Giles NO and Another v Henriques and Others

• Jurisdiction: South Africa
• Judge: Goliath J
• Judgment Date: 19 September 2007
• Citation: 2008 (4) SA 558 (C)
• Docket Number: 8478/2005 and 8418/2005
• Hearing Date: 22 February 2007
• Counsel: R van Riet SC (with CHJ Maree) for the applicants. J Whitehead SC for the respondents.
• Court: Cape Provincial Division

Goliath J: A

[1] This is an application on notice of motion for an order rectifying the will of the late Mr Francesco Franco Cammisa (Franco) and Mrs Jessie Agnes Maria Cammisa (Jackie). The alternative relief for an order in terms of s 2(3) of the Wills Act 7 of 1953 (hereinafter referred to as the B Wills Act) was abandoned by the applicants at the hearing of this matter.

[2] First to fifth respondents have launched a counter-application for an order in the following terms:

(1)

Setting aside the will of Francesco Franco Cammisa dated 15 C September 1999, who died on 19 October 2004, and which will was, on 10 November 2004 registered and accepted by the Fourth Respondent.

(2)

Directing that the costs of this counter application be paid by the Second Respondent.

The parties D

[3] First applicant is the executor of the estate of the late Francesco Franco Cammisa who died on 19 October 2004. He is employed as a director at second applicant.

E [4] First, second, third, fourth and fifth respondents are the five grandchildren of the late Mrs Cammisa born of her predeceased son, Douglas Jackson. First, second, fourth and fifth respondents are the biological children of the late Sylvia Jackson and the late Douglas Richard Jackson (the only son of the late Jackie Cammisa). Their parents F were divorced in 1971. After the divorce, Douglas Jackson remarried and third respondent was the only son born of this marriage. Third respondent is thus the half-brother of first, second, fourth and fifth respondents. Jackie and Franco Cammisa adopted first, second, fourth and fifth respondents after their parents were unable to care for them.

G [5] Sixth respondent, who does not oppose this application, is the only child of the late Franco Cammisa and his first wife Nolio who were divorced in 1962. On 7 March 1966 Jackie and Franco Cammisa were married out of community of property.

H [6] The applicants in the counter-application are first, second, third, fourth and fifth respondents in the main application.

[7] The respondents in the counter-application are first and second applicants, and sixth respondent in the main application. The Master is I cited as the fourth respondent and abides the decision of the court.

[8] At the hearing of this matter, it was agreed between the parties that the two matters should be adjudicated together since it essentially involves the same issues save for the issue of the mental capacity of the late Mrs Jackie Cammisa. It is alleged that Mrs Cammisa lacked J testamentary capacity to execute a will. On the papers there is clearly a

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dispute of fact on this issue. It was accordingly agreed that the main issue A in dispute relates to the validity of the will of the late Franco Cammisa, and whether his will can be rectified.

Family background

[9] First to fifth respondents are the children of Douglas Richard B Jackson, the only son of Jackie Cammisa. Jackson divorced their mother and third respondent was born of his second marriage. Jackie and Franco Cammisa married on 7 March 1966. After their parents' divorce Jackie and Franco adopted first, second, fourth and fifth respondents. They were accordingly raised by Mr and Mrs Cammisa. Franco Cammisa was C previously married to Nolio and divorced in 1962. Sixth respondent is the only child born of that union.

[10] First to fifth respondents aver that they all had a close and affectionate relationship with Jackie and Franco and that it is inconceivable that they would have intended to disinherit all of them. According D to first to fourth respondents Carlo Cammisa had a distant and strained relationship with Franco Cammisa and it is inconceivable that he would have intended to leave the residue of his estate to his son Carlo.

[11] According to Carlo Cammisa (sixth respondent) he regularly visited his father and Jackie. He is married and has two children of whom both E Jackie and his father were fond of. He avers that it was anticipated that both Jackie and Franco would eventually move in with him at his house in Goodwood. To this end Franco commissioned building plans for the extension to Carlo's house to accommodate them. These plans were shelved after Jackie's health deteriorated to such an extent that she had to be moved to a frail-care centre. He advised his father that it would be F more appropriate to move into the spare room in his house instead.

