Bester NO v Nel en Andere (17004/2008) [2008] ZAGPHC 402 (12 December 2008)

Bester NO v Nel en Andere (17004/2008) [2008] ZAGPHC 402 (12 December 2008)

The court found that the phrase 'our children' in the joint will of Gert Steyn and Ingrid Steyn, executed while married in community of property and with no possibility of joint children, could only refer to Ingrid Steyn's two daughters from her previous marriage. The court considered the background, the wording of the will, and the circumstances of the testators, including their inability to have children together. The court rejected the argument that the estate should devolve intestate, holding that the intention of both testators was to benefit the children they regarded as their own, namely Maritza Nel and Renee Steyn. The court also found that legal arguments contained in affidavits...

Citation
[2008] ZAGPHC 402
Parties
Applicant: Tobias Christiaan Bester N.O.; Respondent: Maritza Nel; Respondent: Renee Steyn; Respondent: Catharina Sophia Pienaar; Respondent: Gertruida Catharina Johanna Geyser; Respondent: Christiaan Ernst Gerhardus Steyn; Respondent: Francina Petronella Loch; Respondent: Arina Gertruida Steyn; Respondent: Gert Jacobus Steyn; Respondent: Jacobus Francois Retief; Respondent: Gert Jacobus Jordaan; Respondent: Gertruida Catharina Johanna du Plessis; Respondent: Adriaan Johannes Petrus Jordaan; Respondent: Registrar of Deeds (JHB)
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
12 December 2008
Case Number
17004/2008
Procedural Posture
Declaratory Application / Judgment
Outcome
Application granted. Declaratory order issued interpreting 'our children' as referring to Ingrid Steyn's daughters. Costs to be paid from the estate, excluding costs of the improper affidavit.
Judges
Pretorius
Legal Topics
Testamentary Interpretation, Joint Will, Intestate Succession, Beneficiary Definition
Family and Children Land and Property Testamentary Interpretation Joint Will Intestate Succession Beneficiary Definition

Case Brief

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Parties

Tobias Christiaan Bester N.O.

Applicant

Maritza Nel

Respondent

Renee Steyn

Respondent

Catharina Sophia Pienaar

Respondent

Gertruida Catharina Johanna Geyser

Respondent

Christiaan Ernst Gerhardus Steyn

Respondent

Francina Petronella Loch

Respondent

Arina Gertruida Steyn

Respondent

Gert Jacobus Steyn

Respondent

Jacobus Francois Retief

Respondent

Gert Jacobus Jordaan

Respondent

Gertruida Catharina Johanna du Plessis

Respondent

Adriaan Johannes Petrus Jordaan

Respondent

Registrar of Deeds (JHB)

Respondent

Procedural Posture

Declaratory Application / Judgment

Legal Issues

  1. 1 Whether the phrase 'our children' in clause B of the joint will refers to the children of Ingrid Steyn only.
  2. 2 Whether the joint will should be interpreted to exclude the children of Gert Steyn as beneficiaries.
  3. 3 Whether the estate of Gert Steyn devolves intestate or in terms of the joint will.

Ratio Decidendi

The court found that the phrase 'our children' in the joint will of Gert Steyn and Ingrid Steyn, executed while married in community of property and with no possibility of joint children, could only refer to Ingrid Steyn's two daughters from her previous marriage. The court considered the background, the wording of the will, and the circumstances of the testators, including their inability to have children together. The court rejected the argument that the estate should devolve intestate, holding that the intention of both testators was to benefit the children they regarded as their own, namely Maritza Nel and Renee Steyn. The court also found that legal arguments contained in affidavits...

Court Disposition

Application granted. Declaratory order issued interpreting 'our children' as referring to Ingrid Steyn's daughters. Costs to be paid from the estate, excluding costs of the improper affidavit.

Orders

  • It is declared that the words 'our children' in clause B of the joint will dated 19 October 1998 of the late Gert Jacobus Steyn and Ingrid Steyn mean the children of Ingrid Steyn, namely Maritza Nel and Renee Steyn.
  • The costs of this application, excluding the costs of Mr R Kruger's affidavit from paragraph 4 onwards, are to be paid from the estate of Gert Jacobus Steyn.