Roux NO and Another v Stemmet NO and Others [2023] ZAWCHC 222
The deceased (LDS) executed a valid will in 2018 in which he bequeathed the residue of his estate to his three children. In July 2021 LDS was hospitalised and diagnosed with Covid19. On 25 July he contacted W and indicated that he wanted to change his will to bequeath everything to the Willemse Boerderytrust (the trust). On 30 July he contacted W again by video-conference from hospital and repeated his request. W contacted an attorney (B) to draft a will for LDS, which B delivered the next day. When W brought the will to hospital he was not allowed to see LDS due to the prevailing Covid19 protocols. Hospital staff took the will to hand it to LDS. LDS was then in the intensive care unit as he was in an induced coma in order for him to be intubated as part of his treatment. LDS never came out of the coma, never recovered and died without signing the will.
The trustees of the trust instituted action for the 2018 will to be declared revoked under sec 2A(c) of the Wills Act, 7 of 1953 (the Act), and the drafted will to be his last will.
Sec 2A provides:
“If a court is satisfied that a testator has—
(a) made a written indication on his will or before his death caused such indication to be made;
(b) performed any other act with regard to his will or before his death caused such act to be performed which is apparent from the face of the will; or
(c) drafted another document or before his death caused such document to be drafted,
by which he intended to revoke his will or a part of his will, the court shall declare the will or the part concerned, as the case may be, to be revoked.”
The defendants, the executor of the estate and children of LDS raised four exceptions to the trustees’ plea: 1) That LDS could not have the intention to revoke his 2018 will by way of the will drafted by B as he had never seen this document, 2) the plaintiffs (the trustees) did not plead on what grounds the drafted will could be accepted as LDS’s will, specifically not under what provision of the Act, 3) in so far as the trustees rely on sec 2(3) they did not plead on what basis they could do so as LDS did not draft or sign the document and, in fact, never had sight of it, and 4) the recorded video conference cannot serve as a will. This last point was conceded by counsel for the trustees during argument.
Section 2(3) of the Act provides:
“If a court is satisfied that a document or the amendment of a document drafted or executed by a person who has 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 of Estates Act, 1965 (Act No. 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 subsection (1).”
The court (Pangarker AJ) upheld the first three of these exceptions and ruled that:
The provisions of sec 2A must be interpreted strictly and the trustees had to plead and prove that LDS had formed the animus revocandi on the basis of the drafted will, which was clearly impossible as he had never seen the document.
The trustees had to plead clearly on what they based their plea for the drafted will to be declared a valid will, which they failed to do.
As LDS did not draft, nor execute, the document sec 2(3) of the Act cannot be applicable.
The court set aside the trustees’ particulars of claim (POC) and granted them 30 days to amend their POC.