Shushu and Another v Master of the High Court and Others (2404/2015) [2017] ZAECMHC 17 (7 May 2017)

Shushu and Another v Master of the High Court and Others (2404/2015) [2017] ZAECMHC 17 (7 May 2017)

The court found that the document dated 20 March 2006 was intended by the deceased to be his last will and testament. There was no evidence or suggestion that the document was not authentic or that the deceased did not intend it to be his will. The respondents' opposition was based solely on formal deficiencies and a purported family agreement to devolve the estate intestate, which the court held is not recognised in South African law. The delay in bringing the application was not sufficient to override the principle of freedom of testation, especially as the estate had not yet been distributed. The court applied section 2(3) of the Wills Act and ordered the Master to accept the document...

Citation
[2017] ZAECMHC 17
Parties
Applicant: Nontuthuzelo Shushu (born Bodoza); Applicant: Beleza Nondi Bodoza; Respondent: Master of the High Court; Respondent: Pumza Bodoza; Respondent: Ayaduma Bodoza; Respondent: Zibuko Bodoza
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
7 May 2017
Case Number
2404/2015
Procedural Posture
Review Application / Final Judgment
Outcome
Application granted; the document is declared the valid will of the deceased.
Judges
M.S. Jolwana, RWN Brooks
Legal Topics
Wills Act Section 2 3, Freedom of Testation, Intestate Succession, Formalities of Wills
Civil Procedure Family and Children Wills Act Section 2 3 Freedom of Testation Intestate Succession Formalities of Wills

Case Brief

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Parties

Nontuthuzelo Shushu (born Bodoza)

Applicant

Beleza Nondi Bodoza

Applicant

Master of the High Court

Respondent

Pumza Bodoza

Respondent

Ayaduma Bodoza

Respondent

Zibuko Bodoza

Respondent

Procedural Posture

Review Application / Final Judgment

Legal Issues

  1. 1 Whether the document dated 20 March 2006 constitutes the valid last will and testament of the deceased despite non-compliance with formalities under the Wills Act.
  2. 2 Whether the delay in bringing the application affects the applicants' entitlement to relief.
  3. 3 Whether heirs can agree to set aside a will in favour of intestate succession.

Ratio Decidendi

The court found that the document dated 20 March 2006 was intended by the deceased to be his last will and testament. There was no evidence or suggestion that the document was not authentic or that the deceased did not intend it to be his will. The respondents' opposition was based solely on formal deficiencies and a purported family agreement to devolve the estate intestate, which the court held is not recognised in South African law. The delay in bringing the application was not sufficient to override the principle of freedom of testation, especially as the estate had not yet been distributed. The court applied section 2(3) of the Wills Act and ordered the Master to accept the document...

Court Disposition

Application granted; the document is declared the valid will of the deceased.

Orders

  • The first respondent is directed to accept the Will of Jimmy Gqibani Bodoza dated 20 March 2006 as a valid Will.
  • Costs shall be costs in the estate.