Osman and Others v Nana N.O and Another (A5046/2019) [2021] ZAGPJHC 47 (28 April 2021)

Osman and Others v Nana N.O and Another (A5046/2019) [2021] ZAGPJHC 47 (28 April 2021)

The court found that, although the handwritten document was drafted by the deceased and two of the three jurisdictional requirements of section 2(3) of the Wills Act were met, the evidence did not establish that the deceased intended the document to be his final will. The title 'NOTES on WILL' indicated that the document was meant as instructions or information for the drafting of a will, not as a testamentary instrument. There was no evidence that the deceased ever communicated that the document was his will, nor that he revisited his testamentary intentions in the 29 years following its creation. The surrounding circumstances, including the deceased's professional background and...

Citation
[2021] ZAGPJHC 47
Parties
Appellant: Fatima Osman; Appellant: Aziza Baba; Appellant: Amina Petker; Appellant: AB Asiha Noordin; Appellant: Zubeda Essack; Appellant: Abida Baba; Appellant: Khadija Amin (represented by Rafiq Amin); Appellant: Yusuf Noordin; Respondent: Tasneem Nana N.O.; Respondent: Master of the High Court, Johannesburg
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
28 April 2021
Case Number
A5046/2019
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Application to Declare Handwritten Document as Will Under S 2(3) of the Wills Act
Outcome
Appeal dismissed with costs, including costs of two counsel whenever so employed.
Judges
P.A. Meyer, Windell, Twala
Legal Topics
Wills Act Section 2 3, Testamentary Intention, Acceptance of Informal Wills, Administration of Estates
Family and Children Civil Procedure Wills Act Section 2 3 Testamentary Intention Acceptance of Informal Wills Administration of Estates

Case Brief

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Parties

Fatima Osman

Appellant

Aziza Baba

Appellant

Amina Petker

Appellant

AB Asiha Noordin

Appellant

Zubeda Essack

Appellant

Abida Baba

Appellant

Khadija Amin (represented by Rafiq Amin)

Appellant

Yusuf Noordin

Appellant

Tasneem Nana N.O.

Respondent

Master of the High Court, Johannesburg

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Application to Declare Handwritten Document as Will Under S 2(3) of the Wills Act

Legal Issues

  1. 1 Whether the handwritten document dated 14 August 1990 was intended by the deceased to be his final will under section 2(3) of the Wills Act.
  2. 2 Whether the jurisdictional requirements of section 2(3) of the Wills Act were satisfied for the document to be accepted as a will.
  3. 3 Whether the surrounding circumstances support the conclusion that the document was intended as a will.

Ratio Decidendi

The court found that, although the handwritten document was drafted by the deceased and two of the three jurisdictional requirements of section 2(3) of the Wills Act were met, the evidence did not establish that the deceased intended the document to be his final will. The title 'NOTES on WILL' indicated that the document was meant as instructions or information for the drafting of a will, not as a testamentary instrument. There was no evidence that the deceased ever communicated that the document was his will, nor that he revisited his testamentary intentions in the 29 years following its creation. The surrounding circumstances, including the deceased's professional background and...

Court Disposition

Appeal dismissed with costs, including costs of two counsel whenever so employed.

Orders

  • The appeal is dismissed with costs, including those of two counsel whenever so employed.