N.N.H v L.L.H and Others (1670/2022) [2023] ZAECMHC 36 (4 July 2023)

N.N.H v L.L.H and Others (1670/2022) [2023] ZAECMHC 36 (4 July 2023)

The Court found that the massed will executed by the deceased and his first wife was rendered null and void by their divorce and the subsequent distribution of their joint estate through a deed of settlement. There were no consolidated assets remaining for the purposes of the massed will. The absence of the original will further supported the presumption of revocation. The first wife failed to comply with the statutory requirements for adiation, and the purported adiation certificate was found to be invalid and misleading. The will was ambiguous and contradictory, and the presumption against massing applied. Consequently, the massed will was declared invalid, and the appointment of the...

Citation
[2023] ZAECMHC 36
Parties
Applicant: N[...] N[...] H[...]; Respondent: L[...] L[...] H[...]; Respondent: M[...] M[...] L[...] H[...]; Respondent: N[...] K[...] N[...] N[...] H[...]; Respondent: T[...] H[...]; Respondent: Master of the High Court Mthatha
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
4 July 2023
Case Number
1670/2022
Procedural Posture
Review Application / Judgment
Outcome
Application granted. The massed will is declared null and void. The first wife is removed as executrix. Costs awarded to the applicant.
Judges
Notyesi, Hinana
Legal Topics
Massed Will, Adiation, Customary Marriage, Executor Removal, Intestate Succession
Family and Children Civil Procedure Massed Will Adiation Customary Marriage Executor Removal Intestate Succession

Case Brief

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Parties

N[...] N[...] H[...]

Applicant

L[...] L[...] H[...]

Respondent

M[...] M[...] L[...] H[...]

Respondent

N[...] K[...] N[...] N[...] H[...]

Respondent

T[...] H[...]

Respondent

Master of the High Court Mthatha

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the massed will executed by the deceased and his first wife is valid after their divorce and the distribution of their joint estate.
  2. 2 Whether the first wife complied with the statutory requirements for adiation and can benefit from the massed will.
  3. 3 Whether the appointment of the first wife as executrix of the deceased's estate was lawful given the alleged invalidity of the will.

Ratio Decidendi

The Court found that the massed will executed by the deceased and his first wife was rendered null and void by their divorce and the subsequent distribution of their joint estate through a deed of settlement. There were no consolidated assets remaining for the purposes of the massed will. The absence of the original will further supported the presumption of revocation. The first wife failed to comply with the statutory requirements for adiation, and the purported adiation certificate was found to be invalid and misleading. The will was ambiguous and contradictory, and the presumption against massing applied. Consequently, the massed will was declared invalid, and the appointment of the...

Court Disposition

Application granted. The massed will is declared null and void. The first wife is removed as executrix. Costs awarded to the applicant.

Orders

  • It is declared that the massed will and testament of L[...] L[...] H[...] and E[...] L[...] D[...] H[...] is null and void.
  • The Master of the High Court is directed to take all necessary steps and remove L[...] L[...] H[...] as the estate executrix of the estate late E[...] L[...] D[...] H[...].