Kinnear and Another v Master of the High Court and Others [2023] ZAGPPHC 180; 36165/2021 (24 March 2023)

Kinnear and Another v Master of the High Court and Others [2023] ZAGPPHC 180; 36165/2021 (24 March 2023)

The court found that the unsigned document did not meet the jurisdictional requirements of section 2(3) of the Wills Act. There was insufficient evidence that the deceased personally drafted or executed the document, or that she intended it to be her will. The evidence presented by the applicants was largely hearsay, and the financial adviser did not substantiate the deceased's instructions or confirm that she had sight of the document. The court held that the deceased had ample opportunity to finalize and sign a new will but did not do so. On the balance of probabilities, the applicants failed to prove the deceased's intention to revoke the joint will and to conclude a new will....

Citation
[2023] ZAGPPHC 180
Parties
Applicant: Dale Alistair Kinnear; Applicant: Melanie Merlyn Kinnear; Respondent: Master of the High Court; Respondent: Shaaynaz Ramdhani, NO; Respondent: Dominic Austin Kinnear
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
24 March 2023
Case Number
36165/2021
Procedural Posture
Declaratory Application / Opposed Motion for Declaratory Relief; Judgment
Outcome
Application dismissed. Costs to be paid out of the estate of the deceased.
Judges
Mncube
Legal Topics
Wills Act Section 2 3, Declaratory Orders, Testamentary Intention, Revocation of Will
Civil Procedure Family and Children Wills Act Section 2 3 Declaratory Orders Testamentary Intention Revocation of Will

Case Brief

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Parties

Dale Alistair Kinnear

Applicant

Melanie Merlyn Kinnear

Applicant

Master of the High Court

Respondent

Shaaynaz Ramdhani, NO

Respondent

Dominic Austin Kinnear

Respondent

Procedural Posture

Declaratory Application / Opposed Motion for Declaratory Relief; Judgment

Legal Issues

  1. 1 Whether the unsigned document described as '00540151X8, THE WILL OF FLORENCE DINAH ROSINA KINNEAR' falls within the ambit of section 2(3) of the Wills Act, 1988.
  2. 2 Whether the applicants have made out a case for the relief claimed, namely, recognition of the unsigned will as valid.

Ratio Decidendi

The court found that the unsigned document did not meet the jurisdictional requirements of section 2(3) of the Wills Act. There was insufficient evidence that the deceased personally drafted or executed the document, or that she intended it to be her will. The evidence presented by the applicants was largely hearsay, and the financial adviser did not substantiate the deceased's instructions or confirm that she had sight of the document. The court held that the deceased had ample opportunity to finalize and sign a new will but did not do so. On the balance of probabilities, the applicants failed to prove the deceased's intention to revoke the joint will and to conclude a new will....

Court Disposition

Application dismissed. Costs to be paid out of the estate of the deceased.

Orders

  • The application is dismissed.
  • The costs of the application, including the costs of the interlocutory application for condonation, are to be paid out of the estate of the deceased.