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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE NORTH WEST HIGH COURT, MAFIKENG

 

CASE NO: CIV APP FB 10/2022

Reportable:                                  YES / NO

Circulate to Judges:                                YES / NO

Circulate to Magistrates:                        YES / NO

Circulate to Regional Magistrates:    YES / NO

In the matter between:

 

EDITH LEBOGANG MOKOENA                                      Appellant

 

and

 

EPHRAIM TSHEPISO MOLEFE                                      1^st Respondent

 

O[...] S[...]                                                                         2^nd Respondent

 

C[...] T[...] S[...]                                                               3^rd Respondent

           

CORAM: HENDRICKS JP et PETERSEN J & KHAN AJ

 

DATE OF HEARING (ON PAPERS)                   :           09 JUNE 2023

DATE OF JUDGMENT                                          :           07 AUGUST 2023

 

FOR THE APPELLANT                             :           MR ESTERHUYSE

FOR THE RESPONDENT                         :           NO APPEARANCE

 

 

JUDGMENT

 

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives via email. The date and time for hand-down is deemed to be 10h00 am on 07 August 2023.

 

          

ORDER

 

           

          Resultantly, the following order is made:

 

(i)           The appeal is upheld.

 

(ii)      The order of the court a quo is set aside in its entirety and is substituted with the following:

 

“The application is dismissed with costs, save insofar as the deletion of the name “Tshepi Molokwane” with the identity number and the amount reflected thereon on the Will is not valid.”

 

(iii)     The costs of the appeal in the Full Court, including the costs of the application for leave to appeal, shall be borne by the estate of the late Jeffrey George Molefe.

 

 

JUDGMENT

 

HENDRICKS JP

 

 

Introduction

 

[1]        This appeal to the Full Court of this Division is with leave of the former Judge President of the Division, Judge President Leeuw (the court a quo), against the whole of the judgment and order.

 

[2]     The crux of this appeal turns on sections 2(1) and (3) of the Wills Act 7 of 1953 (“the Wills Act”) in respect of the Will and Codicil of the late Jeffrey George Molefe. The matter initially came before the court a quo as an opposed motion. The application was opposed by inter alia, the three respondents in this appeal. The court a quo found that there were disputes of fact on the papers and the matter was referred to oral evidence in terms of Rule 6(5)[1] to ventilate the factual disputes based on the validity of the Will. The court a quo reserved judgment on 04 February 2019, and judgment was subsequently handed down on 27 June 2019.

 

[3]  The history and background facts, the evidence adduced, the submissions and the applicable law were comprehensively dealt with in the main judgment of the court a quo.[2] The judgment of the court a quo is unfortunately not reported in any law reports, which would have facilitated ease of reference thereto. For purposes of this judgment, I can therefore do no better than to borrow where necessary, extensively from the judgment of the court a quo, to appreciate the issues in the matter in relation to the grounds of appeal.

 

The relief sought in the court a quo

 

[4]     In the court a quo, the respondents (the first three applicants in the application in the court a quo) sought an order:

 

(i)            declaring the Last Will and Testament, identified as annexure “WT”, purporting to be the Will of the Late Jeffrey George Molefe invalid;

 

(ii)         the setting aside of the appointment of the first respondent in the application in the court a quo as the Executor of the estate of the Late Jeffrey George Molefe;

 

(iii)        appointing the applicant in the application in the court a quo as the Executor in the late estate of Jeffrey George Molefe; and

 

(iv)         that if the orders sought were granted, that the time period for the lodgement of the Liquid and Distribution account be extended by six months; and

 

(v)         the file of the late estate of Jeffrey George Molefe, held by the Master of the High Court be transferred to the Master of the Gauteng North High Court;

 

(vi)        and that the costs of the application be the costs in the late estate.

 

The parties

 

[5]        The first respondent, Ephraim Tshepiso Molefe (Ephraim Tshepiso Molefe) is the biological son of the deceased Jeffrey George Molefe (the deceased), who was born out of a relationship between Tshepiso Molefe’s mother and the deceased before the deceased’s marriage to the fifth respondent, Ouma Violet Molefe (Ouma Molefe). Prior to the deceased’s death, Tshepo Molefe was using the surname “Molokwane”, which is his mother’s surname. 

 

[6]        The second respondent, O[...] S[...](Omphemetse) and the third respondent, C[...] T[...] S[...] (Thato) cumulatively referred to as the minor children, were born out of an extra-marital relationship between the deceased and another woman, who is also deceased. At the time of the hearing of the application in the court a quo, Omphemetse, who was born on 10 April 2001, was 17 years old and Thato, born on 15 October 2002, was 16 years old. According to Tshepiso Molefe the minor children were at the time under the guardianship of their uncle and aunt. No further particulars were provided in that regard.

 

[7]        The appellant, Edith Lebogang Mokoena (Edith Mokoena), is the biological daughter of the deceased and Ouma Violet Molefe. The third respondent in the application before the court a quo, Frederik Hendrik Terblanche (Terblanche), is an admitted attorney appointed by Ouma Molefe to assist in the administration of the deceased’s estate. The third and fourth respondents in the application before the court a quo Jennifer Marshall (Marshall) and Milyska Grové (Grové) respectively, are the two witnesses who attested and signed as witnesses on two documents purporting to be a will and codicil executed by the deceased. They were both employees of Old Mutual Life Assurance Company (South Africa) Ltd (Old Mutual) in Rustenburg. Marshall was working as financial advisor and Grové was her secretary.

 

Factual Background

 

[8]        The deceased and Ouma Molefe were married in community of property when the deceased died on 26 January 2016. Ouma Molefe who was the deceased surviving spouse at the time of his death, registered his estate at the office of the Master of the High Court, Mahikeng (the Master) on 11 February 2016. Ouma Molefe further filed a letter written by Terblanche, wherein Terblanche noted that he represented the executor of the deceased’s estate. Attached to the letter were amongst others, the original will and codicil. The original copy of the will as well as the codicil were purportedly received by the Master’s Office on 17 January 2016. However, on 19 January 2017, the Assistant Master deposed to an affidavit explaining that the date was erroneously reflected as 19 January 2017, and that the correct date of submission is 17 February 2017.

 

[9]        When Ouma Molefe completed the Death Notice, she only wrote down the names of three children of the deceased, namely Omphemetse, Thato and Edith Mokoena, to the exclusion of the first applicant in the application in the court a quo, Tshepiso Molefe. Edith Mokoena was nominated by Ouma Molefe, to act as the executrix of the deceased’s estate. Letters of executorship were accordingly issued by the Master to Edith Mokoena on 17 February 2016.

 

[10]     According to certain terms of the will, dated 26 September 2013, the beneficiaries of the estate are recorded as being the deceased’s spouse, Ouma Molefe, Edith Mokoena, Tshepiso Molefe (referred to as Tshepi Molokwane), Omphemetse, Thato, Masego Mirriam Senokwane (Masego Senokwane) and Lesego Magdeline Senokwane (Lesego Senokwane). Masego Senokwane and Lesego Senokwane are the twin children of the deceased’s late sister (the twins). The will, titled: “Last Will of Jeffrey George Molefe Identity Number: 6[...]”, was allegedly signed by the deceased as the testator, and signed by two witnesses, Grové and Marshall.

 

[11]     Nearly one year later on 23 September 2014, a “codicil to existing will”, (the codicil), was purportedly signed by the deceased as the testator, and Grové and Marshall signed as witnesses. The codicil amended some of the terms of the will. Amongst others, it removed Tshepiso Molefe, Lesego Senokwane and Masego Senokwane as beneficiaries of the deceased’s estate.

 

[12]      Evidence was presented in court in relation to the authenticity of both the will and the codicil. Tshepiso Molefe testified for the applicants. Marshall and Grové (who after marriage, is using the surname De Lange) and Jan Kleinsmith who is the assistant Master, testified on behalf of the respondents.

 

[13]      The will dated 26 September 2013 reads as follows:

 

“Last Will of Jeffrey George Molefe Identity Number 6[...]

 

·               My last wishes are to have a burial.

 

·               The Dodge Calibre 2011 model (H[...]) to be given to my Spouse Ouma Violet Molefe 6[...].

 

·               The BMW 1 Series that my daughter Edith Lebogang Mokoena is driving to my Daughter Edith Lebogang Mokoena 8[...].

 

·               To my spouse Ouma Violet Molefe a cash amount of R1 000 000.00

 

All other assets should be sold including excluding the business (Jemie Mining) and placed in a trust

The Trust should provide for the following:

 

·               Monthly income for my spouse Ouma Violet Molefe (As needed by her)

·               Monthly income provided to my daughter Edith Lebogang Mokoena (R10 000)

·               Monthly income including all fees for education provided to my other children.

o      O[...] S[...](0[...])

o      C[...] T[...] S[...] (0[...])

o      Tshepi Molokwane (8[...]( (R10 000)

 

·               Income for education and schooling and all other needs regarding education (Uniforms, Stationary & Textbooks) for the children of my Late sister

o      Masego Mirriam Senokwane 9[...]

o      Lesego Magdeline Senokwane 9[...]

