IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Case no. 22321/2009

In his official capacity as joint-executor of the estate late Trudiana McOwen (Estate No 6903/2005)

In his official capacity as joint-executor of the estate late Trudiana McOwen (Estate No 6903/2005) 
v

CAPE TOWN

JUDGMENT HANDED DOWN ON WEDNESDAY, 23 MARCH 2011

CLEAVER J

[1]      This is an application in which the court is asked to interpret the terms of the will.

[2] The testatrix, Trudiana McOwen, passed away on 29 May 2005 and left a handwritten document in which she dealt with the distribution of her estate. The first respondent, to whom the testatrix had previously been married, was one of the beneficiaries named in the document and on 10 April 2006 an application by him for an order directing the Master to accept the document left by the testatrix as her will was granted by this court.

[3] The applicants, two attorneys at this court, were thereafter appointed co-executors of the estate of the testatrix. They had difficulty in interpreting the terms of the will and both they and the first respondent obtained opinions from counsel in regard to the interpretation. When they and the first respondent were unable to agree on an interpretation, they brought the application before me for a declaratory order interpreting the will and for certain other relief The opinions which the applicants obtained are included in the papers.

[4] Neither the second respondent. Sandri King, a beneficiary in terms of the will, nor the third respondent, the Master of the Western Cape High Court, opposes the application.

[5]      The will was written on two pages and takes the following form: 
Page One

Which I would like to be sold and the proceeds to go to Mr S R van Niekerk
Also al[ my investments which he has been managing.  - To disperse according to his
discretion"

"To: Mr S v. Niekerk:

I want Mr A le Roux to receive R100.00"
(A portion is heavily scratched out and signed by T McOwen.)

The rest for Mr v Niekerk's living expenses

(Signed by T. McOwen.)

[6]     The applicants seek the following relief:
1. That a declaratory order be issued interpreting the last will and testament of the late Trudiana McOwen.

4. Directing that First Respondent personally is only a beneficiary with regard to any balance still available in respect of the proceeds of the sale of the immovable property and/or the testatrix's investments after payment had been made to the other persons and institutions referred to on page 2 of the will.
5. Directing First respondent to furnish to the executors of the testatrix's estate and the Honourable Court, within 14 (fourteen) days after the issuing of this Honourable Court's order in this application, a detailed breakdown of the payments that he intends to make to each person and/or institution from the proceeds of the sale of the immovable property and the testatrix's investments.

[8] There is no dispute between counsel as to the principles to be applied when interpreting the will. The principles are set out in detail in the heads of argument submitted on behalf of the applicants which I quote hereunder with acknowledgement as to their provenance.
1. The fundamental object (the so-called 'golden rule' of interpretation) in interpreting a will is to ascertain the intention of the testator from the language used, as far as can be gathered from the will itself and from such extrinsic evidence as is admissible Tebbutt J summarised the approach to be followed as follows:

"... (I)n point of principle the whole object of construing a will is to find out the testator's intentions, so as to see that this property is disposed of in the way he wished. True it is that you must discover his intention from the words he used; but you must put upon his words the meaning which they bore to him. If his words are capable of more than one meaning, as they often are, then you must put on them the meaning which he intended them to convey, and not the meaning which a philologist would put on them."

2. To achieve this result, several canons (rules) of interpretation of our common law have been followed and developed by our Courts. Some of the most important rules for present purposes are:

2.2. "In interpreting a will it seems to me that the correct method of approach is, in the first place, to attempt to discover from the language used, the intention of the testators. Having discovered this intention one may then, if necessary, proceed to affix the appropriate legal labels to the dispositions of the testators.

2.3. 'The question is what the testator meant hy using the particular words. "
2.4. "If there is nothing in the will from which it is apparent that the testator has used the words in which he has expressed himself in other than their 'sthct and primary acceptation', and where his words so interpreted are sensible with reference to the intrinsic circumstances, they must be interpreted in their strict and phmary sense, and no other" (the so-called "plain meaning" rule)
2.5. "If the words used by the testator are clear and unambiguous, and no doubt as to the sense in which the testator intended to use them is raised by any other expressions in the will, or by any other circumstance manifestly appearing from the will itself, there is no room for rules of construction, presumptions or conjectures. '

2.6. "But the literal construction must be departed from if by necessary implication such departure is necessary to give effect to the true intention of the testator.

2.7. Unless a contrary intention is apparent from the will, common words must be given their ordinary meaning in the society in which the testator lived at the time when he made his will; technical or scientific words must be construed according to their technical or scientific meaning. Words having both a technical and popular meaning must prima facie be construed according to their popular meaning. Before evidence is given of the secondary (technical) meaning of a word, the court must be satisfied from the will itself or from the circumstances of the case that the word ought not to be construed in its popular or primary signification, but according to its secondary intention.
2.8. Words and phrases must be interpreted in the context of the will as a whole, including its arrangement and the general scheme it exhibits.

