Theart v Scheibert and Others (630/11) [2012] ZASCA 131; [2012] 4 All SA 278 (SCA) (27 September 2012)

Theart v Scheibert and Others (630/11) [2012] ZASCA 131; [2012] 4 All SA 278 (SCA) (27 September 2012)

The Supreme Court of Appeal held that the mutual will did not effect a massing of the estates of the testators. The will, when interpreted in accordance with established principles, did not clearly indicate an intention to consolidate the estates for a joint disposition to the appellant. The presumption against massing applied due to ambiguity. Consequently, the testator retained the right to revoke his own dispositions, and the subsequent will was valid only in respect of his share. The appellant was entitled to succeed to the testatrix's half share of the joint estate under the mutual will, unless the will had been revoked. The evidence did not support revocation by the testatrix prior...

Citation
[2012] ZASCA 131
Parties
Appellant: Diane Jean Theart; Respondent: Hans-Peter Wolfgang Scheibert; Respondent: Jan Willy Sundby; Respondent: The Master of the High Court; Respondent: The Registrar of Deeds
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 September 2012
Case Number
630/11
Procedural Posture
Civil Appeal / Appeal From Western Cape High Court; Judgment Delivered
Outcome
Appeal upheld; order of the court a quo set aside and substituted with relief in terms of paragraphs 4.1, 4.2, and 4.3 of the notice of motion. Costs awarded to appellant and first respondent, including costs of two counsel where employed.
Judges
Cloete, Cachalia, Malan, Tshiqi, Erasmus
Legal Topics
Mutual Will Interpretation, Massing of Estates, Presumption of Destruction, Revocation of Will, Succession, Executor Appointment
Family and Children Land and Property Civil Procedure Mutual Will Interpretation Massing of Estates Presumption of Destruction Revocation of Will Succession +1 more

Case Brief

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Parties

Diane Jean Theart

Appellant

Hans-Peter Wolfgang Scheibert

Respondent

Jan Willy Sundby

Respondent

The Master of the High Court

Respondent

The Registrar of Deeds

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape High Court; Judgment Delivered

Legal Issues

  1. 1 Whether the mutual will effected a massing of the estates of the testators for the purposes of a joint disposition to the appellant.
  2. 2 Whether the mutual will was revoked by the testatrix prior to her death.
  3. 3 Whether the presumption of destruction and revocation of the will applies.

Ratio Decidendi

The Supreme Court of Appeal held that the mutual will did not effect a massing of the estates of the testators. The will, when interpreted in accordance with established principles, did not clearly indicate an intention to consolidate the estates for a joint disposition to the appellant. The presumption against massing applied due to ambiguity. Consequently, the testator retained the right to revoke his own dispositions, and the subsequent will was valid only in respect of his share. The appellant was entitled to succeed to the testatrix's half share of the joint estate under the mutual will, unless the will had been revoked. The evidence did not support revocation by the testatrix prior...

Court Disposition

Appeal upheld; order of the court a quo set aside and substituted with relief in terms of paragraphs 4.1, 4.2, and 4.3 of the notice of motion. Costs awarded to appellant and first respondent, including costs of two counsel where employed.

Orders

  • The appeal succeeds, and the second respondent is ordered to pay the costs of the appellant and the first respondent, including the costs of two counsel where employed.
  • The order of the court a quo is set aside and substituted with an order granting relief in terms of paragraphs 4.1, 4.2, and 4.3 of the notice of motion.