Yokwana v Yokwana (9438/2011) [2013] ZAWCHC 22 (13 February 2013)

Yokwana v Yokwana (9438/2011) [2013] ZAWCHC 22 (13 February 2013)

The court found, on the probabilities, that the document annexed as ZY5 was indeed signed by Ms Fete and accurately reflected her testamentary intentions. The handwriting expert's evidence, supported by direct testimony from witnesses present at the execution, established that the signature was probably genuine. The court held that the common law permits acceptance of a reconstructed will where the original is lost, provided the reconstruction is accurate and complete. The court was satisfied that the requirements were met and that the applicant had discharged the onus of proof. The respondent's opposition was not supported by contrary expert evidence or credible factual challenge. The...

Citation
[2013] ZAWCHC 22
Parties
Applicant: Zanoxolo Student Yokwana; Respondent: Nopinki Yokwana; Respondent: The Master of the High Court, Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
13 February 2013
Case Number
9438/2011
Procedural Posture
Civil Application / Final Judgment
Outcome
Application granted. The Master is directed to accept the copy of the will as the last will and testament of the late Ms Fete. The respondent is ordered to pay the applicant's costs, including the qualifying fees of the handwriting expert.
Judges
Binns-Ward
Legal Topics
Wills Act, Lost Will Reconstruction, Testamentary Intention, Handwriting Expert Evidence
Family and Children Land and Property Wills Act Lost Will Reconstruction Testamentary Intention Handwriting Expert Evidence

Case Brief

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Parties

Zanoxolo Student Yokwana

Applicant

Nopinki Yokwana

Respondent

The Master of the High Court, Cape Town

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the document annexed as ZY5 is a true and complete copy of the last will and testament of the late Ms Fete.
  2. 2 Whether the signature on the document is that of Ms Fete.
  3. 3 Whether the court should direct the Master to accept the copy as the valid will under common law despite non-compliance with the Wills Act formalities.

Ratio Decidendi

The court found, on the probabilities, that the document annexed as ZY5 was indeed signed by Ms Fete and accurately reflected her testamentary intentions. The handwriting expert's evidence, supported by direct testimony from witnesses present at the execution, established that the signature was probably genuine. The court held that the common law permits acceptance of a reconstructed will where the original is lost, provided the reconstruction is accurate and complete. The court was satisfied that the requirements were met and that the applicant had discharged the onus of proof. The respondent's opposition was not supported by contrary expert evidence or credible factual challenge. The...

Court Disposition

Application granted. The Master is directed to accept the copy of the will as the last will and testament of the late Ms Fete. The respondent is ordered to pay the applicant's costs, including the qualifying fees of the handwriting expert.

Orders

  • The Master of the High Court, Cape Town, is authorised and directed to accept a true copy of the document annexed as ZY5 to the founding affidavit as the last will and testament of the late Damse Regina Fete (ID No. 281119 0169 08 4).
  • The respondent is ordered to pay the applicant's costs of suit in the application, including the qualifying fees of Ms Yvette Palm.