2.9. Full effect should be given to the dominant clause which bequeaths the legacy or institutes the heir and its effect should not be modified nor its meaning strained because there are other clauses in the will which apparently require this to be done, unless it is quite clear from these other clauses that the testator so intended.
2.10. 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. The Court puts itself in "the testator's armchair". The admission of -armchair" evidence does not. however, mean that the intention of the testator may be sought by reasoning or conjecture not founded upon the scheme in terms of the will.

2.11.  No provision may be implied into a will unless it is a necessary implication.

2.12. Where a will is perfectly clear there is no room for legal presumptions. When, however, the language of the will read as a whole is not clear, the Court mayapply certain legal presumptions when dealing with the interpretation of the will.

2.13. It is presumed that every word is meaningful; that when the same word is used more than once it is always used in the same sense, unless the words are applied to a different subject or the context indicates otherwise: and, conversely, that different words stand for different things.

Counsel for the first respondent also made reference to the presumption in favour of maximum benefit and minimum burden. This presumption includes the presumption in favour of immediate, as against postponed vesting, and a presumption in favour of unconditional bequests.

[9] It is necessary to say something about the background to the making of the will. The testatrix was a well-known actress in South Africa. She was a radio announcer for many years and produced the Good Hope Gospel program for Radio Good Hope. She was a devout Christian and both she and the first respondent were actively involved in church matters and spreading the gospel. She was married three times. During 1980 she was married to Anton le Roux, the beneficiary referred to in the will. Her second marriage was to the first respondent whom she married in 1990. The marriage was not successful because she was divorced from him in 2000. In August 2001 she married Garth McOwen ("McOwen") who is also referred to in the will and to whom she was still married when she died. The will of the testatrix was dated 27 December 2003 and she passed away some 16 months later in May 2005. After her divorce from the first respondent the testatrix maintained a fairly close relationship with him in that he continued to advise her with regard to her financial affairs and her investments. The first respondent admits that for long periods he was not engaged in any formal salaried employment as he has devoted his life to the calling of Christianity over many years, but he says at the same time he also acted as business advisor to a number of persons and institutions connected to Christianity for which he was from time to time paid fees or commissions. In exchange for his devotion to the Gospel, he relied to a large extent on the assistance of friends and family who supported him because of his efforts to promote Christianity. At the time he signed his affidavit he was living in a flat at his father's residence and was financially assisted by his father, family and a family trust. He agrees that the testatrix assisted him financially from time to time.

[10] McOwen filed a claim against the estate in terms of The Maintenance of Surviving Spouses Act 27 of 1990 and it is common cause that his claim was settled after negotiations between the parties. He has no further interest in the proceedings.

[11]   As far as interpreting the will is concerned, it is trite that it must be viewed in its
totality. As to the manner in which the will was written, I agree with the following comments of
Adv W Burger SC, one of the counsel from whom opinions were obtained, namely
"DH is blykbaar met 'n mate van haas geskryf aangesien dit nie in 'n iogiese of sistematiese vorm is nie. Sy het haar gedagtes en wense neergeskryf in die volgorde wat hutle by haar opgekom het"
To this I would add that the testatrix's use of grammar is clumsy.

[12] Page 1 of the will is addressed to Mr Andre du Ptessis, the brother of the testatrix who is told what the testatrix wishes to be done is set out on that page. Page 2 is addressed tothe first respondent who is given instructions as to how he is to deal with the amounts bequeathed to him.

On behalf of the first respondent it was submitted that the word "a/so" suggests a new thought, that the absence of a full stop after the reference to S R van Niekerk is not a determining factor and that the hyphen relates only to a new sentence. With this as basis, he submitted that the word 'also', which starts with what appears to be a capital A is intended to reflect a separate and additional thought of the testatrix and not. as was contended on behalf of the applicants, to indicate a link between the proceeds of the immovable property and the investments.

[14]   To start with, the interpretation advanced on behalf of the first respondent requires a
strained and unusual meaning to be given to the word 'also', even if the initial letter 'A' is a
capital letter. The ordinary meaning of the word is inter alia:

The rest for Mr v Niekerk's living expenses

[18] On behalf of the applicants, it was submitted that in the event of orders in terms of prayers 5 and 6 not being granted, I should consider directing that the first respondent should be ordered to furnish security for his due performance of the modus. No such application was advanced in the papers and the first respondent has not had an opportunity of dealing with the submission. In any event, I do not consider that on the papers such an order would be justified.

[20]   In the circumstances the following orders will issue:
1. The first respondent's counter-claim is dismissed

3.	The first respondent personally is only a beneficiary with regard to any balance still available in respect of the proceeds of the sale of the immovable property and/or the testatrix's investments after payment has been made to the other persons and institutions referred to on page 2 of the will.

The costs of both the applicants and of the first respondent calculated on an attorney and own client scale are to be paid out of the proceeds of the estate.