Ungerer v Ungerer and Others (2083/2024) [2024] ZAECMKHC 90 (2 August 2024)

Ungerer v Ungerer and Others (2083/2024) [2024] ZAECMKHC 90 (2 August 2024)

The court found that the disputed 2022 Will was neither drafted nor executed by the deceased, but rather by Capital Legacy on instructions. There was no evidence that the deceased approved all contents or intended the unsigned document to be her final will. The applicant failed to provide a satisfactory explanation for the deceased's failure to sign the will during the eight months before her death. Section 2(3) of the Wills Act requires strict compliance: the document must be drafted or executed by the deceased and intended to be their will. As these requirements were not met, the court was bound to dismiss the application, regardless of considerations of fairness or hardship.

Citation
[2024] ZAECMKHC 90
Parties
Applicant: Andre Ungerer; Respondent: Andi Ungerer; Respondent: Morne Fourie N.O.; Respondent: The Master of the High Court
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
2 August 2024
Case Number
2083/2024
Procedural Posture
Review Application / Unopposed Application for Declaration of Validity of Unsigned Will Under S 2(3) of the Wills Act
Outcome
Application dismissed.
Judges
Govindjee, Laing
Legal Topics
Wills Act Section 2 3, Validity of Unsigned Will, Law of Succession, Testamentary Intention
Family and Children Land and Property Wills Act Section 2 3 Validity of Unsigned Will Law of Succession Testamentary Intention

Case Brief

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Parties

Andre Ungerer

Applicant

Andi Ungerer

Respondent

Morne Fourie N.O.

Respondent

The Master of the High Court

Respondent

Procedural Posture

Review Application / Unopposed Application for Declaration of Validity of Unsigned Will Under S 2(3) of the Wills Act

Legal Issues

  1. 1 Whether the unsigned and undated 2022 Will of the deceased can be declared valid under section 2(3) of the Wills Act.
  2. 2 Whether the deceased drafted or executed the disputed will within the meaning of the Act.
  3. 3 Whether there is sufficient evidence that the deceased intended the 2022 Will to be her final will.

Ratio Decidendi

The court found that the disputed 2022 Will was neither drafted nor executed by the deceased, but rather by Capital Legacy on instructions. There was no evidence that the deceased approved all contents or intended the unsigned document to be her final will. The applicant failed to provide a satisfactory explanation for the deceased's failure to sign the will during the eight months before her death. Section 2(3) of the Wills Act requires strict compliance: the document must be drafted or executed by the deceased and intended to be their will. As these requirements were not met, the court was bound to dismiss the application, regardless of considerations of fairness or hardship.

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.
  • There is no order as to costs.