 

The trust should be terminated when all the children reach the age of 25 and the remainder of the trust should be divided equally to my spouse Ouma Violet Molefe, Edith Lebogang Mokoena, O[...] S[...], C[...] T[...] S[...] and Tshepi Molokwane.

 

Signed at Brits on this 26 day of September 2013

Jeffrey George Molefe (signed)

 

Witness (signed)                                               Witness (signed)

Postal Address:                                                 Postal Address

Box 2[...]                                                              Box 2[...]

Rustenburg                                                        Rustenburg

 

Relationship:                                                      Relationship:

None                                                                   None.”

 

[14]      The following deletions were made on the will:

 

14.1      The word “including” was cancelled with a pen and “excluding” was effected on top. Three initials appear next to the deletion, namely that of Grové and Marshall, and one purporting to be that of the deceased;

 

14.2      Under the heading “The trust should provide for the following”:

 

(a)      The following is added and handwritten with a pen after “Monthly income provided to my daughter Edith Lebogang Mokoena”: Grové and Marshall and the deceased appended their signatures next to the additions;

 

(b)      At the bottom of the provision that provides as follows: “Monthly income including all fees for education provided to my other children,” the name Tshepi Molokwane, is typed, but his identity number “(8[...])” and “(R10 000)” respectively, are handwritten next to his name.  A line is drawn across it with a pen.  The same three aforesaid initials appear next to the deletion.

 

14.3      The will was purportedly signed by the deceased, and Grové and Marshall signed as witnesses at Brits on 26 September 2013. The deceased signed with a blue pen and the two witnesses signed in a black pen.

 

[15]     A handwritten codicil attached to the will reads as follows:

 

“Codicil to existing Will

 

1.      Jemie Mining should not be sold.  Daughter Lebo Molefe (El Mokoena) should run and take over the company and all existing contracts.  All Enterprises and CC in the name of Jeffrey Molefe should be managed by Lebo Molefe (Lebo Appointed as CEO).

 

2.    Ouma Violet Molefe should be given the vehicle currently driven by her if the Dodge is no longer in her possession.  Cash amount to be paid to her as afforded by Estate.

 

3.    Tshepi Molokwane to be removed from will, together with late sister’s children.

 

4.    Jemie Mining should pay Lebo a Market Related income and all employees should be paid marked related income. A portion of the revenue made by Jemie Mining should be paid to a trust to provide an income to all the beneficiaries noted for the trust. (Beneficiaries to remain in trust: OV Molefe, EL Mokoena, Omphemetse & Cassius Sekao).

 

5.    All other assets should be sold or agreed upon to keep.

NB: - Children to be removed:

 

1)    Tshepi Molokwane

 

2)    Masego Mirriam Senokwane

 

3) Lesego Magdeline Senokwane

 

Signed at Brits on the 23 day of September 2014

 

Testator/Testatrix (signed)

 

Witness (signed)                   Relationship: None

 

Witness (signed)                   Relationship: None.”

 

15.1    The codicil was signed at Brits on 23 September 2014, and purportedly signed by the deceased as the “testator/testatrix” and Grové and Marshall signed as witnesses.

 

15.2    The codicil does not fully describe or refer to a specific will sought to be amended, save for stating that it is a “codicil to existing will”.

 

15.3    The full names of the “testator/testatrix” are not written under the signature purporting to be that of the deceased.

 

[16]      According to Marshall, prior to 26 September 2013, the deceased had instructed her and Petersen, who was also the deceased’s financial advisor, to prepare a draft will for him which they orally discussed with him and had taken notes of his instructions.  They later, on 26 September 2013, approached the deceased and presented the typed draft will to him.  According to Marshall, the deceased instructed her to substitute the word “including” for “excluding”, as well as the handwritten endorsement of “R10 000” next to the name of Edith Lebogang Mokoena and “(8[...]) (R10 000)” next to the name of Tshepi Molokwane.  Grové, wrote the changes in her handwriting.  

 

[17]      Pursuant thereto, on their next annual financial review visit to the deceased on 23 September 2014, the deceased indicated that he wished to amend the draft will, because his businesses were not doing well and some of his life policies had lapsed. At that time, they only had a template of the codicil. The deceased told them about the changes he wished effected on the will. Grové took down the notes and wrote on the template codicil in her own handwriting. The deceased instructed her to remove the name of Tshepi Molokwane and Masego Senokwane as well as Lesego Senokwane as beneficiaries in his estate. In addition to the notes she reduced to writing in the codicil, a line was drawn across the name of Tshepi Molokwane on the will. This deletion, which was effected on the 23 September 2014, was neither initialled by the deceased nor the two witnesses.

 

[18]      The Codicil was purportedly signed by the deceased as “testator/testatrix”, and Grové and Marshall signed as witnesses. Grové and Marshall testified that, despite the fact that it was endorsed in the Codicil (that the aforesaid persons should be removed from the will as beneficiaries,) the deceased insisted on Tshepi Molokwane’s name being deleted by drawing a line across it.  When Grové wanted to effect the deletions on the names of Masego Senokwane and Lesego Senokwane, Marshall advised her not to do so, because the will would be defaced and become incomprehensible, with too many deletions. Because of the deceased’s insistence that those names be removed, she added the following additional notes at the bottom of the codicil, “NB: - Children to be removed: 1) Tshepi Molokwane, 2) Masego Mirriam Senokwane and 3) Lesego Senokwane.

 

[19]      Tshepiso Molefe submitted the will, the codicil and a copy of a document signed by the deceased, with a heading: “Memorandum Agreement” dated 15 October 2012, to a handwriting expert on 23 November 2017, for analysis. Ludwig du Toit, who is a “forensic document examiner”, came to the following conclusion:

 

“4. Conclusion

After the microscopic examinations and comparisons, I reached the following qualified and conclusive opinions:

 

4.1    The disputed signatures of a “Jeffrey George Molefe” marked by me as Q1 and Q2, were in fact written/created (on a balance of probabilities) by the author of the specimen signature marked S1:

2.5cm; margin-right: 1.21cm; text-indent: -1cm; margin-bottom: 0cm; line-height: 150%">  

4.2    Due to lack of specimen signatures, we were unable to reach a conclusion (beyond any reasonable doubt).  In order to reach a conclusion beyond a “balance of probabilities”, further specimen signatures contemporaneous to the disputed signatures are required for a re-examination.”

 

[20]     The factual matrix with all the roles of all the relevant interested parties, is what the court a quo was called to consider, having regard to the sections 2(1) and (3) of the Wills Act.     

 

The case for the appellant and respondents in the court a quo

 

[21]      The first respondent (applicant in the main application) in the founding affidavit, stated that the will and codicil should be declared invalid on the following grounds:

 

(a)      the signature of the deceased had been forged;

 

(b)     the will and the codicil as well as the deletions do not comply with the formal requirements prescribed by the Wills Act;

 

(c)     there is no record of the will kept at Old Mutual Life despite the fact that the deceased was their client;

 

(d)     Edith Mokoena and Ouma Molefe excluded his name from the Death Notice in an effort to hide his existence from the Master; and 

 

(e)     that Edith Mokoena should be removed as the executrix of the deceased’s estate since she was not properly appointed.

 

[22]     In their answering affidavits, Edith Mokoena and Ouma Molefe stated that:

 

(a)      they were not aware of the existence of Tshepiso Molefe before the death of the deceased, and that they only came to know about him after the Death Notice was completed; and

 

(b)      that the will and codicil were executed by the deceased who signed as testator in the presence of two witnesses in accordance with the Wills Act.

 

The issues identified by the court a quo

 

[23]      The court a quo identified the issues for adjudication to be, whether:

 

(a)      the impugned will and codicil comply with the formalities required for the execution and amendment of a will in terms of the Wills Act;

 

(b)      the deletions and amendments on the body of the will and the codicil, affect the validity of these documents; and

 

(c)       the deceased intended the impugned will to be his final will;

 

(d)      the deceased intended to amend the impugned will through the codicil;

 

(e)      the administration of the deceased’s estate should be transferred to the Master of the High Court: Gauteng Division; and

 

(f)        Costs.

