Henriques v Giles NO and Another; Henriques v Giles NO and Others (213/08) [2009] ZASCA 64; 2010 (6) SA 51 (SCA) ; [2009] 4 All SA 116 (SCA) (29 May 2009)

Henriques v Giles NO and Another; Henriques v Giles NO and Others (213/08) [2009] ZASCA 64; 2010 (6) SA 51 (SCA) ; [2009] 4 All SA 116 (SCA) (29 May 2009)

The Supreme Court of Appeal held that the error in the execution of the wills, where Franco and Jackie each signed the will prepared for the other, was a clerical mistake and not fatal to the formal validity of the wills under the Wills Act. All other statutory formalities were complied with, and the evidence clearly established Franco's testamentary intention. Rectification of Franco's will was therefore competent and necessary to give effect to his true intention. The court found that excessive formalism should not override clear testamentary intent, and that rectification in these circumstances does not violate the principles governing the execution of wills. The appeal against the...

Citation
[2009] ZASCA 64
Parties
Appellant: Elizabeth Henriques; Respondent: Michael John Giles NO; Respondent: PFK (Cape Town) Incorporated; Respondent: Carlo Guiseppe Cammisa; Respondent: Master of the High Court
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 May 2009
Case Number
213/08
Procedural Posture
Civil Appeal / Appeal From High Court, Cape Town
Outcome
Appeal dismissed except for the setting aside of paragraph 2 of the order below; appeal against dismissal of the counter-application succeeds to the extent set out; rectification of Franco's will granted; rectification of Jackie's will set aside; costs orders amended.
Judges
NAVSA, VAN HEERDEN, MHLANTLA, KROON, TSHIQI
Legal Topics
Rectification of Wills, Testamentary Capacity, Administration of Estates Act, Wills Act Formalities, Intestacy, Costs Orders
Family and Children Land and Property Rectification of Wills Testamentary Capacity Administration of Estates Act Wills Act Formalities Intestacy Costs Orders

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 13 Party arguments 2
Sign in to unlock

Parties

Elizabeth Henriques

Appellant

Michael John Giles NO

Respondent

PFK (Cape Town) Incorporated

Respondent

Carlo Guiseppe Cammisa

Respondent

Master of the High Court

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court, Cape Town

Legal Issues

  1. 1 Whether a will signed by the wrong testator due to an inadvertent mistake can be rectified to reflect the true testamentary intention.
  2. 2 Whether the formal requirements of the Wills Act preclude rectification in cases of 'crossed wills'.
  3. 3 Whether the acceptance and registration of a will by the Master of the High Court constitutes a determination of validity.

Ratio Decidendi

The Supreme Court of Appeal held that the error in the execution of the wills, where Franco and Jackie each signed the will prepared for the other, was a clerical mistake and not fatal to the formal validity of the wills under the Wills Act. All other statutory formalities were complied with, and the evidence clearly established Franco's testamentary intention. Rectification of Franco's will was therefore competent and necessary to give effect to his true intention. The court found that excessive formalism should not override clear testamentary intent, and that rectification in these circumstances does not violate the principles governing the execution of wills. The appeal against the...

Court Disposition

Appeal dismissed except for the setting aside of paragraph 2 of the order below; appeal against dismissal of the counter-application succeeds to the extent set out; rectification of Franco's will granted; rectification of Jackie's will set aside; costs orders amended.

Orders

  • Save for the setting aside of paragraph 2 of the order of the court below, the appeal is dismissed with costs, including the costs of two counsel.
  • The appeal against the dismissal of the counter-application succeeds to the extent set out, with no order as to costs.