Anderson and Another v Du Plessis N.O and Others [2025] ZAWCHC 243
HJA and KRA executed a joint last will and testament in 2001 with the intention, according to their children (MRA and CAA, the applicants), to ensure that KRA’s inherited wealth of German origin remains in the family. In the will they massed their estates and bequeathed the massed estate to the survivor, with further directions as to how it must devolve upon the death of the survivor. After KRA’s death the German authorities refused to accept the will as valid. This prompted HJA to approach the District Court of Kassel in Germany which ruled the will valid on the basis of the German Civil Code and HJA’s South African citizenship. HJA then received the inheritance under the joint will and massed estate and treated it as his own after 2003. Sometime between 2003 and 2018 HJA entered into a relationship with BR (3rd respondent) and married her. In 2018 HJA executed a new last will and testament in which F (1st respondent) was nominated as executor, and BR as sole heir. In 2021 HJA executed a further last will and testament dealing with his assets in the United Kingdom and the Channel Islands. This will bequeathed everything to BR, MRA and CAA. In 2023 HJA died and F was appointed as executor in his deceased estate.
The two applicants brought an application for an order directing the Master of the High Court to accept the 2001 joint will as HJA’s last will for his South African estate, to appoint as executor of this estate such persons as they as beneficiaries under this will may nominate, that such executor shall wind up HJA’s estate under the provisions of the 2001 will in so far as HJA’s estate originates from the massed estate, and that any assets amassed by HJA after KRA’s death and not coming from the massed estate be distributed according to the 2018 will. They argued that massing and adiation clearly occurred through HJA’s acceptance of the benefits under the joint will and that, once a person has adiated, that person is irrevocably bound to the terms of the joint will under which massing occurred. Only new assets acquired from sources other than the massed estate need not be dealt with under the joint will.
Only the 3rd respondent, BR, and her son, SR (4th respondent) opposed the application and argued that, while the joint 2001 will is valid, it cannot be binding in South Africa as it would unconstitutionally limit HJA’s freedom of testation and would disinherit BR. They did not dispute that HJA inherited the massed estate and that massing and adiation occurred. They also argued that, because the Master did not participate in proceedings the application cannot be heard and should be dismissed with costs, and also that two valid wills cannot exist with respect to the same estate.
The court (Slingers J) interpreted and applied section 37 of the Administration of Estates Act, 66 of 1965, and held that all the elements of massing were present and that HJA clearly adiated by accepting the benefits under the joint will. Adiation prevents the survivor to alter or revoke his/her own dispositions under the joint will dealing with the massed estate. Election to adiate or repudiate is final and irrevocable. Therefore HJA adiated when accepting benefits and stated that to the Kassel court under the joint will which is valid and binding in South Africa. The respondents’ argument about the absence of participation by the Master was rejected. The court granted the application, as prayed, with costs.