Perumal v Janse Van Rensburg NO and Others [2025] ZAGPPHC 145
The applicant (P) and the deceased (S) entered into a relationship having met in January 2021 after S and the 2nd respondent (C) ended their relationship during 2020. C had a child (A) with S. P and S announced in July 2022 that they were to be married, and S made amendments to his will on his laptop computer on 10 July 2022 in the presence of P and sent this amended document to the 1st respondent (R), the executor in the deceased estate of S. During 2022 S suffered health setbacks, which eventually resulted in his death in April 2023. After having sent the amended will to R, P followed up on two occasions with R when he would receive the amended will for signature. According to R, he sent an amended will to S in August 2022. P brought an application to have the amended unsigned document condoned under the provisions of section 2(3) of the Wills Act, 7 of 1953. Under this section, a court shall order the Master of the High Court to accept a document as a will for purposes of administering the estate of a deceased person if such document was drafted or executed by the deceased person with the intention that it should be his/her last will. C was the only respondent opposing the application, both in her personal capacity as well as her capacity as parent of A, a minor. C averred that it could not have been S’s intention that the document be his last will, as he did not sign it at any time between July 2022 and his death in April 2023. However, the undisputed evidence was that S enquired on at least two occasions from R where his amended will was.
The court (Bam J) held that C’s averments amounted to nothing more than speculation and accepted that S drafted the amended will document. Therefore the only question was whether S had the intention that the amended document be his last will. Taking the enquiries made by S from R into consideration, as well as the fact that the amendments were clearly aimed at bringing his will in line with his relationship with P, the court held that it was clear that S intended that the document be his last will. The court accordingly ordered the Master to accept the document as the last will of S for purposes of the administration of his estate. Although costs are usually paid from the deceased estate in matters regarding the validity of a will, the court ordered C to pay the costs of the application due to her unreasonable opposition without any factual basis.
Comment:
It is not clear from the judgement which version of the amended document was accepted by the court – the amendments done by S and sent to R, or the amended will claimed by R to have been sent to S in August 2022. If the latter, then S clearly did not draft that particular document himself.
Practitioners should take care to ensure that their clients’ amended wills are properly executed by the client and witnesses as required by section 2(1)(a) of the Wills Act in order to avoid costly court applications to have documents condoned by court under section 2(3).
There is a marked difference in the approach of the court in this case and the court in Dryden v Harrison and Others.