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IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO: 15741/2012

In the matter between:

VERONICA MAUD SMITH ......................................................Applicant

and

SHARON PATRICIA SAMPSON ..................................1st Respondent

MASTER OF THE HIGH COURT,

CAPE TOWN ...............................................................2nd Respondent

JUDGMENT : 14 FEBRUARY 2013

TRAVERSO, AJP:

[1] The applicant is the widow of the late Leslie Francis Smith. She is applying for an order that the Master of the High Court be ordered accept a copy of an unsigned Will which is attached to the papers of the applicant, as the Joint Last Will and Testament of the applicant and the late Leslie Francis Smith (“the deceased’), for the purposes of the administration of the deceased’s estate in terms of the Administration of Estates Act, No. 66 of 1965 (“the Act). Secondly, the applicant moves for an order that the document accepted by the Master as the Last Will and Testament of the deceased be declared revoked by the reconstructed Will as contemplated by the provisions of section 2A of the Wills Act, No. 7 of 1953.

[2] There is a further alternative prayer, but in view of the conclusion to which I come, it is not necessary to consider it.

[3] The facts in this matter are as follows: The deceased and the applicant were married in community of property on 25 May 1957. It appears that the marriage was a stormy one and that for certain periods they were separated. In 1992 the deceased executed a Will in terms whereof he bequeathed his entire estate to Sharon Barters (now Sampson), the first respondent. She is a daughter of the parties. He also appointed her the executrix of his estate. At the time when he executed this Will he was separated from the applicant. There are six children born of the marriage between the applicant and the deceased, and the first respondent is the third eldest of their children.

[4] The applicant contends that during or about the beginning of 2002 the deceased and her decided to have a Joint Last Will and Testament drafted in terms whereof they would mass their joint community estate and appoint the survivor of each of them as the sole beneficiary of the entire estate upon their deaths. It was, so the applicant contends, further decided that they would leave the appointment of further heirs and heiress’ to the discretion of the surviving spouse. The instruction to draft the Will was apparently given to their son-in-law, one Suleiman Chotia, who allegedly prepared a draft Will.

[5] The deceased passed away in 2009, and both Mr. Chotia and the applicant have been unable to find the Will. All Mr. Chotia could furnish the applicant with was a “draft copy” of the Joint Last Will. This “draft copy” is however a reconstructed Will. This document is annexed to the papers.

[6] After the death of the deceased, his estate was reported to the Master as being intestate in 2005, and the applicant was appointed as the Master’s representative by virtue of the fact that she was married to the deceased in community of property and was also the sole heir of the his estate.

[7] The applicant alleges that towards the end of 2010 she received correspondence from the Master advising her that the first respondent had been appointed as the person authorised to take control of the assets of the estate. This was after the 1992 Will had been presented to the Master. The applicant does not appear to have any knowledge of this Will. She states that this Will was contrary to the wishes of both her, and the deceased, in that neither of them wanted only one child to inherit to the detriment of the others.

[8] The Master accepted the 1992 Will (which complies with all the prescripts for a valid Will) and nominated the first respondent as the executrix of the deceased.

[9] Mr. Chotia filed a supporting affidavit but, with respect, this does not take the applicant’s case much further as he has no independent record such as contemporaneous notes from which he could refresh his memory. He in fact states in terms that he has no independent recollection of the provisions of the Will and had to rely on what he was told by the applicant. At best he can confirm that he recalls having drafted a Joint Last Will and Testament for the applicant and the deceased.

[10] As stated above, when the applicant and/or Mr. Chotia on her behalf reported the estate to the Master it was reported as “intestate”.

[11] The Master’s report explained in detail why the 1992 Will was accepted. He points further to certain inconsistencies in the applicant’s version, inter alia, in reporting the estate as being “intestate”. This led to the applicant filing a supplementary affidavit in which she attempted to explain her case and tries to explain why she is now asking the Master to accept a reconstructed version of the Will rather than an unsigned one. She also explains why she initially reported the deceased’s estate as being intestate by saying she did so for “practical” reasons. This explanation is unsatisfactory.

[12] It is well established that where the original Will has been lost or destroyed it will necessary to apply to Court for an order declaring a copy of the Will to be the Will of the deceased and an order authorising the acceptance by the Master of the copy. However where no copy of a lost Will is available, evidence is admissible to prove the contents of the Will, and where such evidence satisfactorily establishes the contents of the Will, a Court will order that the reconstructed Will will be accepted as the Last Will of the testator. However, in order to grant such relief the Court must be satisfied that the reconstruction is both accurate and complete. The onus to prove this on a balance of probabilities is on the party seeking the relief.

[13] I need go no further. The applicant’s application is replete with inconsistencies. The supporting affidavit of Mr. Chotia takes the matter no further. He confirms, quite fairly, that he has no independent recollection as to when he took the instructions to draft the new Will. He only knows that it was subsequent to September 1992. He then makes the vague statement that he assumes that their Last Will and Testament would have followed the normal format of the joint Last Wills that he drafted for parties married in community of property. He then proceeds to say that he was “advised by the applicant about the contents of the Will as he cannot clearly remember the specific details of the Will. These allegations are so vague that it really means nothing at all. This Court can therefore not be satisfied that the evidence regarding the reconstruction of the Last Will is either accurate or complete as is required by the law.

[14] I need not go into details, but the reconstructed document attached to the applicant’s founding affidavit includes provisions which, on the applicant’s own case, were not part of the instructions to Mr. Chotia, nor did they form part of the applicant’s instructions to Mr. Chotia when he attempted to reconstruct the Will. I mention but one example. The reconstructed document provides, in clause 5 thereof, that the immovable property be sold at market value and the proceeds divided in equal shares amongst the children. Neither the applicant nor Mr. Chotia alleges that that was part of the instructions to him in drafting the Will. Furthermore, the provision requiring a property in an estate to be sold will not normally be part of a standard Will prepared by an attorney for parties married in community of property. Considering that the deceased died in 2005 and that only in 2012 this application was launched, it is highly unlikely that either the applicant or Mr. Chotia will have a clear recollection of what was contained in the document. There are other inconsistencies but I do not believe that it is necessary for me to deal with it as, in my view, the applicant has failed to make out a case.

[15] In addition, the Master advised the applicant on 3 March 2011 that she was entitled to apply to Court within 30 days for an order restraining the Master from removing her from office. No such application was launched by the applicant, as a result whereof the Master appointed the first respondent as his representative of the estate in terms of section 18(3) of the Act on 3 May 2011. The deceased’s half share of the property was transferred to the first respondent on 18 July 2011. The application was issued in August 2012, more than 12 months after the sole asset in the estate had been transferred to the first respondent. The applicant does not take the Court into her confidence as to why there was this long delay. In the circumstances I have no reason to doubt that the Master was correct in accepting the 1992 Will as the Will of the deceased.

[16] 16.1. In the circumstances the application is dismissed.

16.2 No order is made as to costs.

TRAVERSO, AJP

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