De Reszke v Czeslaw Maras and Others (76/05) [2005] ZASCA 137; [2006] 2 All SA 115 (SCA); 2006 (2) SA 277 (SCA) (30 November 2005)

De Reszke v Czeslaw Maras and Others (76/05) [2005] ZASCA 137; [2006] 2 All SA 115 (SCA); 2006 (2) SA 277 (SCA) (30 November 2005)

The Supreme Court of Appeal held that annexure A was not intended by the deceased to be his will as required by section 2(3) of the Wills Act. The evidence showed that the deceased regarded annexure A as instructions to an attorney for the drafting of a new will, not as his own will. His conduct, including repeated requests for attorneys to draft a new will and the delivery of annexure A to Burger, was inconsistent with an intention for annexure A to serve as his will. The appellant failed to establish the requisite intention at the time of drafting or signing annexure A. Consequently, the appeal was dismissed.

Citation
[2005] ZASCA 137
Parties
Appellant: Andre De Reszke; Respondent: Czeslaw Maras and 18 Others; Respondent: Master of the Supreme Court; Respondent: Jacobus Christiaan Krige NO
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 November 2005
Case Number
76/05
Procedural Posture
Civil Appeal / Appeal From Full Court of Cape High Court, Special Leave Granted
Outcome
Appeal dismissed with costs.
Judges
Howie, Streicher, Ponnan, Mlambo, Combrinck
Legal Topics
Wills Act Section 2 3, Testamentary Intention, Revocation of Will, Estate Distribution
Civil Procedure Family and Children Wills Act Section 2 3 Testamentary Intention Revocation of Will Estate Distribution

Case Brief

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Parties

Andre De Reszke

Appellant

Czeslaw Maras and 18 Others

Respondent

Master of the Supreme Court

Respondent

Jacobus Christiaan Krige NO

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Court of Cape High Court, Special Leave Granted

Legal Issues

  1. 1 Whether annexure A was intended by the deceased to be his will as required by section 2(3) of the Wills Act.
  2. 2 Whether the deceased had the requisite intention at the time of drafting or signing annexure A.
  3. 3 Whether the costs of the appeal should be borne by the estate.

Ratio Decidendi

The Supreme Court of Appeal held that annexure A was not intended by the deceased to be his will as required by section 2(3) of the Wills Act. The evidence showed that the deceased regarded annexure A as instructions to an attorney for the drafting of a new will, not as his own will. His conduct, including repeated requests for attorneys to draft a new will and the delivery of annexure A to Burger, was inconsistent with an intention for annexure A to serve as his will. The appellant failed to establish the requisite intention at the time of drafting or signing annexure A. Consequently, the appeal was dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.