Mlatsha v Msweli and Another (809/17) [2020] ZAECBHC 3 (21 January 2020)

Mlatsha v Msweli and Another (809/17) [2020] ZAECBHC 3 (21 January 2020)

The court found that the impugned Will did not comply with the peremptory formalities of the Wills Act, specifically the requirement for the Commissioner of Oaths to certify the identity of the testator when a mark or thumb print is used. The evidence presented was insufficient to establish whether the deceased signed the Will by mark or signature, and whether the Will was indeed hers. The absence of affidavits from witnesses and the conflicting roles of the first respondent as both executor and beneficiary further complicated the matter. In light of these uncertainties, the court determined that justice would best be served by referring the matter for oral evidence to clarify the...

Citation
[2020] ZAECBHC 3
Parties
Applicant: Lonwabo Mlatsha; Respondent: Tobeka Msweli; Respondent: Master of the High Court Bhisho
Court
Eastern Cape High Court, Bhisho
Jurisdiction
South Africa
Judgment Date
21 January 2020
Case Number
809/17
Procedural Posture
Civil Application / Referral for Oral Evidence on Validity of Will
Outcome
Application referred for oral evidence to determine the validity of the Will and compliance with statutory formalities. Costs reserved.
Judges
B R Tokota, S M Mfenyana
Legal Topics
Wills Act Formalities, Testamentary Capacity, Executor Appointment, Oral Evidence Referral
Family and Children Land and Property Wills Act Formalities Testamentary Capacity Executor Appointment Oral Evidence Referral

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Parties

Lonwabo Mlatsha

Applicant

Tobeka Msweli

Respondent

Master of the High Court Bhisho

Respondent

Procedural Posture

Civil Application / Referral for Oral Evidence on Validity of Will

Legal Issues

  1. 1 Whether the impugned Will of Norityi Emma Mlatsha is valid and complies with the formalities prescribed by the Wills Act.
  2. 2 Whether the deceased signed the Will by means of a mark or thumb print and whether she signed twice.
  3. 3 Whether the Commissioner of Oaths complied with section 2(1)(a)(v) of the Wills Act by certifying the identity of the testator.

Ratio Decidendi

The court found that the impugned Will did not comply with the peremptory formalities of the Wills Act, specifically the requirement for the Commissioner of Oaths to certify the identity of the testator when a mark or thumb print is used. The evidence presented was insufficient to establish whether the deceased signed the Will by mark or signature, and whether the Will was indeed hers. The absence of affidavits from witnesses and the conflicting roles of the first respondent as both executor and beneficiary further complicated the matter. In light of these uncertainties, the court determined that justice would best be served by referring the matter for oral evidence to clarify the...

Court Disposition

Application referred for oral evidence to determine the validity of the Will and compliance with statutory formalities. Costs reserved.

Orders

  • The application is referred for the hearing of oral evidence on whether the testator signed by means of a mark or thumb print and whether she signed the Will twice and, if so, why.
  • Any witness whom the parties may elect to call may give evidence, subject to procedural requirements.