Estate Gonsalves v Pataca and Others

• Jurisdiction: South Africa
• Citation: 1957 (4) SA 585 (T)

Estate Gonsalves v Pataca and Others
1957 (4) SA 585 (T)

1957 (4) SA p585

Citation	1957 (4) SA 585 (T)
Court	Transvaal Provincial Division
Judge	Boshoff J
Heard	September 4, 1957
Judgment	October 11, 1957

Flynote : Sleutelwoorde

Will — Construction — Mutual will — Massing — What A amounts to — Execution — Codicil — Heading of given to wrong will — Effect.

Headnote : Kopnota

On 27th August, 1945, the testator and his wife, married in community of property, had executed a mutual will. On 14th July, 1953, the testatrix died, and the testator was awarded the whole estate. On 22nd April, 1954, the testator entered into a second marriage which was out of B community of property. On 13th June, 1955, he made a will making, inter alia, a special bequest to one S. On 26th November, 1955, he executed another will revoking all former testamentary dispositions but containing dispositions substantially the same as those contained in the will of 13th June, 1955. On 11th May, 1956, he executed a codicil, the heading of which read 'codicil to last will . . . executed on 13th June, 1955, . . .' in which he revoked the bequest made to S. Applicants, the executors testamentary, applied for an order (a) declaring that the C codicil should be read as referring to the will of 26th November, 1955, and not to that of 13th June, 1955; (b) declaring that the devolution of the estate was governed by the will of 26th November, 1955, read with the codicil.

Held, that the provisions of the mutual will of 27th August, 1945, and the acceptance of the benefits thereunder, did not preclude the testator from executing further wills relating to his estate thereafter.

Held, further, that the language of the codicil read in the light of the circumstances at the time of execution did not establish that the D testator had intended to revive the will of 13th June, 1955. Accordingly the will of the 26th November, 1955, was operative and effective.

Held, further, that no declaratory order should be made as to the validity and effectiveness of the codicil exectued on 11th May, 1956.

Case Information

Application for a declaratory order in an application for the E construction of a will. The facts appear from the reasons for judgment.

M. Murray, Q.C. (with him C. F. Eloff), for the applicants.

J. H. Snyman, Q.C. (with him G. Leveson), for the fourth respondent.

Cur adv vult.

Postea (October 11th). F

Judgment

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.

1957 (4) SA p586

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...