Estate Gonsalves v Pataca and Others

• Jurisdiction: South Africa
• Judge: Boshoff J
• Judgment Date: 11 October 1957
• Court: Transvaal Provincial Division
• Hearing Date: 04 September 1957
• Citation: 1957 (4) SA 585 (T)

Boshoff, J.:

The questions which are raised for decision in this application for a declaratory order are, firstly, whether a mutual will contains a joint disposition of a joint estate on the death of the G survivor which, on accepting benefits under the will, precludes the survivor from making further testamentary dispositions; and, secondly, whether a codicil revived an earlier revoked will.

The late Manuel Gonsalves, to whom I shall refer as the testator, was at H one time married in community of property to Mary Adeline Gonsalves (born Maxwell), to whom I shall refer as the testatrix. On the 27th August, 1945, during the existence of their marriage, they executed a mutual will to which I shall return later.

On the 14th July, 1953, the testatrix predeceased the testator and the will was accepted by the sixth respondent, the Master of the Supreme Court, Transvaal Provincial Division, as a valid will.

Boshoff J

According to the first and final liquidation and distribution account, the whole of the joint estate, which amounted to £84,447 17s., was awarded to the testator, as to one half by virtue of the marriage in community of property which had subsisted between the testator and the A testatrix up to the date of her death, and as to the remaining one half in terms of the will.

Thereafter, on the 22nd April, 1954, the testator and the second respondent, Bessie Ellen Mabel Gonsalves, formerly Potgieter, formerly Labuschagne, born Robinson, were married to each other out of community B of property, and this marriage subsisted up to the 16th June, 1956, the date of the death of the testator.

On the 13th June, 1955, the testator executed a will and, in clause 1 (d) thereof, bequeathed to the fourth respondent, Joseph de Souza

'such sums of money as are paid into my estate by Francisco Antonio Pataca and John Gonsalves (Junior) in terms of the deed of donation referred to in clause 2 hereof.'

C The will does not contain any further bequests in favour of the fourth respondent but refers to him again only in the following connection:

'Should the said Joseph de Souza referred to in para. 1 (d) of this my will, contest by litigation the validity of this will, then the said Joseph de Souza shall ipso facto forfeit the benefits otherwise accruing to him in this my will, which benefits shall thereupon accrue to my wife D Bessie Ellen Mabel Gonsalves, Francisco Antonio Pataca and John Gonsalves (Junior).'

On the 26th November, 1955, the testator executed another will which revoked all former testamentary disposition made by the testator and which was, with the exception of a few variations which are not material to the present application, substantially the same as the last will E executed on the 13th June, 1955. A bequest in favour of the fourth respondent was repeated in identical terms in clause 1 (c) thereof.

Thereafter, on the 11th May, 1956, the testator executed a codicil which ex facie the codicil conformed with all the usual formalities in relation to signature in the presence of witnesses. The heading, however, describes it as a

F 'codicil to last will and testament of Manuel Gonsalves, executed at Warm baths, Transvaal, on the 13th day of June, 1955, in terms of the reservatory clause contained therein.'

The codicil deals with only one matter in the following terms:

'I hereby revoke the bequest made to Joseph de Souza in terms of clause 1 (d) of my said will.'

G Clause 1 (d) is the clause in the will of the 13th June, 1955, which contains the bequest in favour of the fourth respondent, but this will was revoked by the will of the 26th November, 1955.

The codicil was drawn in this way in the following circumstances:

The testator had prior to the 11th of May, 1956, left a case containing H documents in the strongroom of a firm of attorneys at Warmbaths for safe-keeping. On the 11th May, 1956, he interviewed a member of this firm of attorneys and instructed him to prepare a codicil to his will revoking the bequest he had made in favour of the fourth respondent. This atorney extracted from the case which had been left in their safe-keeping the will of the 13th June, 1955. He was, indeed, not aware of the existence of the subsequent will, dated the 26th November, 1955, which had been prepared by another member

Boshoff J

of the firm who was, at that time, in Europe on an extended tour. This later will had been separately filed in the safe in the strongroom and he was under the impression that the will which he had found in the case, was the last will of the testator. So when he came to draw the codicil, he drew it in the way he did.

A The testator died on the 16th June, 1956, and left an estate with an estimated value of £67,911 8s. 11d. The sixth respondent accepted the will of the 26th November, 1955, and the codicil as valid testamentary instruments and on the 23rd October, 1956...