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Court case about “will” not signed by witnesses

Marshall v Baker NO and Others [2020] ZAWCHC 13

H executed his last valid will on 9 October 2011 in which he nominated his niece, the first respondent (in her official capacity) (LB), as executor.  The applicant (M) approached the court under section 2(3) of the Wills Act, 7 of 1953, for order to the Master of the High Court, Western Cape, to accept as his last will and testament a note H made on 7 October 2018.  M’s undisputed version was that H wanted to get his affairs in order as he was to undergo cardiac surgery on 8 October 2018.  H signed and dated the note, took a photograph of it with his cell phone, and sent it to the eighth respondent (CB) together with a WhatsApp message which read as follows:

‘Bakes, here are some thoughts regarding an updated Will which has not been legalized yet. For the record If something should happen, I would like my ashes scattered on the Bushmans river. Kins.’

To this CB responded six minutes later:
‘OK – will arrange accordingly – will finalize with you over Christmas – will also need to decide how you will deal with the bond on the property – thinking of you tomorrow – sure all will be well.’

H responded one minute later with:
‘Thanks Bakes Boet.’

M and H were life partners for many years, from well before the execution of the 2011 will until H’s death on 17 October 2018.  The note in question consisted of blocks and arrows with descriptions of certain of H’s property and names of persons he wanted to inherit those.

The court (Cloete J) dealt with the requirements for an order under section 2(3), i.e. that the court must be satisfied that the document in question have been drafted or executed by the deceased (H in this case), and that it was intended to be his last will and testament or an amendment of his will.  Due to the contents of the WhatsApp messages, especially the last one from H to CB, the court was not convinced that H intended the note to be his last will.  The court rejected M’s argument that H would have known that, should he die before the document could be formalised, a court order such as the one requested could be obtained.

Comment:
Fiduciary practitioners should take great care to ascertain the status of instructions to draft a will sent to them.  It is of the utmost importance to determine, at that stage, what the client intends to be the status of any instructions in writing sent to the practitioner as it can be, like in this case, the determining factor in an application under section 2(3).
 

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