Delport v Le Roux and Others [2022] ZAKZDHC 51
The applicant (D) brought an application under section 2(3) of the Wills Act, 7 of 1953 (the Act), asking the court to declare a document allegedly signed by the deceased (LR) as his last will and testament. The first respondent, the deceased’s estranged wife, had passed away by the time the case came to court. The second and third respondents (BR and BS) are the deceased’s daughters from a previous marriage, while the fourth respondent is the first respondent’s grandson who was adopted by the deceased and the first respondent. BR and BS opposed the application, while the fourth respondent did not. The fifth and sixth respondents, the Master’s of The High Court in KwaZulu-Natal and Gauteng indicated that they will abide the decision of the court.
An accountant (SR) alleged in his affidavit that he drafted the document on instructions of the deceased and took it to the deceased, who signed it. SR then took the document to T, the wife of his business partner, and N to sign as witnesses. T and N were not in each other’s presence when they signed and neither of them was in the deceased’s presence when they signed as witnesses. It was therefore common cause that the document did not comply with the formality requirements for a valid will as provided for in section 2(1)(a) of the Act. The document bequeathed 70% of the residue of the estate to D and 10% each to BR, BS, and one AdP, described in the judgement as the deceased’s partner.
BR and BS alleged that their father would not have made the bequests in the document and that he did not change the beneficiary nominations on his life policies.
The court (Mlaba J) was unconvinced that the deceased intended the document to be his last will and testament, and also found that the deceased did not draft the document. The application was dismissed with costs.
Comment:
Although BR and BS made the averments referred to above, no specific allegations were made refuting the affidavit of SR that the deceased signed the document. It also seems that the court did not regard “draft” and “execute” as two separate actions as envisaged in section 2(3), and held that because he did not draft the document section 2(3) cannot apply.
Be that as it may, the lesson for fiduciary practitioners is to ensure that at all times that will documents are executed in strict accordance with the prescripts of section 2(1) of the Act.