 

The Law

 

[24]        The court a quo had regard to the following relevant provisions of the Wills Act. In terms of section 1 of the Wills Act, “will” includes a codicil and any other testamentary writing. The formal requirements for the execution of a valid are set out as follows in section 2(1) of the Wills Act:

 

              “Formalities required in the execution of a will

 

Section 2(1)(a)(i) to (iv)

 

              (1)     Subject to the provisions of section 3bis –

(a)      no will executed on or after the first day of January, 1954, shall be valid unless-

 

(i)        the will is signed at the end thereof by the testator or by some other person in his presence and by his direction; and

 

(ii)       such signature is made by the testator or by such other person or is acknowledged by the testator and, if made by such other person, also by such other person, in the presence of two or more competent witnesses present at the same time; and

 

(iii)       such witnesses attest and sign the will in the presence of the testator and of each other and, if the will is signed by such other person, in the presence also of such other person; and

 

(iv)      if the will consists of more than one page, each page other than the page on which it ends, is also so signed by the testator or by such other person anywhere on the page”.

 

[25]        In relation to the amendment of will, section 2(1)(b) of the Wills Act provides as follows:

 

“Section 2(1)(b)(i) to (iii)

 

(1)       Subject to the provisions of section 3bis –

(b)      no amendment made in a will executed on a will executed on or after the said date and made after the execution thereof shall be valid unless-

 

(i)        the amendment is identified by the signature of the testator or by the signature of some other person made in his presence and by direction; and

 

(ii)       such signature is made by the testator or by such other person or is acknowledged by the testator and, if made by such other person, also by such other person, in the presence of two or more competent witnesses present at the same time; and

 

(iii)      the amendment is further identified by the signatures of such witnesses made in the presence of the testator and of each other and, if the amendment has been identified by the signature of such other person, in the presence also of such other person.”

 

[26] Section 1 of the Wills Act further draws a distinction between amendments and deletion. Amendment is defined as meaning “a deletion, addition, alteration or interlineation.” Whereas deletion means a deletion, cancellation or obliteration in whatever manner effected, excluding a deletion, cancellation or obliteration that contemplates the revocation of the entire will”. Section 2(2) goes on to  provide in respect of any amendment that:

 

“(2)   Any amendment made in a will executed after the said date shall for the purposes of subsection (1) be presumed, unless the contrary is proved, to have been made after the will was executed.”

 

[27]      In Van der Merwe v Master of the High Court[3] the Court held that the provisions of section 2(1) are peremptory and are aimed at ensuring the authenticity of the will and to eliminate the possibility of false and forged wills. However, the Court further held that by enacting section 2(3) of the Wills Act:

 

“[14]  The legislature was intent on ensuring that failure to comply with the formalities prescribed by Act should not frustrate or defeat the genuine intention of the testators.” 

 

At paragraph [16], the Court in Van der Merwe further referred with approval and adopted the view held in Letsekga v the Master & Others[4]; Ex Parte Maurice[5]; and Anderson and Wagner NNO and Another v The Master and Others[6] and Logue and Another v The Master and Others[7] that:

 

“[16] a lack of a signature has never been held to be a complete bar to a document being declared to be a will in terms of s 2(3). ...  The very object of s 2(3) … is to ameliorate the situation where formalities have not been complied with but where the true intention of the drafter of a document is self-evident.  … On the other hand, it must be emphasised that the greater the non-compliance with the prescribed formalities, the more it would take to satisfy a court that the document in question was intended to be deceased will.”   

 

[28]        Section 2(3) of the Wills Act empowers the Court to declare a document which does not fully comply with the provisions of section 2(1), to be a will in the following circumstances:

 

“(3)   If a court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 1965 (Act 66 of 1965), as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1).”

 

[29]        Furthermore, section 2A provides that:

 

              “Power of court to declare a will to be revoked

 

If a court is satisfied that a testator has-

 

(a)      made a written indication on his will or before his death caused such indication to be made;

 

(b)      performed any other act with regard to his will or before his death caused such act to be performed which is apparent from the face of the will; or

 

(c)      drafted another document or before his death caused such document to be drafted,

 

by which he intended to revoke his will or part of his will, the court shall declare the will or the part concerned, as the case may be, to be revoked.”

 

[30]        The court a quo correctly surmised that it is trite law that a will which is complete and regular on the face of it, is presumed valid until the contrary is proved. The court a quo further correctly set out  with reference to Sterban v Dixon and Others[8] that the onus was on the first respondent (applicant in the main application) to establish, on a balance of probabilities, that the will had not been properly executed.

 

[31]        The court a quo visited numerous authorities relevant the issues it was called upon to decide as follows. In Bekker v Naudé en Andere,[9] the court drew a distinction between a will drafted by the deceased personally and one where the deceased causes the will to be drafted. The court held that section 2(3) should be given a stricter interpretation which would require the deceased to have drafted the will personally. That in a case where the deceased had instructed a third person to draft a will on his behalf, and that person uses the deceased’s instructions and also their own wording to do so, it cannot be said that the deceased drafted the will, but rather that he caused the will to be drafted. A document that the deceased had caused to be drafted, will not qualify as a will in terms of section 2(3). The Court further adopted the view held in Ex parte Williams: In re Williams’ Estate[10]; and Back and Others NNO v Master of the Supreme Court[11] and Olivier v Die Meester en Andere: In re Boedel Wyle Olivier[12], that the Legislature clearly spelt out in section 2A that drafting can also be carried out by someone else on behalf of the testator, which competence is not conferred by section 2(3).

 

[32]        The court a quo in respect of the approach to interpreting section 2(3) of the Wills Act had regard to two Supreme Court of Appeal decisions, Van Wetten and Another v Bosch and Others[13] and  De Reszke v Marais and Others[14]. In Van Wetten and Another v Bosch and Others it was held that the intention of the deceased is paramount. Lewis JA stated in this regard that:

 

“[14]    Section 2(3) of the Wills Act is clear: the Court must direct the Master to accept the document in issue as a Will once certain requirements are satisfied. First, the document must have been drafted or executed by a person who has subsequently died. Second, the document must have been intended by the deceased to have been his or her Will.

           …

 

“[16]    [T]he real question to be addressed at this stage is not what the document means, but whether the deceased intended it to be his [W]ill at all. That enquiry of necessity entails the examination of the document itself and also of the document in the context of the surrounding circumstances.” (emphasis added).

 

           In De Reszke v Marais and Others, the Supreme Court of Appeal further held that:

 

“[11] [F]or the grant of relief under s 2(3) a court must be satisfied that the deceased person who drafted or executed the document intended it to be his will. That intention … must have existed concurrently with the execution or drafting of the document.”

Also see: Harlow v Becker and Others 1998 (4) SA 639 (D).

 

The findings of the court a quo

 

[33]   For purposes of this appeal, it is apposite to have regard to the fact that the court a quo considered the evidence adduced relevant to the issues raised against the applicable law under three (3) headings: Does the Will and Codicil comply with the formalities?; Do the deletions and amendments affect the validity of the two documents?; and Did the deceased intend the documents to be his will?.

 

[34]    In respect of the first question “Does the Will and Codicil comply with the formalities?” the court a quo stated as follows. That, on the face of it, the will and codicil appear to be in compliance with section 2(1) in that they were signed by the deceased as the testator and two witnesses signed in his presence. The deletions were duly signed by the deceased and the two witnesses. The deletion of the name of “Tshepi Molokwane” on the face of the will appears to have been effected on the 26 September 2013 when the amendments to the will were recorded. Evidence revealed that the deletion of the name of “Tshepi Molokwane” was effected on the 24 September 2014, with neither the deceased nor the two witnesses signing next to the deletion. Against these views held by the court a quo, the second question was addressed.

 

[35]      In respect of the second question “Do the deletions and amendments affect the validity of the two documents?” the court a quo stated as follows. Tshepiso Molefe testified that he came to know about the deceased in 2009, when his late mother disclosed to him that the deceased was his father. He met the deceased and they had a good relationship to the extent that he changed his surname to that of the deceased. The process of changing his surname was finalised after the deceased had passed on. The deceased told him about his wife and child, but told him that his wife will not accept him. They nonetheless, met regularly and the deceased at some stage assisted him financially with his business when he opened a restaurant. He used to visit the deceased when he was sick in hospital even though Ouma Molefe had instructed the hospital staff to prevent him from seeing the deceased. However, when the hospital manager was informed that he (Tshepiso Molefe) was his child, he was allowed to see him.

 

[36]     The court a quo proceeded to state that prior to the deceased’s death, he attended the paternal uncle’s funeral.  Ouma Molefe was not happy about it. Consequently, a meeting was held with Ouma Molefe and some members of the family, who after discussion, advised the deceased to instruct Tshepiso Molefe to leave, which he did. He also at some stage attended the wedding of Edith Mokoena, where they came to know each other and agreed to sustain their relationship as brother and sister. He also visited his father at his office in Brits, where he met Edith Mokoena and they spoke about their relationship as relatives. Their encounter was cordial. Tshepiso Molefe testified that he found it strange that they excluded him from the Death Notice and even stated in their affidavits that at the time they reported the estate at the Master’s Office, they were not aware that he existed, which is not the truth.

