Pienaar and Another v Master of the Free State High Court, Bloemfontein and Others (579/10) [2011] ZASCA 112; 2011 (6) SA 338 (SCA) (1 June 2011)

Pienaar and Another v Master of the Free State High Court, Bloemfontein and Others (579/10) [2011] ZASCA 112; 2011 (6) SA 338 (SCA) (1 June 2011)

The Supreme Court of Appeal held that the testator’s 2007 will represented a new and different scheme for the disposition of his estate, and that it impliedly revoked the earlier 2006 will to the extent of any inconsistency. Both wills dealt with the entire estate, but the later will disposed of the residue differently and made specific bequests that conflicted with the earlier will. The court found that the testator intended the Sanlam Personal Portfolio policy to fall within the residue of his estate under the 2007 will, and that the bequest to Du Toit in the 2006 will was impliedly revoked. The absence of a revocation clause in the 2007 will did not prevent implied revocation, as the...

Citation
[2011] ZASCA 112
Parties
Appellant: Nelri Pienaar; Appellant: Chrismari Steven; Respondent: Master of the Free State High Court, Bloemfontein; Respondent: Cynthia Merle du Toit; Respondent: Suzette Malherbe; Respondent: Derick du Toit
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 June 2011
Case Number
579/10
Procedural Posture
Civil Appeal / Appeal From the Free State High Court
Outcome
Appeal upheld; order of the court a quo set aside and replaced.
Judges
Lewis, Cachalia, Shongwe, Theron, Majiedt
Legal Topics
Revocation of Wills, Testamentary Intention, Interpretation of Wills, Residue of Estate
Family and Children Civil Procedure Revocation of Wills Testamentary Intention Interpretation of Wills Residue of Estate

Case Brief

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Parties

Nelri Pienaar

Appellant

Chrismari Steven

Appellant

Master of the Free State High Court, Bloemfontein

Respondent

Cynthia Merle du Toit

Respondent

Suzette Malherbe

Respondent

Derick du Toit

Respondent

Procedural Posture

Civil Appeal / Appeal From the Free State High Court

Legal Issues

  1. 1 Whether the later will impliedly revoked the earlier will in so far as inconsistent with it.
  2. 2 Whether the Sanlam Personal Portfolio policy forms part of the residue of the estate under the later will.
  3. 3 Whether the two wills should be read together or the later will prevails where inconsistent.

Ratio Decidendi

The Supreme Court of Appeal held that the testator’s 2007 will represented a new and different scheme for the disposition of his estate, and that it impliedly revoked the earlier 2006 will to the extent of any inconsistency. Both wills dealt with the entire estate, but the later will disposed of the residue differently and made specific bequests that conflicted with the earlier will. The court found that the testator intended the Sanlam Personal Portfolio policy to fall within the residue of his estate under the 2007 will, and that the bequest to Du Toit in the 2006 will was impliedly revoked. The absence of a revocation clause in the 2007 will did not prevent implied revocation, as the...

Court Disposition

Appeal upheld; order of the court a quo set aside and replaced.

Orders

  • It is declared that the testament of the testator, Frederik Jacobus du Toit, dated 28 May 2007, impliedly revoked the earlier testament dated 27 November 2006 in so far as inconsistent with the latter.
  • The Sanlam Personal Portfolio is to form part of the residue of the estate of the testator.