Roux N.O and Another v Stemmet N.O and Others (17064/2022) [2023] ZAWCHC 222 (23 August 2023)

Roux N.O and Another v Stemmet N.O and Others (17064/2022) [2023] ZAWCHC 222 (23 August 2023)

The court held that the deceased did not personally draft or cause the drafting of 'POC5', nor did he ever receive, peruse, approve, or sign it. The necessary animus revocandi was absent, and the requirements of section 2A(c) of the Wills Act were not met. The impossibility principle does not apply to the execution or revocation of wills under South African law, as the Wills Act is interpreted strictly and does not accommodate exceptions for impossibility in these circumstances. The Plaintiffs' Particulars of Claim do not disclose a cause of action for the relief sought under either section 2A(c) or section 2(3) of the Wills Act. Accordingly, the first, second, and fourth exceptions were...

Citation
[2023] ZAWCHC 222
Parties
Plaintiff: David Francois Roux N.O.; Plaintiff: Corita Vorster N.O.; Defendant: Joubert Stemmet N.O.; Defendant: Joubert Stemmet; Defendant: Bianca Stemmet; Defendant: Anja Stemmet; Defendant: Master of the High Court of South Africa
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
23 August 2023
Case Number
17064/2022
Procedural Posture
Civil Procedure / Exception Proceedings on Pleadings
Outcome
Exceptions upheld; Particulars of Claim set aside with leave to amend.
Judges
Pangarker
Legal Topics
Revocation of Wills, Wills Act Formalities, Animus Revocandi, Impossibility Principle, Exception Procedure
Civil Procedure Family and Children Revocation of Wills Wills Act Formalities Animus Revocandi Impossibility Principle Exception Procedure

Case Brief

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Parties

David Francois Roux N.O.

Plaintiff

Corita Vorster N.O.

Plaintiff

Joubert Stemmet N.O.

Defendant

Joubert Stemmet

Defendant

Bianca Stemmet

Defendant

Anja Stemmet

Defendant

Master of the High Court of South Africa

Defendant

Procedural Posture

Civil Procedure / Exception Proceedings on Pleadings

Legal Issues

  1. 1 Whether the deceased's 2018 will was validly revoked under section 2A(c) of the Wills Act.
  2. 2 Whether the document 'POC5' can be accepted as the deceased's will under section 2(3) of the Wills Act despite non-compliance with formalities.
  3. 3 Whether the impossibility principle (lex non cogit ad impossibilia) applies to the execution or revocation of wills in these circumstances.

Ratio Decidendi

The court held that the deceased did not personally draft or cause the drafting of 'POC5', nor did he ever receive, peruse, approve, or sign it. The necessary animus revocandi was absent, and the requirements of section 2A(c) of the Wills Act were not met. The impossibility principle does not apply to the execution or revocation of wills under South African law, as the Wills Act is interpreted strictly and does not accommodate exceptions for impossibility in these circumstances. The Plaintiffs' Particulars of Claim do not disclose a cause of action for the relief sought under either section 2A(c) or section 2(3) of the Wills Act. Accordingly, the first, second, and fourth exceptions were...

Court Disposition

Exceptions upheld; Particulars of Claim set aside with leave to amend.

Orders

  • The first, second and fourth exceptions are upheld.
  • The third exception is dismissed.