Mlanda v Mhlaba and Others (EL382/2015; ECD782/2015) [2015] ZAECGHC 133; 2016 (4) SA 311 (ECG) (17 November 2015)

Mlanda v Mhlaba and Others (EL382/2015; ECD782/2015) [2015] ZAECGHC 133; 2016 (4) SA 311 (ECG) (17 November 2015)

The court found that the certificate by the commissioner of oaths attached to the will did not comply with section 2(1)(a)(v) of the Wills Act, as it failed to certify that the commissioner had satisfied himself as to the identity of the testatrix. The wording merely stated that the testator signed in the presence of the commissioner and two witnesses, which did not meet the statutory requirement. The court held that the implication of compliance must be certain and leave no room for doubt, which was not the case here. The purpose of the statutory requirement—to prevent fraud by impersonation—was not fulfilled. Consequently, the will was declared invalid. The court declined to declare the...

Citation
[2015] ZAECGHC 133
Parties
Applicant: Ntombomzi Jacquelina Mlanda; Respondent: Ncumisa Gloria Mhlaba; Respondent: Master of the High Court, Bhisho; Respondent: Registrar of Deeds, King William’s Town
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
17 November 2015
Case Number
EL382/2015; ECD782/2015
Procedural Posture
Review Application / Judgment
Outcome
The will of Philomena Buyiswa Tupeni dated 5 November 2010 is declared invalid and of no force or effect. Costs are awarded against the first respondent, except for wasted costs on specified dates, which are to be paid by the applicant.
Judges
J.D. Pickering, J.M. Roberson
Legal Topics
Wills Act Formalities, Testamentary Capacity, Intestate Succession, Commissioner of Oaths Certificate
Land and Property Civil Procedure Wills Act Formalities Testamentary Capacity Intestate Succession Commissioner of Oaths Certificate

Case Brief

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Parties

Ntombomzi Jacquelina Mlanda

Applicant

Ncumisa Gloria Mhlaba

Respondent

Master of the High Court, Bhisho

Respondent

Registrar of Deeds, King William’s Town

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the last will and testament of Philomena Buyiswa Tupeni dated 5 November 2010 is valid.
  2. 2 Whether the formalities required by section 2(1)(a)(v) of the Wills Act were complied with.
  3. 3 Whether the applicant is entitled to be declared the sole beneficiary of the intestate estate.

Ratio Decidendi

The court found that the certificate by the commissioner of oaths attached to the will did not comply with section 2(1)(a)(v) of the Wills Act, as it failed to certify that the commissioner had satisfied himself as to the identity of the testatrix. The wording merely stated that the testator signed in the presence of the commissioner and two witnesses, which did not meet the statutory requirement. The court held that the implication of compliance must be certain and leave no room for doubt, which was not the case here. The purpose of the statutory requirement—to prevent fraud by impersonation—was not fulfilled. Consequently, the will was declared invalid. The court declined to declare the...

Court Disposition

The will of Philomena Buyiswa Tupeni dated 5 November 2010 is declared invalid and of no force or effect. Costs are awarded against the first respondent, except for wasted costs on specified dates, which are to be paid by the applicant.

Orders

  • It is declared that the last will and testament of Philomena Buyiswa Tupeni, dated 5 November 2010, is invalid and of no force or effect.
  • The first respondent is ordered to pay the costs of the application, save for the wasted costs of 21 July 2015 and 15 October 2015 which shall be paid by the applicant.