Maimane v Shole-Mashao N.O and Others (22-19945) [2023] ZAGPJHC 1207 (23 October 2023)

Maimane v Shole-Mashao N.O and Others (22-19945) [2023] ZAGPJHC 1207 (23 October 2023)

The will of the late Mphele Anna Mashao is invalid as it does not comply with section 2(1)(a)(iv) of the Wills Act, specifically the absence of the testatrix's signature on every page. The respondents' reliance on section 2(3) of the Wills Act as a defence is procedurally incompetent without a counter-application. The court declined to declare that the deceased died intestate, as the respondents may still pursue relief under section 2(3) in subsequent proceedings. The costs are to be paid by the deceased estate.

Citation
[2023] ZAGPJHC 1207
Parties
Applicant: Moleko Daniel Maimane; Respondent: Thabo Shole-Mashao N.O.; Respondent: Dimakatso Pauline Maimane N.O.; Respondent: Rosina Maimane; Respondent: Elizabeth Maimane; Respondent: Thabo Shole Mashao; Respondent: Puso Meko; Respondent: Keamogetswe Mashao; Respondent: Tshepo Mashao; Respondent: Letlohogonolo Maimane; Respondent: The Master of the High Court
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
23 October 2023
Case Number
22-19945
Procedural Posture
Review Application / Judgment
Outcome
The will of the late Mphele Anna Mashao dated 20 November 2007 is declared invalid. Costs are to be paid by the deceased estate.
Judges
Van der Merwe
Legal Topics
Wills Act Formalities, Intestate Succession, Invalid Will, Counter Application Procedure
Civil Procedure Family and Children Wills Act Formalities Intestate Succession Invalid Will Counter Application Procedure

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Parties

Moleko Daniel Maimane

Applicant

Thabo Shole-Mashao N.O.

Respondent

Dimakatso Pauline Maimane N.O.

Respondent

Rosina Maimane

Respondent

Elizabeth Maimane

Respondent

Thabo Shole Mashao

Respondent

Puso Meko

Respondent

Keamogetswe Mashao

Respondent

Tshepo Mashao

Respondent

Letlohogonolo Maimane

Respondent

The Master of the High Court

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the will of the late Mphele Anna Mashao is invalid due to non-compliance with the Wills Act formalities.
  2. 2 Whether the respondents may rely on section 2(3) of the Wills Act as a defence without a counter-application.
  3. 3 Whether an order should be made declaring the deceased died intestate.

Ratio Decidendi

The will of the late Mphele Anna Mashao is invalid as it does not comply with section 2(1)(a)(iv) of the Wills Act, specifically the absence of the testatrix's signature on every page. The respondents' reliance on section 2(3) of the Wills Act as a defence is procedurally incompetent without a counter-application. The court declined to declare that the deceased died intestate, as the respondents may still pursue relief under section 2(3) in subsequent proceedings. The costs are to be paid by the deceased estate.

Court Disposition

The will of the late Mphele Anna Mashao dated 20 November 2007 is declared invalid. Costs are to be paid by the deceased estate.

Orders

  • The will of the late Mphele Anna Mashao dated 20 November 2007 is declared to be invalid.
  • The costs are to be paid by the deceased estate of the late Mphele Anna Mashao.