceased's estate). This is clearly an out and out bequest and is irreconcilable with a massing .

[45] An additional consideration is that one would have expected the joint will, if the intention was to create a massing of estates, to specify the manner in which the immovable property would be dealt with, or at the very least to specify the rights of the survivor in respect of the immovable property. This was simply not done.

[46] In light of the above, it is my view that the joint will has not established a massing of estates. However, if I am incorrect, then for the reasons which follow I am still not persuaded that the applicant is entitled to the relief claimed.
WHETHER THERE WAS AN ADIATION ON THE PART OF THE TESTATOR

[51] Counsel for the applicant conceded that the only reference to the testator and testatrix as having been married in community of property is to be found in the heading of the joint will. In my view, all of the other evidence strongly indicates that, in the testator's mind, he was married out of community of property and regarded the immovable property (registered in his name) to be his and his alone. The testator viewed (a) the immovable property as belonging to him only; (b) the testatrix's estate as being devoid of assets: and (c) he himself as being at liberty to dispose of his assets and estate as he saw fit (having executed three wills after the death of the testatrix). I agree with respondents' argument that each of these facts is in itself inconsistent and destructive of the adiation contended for by the applicant.

[52] I accordingly find that there was no adiation and accordingly the main relief sought by the applicant must fail.

WHETHER THE ALTERNATIVE RELIEF SOUGHT IS COMPETENT AGAINST THE ESTATE OF THE TESTATOR

[53] There were thus two separate testamentary dispositions made by the testator and testatrix, namely: (a) the testatrix's possible testamentary disposition in terms of the joint will, alternatively her estate would have devolved in accordance with the laws of intestate succession; and (b) the testator's testamentary disposition in terms of the new will.

[54] The enquiry into which assets devolved upon the testatrix's estate on her death, and which of these assets in turn devolved upon the testator's estate on his death, is a factual enquiry and one which does not have any bearing on the validity of the testator's new will. Accordingly, the applicant is not entitled to the relief claimed in respect of the new will.

[56] The claim for alternative relief directed at the Master appears to be nothing other than a variation on the same theme: just as the Master (and this court) cannot grant an executor powers outside of his letters of executorship, so to, neither the Master nor this court can grant the Master any powers outside of such letters of executorship.

[57] The alternative relief sought by the applicant lies, not against the testator's estate, but against the estate of the testatrix which is not a party to these proceedings. It accordingly follows that the alternative relief sought must also fail.

COSTS OF THE APPLICATION

[59] To my mind, this is a matter in which the costs should follow the result (which would thus include the costs of the interlocutory application). Respondents' counsel submitted that the matter is one of sufficient complexity as to warrant the employment of two counsel. I agree with this submission.

[60] In the result, the applicant's application is dismissed with costs, including the costs of two counsel.