Theart v Wolfgang and Others (14436/2009) [2011] ZAWCHC 138 (10 February 2011)

Theart v Wolfgang and Others (14436/2009) [2011] ZAWCHC 138 (10 February 2011)

The court found that the joint will did not effect a massing of the estates of the testator and testatrix, as its provisions did not clearly express such an intention and were irreconcilable with massing. The presumption against massing was not rebutted, and the language of the will indicated separate dispositions. Furthermore, there was no adiation by the testator, as he always regarded the immovable property as his own and acted accordingly, executing subsequent wills and reporting the testatrix's estate as intestate. The applicant failed to discharge the onus to rebut the presumption of revocation, and even if the joint will had not been revoked, the lack of massing and adiation meant...

Citation
[2011] ZAWCHC 138
Parties
Applicant: Diane Jean Theart; Respondent: Hans-Peter Wolfgang Scheibert N.O.; Respondent: Jan Willy Sundby; Respondent: The Master of the High Court; Respondent: The Registrar of Deeds
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
10 February 2011
Case Number
14436/2009
Procedural Posture
Review Application / Final Judgment on Application
Outcome
Application dismissed with costs, including costs of two counsel.
Judges
Cloete AJ
Legal Topics
Wills and Succession, Massing of Estates, Adiation, Revocation of Wills, Joint Wills, Administration of Estates
Family and Children Land and Property Wills and Succession Massing of Estates Adiation Revocation of Wills Joint Wills Administration of Estates

Case Brief

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Parties

Diane Jean Theart

Applicant

Hans-Peter Wolfgang Scheibert N.O.

Respondent

Jan Willy Sundby

Respondent

The Master of the High Court

Respondent

The Registrar of Deeds

Respondent

Procedural Posture

Review Application / Final Judgment on Application

Legal Issues

  1. 1 Whether the joint will of the testator and testatrix is valid and has not been revoked.
  2. 2 Whether the joint will reflects a massing of the estate(s) of the testator and testatrix.
  3. 3 Whether there was adiation by the testator under the joint will.

Ratio Decidendi

The court found that the joint will did not effect a massing of the estates of the testator and testatrix, as its provisions did not clearly express such an intention and were irreconcilable with massing. The presumption against massing was not rebutted, and the language of the will indicated separate dispositions. Furthermore, there was no adiation by the testator, as he always regarded the immovable property as his own and acted accordingly, executing subsequent wills and reporting the testatrix's estate as intestate. The applicant failed to discharge the onus to rebut the presumption of revocation, and even if the joint will had not been revoked, the lack of massing and adiation meant...

Court Disposition

Application dismissed with costs, including costs of two counsel.

Orders

  • The applicant's application is dismissed.
  • The applicant is ordered to pay the costs of the respondents, including the costs of two counsel.