 

[37]     On perusal of the answering affidavit of Edith Mokoena and the confirmatory affidavit of Ouma Molefe, they state that they “were unaware that the deceased had executed a will until approximately two weeks after the funeral of the deceased” when Mitchell informed her about it, and also that “she will submit the documents to Terblanche who will assist with the administration of the estate.” They further state that they only came to know about the existence of Tshepiso Molefe, after the Death Notice had been completed.

 

[38]     The Death Notice together with the Inventory were completed at Rustenburg on 11 February 2016 by Ouma Molefe. Ouma Molefe states in her affidavit that the original will and codicil were forwarded by Terblanche to the office of the Master “during February 2016 as appears from a copy of the letter from the second respondent (Terblanche).”

 

[39]     The aforementioned letter dated 15 February 2016, is addressed to the Master and indicates that the following documents, amongst others, were attached: “Original will and codicil; Death Notice and Inventory; List of Creditors.” In the letter, it is also noted, amongst others, that:

 

“1.     Kindly take note that the surviving spouse only recently found out about the two illegitimate children of the deceased;

 

2.      See also affidavit by Myliska Grové, the person who wrote the codicil by hand.”

 

[40]     On the letter, it is indicated that the attached document would be submitted “by hand”. A handwritten inscription thereon, dated “2016-02-16” is written in Afrikaans as follows: “Klient gaan more die dokumente self Meester toe vat.”[15] According to the Assistant Master, the estate was reported on 17 February 2017, and the will accepted on the same day.  Edith Mokoena was appointed the executrix of the estate on the same day.

 

 

[41]     This piece of evidence, coupled with the assertion by Tshepiso Molefe that Ouma Molefe never acknowledged him as the deceased’s son (which evidence is undisputed), clearly points to the intention of Ouma Molefe and Edith Mokoena to exclude Tshepiso Molefe as a beneficiary in the deceased’s estate.

 

[42]     Grové and Mitchell are not independent witnesses. They were involved with the deceased’s financial affairs in that they acted as his financial advisors for more than a decade. In both instances, when the will and the codicil were signed, they profess to have been the persons who drafted these documents. The reason why the deceased signed the documents, was to confirm his instructions to them.  Grové and Mitchell could not explain why it was necessary for them to sign the documents as witnesses if what they were instructed to do was to take notes recording the deceased’s wishes.

 

[43]     Furthermore, the reason given for deleting the name of Tshepiso Molokwane from the will and not doing the same in respect of the other two names of the twins, who were excluded by the deceased, raises some doubt with regard to whether or not they signed the two documents in the presence of the deceased. I make this remark because of the following observations:

 

(a)   the deceased’s signature is effected with a blue pen, and Grové and Mitchell signed in a black pen;

 

(b)   I have already alluded to the fact that the signatures appended next to the deletion of the name of Tshepi Molokwane, served a dual purpose. When the documents were filed with the Master’s office by Terblanche, he did not bring this information to the attention of the Master;

 

(c)    there is no independent evidence to substantiate that, what appears in the contents of the will was to be the deceased’s final will save for the two witnesses who drafted the two documents and attested thereto as witnesses; and

 

(d)   Mitchell and Grové were aware of the existence of Tshepiso Molefe. They drafted and signed the documents and gave same to Terblanche. They must have brought the contents of the will to the attention of Ouma Molefe and Edith Mokoena. They deliberately excluded his name when the estate was registered at the Master’s Office.

 

[44]     The court a quo ultimately found that the conduct of Ouma Molefe and Edith Mokoena, as well as Grové and Mitchell, together with Terblanche raised questions, which adversely impact on their credibility and that the two documents purporting to convey the last wishes of the deceased could not be relied upon.

 

[45]     The ineluctable conclusion of the court a quo was that the two documents, the will and codicil could not be relied on. The court a quo than went further to determine whether the deceased intended that these documents be his will.

 

[46]      In respect of the third question, Did the deceased intend the documents to be his will? the court a quo stated as follows. The will and the codicil were not drafted by the deceased personally. In both documents, the deceased gave instructions to the two witnesses, who in turn drafted the documents subject to his approval. When he amended the documents, he did so with the understanding that a formal and final will was still to be drafted after the presentation of audited financial statements. A period of approximately one year, from 26 September 2013 to 23 September 2014, passed, without a final will been executed by him. Grové, used the codicil template to write down notes dictated by the deceased. 

 

[47]      According to Mitchell, the purpose of the visit to the deceased on 23 September 2014, was to conduct a routine review of his financial affairs.  They were not aware of the fact that the deceased wished to amend his will. He informed them that the reason for amending the will was because he was experiencing financial problems in his business, and that the value of his estate will not be available for everyone to share. Because they had a blank template of a Codicil from Old Mutual, they took down notes and captured the changes that the deceased wished to be effected in his will.

 

[48]      The notes stating the changes in the will were to be used as reference by Grové and Mitchell in drafting a final will with the necessary amendments as instructed by the deceased. However the deceased died on 26 January 2016, a period of two years passed, without any final will being executed by him. Grové and Mitchell testified that the deceased still had the intent of executing a final will incorporating the changes, unfortunately he died before any final will could be drafted or executed by him.

 

[49]      Both documents, the will and codicil, were not drafted by the deceased.[16] The deletion on the will does not comply with the formalities prescribed in section 2(1) of the Wills Act. If it were to be argued that the deceased intended to amend his will through the codicil, then section 2A is not applicable, because he should have personally drafted the codicil, as required by section 2(3). It is evident from the conduct of the deceased at the time he gave instructions to Grové and Mitchell on how to either draft his will or change the terms thereof, that he was still anticipating executing a final will. As confirmed by Grové and Mitchell, when he dictated his instructions to them to draft a will, he was still to obtain the audited financial statements in order to execute a final will. 

 

[50]      The fact that the will and codicil were signed by the deceased and the two witnesses is of no consequence. See the remarks by Mlambo JA (as he then was) on behalf of the court in De Reszke[17] which are apposite:

           

“[13]    Counsel for the appellant conceded that when the document was initially prepared on the instructions of the deceased it was intended to be no more than instructions to an attorney. Counsel’s concession was inevitable as the evidence is clear that the deceased intended his will to be drafted by Burger and he instructed Dreyer to instruct him accordingly. The evidence also shows that at that stage the deceased did not intend to draft his own will. That much is plain on a reading of the document.

 

[14]     Counsel argued, however, that at some stage thereafter the deceased by his conduct manifested a different intention, namely an intention that the document should be his will. The conduct to which he refers is the deceased signing the document, having it witnessed and writing the words ‘no more suffering’ on the document. Properly understood counsel’s submission was to the effect that annexure A was transformed by the deceased’s signature and the witnessing thereof from instructions to an attorney to a will.  For the reasons that follow this argument is also without merit.”

           

 

[51]      The court a quo held the view that it could not be said with certainty that the deceased intended the two documents to be his will. In the circumstances the court a quo found that the two documents, the will and the codicil, could not be accepted as the will of the testator as they did not meet the requirements of section 2(3).  Ultimately, the court a quo found that this finding took care of the orders sought in paragraphs 2, 3 and 4 of the Notice of Motion and that the Master would have to deal with the estate as if the deceased died intestate. 

 

 

[52]   The court a quo, premised on its reasoning as aforesaid, made the following order:

 

  “In the result I make the following order:

 

1.     The documents titled the “Last will of Jeffrey George Molefe identity number 6[...]” and “codicil to existing will” are not to be accepted by the Master of the High Court as a will for the purpose of the Administration of Estates Act (Act 66 of 1965);

 

2.     The appointment of Edith Lebogang Mokoena as the Executrix of the deceased’s estate, appointed in terms of the letters of executorship issued by the Master on 17 February 2016 is hereby set aside;

 

3.     The order sought in paragraphs 3, 4 and 5 of the Notice of Motion are dismissed;

 

4.     The costs of this application should be borne by the estate of the late Jeffrey George Molefe.”

 

[53]   To fully appreciate the grounds of appeal which are set out infra, it is apposite to have regard to the judgment of the court a quo in the application for leave to appeal. An application for leave to appeal was brought on 12 November 2021 and judgment was reserved. On 18 February 2022 judgment in the application for leave to appeal was handed down. Likewise, the judgment on Leave to Appeal was not reported on Saflii or anywhere else in any of the law reports. The judgment on leave to appeal consists of eight (8) paragraphs, which reads thus:

 

“[1]    This is an application for leave to appeal against the judgment and following order:

 

“1.     The documents titled the “Last will of Jeffrey George Molefe identity number 6[...]” and “codicil to existing will” are not to be accepted by the Mater of the High Court as a will for the purpose of the Administration of Estate Act (Act 66 of 1965);

 

2.      The appointment of Edith Lebogang Mokoena as the Executrix of the deceased’s estate, appointed in terms of the letters of executorship issued by the Master on the 17^th of February 2016 is hereby set aside;

 

3.      The order sought in paragraph 3, 4 and 5 of the Notice of Motion are dismissed;

 

4.      The Costs of this application should be borne by the estate of the late Jeffrey George Molefe.”

 

[2]     The following are the grounds relied upon:

 

“1.     The learned Judge President erred in finding that the issues to be determined in this matter were inter alia whether the deceased intended the impugned Will to be his final Will and intended to amend the impugned Will through the codicil;

 

2.      These issues were not raised in the pleadings in this matter and were not canvassed at the trial of the matter.

 

3.      The learned Judge erred in finding that the provisions of section 2(3) of the Wills Act No. 7 of 1953 (‘the Act”), together with the authorities regarding the legal principles applicable to an application in terms of section 2(3), are relevant in this matter.

