Arendse v The Master and Others

• Jurisdiction: South Africa
• Citation: 1973 (3) SA 333 (C)

Arendse v The Master and Others
1973 (3) SA 333 (C)

1973 (3) SA p333

Citation	1973 (3) SA 333 (C)
Court	Cape Provincial Division
Judge	Baker AJ
Heard	November 11, 1972
Judgment	May 22, 1973

Flynote : Sleutelwoorde

Will — Validity of — Certification by commissioner of oaths in F terms of sec. 2 (1) (a) (v) of Act 7 of 1953, as amended — Can be appended after date on which testator and witnesses signed — Semble: can be appended post mortem testatoris — Unus contextus rule — No longer applicable.

Headnote : Kopnota

The commissioner of oaths can lawfully put his certificate on a will as G required by section 2 (1) (a) (v) of the Wills Act, 7 of 1953, as amended, upon a date after signature by the testator and witnesses and before the death of the former: it need not be appended at the same time as the signatures required by paragraphs (i) to (iv).

While the unus contextus rule was part of Roman-Dutch Law, it applied only to wills executed in accordance with the formal requirements of the Civil Law, mainly, if not entirely, in Friesland, and if it applied to H other types of wills its content was almost nothing; it did not apply to the stage where the notarial will of later Dutch practice came to be recorded and signed by the notary and witnesses. In later Dutch practice a will could be authenticated post mortem testatoris.

Semble: The certificate required by section 2 (1) (a) (v) of the Act can effectively be put upon a will at any time after the testator or anyone else has satisfied the certifying official contemplated by that sub-paragraph that the ostensible testator is indeed the testator and that the document involved is indeed the will of the testator. It can be appended at any time after the will has been 'marked' by the testator and signed by the witnesses. It can be appended post mortem testatoris.

1973 (3) SA p334

Case Information

Application to declare a will valid. The facts appear from the reasons for judgment.

S. Aaron, S.C., (with him H. L. Berman), for the applicant.

A S. Selikowitz, as curator-ad-litem.

Cur. adv. vult.

Postea (May 2nd).

Judgment

B Baker, A.J.:

The applicant in this matter is the widow of the late John Samuel Arendse to whom she was married in community of property and who was a man of considerable means. He died in Groote Schuur Hospital on 22nd June, 1972. The second to the tenth of the respondents are major C issue of the marriage between applicant and her late husband. The eleventh respondent is the curator-ad-litem to a minor child of applicant and her late husband. All these respondents have an interest in the decision of this matter and are the only persons other than the applicant who do have such interest.

The Master has been made the first respondent for reasons which will appear shortly.

D Two days before his death, that is to say, on 20th June, 1972, and at Groote Schuur Hospital, the testator and applicant executed a joint will. Applicant's late husband was at that time extremely ill and although he was a literate man, he was, at that stage, unable to sign E his name or indeed to do anything more than make a cross in place of his normal signature. An attorney was present at the time when applicant and her late husband respectively signed the will and made the cross to which I have referred. Applicant's signature and her late husband's cross were duly witnessed by two members of the hospital staff. The attorney who had attended upon the deceased for the execution of this F will had unfortunately not timeously been informed of the condition of his client and did not know that he was too ill to sign his name. He realised only at his client's bedside that the will would, of necessity, have to be certified in accordance with the requirements of sec. 2 (1) (a) (v) of the Wills Act, 7 of 1953, as amended. He therefore left the G hospital and returned accompanied by a fellow practitioner (ex officio a commissioner of oaths). At the hospital the second attorney, on the same evening and in the presence of the first attorney, enquired whether the testator was indeed John Samuel Arendse and whether the will was indeed his will. Arendse then acknowledged to the second attorney that he was the testator under the will and that it was his will and that it H was he who had made the mark on the will by way of signature.

Being, on 20th June, uncertain of the precise requirements of the statutory provision to which I have just referred, the draughtsman-attorney took the will away with him in order to place upon it the correct form of certificate required by sec. 2 (1) (a) (v). By the time this had been done it was apparently too late in the day to have the certificate signed by the commissioner of oaths, who, as I have said, had already satisfied himself as to the identity of the testator and the authenticity

1973 (3) SA p335

Baker AJ

of the will. The attorney therefore left the matter in abeyance until the next day. On 21st June he tendered the will to the second attorney, the ex officio commissioner of oaths, who signed the certificate, which was by this time correctly typed at the end of the will. The wording of the certificate is in conformity with the requirements of sec. 2 (1) (a) A (v) and nothing turns on this.

