Bekker v Naude en andere (179/01) [2003] ZASCA 40; 2003 (5) SA 173 (SCA) (31 March 2003)

Bekker v Naude en andere (179/01) [2003] ZASCA 40; 2003 (5) SA 173 (SCA) (31 March 2003)

The Supreme Court of Appeal held that section 2(3) of the Wills Act 7 of 1953 requires the document to be personally drafted or executed by the deceased. The court found that the draft will in question was prepared by Absa Bank employees using standard wording and conditions, based on oral instructions from the deceased and the appellant, and was never signed by the deceased. The court rejected a broad interpretation of 'drafted' to include documents prepared by third parties on instruction, emphasizing that the legislature deliberately distinguished between 'drafted' and 'caused to be drafted' in the statute. The court reasoned that the requirement of a personal act by the testator...

Citation
[2003] ZASCA 40
Parties
Appellant: Elizabeth Christina Bekker; Respondent: Mildred Naude; Respondent: The Master of the High Court; Respondent: Absa Trust; Respondent: Louwrens Abraham Bekker; Respondent: Tania van der Schyff; Respondent: Lelanie Bekker; Respondent: Dewald Johannes Strydom
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
31 March 2003
Case Number
179/01
Procedural Posture
Civil Appeal / Appeal From the Rand High Court
Outcome
Appeal dismissed with costs.
Judges
Olivier, Streicher, Cameron, Navsa, Heher
Legal Topics
Wills and Testamentary Formalities, Condonation of Wills, Interpretation of Statutes
Family and Children Land and Property Wills and Testamentary Formalities Condonation of Wills Interpretation of Statutes

Case Brief

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Parties

Elizabeth Christina Bekker

Appellant

Mildred Naude

Respondent

The Master of the High Court

Respondent

Absa Trust

Respondent

Louwrens Abraham Bekker

Respondent

Tania van der Schyff

Respondent

Lelanie Bekker

Respondent

Dewald Johannes Strydom

Respondent

Procedural Posture

Civil Appeal / Appeal From the Rand High Court

Legal Issues

  1. 1 Whether an unsigned draft will prepared by a third party at the instruction of the deceased qualifies for condonation under section 2(3) of the Wills Act 7 of 1953.
  2. 2 Whether 'drafted' in section 2(3) of the Wills Act requires a personal act by the testator or includes documents prepared by others on instruction.
  3. 3 Whether the court has condonation power for wills not personally drafted by the deceased.

Ratio Decidendi

The Supreme Court of Appeal held that section 2(3) of the Wills Act 7 of 1953 requires the document to be personally drafted or executed by the deceased. The court found that the draft will in question was prepared by Absa Bank employees using standard wording and conditions, based on oral instructions from the deceased and the appellant, and was never signed by the deceased. The court rejected a broad interpretation of 'drafted' to include documents prepared by third parties on instruction, emphasizing that the legislature deliberately distinguished between 'drafted' and 'caused to be drafted' in the statute. The court reasoned that the requirement of a personal act by the testator...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.