Ndebele N.O. and Others v Master of the Supreme Court and Another (10338/96) [1999] ZAWCHC 9; 2001 (2) SA 102 (C) (15 December 1999)

Ndebele N.O. and Others v Master of the Supreme Court and Another (10338/96) [1999] ZAWCHC 9; 2001 (2) SA 102 (C) (15 December 1999)

The court found that annexure JN4 was drafted in accordance with the deceased's instructions, was perused and approved by him, and was adopted as his final instruction regarding the disposal of his estate. The court adopted a flexible interpretation of 'drafted' under section 2(3) of the Wills Act, holding that personal drafting is not required if the document reflects the deceased's wishes and is approved by him. The evidence established on a balance of probabilities that the deceased intended JN4 to be his will. The previous will was revoked by the terms of JN4 and the deceased's clear instructions. The court ordered the Master to accept JN4 as the deceased's will and directed that the...

Citation
[1999] ZAWCHC 9
Parties
Applicant: Sibongile Precious Ndebele N O; Applicant: Mpho Kibe N O; Applicant: Nomathemba Albertina Mali N O; Applicant: Johan Neser; Respondent: The Master of the Supreme Court; Respondent: Virginia Nomonde Tshabalala
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
15 December 1999
Case Number
10338/96
Procedural Posture
Review Application / Application for Acceptance of a Document as a Will Under Section 2(3) of the Wills Act
Outcome
Application granted. The unsigned draft will (annexure JN4) is declared to be the last will and testament of the deceased.
Judges
Brand
Legal Topics
Wills Act Section 2 3, Testamentary Intention, Revocation of Will, Administration of Estates
Civil Procedure Family and Children Wills Act Section 2 3 Testamentary Intention Revocation of Will Administration of Estates

Case Brief

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Parties

Sibongile Precious Ndebele N O

Applicant

Mpho Kibe N O

Applicant

Nomathemba Albertina Mali N O

Applicant

Johan Neser

Applicant

The Master of the Supreme Court

Respondent

Virginia Nomonde Tshabalala

Respondent

Procedural Posture

Review Application / Application for Acceptance of a Document as a Will Under Section 2(3) of the Wills Act

Legal Issues

  1. 1 Whether the unsigned draft will (annexure JN4) was 'drafted' by the deceased within the meaning of section 2(3) of the Wills Act.
  2. 2 Whether the deceased intended annexure JN4 to be his will for the purposes of section 2(3) of the Wills Act.
  3. 3 Whether the previous will was duly revoked by the deceased's instructions and actions.

Ratio Decidendi

The court found that annexure JN4 was drafted in accordance with the deceased's instructions, was perused and approved by him, and was adopted as his final instruction regarding the disposal of his estate. The court adopted a flexible interpretation of 'drafted' under section 2(3) of the Wills Act, holding that personal drafting is not required if the document reflects the deceased's wishes and is approved by him. The evidence established on a balance of probabilities that the deceased intended JN4 to be his will. The previous will was revoked by the terms of JN4 and the deceased's clear instructions. The court ordered the Master to accept JN4 as the deceased's will and directed that the...

Court Disposition

Application granted. The unsigned draft will (annexure JN4) is declared to be the last will and testament of the deceased.

Orders

  • Annexure JN4 is declared to be the last will and testament of the late Bhekizulu Herman Tshabalala.
  • The Master is directed to accept annexure JN4 as the will and testament of the deceased for purposes of the Administration of Estates Act, No 66 of 1995.