Uys NO v Uys and Others (86/08) [2008] ZANCHC 30 (16 May 2008)

Uys NO v Uys and Others (86/08) [2008] ZANCHC 30 (16 May 2008)

The court found that the applicant had satisfied all common law requirements for the validation of a lost will: the existence of a validly executed will was proven by the attached photocopy; the circumstances of the loss were fully explained and attributed to the negligence of bank officials; a thorough search for the original was conducted without success; and there was no evidence of intention to revoke the will. The applicant, as co-testator, confirmed under oath that the photocopy accurately reflected the original. The court rejected the Master's reliance on section 8(4B) of the Administration of Estates Act, holding that the application was brought under common law, not the statute,...

Citation
[2008] ZANCHC 30
Parties
Applicant: Maria Johanna Christina Uys N.O.; Respondent: Hendrik Johannes Uys; Respondent: Elizabeth Cloete; Respondent: Vivian Di Scala; Respondent: Master of the High Court: Northern Cape Division
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
16 May 2008
Case Number
86/08
Procedural Posture
Declaratory Application / Judgment
Outcome
Application granted. Declaratory order issued as sought.
Judges
Majiedt R
Legal Topics
Lost Will, Law of Succession, Declaratory Relief, Probate, Burden of Proof
Land and Property Lost Will Law of Succession Declaratory Relief Probate Burden of Proof

Case Brief

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Parties

Maria Johanna Christina Uys N.O.

Applicant

Hendrik Johannes Uys

Respondent

Elizabeth Cloete

Respondent

Vivian Di Scala

Respondent

Master of the High Court: Northern Cape Division

Respondent

Procedural Posture

Declaratory Application / Judgment

Legal Issues

  1. 1 Whether a photocopy of the deceased's original will can be declared his last will and testament.
  2. 2 Whether the Master of the High Court can be authorised to accept the photocopy for estate administration purposes.
  3. 3 Whether the common law requirements for validating a lost will have been satisfied.

Ratio Decidendi

The court found that the applicant had satisfied all common law requirements for the validation of a lost will: the existence of a validly executed will was proven by the attached photocopy; the circumstances of the loss were fully explained and attributed to the negligence of bank officials; a thorough search for the original was conducted without success; and there was no evidence of intention to revoke the will. The applicant, as co-testator, confirmed under oath that the photocopy accurately reflected the original. The court rejected the Master's reliance on section 8(4B) of the Administration of Estates Act, holding that the application was brought under common law, not the statute,...

Court Disposition

Application granted. Declaratory order issued as sought.

Orders

  • The photocopy attached as annexure 'B' to the founding affidavit is declared to be the last will and testament of the late Mr Hendrik Johannes Uys.
  • The Master of the High Court: Northern Cape Province is authorised to accept the said document as the last will and testament of the deceased for purposes of section 8 of the Administration of Estates Act, 1965, and to administer the estate accordingly.