Tilayi and Another v Master Of The High Court, Mthatha Eastern Cape and Others (3588/2021) [2023] ZAECMHC 26 (10 May 2023)

Tilayi and Another v Master Of The High Court, Mthatha Eastern Cape and Others (3588/2021) [2023] ZAECMHC 26 (10 May 2023)

The application was dismissed because the court was not satisfied, on a balance of probabilities, that the codicil was intended by the deceased to be his last will and testament. The codicil consisted of two parts, with unclear authorship and signatures, and lacked a revocation clause. The evidence did not establish that the deceased intended either part to operate as his final will, nor did it clarify the relationship between the codicil and any prior will. The supporting affidavits failed to identify which document was drafted and signed, and the only reliable witness was the deceased's wife, whose credibility was compromised by her status as a beneficiary. The requirements of section...

Citation
[2023] ZAECMHC 26
Parties
Applicant: Siviwe Tilayi; Applicant: Tembekile Sobantu; Respondent: Master Of The High Court, Mthatha Eastern Cape; Respondent: Nonkuthazo Kumbaca; Respondent: Vukile Tilayi; Respondent: Kwanda Tilayi; Respondent: Nqaba Tilayi; Respondent: Zuko Tilayi; Respondent: Zukisani Tilayi; Respondent: Monwabisi Tilayi; Respondent: Andiswa Tilayi; Respondent: Babalwa Tilayi; Respondent: Sibongiseni Voyi; Respondent: Sikhumbule Mqomboti; Respondent: Kholeka Kutshwa; Respondent: Hlela Mquqo; Respondent: Zoleka Vangile on behalf of Izibele Vangile; Respondent: Sgaga Vangile; Respondent: Yonela Dube; Respondent: Naledi Nqabisa; Respondent: Ethel Nofuma; Respondent: Zolile Nogantsho; Respondent: Nontle Tilayi; Respondent: Zukiswa Tilayi; Respondent: Unathi Tilayi; Respondent: Vuyokazi Tilayi; Respondent: Bonginkosi Tilayi; Respondent: Lulama Somdaka; Respondent: Mncedisi Nofuma; Respondent: Evelyn Gcule; Respondent: Sibongile Tilayi
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
10 May 2023
Case Number
3588/2021
Procedural Posture
Review Application / Reasons for Judgment Following Dismissal of Application
Outcome
Application dismissed. No order as to costs.
Judges
Laing, Rusi
Legal Topics
Wills Act Formalities, Codicil Authenticity, Testamentary Intention, Section 2 3 Application, Beneficiary Disqualification
Civil Procedure Family and Children Wills Act Formalities Codicil Authenticity Testamentary Intention Section 2 3 Application Beneficiary Disqualification

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Parties

Siviwe Tilayi

Applicant

Tembekile Sobantu

Applicant

Master Of The High Court, Mthatha Eastern Cape

Respondent

Nonkuthazo Kumbaca

Respondent

Vukile Tilayi

Respondent

Kwanda Tilayi

Respondent

Nqaba Tilayi

Respondent

Zuko Tilayi

Respondent

Zukisani Tilayi

Respondent

Monwabisi Tilayi

Respondent

Andiswa Tilayi

Respondent

Babalwa Tilayi

Respondent

Sibongiseni Voyi

Respondent

Sikhumbule Mqomboti

Respondent

Kholeka Kutshwa

Respondent

Hlela Mquqo

Respondent

Zoleka Vangile on behalf of Izibele Vangile

Respondent

Sgaga Vangile

Respondent

Yonela Dube

Respondent

Naledi Nqabisa

Respondent

Ethel Nofuma

Respondent

Zolile Nogantsho

Respondent

Nontle Tilayi

Respondent

Zukiswa Tilayi

Respondent

Unathi Tilayi

Respondent

Vuyokazi Tilayi

Respondent

Bonginkosi Tilayi

Respondent

Lulama Somdaka

Respondent

Mncedisi Nofuma

Respondent

Evelyn Gcule

Respondent

Sibongile Tilayi

Respondent

Procedural Posture

Review Application / Reasons for Judgment Following Dismissal of Application

Legal Issues

  1. 1 Whether the codicil prepared by the deceased was intended to be his last will and testament under section 2(3) of the Wills Act.
  2. 2 Whether the codicil complied with the formalities required by the Wills Act.
  3. 3 Whether the second respondent was disqualified from benefitting under the codicil due to her involvement in its drafting.

Ratio Decidendi

The application was dismissed because the court was not satisfied, on a balance of probabilities, that the codicil was intended by the deceased to be his last will and testament. The codicil consisted of two parts, with unclear authorship and signatures, and lacked a revocation clause. The evidence did not establish that the deceased intended either part to operate as his final will, nor did it clarify the relationship between the codicil and any prior will. The supporting affidavits failed to identify which document was drafted and signed, and the only reliable witness was the deceased's wife, whose credibility was compromised by her status as a beneficiary. The requirements of section...

Court Disposition

Application dismissed. No order as to costs.

Orders

  • The application is dismissed.
  • No order as to costs.