Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

and

(WESTERN CAPE HIGH COURT, CAPE TOWN)

In re:
ESTATE LATE GILLIAN MARY WHITING

JUDGMENT DELIVERED ON 20 SEPTEMBER 2011

MANTAME, AJ
[1] This is a review application by the Applicant against the refusal of the First Respondent to sustain an objection in terms of Section 35(10) of the Administration of Estates Act 66 of 1965, herein referred to as the "Act".

[3] Applicant was legally represented by Mr. Steenkamp and the Second Respondent was represented in court by Mr. Gess. First Respondent elected to abide by the decision of this court.

[5] During 1994 Applicant and the Late Whiting decided to share a home and the Late Whiting purchased a property known as 53 Paradise Road, in Newlands that was bonded and registered in her name. For the sake of convenience the property will be referred to as the "Newlands Property".

[6] Whilst the relationship was in existence, Applicant was permitted by Late Whiting to erect a flat let adjoining the house on the Newlands Property, at his own expense. This project was completed during 1996. Upon the flat let being completed the expense was calculated and that the cost of the flat let represented 22 % of the total cost to date, in respect of the Newlands Property.

[7] Because Late Whiting was not in a position to immediately compensate Applicant for the improvement, an agreement in the form of a written contract was concluded whereby Applicant would receive consideration of 22% of the value of the Newlands Property upon its sale or upon the Late Whiting's passing.

[8] On 8 November 1997, a written agreement was concluded between the parties. The relevant clauses were as follows:

"2. ACKNOWLEDGEMENT

The parties acknowledge that:
2.1. GMW is the registered owner of certain property situated at 53 Paradise Road, Newlands, Cape Town, being REMAINDER ERF 50004 CAPE TOWN AT NEWLANDS and ERF 50005 CAPE TOWN AT NEWLANDS (hereafter referred to as "the Property").
2.2. GMW gave permission to JRR to erect a flat let adjoining the house on the property, which flat let was completed during 1996, atJRR'scost.
2.3. In view of 2.2 above, JRR's investment represent a 22% (TWENTY TWO PER CENTUM) share in the property.

3. DISTRIBUTION OF SHARE

3.1 In the event of JRR predeceasing GMW, then on the death of JRR:
3.1.1. The executor in the estate of JRR shall procure a valuation of the property;
3.1.2. JRR's share representing 22% (TWENTY TWO PER CENTUM) of the valuation of the property shall be paid into his estate by GMW within a period of 2 (TWO) years from the date of death of JRR.
3.2 In the event of GMW predeceasing JRR, then on the death of GMW:
3.2.1. the executor in the estate of GMW shall sell the property, and pay over to JRR on registration of the transfer, an amount representing 22% (TWENTY TWO PER CENTUM) of the net proceeds of the sale.

4. SALE OF PROPERTY DURING LIFETIME OF GMW
4.1. In the event of GMW wishing to sell the property, she shall give JRR 2 (TWO) months written notice of her intention to do so before any offer or agreement of sale is signed.
4.2. On registration of transfer of the property, GMW shall pay over to JRR an amount representing 22% (TWENTY TWO PER CENTUM) of the net proceeds of the sale.

….......

6. BINDING ON EXECUTORS AND ESTATES

This agreement shall be binding on the executors and the estate of the parties".

[9]     On the 9 November 2005, whilst The Late Whiting owned" and resided at the Newlands property, she executed her last will and testament. The relevant portions of the will were as follows: 

2.1.1 I bequeath an amount of R30 000 to Dr. Joselle Raymond Reuben.

…...........

…............

2.2 Specific Bequests

2.2.2. I direct that my fixed property shall be sold to best advantage by the Executors and I bequeath to Dr. Joselle Raymond Reuben 22% (TWENTY TWO PERCENT) of the net proceeds thereof (that is after deduction of all costs related to the sale and after deduction of the amount of the bond, if any, outstanding on my fixed property on the date of my death less 22% (TWENTY TWO PERCENT) of the balance of the bond outstanding at the date of my death".