When this will was in due course presented to the Master for acceptance he refused to accept it, on the ground that, whereas the will itself had been signed by the testator and testatrix and witnesses on 20th June, B the certificate required by sec. 2 (1) (a) (v) had been signed by the commissioner of oaths only on 21st June. The Master's refusal was based on the fact that sec. 2 (1) (a) (v) does not, in terms, allow for a lapse of time between signature by the testator by means of a mark and signature by the commissioner of oaths who must certify as required by C sec. 2 (1) (a) (v) when a testator does so sign his will. The Master in his report says that ever since the Act was passed the question as to whether a commissioner of oaths could in a case such as the present endorse his certificate and signature upon the will as required by the Act at a time different from that when the tesator and winesses signed it, has not been free from doubt. He pointed out in his report that it D has been held in Natal that a defective certificate cannot be rectified after the death of the testator (Soonaram v The Master and Others, 1971 (3) SA 598 (N)) but that the present question has never been decided by the Courts. The Master's refusal to accept this will has necessitated the present application and explains the presence of the Master before E this Court as first respondent. The Master does not oppose this application, nor do any of the other respondents.

This is not, however, the sort of matter in which the Court should grant an order merely because of lack of opposition by the respondents. It seems to me, furthermore, that the Master is anxious to have some sort of guidance for the future should a similar case arise again.

F Mr. Aaron, who appeared with Mr. Berman for the applicant, submitted that there was no good reason why the commissioner of oaths certifying in terms of sec. 2 (1) (a) (v) of the Act should not append his certificate and signature to a will upon a date after its signature by a testator, provided he did so before the death of the testator. He referred the Court to Ex parte Nel, 1955 (2) SA 133 (C); Ex parte G Naidu, 1958 (1) SA 719 (N); and Soonaram v The Master and Others, supra. No submissions were advanced by any of the respondents (who were indeed not represented in Court) other than Mr. Selikowitz, who supported the application on the ground that the minor whom he represented stood to benefit by an order declaring the will to be valid.

H I consider it advisable at this stage to set out the relevant statutory provision in its various forms, from 1953 to date. In 1953 sec. 2 (1) (a) (v) of the Act read (omitting unnecessary words) as follows:

'Formalities required in the execution of a will.

2. (1) Subject to the provisions of sec. 3 -

(a)

no will executed on or after the first day of January, 1954, shall be valid unless -

...........................

(v)

if the will is signed by the testator by the making of a mark... a... commissioner of oaths... certifies at the end

1973 (3) SA p336

Baker AJ

thereof that the testator is known to him and that he has satisfied himself that the will so signed is the will of the testator...'

(My own underlining). (Act 7 of 1953, sec. 2 (1) (a) (v)).

A In 1958 the provision was made to read as follows, the above underlined words being deleted and replaced by those underlined below:

'2. (1) Subject to the provisions of sec. 3 -

(a)

no will executed on or after the first day of January, 1954, shall be valid unless -

..........................

(v)

B if the will is signed by the testator by the making of a mark... a... commissioner of oaths... certifies at the end thereof that he has satisfied himself as to the identity of the testator and that the will so signed is the will of the testator...'

(Act 7 of 1953, sec. 2 (1) (a) (v), as amended by sec. 1 (a) of Act 48 of 1958).

C In 1964 the whole of sub-para. (v) above was substituted by sec. 20 (b) of Act 80 of 1964, but this amendment did not touch that part of the sub-paragraph with which I am concerned, and it is therefore not necessary to reproduce the 1964 version.

D In 1965 the opening lines of sec. 2 were amended by adding a reference to a new sec. 3 bis which referred to an exemption granted to wills executed according to certain foreign legal systems. (Sec. 2, as amended by sec. 1 of Act 41 of 1965; sec. 3 bis added by sec. 2 of the same amending Act). Neither sec. 3 nor the new sec. 3 bis has any bearing on the matter under discussion. It will be seen that the crucial...