South Africa Case Law

Mochochoko v Mochochoko and Others (3647/2015)

Mochochoko v Mochochoko and Others (3647/2015) [2018] ZAFSHC 155 (18 October 2018)

Court

Free State High Court, Bloemfontein

Case number

3647/2015

Judge

JP Daffue

The court found that the 1994 will of DD Mochochoko, although only a copy, complied with all formal requirements and was intended by the testatrix to be her last will and testament. In terms of section 2(3) of the Wills Act and binding Supreme Court of Appeal authority, the Master must be authorised to accept the copy as a valid will. However, the court held that there was insufficient evidence to declare the joint will of 1978 invalid or revoked, as the legal consequences of adiation and massing under the joint will bound the surviving spouse and prevented revocation by a later will. The pro…

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• Joint Wills
• Fideicommissum
• Conversion Of Rights Act
• Revocation Of Wills
• Administration Of Estates
• Acceptance Of Copies As Wills

Theart v Wolfgang and Others (14436/2009)

Theart v Wolfgang and Others (14436/2009) [2011] ZAWCHC 138 (10 February 2011)

Court

Western Cape High Court, Cape Town

Case number

14436/2009

Judge

Cloete AJ

High Court case on a disputed joint will, massing of estates, adiation, and revocation. The application failed and costs were awarded against the applicant.

• Wills And Succession
• Massing Of Estates
• Adiation
• Revocation Of Wills
• Joint Wills
• Administration Of Estates

Le Roux and Another v Ontvanger van Inkomste and Another (6800/08)

Le Roux and Another v Ontvanger van Inkomste and Another (6800/08) [2009] ZAFSHC 27 (12 March 2009)

Court

Free State High Court, Bloemfontein

Case number

6800/08

Judge

C.B. Cillié

The court found that the applicant was not made aware of the material tax consequences of his election under the joint will, specifically the donations tax liability. The applicant's ignorance was excusable, as neither he nor his advisor Smith knew of the implications, and the Master required a certificate of understanding that could not be provided. The court held that fairness and equity demand that the applicant be permitted to revoke his election, as he acted without full knowledge of the legal and financial consequences. The respondent's argument that the applicant is bound by his adviso…

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• Irrevocability Of Election
• Excusable Ignorance
• Joint Wills
• Donations Tax
• Administration Of Estates

Wessels v Die Meester van die Hooggeregshoof Bloemfontein en Andere (216/2006)

Wessels v Die Meester van die Hooggeregshoof Bloemfontein en Andere (216/2006) [2007] ZASCA 17; [2007] SCA 17 (RSA) (23 March 2007)

Court

Supreme Court of Appeal

Case number

216/2006

Judges

Brand, Van Heerden, Combrinck

The Supreme Court of Appeal held that the joint will executed by the testator and his spouse lapsed upon her death, as its operative provisions were conditional on the testator predeceasing her. The subsequent codicils, although validly executed, did not contain clear and unequivocal language evidencing the testator's intention to revive the lapsed joint will. Instead, the codicils reflected the testator's mistaken belief that the joint will remained valid, and merely purported to amend its terms. The Court affirmed that, in the absence of a clear revival intention expressed in a valid testam…

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• Joint Wills
• Revocation Of Wills
• Testamentary Intent
• Codicil Interpretation

Wessels N.O v Meester van die Hooggeregshof- Bloemfontein and Others (2658/2005)

Wessels N.O v Meester van die Hooggeregshof- Bloemfontein and Others (2658/2005) [2005] ZAFSHC 147 (10 November 2005)

Court

Free State High Court, Bloemfontein

Case number

2658/2005

Judge

C.H.G. Van der Merwe

The court held that the joint will dated 18 January 2002 constituted two separate wills, one for each spouse. Upon the death of the testatrix, the testator accepted the benefits under the joint will, and her estate was administered accordingly. However, no estate amalgamation occurred, and the testator's portion of the joint will was conditional upon him being the first to die. Since he was not the first-dying spouse, his will as contained in the joint will lapsed, and he died intestate unless the codicils revived or incorporated the joint will. The court found that neither the first nor the…

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• Law Of Succession
• Joint Wills
• Testamentary Capacity
• Intestate Succession
• Incorporation By Reference

Rhode v Stubbs (038/2004)

Rhode v Stubbs (038/2004) [2005] ZASCA 18; 2005 (5) SA 104 (SCA) (29 March 2005)

Court

Supreme Court of Appeal

Case number

038/2004

Judges

Conradie, Mpati, Cameron, Mthiyane, Brand

The Supreme Court of Appeal held that the joint will of Attie and Lettie Williams did not result in a merger of their estates. The wording of the will, when read as a whole, did not clearly indicate an intention to merge the estates or to restrict the testamentary freedom of the survivor. The presumption against merger applied, and the relevant clauses were interpreted as each testator disposing only of their own undivided half share in the properties. Consequently, Lettie Williams was entitled to bequeath her undivided half share in the properties as she wished. The respondent, Sarah Dorothy…

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• Joint Wills
• Succession
• Estate Merger
• Interpretation Of Wills
• Undivided Shares
• Occupational Rights