 

4.      No application in terms of the provisions of section 2(3) of the Act were made by any of the parties in this matter and the learned Judge President erred in relying on the provisions and legal authorities regarding section 2(3) applications where same were not relevant in the matter before Court.

 

5.      The learned Judge President should have found that the only issues to be determined in the matter were whether the impugned Will and / or Codicil were fraudulent because it was not signed by the deceased due to the allegations made in the pleadings on behalf of the applicant and whether the impugned Will and/or Codicil were invalid due to non-compliance with the formal requirements of the Act due to the allegations made in the pleadings on behalf of the applicant.

 

6.      The learned Judge President should have found that no evidence were presented to find that the will and or Codicil were fraudulent and not signed by the deceased and no evidence were presented to rebut the presumption that the Will and Codicil were witnessed in the manner prescribed by the law.

 

7.      The learned Judge President erred in making adverse credibility findings against the two witnesses who signed the Will and Codicil, as well as parties who did not testify at the trial, where no grounds exist for such findings and the credibility findings are plainly wrong.

 

8.      The learned Judge President erred and misdirected herself in finding that some doubt exists as to whether the deceased signed the Will and Codicil in the presence of the two witnesses due to the following:

 

8.1    It was never alleged in the pleadings that the deceased did not sign the Will and/or Codicil in the presence of the two witnesses;

 

8.2    The two witnesses testified expressly that the deceased did sign the two documents in their presence and this was never disputed during the cross- examination of the two witnesses;

 

8.3    No reasonable grounds exist, based upon the allegations on the pleadings, the evidence before Court and the conduct of the witnesses during their evidence during trial, to reject the direct evidence of the two witnesses to the Will and Codicil that the deceased signed same in their presence.

 

9.      The learned Judge President erred in finding that the failure by the deceased and witnesses to sign next to one deletion/amendment on the Will should have been brought to the attention of the Master when the Estate was registered and the failure to do so might impact on the formal validity of the Will.

 

10.    The learned Judge President erred and misdirected herself in finding that the reason why the deceased signed the Will and Codicil was to confirm instructions to the two witnesses as this finding is not supported by the allegations on the pleadings and evidence before Court.

 

11.    Even though it is not relevant for the purposes of these proceedings whether the deceased intended the Will and Codicil to be his final Will and Codicil, the learned Judge President still erred in finding that the two documents were not intended to be the Will of the deceased as this finding is unsupported by the alleged facts and evidence before Court. The learned Judge President further misdirected herself in relying on previous judgements with substantial different facts and issues to the facts and issues in the matter before her.

 

12.    The learned Judge President erred in not accepting the contradicted evidence of the two witnesses who signed the Will and Codicil with the deceased.

 

13.    The learned Judge President erred in making the orders contained in the judgment and should have ordered that the application is dismissed with costs as the applicants did not present any evidence on a balance of probabilities that the Will and/or Codicil should be declared invalid.

 

Due to the above grounds, it is respectfully submitted that the intended appeal by the applicant will have reasonable prospects of success.

 

[3]     The description of the parties and the factual backround are fully stated in paragraphs [3] to [17] of the main judgment. I will deal with the grounds as follows:

 

Grounds

        

[4]     It was necessary for the Court to determine whether the Will/Testament of the deceased was valid, since this was an order that was sought in the notice of motion. Firstly it imperative, based on the deletions, especially the erasure or removal of the name of the Ephraim Tshepiso Molefe from the will, to determine whether that was the intention of deceased. The impression created that the amendment was properly initialled, whereas it turned out during oral evidence, it was not. It only became apparent during the hearing of the oral evidence, that there could have been a deliberate intent to exclude Ephraim Tshepiso Molefe as a beneficiary of the estate from the will without the knowledge of the deceased. This issue is fully dealt with in paragraphs [33] to [39], of the main judgement.

 

[5]     Secondly, Grovè and Mitchell, who I found not to be independent witnesses, stated that they signed the “draft will” as witnesses. The deletion of Tshepiso and not that of Molokwane’s name from the will, of the two other beneficiaries who were excluded from the will through a cocidil, could not be satisfactorily explained. It was not even disclosed or brought to the attention of the Master, that the deletion of Tshepiso Molokwane’s name from the Will, was not duly initialled by the deceased and the two witnesses. This was only revealed during oral evidence. (See judgment from paragraph [40] to [42].

 

[6]     The oral evidence presented by the witnesses for the applicants (respondents in the trial) revealed serious discrepancies on the Will and the Codicil, which discrepancies would not have been detected had the dispute not have been referred to oral evidence. To argue that the respondents (the applicants in the court a quo) did not produce evidence or that it was speculation, would mean that the court should ignore the material defects in the two documents, and endorse an illegally, to the detriment of the other heirs of the deceased’s estate.

 

[7]     Counsel for the applicant argued that I should not have set aside the entire Will/Testament, but rather that I should have only set aside the amendments which were not initialled. This submission together with the view I held in paragraph [7] above, are arguable. There are reasonable prospects of success on appeal in that regard.”

 

Condonation

 

[54]    The appeal is accompanied by an application for condonation for the late noting and prosecution of the appeal. The application for condonation and the appeal is unopposed notwithstanding service of all the relevant documents on the firm of attorneys representing the respondents.

 

[55]  The main reason put forward for the lateness of the appeal is that although judgment in the leave to appeal was circulated by way of e-mail and the time and date of the handing down of the judgment was deemed to be 10H00am on 18 February 2022, the appellant’s legal representative only received a copy of the said judgment on 12 April 2022. Same is confirmed by the said legal representative in his confirmatory affidavit filed in support of the appellant’s/applicant’s founding affidavit. A Notice of Appeal was filed, without delay, on 19 April 2022. In my view, a case has been made for the granting of the requisite condonation.

 

Grounds of appeal

 

[56]    The present appeal is premised on the following grounds of appeal as stated in the “Notice of Appeal”:

 

“1.     The learned Judge erred in finding that the issues to be determined in this matter were inter alia whether the deceased intended the impugned Will to be his final Will and intended to amend the impugned Will through the codicil;

 

2.      These were not raised in the pleadings in this matter and were not canvassed at the trial of the matter.

 

3.      The learned Judge erred finding that the provision of section 2(3) of the Wills Act, Act No. 7 of 1953 (“the Act”), together with the authorities regarding the legal principles applicable to an application to an application in terms of section 2(3), are relevant in this matter.

 

4.        No application in terms of the provisions of section 2(3) of the Act were made by any of the parties in this matter and the leaned Judge erred in relying on the provisions and legal authorities regarding section 2(3) applications in circumstances where same were not relevant in the matter before Court.

 

5.        The learned Judge should have found that the only issues to be determined in the matter were whether the impugned Will and/or Codicil were fraudulent because it was not signed by the deceased due to the allegations made in the pleadings on behalf of the applicant whether the impugned Will and/or Codicil were invalid due to non-compliance with the formal requirements of the Act, based upon the allegations made in the pleadings on behalf of the applicant.       

 

6.        The learned Judge should have found that no evidence was presented to find that the Will and or Codicil were fraudulent and not signed by the deceased and no evidence were presented to rebut the presumption that the Will and the Codicil were witnessed in the manner prescribed by the law.

 

7.        The learned Judge erred in making adverse credibility findings against the two witnesses who signed the Will and Codicil, as well as parties who did not testify at the trial, where no grounds exist for such findings and the credibility findings are plainly wrong.

 

8.        The learned Judge erred and misdirected herself in finding that some doubt exists as to whether the deceased signed the Will and Codicil in the presence of the two witnesses due to the following:

 

8.1      It was never alleged in the pleadings that the deceased did not sign the Will and/or Codicil in the presence of the two witnesses.

