Moodley v James and Others [2023] ZAKZDHC 92
Mr and Mrs P made a joint will on 30 April 2018. Mrs P passed away in September 2022 and Mr P in January 2023. Mr P did not execute a new will after Mrs P’s death. In clause 3 of the joint will the first respondent (J) is mandated to set up an inter vivos trust for the benefit of the applicant (A) as income and capital beneficiary, with J as the trustee of this trust. J failed to set up the trust after the death of Mrs P, which led to the launching of an application by A to order J to do so.
Clause 3 of the joint will reads:
‘Should we however die simultaneously or within 30 (thirty) days of each other, we revoke the bequest above and bequeath our separate estates to an inter vivos trust which is to be established by our daughter, Premajodh James of which our grandson, Alyster Moodley shall be the capital and income beneficiary.
…
Should the inter vivos trust not be established within a period of 30 (thirty days) after the executor gave the settlor a written notice to this effect, the said bequest shall devolve upon our children…’,
while clause 4 reads:
‘Should the survivor of us, survive the first dying by more that 30 (thirty) days and subsequently dies without leaving a will, the survivor bequeaths his or her estate as mentioned in clause 3 above.’
Although it does not appear from the judgement, the will most probably bequeathed the estate of the first-dying to the survivor in a clause preceding clause 3.
J opposed the application and brought a counter-application that Mr P died intestate, because the trust was not set up within thirty days as provided for by clause 3.
Counsel for A argued that the scheme which the testators tried to create in the will is quite clear, i.e. that if they died simultaneously or within 30 days of each other the trust should be set up (clause 3) and if the survivor died after a period of 30 days without having made a new will, the trust should similarly be set up (clause 4). Counsel for J argued that clause 4 cannot be applied as Mr P did not die without a will as he was a party to the joint will. As the joint will does not make provision for the situation that arose, i.e. that the trust was not set up within thirty days of the executor notifying J to do so and Mr P did not die without a will, neither clause 3 nor clause 4 can apply and Mr P’s estate has to devolve upon intestacy.
While remarking that the clauses are poorly drafted, the court (Hlatshwayo AJ) held that the will has to be interpreted in its full context and that the intention of the testators must be gleaned from this. The argument that Mr P did not die without a will as required by clause 4 does not hold any water. The intention is clear that, in the absence of both spouses and without a later (post the first-dying’s death) will the trust has to be created. It could not have been the intention to create the absurd situation that would arise if the trustee can just fail to set up the trust within 30 days and by doing so alter the devolution of the estate. The counter application was dismissed with costs, the application was granted with costs and J was ordered to sign the trust documents and lodge it with the Master within ten days of the order.
Comment:
This is another court case that could have been avoided by proper attention to the provisions of the will during the process of drafting it. Practitioners should always think through the process of interpretation of the clauses in the wills they draft.