M and Another v Master of the High Court and Others (1680/2014) [2014] ZAFSHC 141 (4 September 2014)

M and Another v Master of the High Court and Others (1680/2014) [2014] ZAFSHC 141 (4 September 2014)

The court found, based on the affidavits of Mr Johannes Mthimkhulu, that he did not sign the Second Will and was not present at its execution. The respondents' challenge to the authenticity of his affidavit was rejected, as the police affidavit and subsequent affidavit were consistent and credible. The absence of proper attestation by two competent witnesses meant the Second Will did not comply with section 2 of the Wills Act. Consequently, the Second Will was declared invalid, and the First Will was declared the valid Last Will and Testament of the deceased. The estate must be administered in accordance with the First Will.

Citation
[2014] ZAFSHC 141
Parties
Applicant: F[...] G[...] M[...]; Applicant: M[...] G[...] M[...] N.O.; Respondent: THE MASTER OF THE HIGH COURT; Respondent: D[...] M[...] M[...]; Respondent: P[...] S[...] G[...] M[...]; Respondent: FAKUDE SARAH LETSABA; Respondent: JAN BRUWER HUGO N.O.
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
4 September 2014
Case Number
1680/2014
Procedural Posture
Review Application / Judgment
Outcome
Application granted; Second Will declared invalid, First Will declared valid, costs awarded against second and third respondents.
Judges
L le R POHL
Legal Topics
Wills Act Formalities, Testamentary Capacity, Invalid Will, Costs Order
Civil Procedure Family and Children Wills Act Formalities Testamentary Capacity Invalid Will Costs Order

Case Brief

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Parties

F[...] G[...] M[...]

Applicant

M[...] G[...] M[...] N.O.

Applicant

THE MASTER OF THE HIGH COURT

Respondent

D[...] M[...] M[...]

Respondent

P[...] S[...] G[...] M[...]

Respondent

FAKUDE SARAH LETSABA

Respondent

JAN BRUWER HUGO N.O.

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the Second Will dated 4 February 2013 complied with the formalities required by section 2 of the Wills Act, Act 7 of 1953.
  2. 2 Whether the First Will dated 4 April 2012 should be declared the valid Last Will and Testament of the deceased.
  3. 3 Whether the estate should be administered in terms of the First Will.

Ratio Decidendi

The court found, based on the affidavits of Mr Johannes Mthimkhulu, that he did not sign the Second Will and was not present at its execution. The respondents' challenge to the authenticity of his affidavit was rejected, as the police affidavit and subsequent affidavit were consistent and credible. The absence of proper attestation by two competent witnesses meant the Second Will did not comply with section 2 of the Wills Act. Consequently, the Second Will was declared invalid, and the First Will was declared the valid Last Will and Testament of the deceased. The estate must be administered in accordance with the First Will.

Court Disposition

Application granted; Second Will declared invalid, First Will declared valid, costs awarded against second and third respondents.

Orders

  • The document titled 'Last Will and Testament' dated 4 February 2013 is declared invalid and not the Last Will and Testament of the late B[...] M[...].
  • The document titled 'Testament' dated 4 April 2012 is declared the valid Last Will and Testament of the late B[...] M[...].