 

8.2      The two witnesses testified expressly that the deceased did sign the two documents in their presence and this was never disputed during the cross-examination of the two witnesses;

 

8.3      No reasonable grounds exist, based upon the allegations on the pleadings, the evidence before Court and the conduct of the witnesses during their evidence during trial, to reject the direct evidence of the two witnesses to the Will and Codicil that the deceased signed same in their presence.    

 

9.        The learned Judge erred in finding that the failure by the deceased and witnesses to sign next to one deletion/amendment on the Will should have been brought to the attention of the Master when the Estate was registered and the failure to do so might impact on the formal validity of the Will.

 

10.     The learned Judge failed to have to the provisions of s 2(1)(b) of the Act regarding amendments made in a will after the execution thereof.

 

11.     The learned Judge erred and misdirected herself in finding that the reason why the deceased signed the Will and Codicil was to confirm instructions to the two witnesses as this finding is not supported by the allegation on the pleadings and evidence before Court.

 

12.     Even though it was not relevant for purpose of the proceedings whether the deceased intended the Will and Codicil to be his final Will and the learned Judge still erred in finding that the two documents were not intended to be the Will of the deceased as this finding is unsupported by the alleged facts and evidence before Court. The learned Judge further misdirected herself in relying on previous judgments with substantial different facts and issues to the facts and issues in the matter before her.

 

13.     The learned Judge erred in not accepting the uncontradicted evidence of the two witnesses who signed the Will and Codicil with the deceased.

 

14.     The learned Judge erred in making the orders contained in the judgement and should have ordered that the application is dismissed with costs as the applicants did not present any evidence on a balance of probabilities upon which the Will and/or Codicil could be declared invalid.”

 

 

Discussion

 

[57]      As indicated supra, the court a quo identified the issues calling for adjudication to include whether; (a) the impugned will and codicil comply with the formalities required for the execution and amendment of a will in terms of the Wills Act; (b) the deletions and amendments on the body of the will and the codicil, affect the validity of these documents; and the deceased intended the impugned will to be his final will; (d) the deceased intended to amend the impugned will through the codicil; (e) the administration of the deceased’s estate should be transferred to the Master of the High Court: Gauteng Division; and (f) costs.

 

[58]    The appellant takes issue in the main with two of the issues identified by the court a quo, namely, whether (a) the deceased intended the impugned Will to be his final Will; and (b) the deceased intended to amend the impugned Will through the codicil. The appellant contends that this finding is wrong as it fails to properly take into consideration that the onus in proving invalidity of the Will rested on the respondents. The appellant in this regard assails the finding of the court a quo where it found:

 

“I am of the view that it cannot be said with certainty that the deceased intended the two documents to be his will. In the circumstances, I find that the two documents, the will and the codicil, cannot be accepted as the will of the testator as they do not meet the requirements of section 2(3)”.

 

 

[59]   The basis of the aforesaid submission of the appellant is that a Will is presumed to be valid until its invalidity has been established. The appellant relies on Bowes v Friedlander N.O. and others 1982 (2) SA 504 (C) at 509 C – E, where the burden of proof on a person who alleges invalidity is stated as follows:

 

          “The onus of proof is plain. The will being complete and regular on the face of it, plaintiff must establish that it is more probable than not that the will was not signed by the witnesses at the same time as the testator signed it, but on another occasion, and in his absence. No higher degree of proof is required than that which is required in any other case of a civil nature. But there exists a presumption that the will was witnessed in the manner prescribed by the law and this presumption has to be rebutted by plaintiff before the will can be declared invalid. Authority for all this will be found in Kunz v Swart and Others  1924 AD 618; Sterban v Dixon and Others  1968 (1) SA 322 (C); Ley v Ley’s Executors and Others 1951 (3) SA 186 (A) and Yassen and Others v Yassen and Others  1965 (1) SA 438 (N).”

 

 

[60]     In the Full Bench judgment of Thaker and others v Naran and another 1993 (4) SA 665 (N) at 667E – 670C (to which there is no annotations to date), and in which Bowes (which remains good law to date)  was approved, the following was said:

        

 “Since the matter cannot be resolved on the probabilities, the parties upon whom the onus rests must of course fail. The incidence of the onus is therefore vital. At the trial it appears to have been accepted on behalf of the plaintiffs that the plaintiffs bore the onus. On appeal before us, however, counsel for the plaintiffs argues that it was the defendants who bore the onus. It is therefore necessary to consider where the onus lay.

 

          In Kunz v Swart and Others  1924 AD 618 the Appeal Court held that a will which is registered with the Master and which is complete and regular on the face of it is presumed to be valid until the contrary is proved. That such a presumption exists in our law is beyond question. Counsel for the plaintiffs submits, however, that in Brink and Others v Brink and Others  1927 CPD 214; Sterban v Dixon and Others 1968 (1) SA 322 (C); and Bowes v Friedlander NO and Others  1982 (2) SA 504 (C) the ambit of the presumption as expressed in Kunz’s case has been unjustifiably and incorrectly extended. The effect of the decisions in those cases is that the presumption also applies in cases in which the question is whether the prescribed formalities were complied with. As I understand it, counsel does not contend that the presumption does not apply in such cases. His criticism that there has been an unwarranted extension of the presumption is levelled at the decisions in Brink’s case and Sterban’s case, which are to the effect that, in order to be regarded as complete and regular on the face of it, the will concerned need not contain a so-called attestation clause. Counsel's contention is that, on a correct appraisal of what in  Kunz’s case was held to be the law, a will can only be regarded as complete and regular if inter alia it appears positively ex facie the document that s 2(1)(a) of the Wills Act was duly complied with. He submits in this regard that something more than the mere signatures of the testator and the witnesses is required, that an attestation clause is necessary, and that in the absence of an attestation clause the person averring that the will is valid bears the onus of proving that the formalities prescribed by s 2(1)(a) were complied with.

 

          In the light of these submissions it is necessary to consider Kunz's case with care. The facts in that case were that the will concerned had, for its validity, to comply with the formalities laid down in s 3 of Cape Ordinance 15 of 1845, the relevant portions of which required that

 

           ‘(the will) . . . shall have been signed at the foot or end thereof . . . by the testator . . ., and such signature . . . shall have been made . . . by the testator . . . in the presence of two or more competent witnesses present at the same time, and such witnesses . . . shall have attested and subscribed the will . . . in the presence of the person executing the same’.

 

           The judgments in Kunz’s case do not reflect whether the will contained an attestation clause. In fact it did contain such a clause. That much is evident from a copy of the will extracted from the file in Kunz’s case and furnished to us by the Registrar of the Appellate Division. The attestation clause concerned, which was followed by the signatures of the two witnesses and the testator, read as follows:

 

      ‘Gedateerd te Goedeverwachting, dezen 18de dag van Maart, 1919, in tegenwoordigheid van de ondergeteekende getuigen.’ This attestation clause was of course incomplete, because it did not reflect that the two witnesses had signed the will in the presence of the testator.

 

           It was not, however, because of any alleged failure to comply with the formalities prescribed in s 3 that the validity of the will in Kunz’s case was attacked. Its validity was attacked only on the ground that the testator's signature had been forged. The evidence regarding the alleged forgery of the testator’s signature did not permit of a decision on the probabilities, and it was for that reason that the question of the onus became vital in Kunz’s case.

 

           In lengthy judgments Solomon JA and Kotzé JA held (De Villiers JA dissenting) that where a will is regular on the face of it, it will be presumed to be valid unless the party alleging otherwise proves that it is not valid. After a thorough investigation into the Roman law, Kotzé JA said (at 672) that:

 

          ‘It is . . . not surprising to find in the Civil law a well established recognition of a presumption in favour of the validity of testaments.’

           And after an equally thorough investigation into the Roman-Dutch law, he added (at 680) that:

 

           ‘The Roman-Dutch law is . . . in agreement with the principles of the Civil law.’

 

            In regard to our law he said the following (at 680):

 ‘(I)f the Master has already granted letters of administration, the party impugning the validity of the will must institute his action and prove his case. This has been the established practice for many years at the Cape of Good Hope, and it probably dates back to the early Dutch occupation . . . . It is no sound contention to say that a will or a signature to it can be easily forged, and therefore a party producing a will should be called upon to produce clear proof of its validity. The answer to this is that, while care should always be exercised, there is a legal presumption in favour of a will bearing the outward marks of genuineness. Nor is this unreasonable, for the law or practice is founded on a sensible presumption, which, like all other legal presumptions, is based on probability and the philosophy of life. Practical affairs and the administration of justice cannot be satisfactorily conducted without such presumptions, and human experience shows that, in the vast majority of cases, wills, which in matter and form exhibit no extrinsic defect, prove to be what they purport to be, that is genuine documents.’ Solomon JA came to the same conclusion. He said (at 650) that:

 

 ‘It will be seen, therefore, that under our practice the person lodging a will with the Master is not called upon to take any steps to prove it; but, if the will on the face of it is in order, the Master in the ordinary course grants letters of administration to the executor named in it . . . And the principle underlying that practice would appear to be that a will regular on the face of it is presumed to be valid until its invalidity has been established in a Court of law.’