[12] The Late Whiting then subsequently purchased a property in Rondebosch known as 33 Sangrove Drive, Rondebosch. For the sake of convenience this property will be referred to as "the Rondebosch Property".

[13] On the 31 December 2006 the Late Whiting passed away. At that particular time she was living in the Rondebosch Property. However the proceeds of the Newlands Property had not yet been paid to the Applicant.

[15] Furthermore, Applicant contended that he is entitled to receive two amounts from the estate of Late Whiting over and above the bequest of R30 000 in clauses 2.1.1 of the will and testament as quoted above. Therefore, the Applicant submitted that the refusal by the First Respondent to grant him the two benefits does not have any foundation in law.

[17] On 12 September 2008, Applicant objected in writing to the subsequently amended liquidation and distribution account dated 12 August 2008 and contended that:-
17.1. He was entitled to R253 075.00 (representing 22% of the net proceeds of the Newlands Property in terms of the written agreement; and in addition thereto.
17.2. He was also entitled to 22% of the net proceeds of the Rondebosch Property in terms of the Will as a legatee in the amount of R223 716.42.
[18] On 8 May 2009 First Respondent refused to uphold the Applicant's objection and held that the second liquidation and distribution account correctly awarded R253 075.00 (being 22% of the net proceeds of the Newlands property) to the Applicant in terms of the written agreement. Furthermore, he found that the Applicant's claim to the legacy which he claimed 22% of the net proceeds of the Rondebosch property, had been correctly rejected.

[19] Mr. Steenkamp, counsel for the Applicant, argued that the executor incorrectly found an ambiguity in the will if regard is had to the written contract. According to Mr. Steenkamp, there is no ambiguity in the will. It is only when one reads the two documents when ambiguity arises. It is therefore upon this court to have regard on whether there is existence of this ambiguity.

[20] Mr. Gess, counsel for the Second Respondent, on the other hand argued that Section 35 of the Act deals with a review of a decision or refusal of the master to sustain an objection by an aggrieved party. Pursuant to that objection and the refusal to sustain same, the aggrieved may apply to court for an order setting aside the decision of the Master. He submitted further that this court has to determine whether the First Respondent was right or wrong in refusing the objection by the Applicant.

"Consequently where his intention appears clearly from the words of the will, it is not permissible to use evidence of surrounding circumstances or other external facts to show that the testator must have had some different intention. At the same time no will can be analyzed in vacuo. In interpreting a will the Court is entitled to have regard to the material facts and circumstances known to the testator when he made it: it puts itself in the testator's armchair. "

[24] Furthermore, he argued that though this court is dealing with the interpretation of a will, it must not lose sight of the fact that there is a contract to be interpreted in parallel.

[26] Mr. Steenkamp submitted that should the Court allow extrinsic evidence, it would have a potential of opening the floodgates for anyone to come and dispute the contents of the will. Therefore Applicant is entitled to the so called double benefit.

[27] Mr. Gess, counsel for the Second Respondent contended that the KPMG decision could not be sustainable in the current matter, more particularly that the Supreme Court of Appeal dealt with a matter involving a contract and not the Will. The SCA did not state that evidence could or should not -be reviewed to contextualize the document to establish its factual matrix or purpose, but rather stated that such evidence may be admissible ("since context is everything"). He stated further that such evidence should be used as conservatively as possible (at 409 G-J). These comments are made in the context of the parties having sought to introduce extensive inadmissible expert evidence to interpret a contract.

[28] The court did not state that evidence to contextualize the document to establish its factual matrix or purpose, was only admissible or receivable in circumstances where the contract was unclear or ambiguous.

[34] As far as Applicant is concerned the Executor wishes to read additional words and/or phrases into the Will, which will have the effect of making a cross reference to the agreement. Further, there is no application for rectification of these documents before court and as such could not make any comment and therefore prays for the order as set out in the notice of motion.

