Strauss v Strauss and Others [2023] ZAGPJHC 377
The plaintiff (H) instituted action in the South Gauteng High Court (Johannesburg) claiming that the joint will of his parents not only made provision for the situation where they died within 30 days of each other, but also if the survivor died after the expiry of the 30 day period without having made a subsequent will. The first (Z) and second (G) defendants are H’s siblings (sisters). Z is also nominated as the executor of the estate in the will, together with an independent person. The will is, in the words of the court, “… an inelegant and very badly drafted document.” The clause (4.2) in dispute reads:
“Slegs indien ons gelyktydig of binne 30(dertig) dae na mekaar te sterwe kom, in sodanige omstandighede waarin die langslewende nie ‘n verdere testament maak nie dan in daardie geval bemaak ons die geheel van ons boedel soos volg:…”
(“Only if we die simultaneously or within 30 (thirty) days of each other, in such circumstances in which the survivor does not make a further will, then in that case we will bequeath the entirety of our estate as follows.”) (our translation)
Certain bequests are then made to H. In a free-standing clause (5) the residue is bequeathed to Z and G. Z and G first averred that the will massed the estates of their parents, who were married in community of property, and argued that everything should fall into the residue bequeathed to them. Later they applied to change their pleas and abandoned this averment. They then argued that the part of the clause referring to the survivor dying without having made a further will must be interpreted only to apply if the parents died within 30 days of each other. Their mother died three years after their father. They argued that the estate must be divided equally between the three (H, Z and G) as an intestate estate. H was instrumental in building up the businesses left to him in the special bequests in clause 4.2.
The court (Moorcroft AJ) took cognisance of the common law presumption against intestacy as well as the principles of the interpretation of documents as set out in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) The court held, with reference to authorities, that a court should always attempt to attach an interpretation to the wording of a will that will lead to a sensible and not a nonsensical meaning. The court also came to the conclusion that the fact that clause 5 is not dependent upon clause 4.2, that intestacy cannot be the result. The court held that the only sensible interpretation of clause 4.2 is to be found by reading in the word “of” (or) before the words “… in sodanige omstandighede … (in such circumstances)”. This results in the special bequests to H to be held to be valid, while the residue goes to Z and G. The court accordingly ruled in favour of H and awarded him costs, including the costs of senior counsel.