Hannes Roos v Pearl Saaiman N.O. and Others
Case no: 19759/16
In the above matter, Pagel Schulenburg succeeded in an application for a declaratory order that the signed will of a deceased individual be revoked and that her estate be administered in terms of the Intestate Succession Act 81 of 1987.
Background
On or about 28 September 1994, the deceased signed a will bequeathing her entire estate to her mother and appointing Absa Trust as the executor. In 2009, the deceased met her husband and on 7 May 2010 they got married in terms of an Antenuptial Contract.
The deceased signed a document addressed to Absa Trust Cancellation Division dated 5 December 2011, which read: “The abovementioned will was cancelled in 1999, but apparently not according to your records. I hereby instruct you to cancel and destroy the outdated will in Absa’s possession.”
The deceased passed away on 14 December 2015 following a motor vehicle accident. No children were born of the marriage between the deceased and her husband (the applicant).
On 3 February 2016, the contested will was submitted to Absa by the deceased’s mother as the only valid and signed will of the deceased in existence. There is no other will that was executed by the deceased subsequent to the letter addressed to Absa on 5 December 2011.
The issue for determination by the Honourable Judge Teffo in this matter, was whether the deceased intended to revoke the contested will in the letter addressed to Absa Trust Cancellation Division and whether, in the absence of any later valid will, the deceased died intestate (making him the sole heir in accordance with section 1(1)(a) of the Intestate Succession Act).
Analysis
The judge applied the principles of interpretation as outlined in the Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 and looked at the language used in the letter in light of the ordinary rules of grammar and syntax, as well as the context and purpose to which it is directed.
It was held that there can be no doubt that the deceased’s wish was for Absa to cancel and destroy the outdated will and no ambiguity exists as to what that means.
Furthermore, the commencement of section 2A of the Wills Act has done away with the requirement that the revocation of a will should be contained in a further testamentary instrument. However, it remains a requirement for revocation that the act of destruction should have taken place. In the present matter, destruction did not take place as it is Absa’s policy to return the document to the client. The court held that whether or not the will has been destroyed or cancelled does not take away the instruction in the letter dated 5 December 2011. The letter is clearly indicative of the deceased’s animus revocandi.
Section 2A(c) of the Wills Act effectively codified the position that existed prior thereto that there is no reason “why effect should not be given to the document signed by the testator in which he revokes his will, even if the document is not otherwise executed in a testamentary form and the written revocation is, in that sense, informal” (see Marais v the Master 1984 (4) SA 288 (D) at 291).
The Judge’s view was that, in the absence of a further will, the deceased died intestate and her estate should therefore devolve in terms of the provisions of section 1(1) of the Intestate Succession Act.
Pagel Schulenburg Team: Zané Hartman