 

There are two matters arising from Kunz's case which need to be emphasised. The first is that the presumption in favour of validity, where the will is regular on the face of it, was not stated by either Solomon JA  or Kotzé JA to be of limited application. On the contrary, it was plainly intended to be of general application. If the presumption applies to a dispute about the genuineness of a testator’s signature, there is no good reason to think that it would not apply to a dispute about the formalities. Indeed, logic dictates otherwise. It seems self-evident that the question whether a signature, and therefore also the will, was that of the testator is, if anything, more vital than the question whether a will, admittedly signed by the testator, was witnessed in accordance with the necessary formalities. As I have already said, I do not understand counsel for the plaintiffs to contend that the presumption does not apply where the issue is whether the formalities were complied with.

 

Secondly, it must be emphasised that neither Solomon JA nor Kotzé JA suggested that, because the attestation clause was incomplete, the will in Kunz's case was therefore not regular on the face of it. It seems to me that if the learned Judges had held the view that an attestation clause, which can only mean a complete attestation clause, was a prerequisite to a will being regarded as complete and regular on the face of it, they would not have found, as they did, that the will in that case was complete and  regular on the face of it, and they would have held that, in relation to the alleged forgery of the testator's signature, the presumption in favour of validity did not therefore apply… In the light of this consideration it seems to me that the views expressed in this regard in both Brink's case and Sterban’s case were justified. In Brink’s case the will contained an attestation clause, and in an obiter dictum Gardiner JP said (at 216) that:

 

‘The legal presumption . . . would apply even where there is no attestation clause, but the presence of such a clause adds strength to the case for validity.’

 

In Sterban’s case there was also an attestation clause, but it was, as in Kunz’s case, incomplete. In coming to the conclusion that an attestation clause was not a prerequisite Van Zijl J (at 324H-325D) explained, for reasons with which I respectfully agree, that an attestation clause is not proof that the parties concerned in fact executed the will in accordance with the intention expressed in it. He therefore concluded (at 325D-E) that:

 

‘A will is complete and regular on the face of it when from the will itself it appears that it has been signed on each page by the testator and his signature has been attested by two witnesses and there are no circumstances ex facie the will showing that it was not executed in accordance with the formalities prescribed by the law.’

 

In the circumstances I am therefore also satisfied that the following passage in Bowes’ case, which counsel for the plaintiffs also contends  goes too far, is indeed a correct reflection of our law:

 

‘The will being complete and regular on the face of it, plaintiff must establish that it is more probable than not that the will was not signed by the witnesses at the same time as the testator signed it, but on another occasion, and in his absence. No higher degree of proof is required than that which is required in any other case of a civil nature. But there exists a presumption that the will was witnessed in the manner prescribed by the law and this presumption has to be rebutted by plaintiff before the will can be declared invalid.’”

 

[61]     The court a quo relied heavily on the provisions of section 2(3) of the Wills Act and case law relevant thereto. This reliance by the court a quo on section 2(3) of the Wills Act accounts for its orders handed down. The provisions of section 2(3) are only applicable in circumstances where a purported Will or Codicil does not comply with the formal requirements for the execution of such Will or Codicil, and a party approaches a court for an order in terms of that section.

 

 [62]    It is for this reason that appellant submits that the intention of a deceased in signing a Will or Codicil could never be a factor in determining the validity of such document and intention only becomes a factor once a Will or Codicil does not comply with the formal statutory requirements for validity and the provisions of s 2(3) of the Act is relied upon. None of the parties relied upon the provisions of section 2(3) and the only question before the court a quo was therefore whether the Will and Codicil complied with all of the prescribed formal requirements for the execution of a Will and Codicil.

 

[63]     For the aforesaid reasons the appellant submits that the respondents at all relevant times had the onus to prove that the Will and/or Codicil was forgery and not signed by the deceased and that the Will and/or Codicil did not comply with any of the formal statutory requirements for validity. These were the only issues, submits the appellant, which could have been determined by the court a quo.

 

[64]      In the absence of controverting evidence from the respondents and in the face of it being common cause between the parties that the Master of the High Court accepted the relevant Will and Codicil as valid in compliance with the requirements of section 2(1) of the Wills Act, a consideration of section 2(3) was irrelevant. As Kunz’s makes it plain: ‘(I)f the Master has already granted letters of administration, the party impugning the validity of the will must institute his action and prove his case. This has been the established practice for many years at the Cape of Good Hope, and it probably dates back to the early Dutch occupation . . . . It is no sound contention to say that a will or a signature to it can be easily forged, and therefore a party producing a will should be called upon to produce clear proof of its validity.’

 

[65]   The respondent’s failed to adduce any evidence to impugn the validity of the Will and/or Codicil and relied on conjecture or speculation on the validity of the Will and/or Codicil.  The rejection of the evidence of Mrs Marshall and Mrs De Lange as to the surrounding circumstances giving rise to the Will and Codicil in compliance with the formalities required section 2(1) of the Wills Act, was wrongly rejected by the court a quo.

 

[66]      In fact, under cross examination the said witnesses were not challenged on compliance with the formal requirements for a valid Will, and understandably so, as this was common cause between the parties. This is further borne out by the evidence of the first respondent who bore the onus to prove that the Will and/or Codicil was invalid, in that he could not dispute that the deceased signed the two documents; and that the two witnesses signed the two documents, which was done in the presence of the deceased.

 

[67]   The finding by the court a quo that “The reason given for deleting the name of Tshepiso Molokwane from the will and not doing the same in respect of the other two names of the twins, who were excluded by the deceased, raises some doubt with regard to whether or not they signed the two documents in the presence of the deceased.”, was therefore clearly wrong.

 

 

[68]    The aforesaid finding of the court a quo ignores the evidence of the two witnesses in their confirmatory affidavits and oral evidence at trial that the only handwritten deletion on the Will done after the Will was executed, was the deletion of the words “Tshepi Molokwane” with identity number and amount, and that the deceased and witnesses did not sign next to this deletion. What is the effect of the deceased and witnesses not signing next to the deletion? The answer lies in section 2(1)(b) of the Wills Act referred to supra.

 

[69]     Section 2(1)(b)(i) to (iii) of the Wills Act essentially provides that “…no amendment made in a will executed on a will executed on or after the said date and made after the execution thereof shall be valid unless the amendment is identified by the signature of the testator or by the signature of some other person made in his presence and by direction; and such signature is made by the testator or by such other person or is acknowledged by the testator and, if made by such other person, also by such other person, in the presence of two or more competent witnesses present at the same time; and the amendment is further identified by the signatures of such witnesses made in the presence of the testator and of each other and, if the amendment has been identified by the signature of such other person, in the presence also of such other person.”

 

[70]     Save for the deletion of the name “Tshepi Molokwane” with the identity number and amount reflected thereon on the Will which is not valid, the remainder of the Will cannot be assailed as being invalid in its totality. The finding by the court a quo that the single unsigned deletion should have been brought to the attention of the Master when the estate was registered is of no consequence, as the Master on registration of the estate was duty bound to satisfy himself  that the Will and/or Codicil complied with the formalities envisaged in section 2(1) of the Wills Act. The Master in the absence of any evidence to the contrary, clearly satisfied himself that the Will and/or Codicil met the requirements of section 2(1) and (2) of the Wills Act. I re-iterate that no challenge was launched against the fulfilment of the aforesaid requirements.

 

[71]     As already alluded to above and confirmed in our case law, the respondents bore the onus to prove that the Will and/or Codicil was not signed by the deceased and was executed fraudulently and/or that the Will and/or Codicil did not comply with the formal requirements for the execution of a valid Will and/or Codicil.

 

[72]      In the first respondent’s founding affidavit numerous bold allegations were made regarding the Will and/or Codicil not being signed by the deceased. No cogent evidence was, however, adduced by the first respondent during the trial to expound on the allegations of impropriety it relied on. The reasons relied upon by the first respondent which constitutes mere speculation and conjecture include allegations that in the first respondent’s opinion his father would not have given R1M to his wife; that his father misspelled his surname; and that as he knew the type of person his father was, the document not being drafted professionally was out of character.

 

[73]      The respondents’ in the founding affidavit sought to dispute that the signature on the Will and/or Codicil was that of the deceased. The first respondent to this end requested a handwriting report from a forensic handwriting expert and indicated that the report would be ready before the date of hearing. No expert report was, however, discovered at any stage and by implication no expert was called to adduce evidence regarding the authenticity of the signature of the deceased. When the court a quo directed the respondents to file the expert handwriting report it had secured, the report was inconclusive, leaving the evidence of Mrs Marshall and Mrs De Lange unchallenged.

