Volkwyn v Williams and Others (4398/2007) [2008] ZAWCHC 255 (28 August 2008)

Volkwyn v Williams and Others (4398/2007) [2008] ZAWCHC 255 (28 August 2008)

The court held that the law is clear: all persons with a direct and substantial interest in the relief sought must be joined as parties. In proceedings to declare a will invalid, this includes all beneficiaries and the executor. The applicant failed to join Roy and Barbara Volkwyn and the co-executor, Mr Bey, despite being notified of this defect. Mere notice or non-intervention by interested parties does not suffice, as it does not amount to an undertaking to be bound by the judgment. Without formal joinder, the court is precluded from deciding the merits of the application. The application is therefore stayed pending joinder, and the applicant is ordered to pay the costs of opposition...

Citation
[2008] ZAWCHC 255
Parties
Applicant: Michael Volkwyn; Respondent: Diana Williams; Respondent: The Master of the High Court; Respondent: Smith Tabata Buchanan Boyes
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
28 August 2008
Case Number
4398/2007
Procedural Posture
Urgent Application / Point in Limine (non Joinder Objection)
Outcome
Application stayed pending joinder of necessary parties; costs awarded against applicant.
Judges
Fourie
Legal Topics
Non Joinder, Wills and Estates, Rule 6 Procedure, Rule 10 Joinder
Civil Procedure Family and Children Non Joinder Wills and Estates Rule 6 Procedure Rule 10 Joinder

Case Brief

Summary, issues, holding and outcome

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Parties

Michael Volkwyn

Applicant

Diana Williams

Respondent

The Master of the High Court

Respondent

Smith Tabata Buchanan Boyes

Respondent

Procedural Posture

Urgent Application / Point in Limine (non Joinder Objection)

Legal Issues

  1. 1 Whether the application can proceed in the absence of joinder of all interested beneficiaries and the co-executor.
  2. 2 Whether mere notice to interested parties suffices in lieu of formal joinder.
  3. 3 Whether the applicant's failure to join necessary parties precludes the court from deciding the merits.

Ratio Decidendi

The court held that the law is clear: all persons with a direct and substantial interest in the relief sought must be joined as parties. In proceedings to declare a will invalid, this includes all beneficiaries and the executor. The applicant failed to join Roy and Barbara Volkwyn and the co-executor, Mr Bey, despite being notified of this defect. Mere notice or non-intervention by interested parties does not suffice, as it does not amount to an undertaking to be bound by the judgment. Without formal joinder, the court is precluded from deciding the merits of the application. The application is therefore stayed pending joinder, and the applicant is ordered to pay the costs of opposition...

Court Disposition

Application stayed pending joinder of necessary parties; costs awarded against applicant.

Orders

  • The application is stayed pending the joinder of Mr Roy Volkwyn, Ms Barbara Volkwyn, and Mr Martin Bey as parties.
  • The applicant is to pay the costs of opposition incurred by the first and second respondents, including the costs of today's hearing.