S and Others v V N.O and Others (28329/2015) [2016] ZAGPJHC 221 (11 August 2016)

S and Others v V N.O and Others (28329/2015) [2016] ZAGPJHC 221 (11 August 2016)

The court found that the 2012 will revoked the 2011 will and that the scanned copy of the 2012 will, emailed to the executor and others, was valid and reflected the deceased's intentions. The common law presumption of animus revocandi did not apply because there was insufficient evidence that the deceased destroyed the original 2012 will with intent to revoke it, and the search for the original was inadequate. Even if the presumption applied, it was rebutted by the deceased's consistent conduct in maintaining valid wills and communicating his wishes. The court exercised its discretion under section 2(3) of the Wills Act to order the Master to accept the scanned copy as the valid will. The...

Citation
[2016] ZAGPJHC 221
Parties
Applicant: A S; Applicant: S C M; Applicant: S C M N.O; Respondent: S J V N.O; Respondent: L S; Respondent: M H N.O; Respondent: P R; Respondent: The Master of the High Court
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
11 August 2016
Case Number
28329/2015
Procedural Posture
Civil Application / Opposed Application for Declaratory and Consequential Relief Regarding Validity of Will
Outcome
Application granted; counter-application dismissed.
Judges
D S S Moshidi
Legal Topics
Wills Act Section 2 3, Revocation of Will, Succession, Administration of Estates Act, Presumption of Animus Revocandi
Family and Children Land and Property Wills Act Section 2 3 Revocation of Will Succession Administration of Estates Act Presumption of Animus Revocandi

Case Brief

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Parties

A S

Applicant

S C M

Applicant

S C M N.O

Applicant

S J V N.O

Respondent

L S

Respondent

M H N.O

Respondent

P R

Respondent

The Master of the High Court

Respondent

Procedural Posture

Civil Application / Opposed Application for Declaratory and Consequential Relief Regarding Validity of Will

Legal Issues

  1. 1 Whether the 2012 will executed by the deceased revoked the 2011 will.
  2. 2 Whether the scanned copy of the 2012 will can be accepted as the valid last will and testament under section 2(3) of the Wills Act.
  3. 3 Whether the common law presumption of animus revocandi applies to the missing original 2012 will.

Ratio Decidendi

The court found that the 2012 will revoked the 2011 will and that the scanned copy of the 2012 will, emailed to the executor and others, was valid and reflected the deceased's intentions. The common law presumption of animus revocandi did not apply because there was insufficient evidence that the deceased destroyed the original 2012 will with intent to revoke it, and the search for the original was inadequate. Even if the presumption applied, it was rebutted by the deceased's consistent conduct in maintaining valid wills and communicating his wishes. The court exercised its discretion under section 2(3) of the Wills Act to order the Master to accept the scanned copy as the valid will. The...

Court Disposition

Application granted; counter-application dismissed.

Orders

  • An order is granted in terms of prayers 1, 2, 3, 4 and 5 of the notice of motion dated 6 August 2015.
  • The second respondent’s counter-application is dismissed with costs.