 

[74]   The remaining contentious issue is predicated on the finding of the court a quo “…that it cannot be said with certainty that the deceased intended the two documents to be his will. In the circumstances, I find that the two documents, the will and the codicil, cannot be accepted as the will of the testator as they do not meet the requirements of section 2(3).” As stated supra, the onus in this regard was on the respondents. In considering the evidence adduced by the respondents, the question is whether the respondents in fact presented any evidence that the Will and/or Codicil did not comply with the formal requirements for a valid Will and/or Codicil. As the authorities supra make it clear, these documents are presumed to be valid until the invalidity thereof has been established.

 

[75]      The answer to this question lies in considering the formal requirements for a valid Will and Codicil which include, that it should be signed at the end thereof by the testator or by some other person in his presence and by his direction; that such signature is made by the testator or by such other person, or is acknowledged by the testator and, if made by such other person, also by such other person, in the presence of two or more competent witnesses present at the same time; that such witnesses attest and sign the will in the presence of the testator and of each other and, if the will is signed by such other person, in the presence also of such other persons; and if the will consists of more than one page, each page other than the page on which it ends, is also signed by the testator or by such other person anywhere on the page.

 

[76]     The respondents failed to adduce any evidence that the Will and/or Codicil did not comply with any of the formal statutory requirements save to rely on conjecture and speculation. I re-iterate that the evidence of Mrs Marshall and Mrs De Lange remained unchallenged on compliance with the formal statutory requirements.

 

[77]   More telling, though, is that the first respondent conceded during his evidence that he does not dispute that the Will and/or Codicil were properly executed in terms of the formal statutory requirements.

 

[78]      In Segal and Another v Master of the High Court Cape Town and Others (145/19) [2020] ZAWCHC 144 (22 October 2020), a judgment penned by Lekhuleni AJ, the reasoning of which I agree with, the following was stated:

 

“[30]    The formalities prescribed by section 2(1) in relation to the execution of a Will are to ensure the authenticity and to guard against false or forged Wills. In Van der Merwe v Master of the High Court 2010 (6) SA 544 (SCA), the Supreme Court of Appeal per Navsa JA, gave the follow explanation on this section:

 

“By enacting s 2(3) of the Act the legislature was intent on ensuring that failure to comply with the formalities prescribed by the Act should not frustrate or defeat the genuine intention of testators. It has rightly and repeatedly been said that once a court is satisfied that the document concerned meets the requirements of the subsection a court has no discretion whether or not to grant an order as envisaged therein. In other words, the provisions of s 2(3) are peremptory once the jurisdictional requirements have been satisfied.”

 

[31]     Section 2(3) of the Wills Act is very clear and unequivocal. In terms of this section, the court must direct the Master of the High Court to accept the document after it satisfied itself that indeed it reflects the true intentions of the deceased. First, the document must have been drafted or executed by a person who has subsequently died (the would-be testator). Second, the document must have been intended by the deceased to have been his or her last Will and Testament (see Van Wetten and Another v Bosch and Others 2004 (1) SA 348 (SCA) at para14). The purpose of this provision is to avoid thwarting the lawful wishes of the deceased. In Mdlulu v De Laray [1998] 1 AII SA 434 (W), the court held that the introduction of section 2(3) of the Wills Act, shows an intention and an opportunity to save a Will that would otherwise be invalid due to a formal defect in its attestation.

 

[32]     The court must be satisfied on a preponderance of probabilities that the deceased intended it to be his or her Will. Once it is satisfied that the documents comply with the requirements of section 2(3), the court is obliged by these peremptory provisions to order the Master of the High Court to accept it as the deceased last Will and Testament. See Paul Grobler v Master of the High Court and Another [2019] ZASCA 119 (23 September 2019) at para 13. The provisions of section 2(3) of the Wills Act do not empower or sanction a court to make a Will out of a document which was never intended by the deceased to be his last Will.

 

[33]     In my opinion, it was for the reasons below mentioned that the second responded decided not to oppose this application despite same being duly served upon him, as he could not dispute the authenticity thereof. Importantly, the respondents did not deny in their answering affidavit that the actual signatures and or initials on the contested Will are those of the deceased. Though it is not clear who drafted the contested Will, however the probabilities are very much overwhelming that the contested Will was executed by the deceased. This leads me to the second question whether the deceased intended this document to be his last Will and Testament.

 

[34]     It has been argued on behalf of the respondents that the relief sought by the applicants is drastic in nature and that the court must be satisfied that the deceased genuinely intended for the document to be his last Will and Testament. It was further contended on behalf of the respondents that on the applicants’ version, the deceased was informed by Mr Erickson that the Will had to be witnessed lest it is invalid. The fact that the contested Will was not witnessed despite this knowledge, so the arguments goes, suggests that the deceased did not intend it to be his last Will and Testament.

 

[35]     In my view, the crucial question to be considered by this court is whether the contested Will expresses the animus testandi of the deceased. This enquiry of necessity entails an examination of the Will in the context of the surrounding circumstances. The surrounding circumstances of this matter more in particular, the relationship of the deceased and the respondents is evidenced in both the founding and answering affidavit as well as in the contents of the contested Will as discussed above. The contested Will expresses a clear and unambiguous intention to dispose the testator’s property on death. It is unmistakably clear that the deceased vented his anger towards his family by disinheriting them for neglecting him during his lifetime. He made it very clear and indisputable that this was his last Will and Testament.

 

[36]     Lastly, it has also been argued that the applicants used a wrong procedure to vindicate their rights. It was submitted that the applicants should have instituted summons so that the respondents could subpoena and cross-examine Ms Erickson and Ms Bramley who at some point had a dealing with the deceased in relation to the alleged Will. In my view, such submissions are incorrect as the facts of this case are very simple and straight forward. The issue before court is a question of law and not of fact. Even if Mr Erickson was called to testify he would not take the matter any further. This view is supported by the fact that the respondents do not deny that the signature in the Will is that of the deceased. Secondly, the contents of the Will are confirmed by the respondents in their answering affidavits on the acrimonious relationship that they had with the deceased. The list of assets contained in the Will have been confirmed by the respondents in their answering affidavit. The contested Will is boldly entitled Last Will and Testament of Leonard Samuel Melmed which clearly indicates that the deceased intended it to be his last Will. The evidence before court is very much overwhelming that the Will in question is that of the deceased and that it was intended to be his last Will. The only issue which makes it impeachable is that it was not signed by the witnesses.

 

[37]     In the result, the Court is satisfied that the Will as presented by the applicants was signed by the deceased and represented his true intention on what should be done in his estate upon his demise.  In the circumstances, the Court condones the non-compliance with the formalities of the Will as stipulated in section 2(1)(a)(ii) and (iii) of the Wills Act, and declares the Will of the deceased as put before this Court as his Last Will and Testament. In doing so, the Court finds that there is no prejudice that would be suffered by the respondents as a result thereof.  In fact, the respondents’ opposition is groundless and without merit.”

 

Costs

 

[79]      Insofar as costs are concerned, the respondents did not oppose the appeal in this Court (the Full Court). The respondents as applicants, launched the application in the court a quo, to have the Will and Codicil declared invalid. As already alluded to earlier, the judgment and order of the court a quo stands to be set aside and be replaced with an appropriate order, and costs should follow the result in that instance. As far as the condonation application as well as the costs of the appeal in this Court are concerned, same should be borne by the estate of the late Jeffrey George Molefe. The court a quo in granting leave to appeal to this Full Court, did not make any cost order.

 

[80]      The reason(s) for not making any costs order in its judgment and order on leave to appeal is unknown. The usual order is that the costs of the application for leave to appeal should be costs in the appeal, unless there are compelling reasons to order otherwise, or to the contrary. That being the case, I am of the view that the costs of the application for leave to appeal should be included in the costs of appeal in this Full Court, to be borne by the estate of the late Jeffrey George Molefe. This, in my view, would be just, fair and equitable.

 

Order

 

[81]      Resultantly, the following order is made:

 

(i)           The appeal is upheld.

 

(ii)      The order of the court a quo is set aside in its entirety and is substituted with the following:

 

“The application is dismissed with costs, save insofar as the deletion of the name “Tshepi Molokwane” with the identity number and the amount reflected thereon on the Will is not valid.”

 

(iii)     The costs of the appeal in the Full Court, including the costs of the application for leave to appeal, shall be borne by the estate of the late Jeffrey George Molefe.

 

R D HENDRICKS

JUDGE PRESIDENT OF THE HIGH COURT OF SA

NORTH WEST DIVISION, MAHIKENG

 

 

I agree

 

 

A.H PETERSEN

JUDGE OF THE HIGH COURT OF SA

NORTH WEST DIVISION, MAHIKENG

 

 

I agree

 

 

 

 

 

J KHAN

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

 

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