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Court case: recission of order to declare document a will – Lourenco and Another v Lourenco and Others

Lourenco and Another v Lourenco and Others [2023] ZAGPJHC 796

The applicants (R and T), the children of the deceased, brought an application for the recission of an order of the court declaring a document (the document) the last will and testament of the deceased. The document consisted of instructions to the third respondent (CL) for the preparation of a last will and testament for the deceased. The application for declaring the document the deceased’s last will and testament was brought by the surviving spouse and first respondent (L) in July 2020 and the order was granted by default in December 2020. Prior to the granting of the order, L and T were duly appointed as executors of the estate of the deceased. The administration of the estate commenced on the basis that it would devolve upon intestacy, which would mean that R, T and L would benefit from the estate. Disputes arose about the division of the estate, especially certain assets located in Portugal and claims by R against the estate. L then approached the court on application with the document to have it declared the deceased’s last will and testament. L did not cite R or T as respondents, but only the Master of the High Court, and also did not notify R and T. As there was no opposition, the order was granted by default. In February 2021, R and T learnt what had happened from SD, a consultant at CL who had been involved with the administration of the estate. The applicants wish to challenge the document, in due course, on the basis that it is not a will and that the deceased did not have the mental capacity to make a will. In the founding affidavit to the rescission application there is reference to an earlier joint will made by the deceased and his then spouse in community of property, the mother of R and T. This will was allegedly never revoked and, because it was not amended within 3 months of the divorce of the deceased and R and T’s mother, the mother is the only heir under this joint will.

L’s attorney argued that, because it is their mother who stands to benefit under the earlier joint will, R and T had no locus standi to bring the application for rescission under Rule 42(1) of the Uniform Rules of Court. Counsel for R and T argued that, by taking that argument, L concedes that she did not notify an interested party of the application to declare the document the deceased’s last will. In fact, L brought the application to have the document declared the will of the deceased on the basis that there were no other interested parties, which assertion was false. Furthermore T was a joint executor of the estate and as such an interested party.

The court (Fisher J) held that T had an interest in her capacity as joint executor of the estate, and that L’s application was based on the falsity that there were no other interested parties. This, alone, is enough to justify a recission under Rule 42(1). The court rescinded the order declaring the document to be the last will of the deceased. Because of L’s failure to notify interested parties and then defending the recission application, the court also gave a punitive cost order and ordered her to pay the costs on attorney and client scale.


This matter touches on several important issues:

  • There would not have been a dispute if the deceased had up-to-date estate planning and an appropriate valid will.
  • The previous point is even more important in cases of a second or further spouse, and children from a previous marriage.
  • The provisions of section 2B of the Wills Act, 7 of 1953, should always be borne in mind. Upon divorce a person has three months to write the ex-spouse out of the will, after which the ex-spouse will inherit again if the deceased’s will was not amended in the three months.

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