Mokoena v Molefe and Others (CIV APP FB 10/2022) [2023] ZANWHC 116 (7 August 2023)

Mokoena v Molefe and Others (CIV APP FB 10/2022) [2023] ZANWHC 116 (7 August 2023)

The Full Court found that the will and codicil executed by the late Jeffrey George Molefe substantially complied with the formal requirements of the Wills Act. The evidence established that the deceased signed both documents in the presence of two witnesses, who attested to the execution. The deletions and amendments made to the will were properly initialled, except for the deletion of Tshepi Molokwane’s name and details, which was not validly effected as it was not initialled by the deceased and witnesses. The codicil, although not referring to a specific will, was accepted as a valid testamentary instrument amending the will, as the intention of the deceased was clear. The allegations...

Citation
[2023] ZANWHC 116
Parties
Appellant: Edith Lebogang Mokoena; Respondent: Ephraim Tshepiso Molefe; Respondent: O[...] S[...]; Respondent: C[...] T[...] S[...]
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
7 August 2023
Case Number
CIV APP FB 10/2022
Procedural Posture
Civil Appeal / Full Court Appeal From Opposed Motion; Judgment Delivered After Hearing on Papers
Outcome
Appeal upheld; order of the court a quo set aside and substituted; application dismissed with costs except for the invalid deletion of Tshepi Molokwane’s name and details on the will.
Judges
Hendricks JP, Petersen J, Khan AJ
Legal Topics
Wills Act Formalities, Testamentary Capacity, Codicil Amendment, Executor Appointment
Family and Children Civil Procedure Wills Act Formalities Testamentary Capacity Codicil Amendment Executor Appointment

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Parties

Edith Lebogang Mokoena

Appellant

Ephraim Tshepiso Molefe

Respondent

O[...] S[...]

Respondent

C[...] T[...] S[...]

Respondent

Procedural Posture

Civil Appeal / Full Court Appeal From Opposed Motion; Judgment Delivered After Hearing on Papers

Legal Issues

  1. 1 Whether the will and codicil of the late Jeffrey George Molefe comply with the formal requirements of the Wills Act.
  2. 2 Whether the deceased intended the impugned will to be his final will.
  3. 3 Whether the deceased intended to amend the impugned will through the codicil.

Ratio Decidendi

The Full Court found that the will and codicil executed by the late Jeffrey George Molefe substantially complied with the formal requirements of the Wills Act. The evidence established that the deceased signed both documents in the presence of two witnesses, who attested to the execution. The deletions and amendments made to the will were properly initialled, except for the deletion of Tshepi Molokwane’s name and details, which was not validly effected as it was not initialled by the deceased and witnesses. The codicil, although not referring to a specific will, was accepted as a valid testamentary instrument amending the will, as the intention of the deceased was clear. The allegations...

Court Disposition

Appeal upheld; order of the court a quo set aside and substituted; application dismissed with costs except for the invalid deletion of Tshepi Molokwane’s name and details on the will.

Orders

  • The appeal is upheld.
  • The order of the court a quo is set aside in its entirety and substituted with: 'The application is dismissed with costs, save insofar as the deletion of the name “Tshepi Molokwane” with the identity number and the amount reflected thereon on the Will is not valid.'