[45] I have taken note of Mr Steenkamp's submission that when regard is had to the two documents, they must be read in parallel. I cannot find any justification on this approach. In my view one could not separate one document from another as they are the primary cause of this litigation.

"The general rule is that, in construing a will, the court is entitled to put itself in the position of the Testator with reference to which she is to be taken to have used the words in the will, to those facts and circumstanceswhich were (or ought to have been) in the mind of the testator when he used these words".

[49] Reading the two documents together, I therefore come to the conclusion that the testatrix, Late Whiting had "good intentions in her heart" to compensate the Applicant for the flat let he erected at her premises. This conclusion is based on the fact that the Late Whiting had already benefited her partner by leaving him a cash legacy of R30 000.00. Though the debt was taken care of in the contract, the testatrix wanted to make sure that the Applicant got paid what was due to him and further inserted the clause in the will that is more or less the same as that one in the contract.

[52] Applicant is seeking to review the First Respondent's refusal to sustain his objection against the final liquidation and distribution account of the Estate Late Gillian May Whiting, alternatively that First Respondent's refusal to sustain objection of Applicant against the final liquidation and distribution" account of the Estate Late- Mary Whiting, be sustained; that the objection of applicant against the final liquidation and distribution account of the Estate late Gillian Mary Whiting be sustained; that it be declared that applicant be deemed to be a legatee of the Estate Late Gillian Mary Whiting; that it be declared that, in addition to the aforesaid that applicant be deemed to be a creditor in terms of his claim of R253 075.00 against the Estate of late Gillian Mary Whiting and the order for costs.

[53] The Second Respondent initially prepared a first liquidation and distribution account in the Estate late Gillian Whiting and awarded the applicant the amount of R223 716.42 which represented 22% of the net value of the Rondebosch Property. Applicant was awarded nothing in terms of the written contract relating to the Newlands property.

[54] The Applicant then objected in writing to the First Respondent against the first liquidation and distribution account, on the basis that he was not only entitled to the amount of R223 716.42 (representing 22% of the net proceeds of the Rondebosch Property) but also that he was a creditor of the Estate late Whiting by virtue of the written agreement, and accordingly entitled to the further amount of R253 075.00 plus interest representing 22% of the net proceeds of the Newlands property.

[55] Subsequent to that objection the first liquidation and distribution account was awarded and a new liquidation and distribution account was lodged on the 12 August 2008.

[56] On the amended liquidation and distribution account, Applicant was to receive 22% of the net proceeds of the sale of the Newlands property in terms of the written agreement (i.e. an amount of R253 075.00). Applicant was not awarded any benefit in terms of the Will.

[57] On the 12 September 2008, Applicant objected in writing to the amended liquidation and distribution account and contended that:
57.1. He was entitled to R253 075.00 representing 22% of the net proceeds in terms of the written contract.
57.2. He was also entitled to R223 715.42 representing 22% of the net proceeds of the Rondebosch property in terms of the will.

[58] On the 8 May 2009 the First Respondent decided to uphold the Applicants objection, and held that the second liquidation and distribution account correctly awarded R253 075.00 representing the 22% of the net proceeds of the Newlands property to the Applicant in terms of the written agreement and found that the Applicants claim to the legacy which he claimed, representing 22% of the net proceeds of the Rondebosch property, had been rejected.

[59] I am of the view that the First Respondent took the same consideration as mentioned herein above. I fully agree that he made a fair and correct decision by only awarding benefit to the Applicant in terms of the contract and not in terms of the Will. It appears rational that the Late Whiting intended to repay the debt she owed relating to the Newlands property, as there was no other property at the signing of the contract and execution of the Will. I am of the firm view that no reasonable person can create an obligation to a property that is not yet in existence.

[60]    Consequently, I make the following order:
- Applicants' application for condonation and review is dismissed;
- The amended liquidation and distribution account lodged on
the 12 August 2008 will serve as the final liquidation and
distribution account, in as far as the Applicant's credit and
inheritance is concerned;

MANTAME, AJ