[12] Jackie moved to a frail centre on 5 July 2002. Thereafter his father moved in with him until 2004. His father decided to move out in order to assist a friend who required assistance due to ill-health. Carlo admits G that he had minor and insignificant disagreements with his father but insists that his overall relationship with his father was sound. He always maintained contact with his father and received his father's mail since 2002.

The facts H

[13] In or during August 1999 Mr Cammisa instructed Mr Ronald Ness, a director at PKF (CPT) Incorporated, to draft separate wills for him and his wife. The wills were accordingly drafted, checked and prepared for execution. On 15 September 1999 the Cammisas attended at their I offices for purposes of signing the wills. Mr Ness and Ms Erika Swailes, one of the administrative personnel employed at PKF, met with them in the boardroom to discuss and sign the wills. Mr and Mrs Cammisa read their respective wills and were both satisfied with the contents of the wills and their implications. In the process of explaining the implications of the wills, Swailes or Ness took temporary possession of the wills. After J

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A the discussion the wills were handed to Mr and Mrs Cammisa in order for them to sign. In the process, unbeknown to anyone at the time, Mr Cammisa inadvertently signed the will of Mrs Cammisa and Mrs Cammisa signed the document drafted for Mr Cammisa.

[14] After the death of Mr Cammisa on 19 October 2004 and the death B of Mrs Cammisa on 5 January 2005 the mistake was discovered after first respondent lodged an objection to the Master's acceptance of the will. First respondent's objection was based on the grounds that the testators did not sign their respective wills, and that they were consequently invalid.

The wills C

[15] Mr and Mrs Cammisa were married to each other out of community of property on 7 March 1966. Mr Cammisa owns an immovable property situate at 21 Albert Road, Hout Bay. Mrs Cammisa did not D own any immovable property at the time of her death. The material provisions of the wills relate to the immovable property and clauses 2 and 3 of both wills. Mrs Cammisa's will (which was inadvertently signed by Mr Cammisa) reads as follows:

2.

E I bequeath the whole of my Estate, whether movable or immovable and wherever situate and whether in possession, reversion, expectancy or contingency, including all moneys, shares and investments, nothing excepted, to my husband Franco Cammisa.

3.

Should my husband predecease me, or die within 30 days of me, then F the amount which would have devolved on him shall devolve on our son, Carlo Cammisa and failing him then on his descendants by representation per stirpes.

[16] Mr Cammisas will (in which the roles were reversed) reads as follows:

G 3.

I bequeath the whole of my Estate, whether movable or immovable and wherever situate and whether in possession, reversion, expectancy or contingency, including all moneys, shares and investments, except for items mentioned below, to my son Carlo Cammisa.

2.1

The house known as 21 Albert Road, Hout Bay is to be sold at a H price agreed to by my son, Carlo Cammisa. The funds are to be invested to provide income for my wife.

2.2

I bequeath R20 000,00 to Alexander Henriques.

2.3

I bequeath R50 000,00 to Duncan William Jackson.

2.4

All other capital invested is to provide income for my wife.

I [17] In terms of the will cash bequests are made to Duncan William Jackson (second respondent), the grandson of the late Jackie Cammisa, and Alexander Henriques, who is the son of first respondent.

[18] The immovable property referred to in the will was sold by Mr Cammisa prior to his death and the proceeds have been invested. First J applicant, who was appointed as executor in the estate of the late Franco

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Cammisa, proceeded to wind up his estate in accordance with his A 'correct' will and the first and final liquidation and distribution accounts were finalised. The total cash available for distribution in Mr Cammisa's estate, excluding the above cash bequest, is the sum of R871 958,08, which was awarded to Carlo Cammisa in terms of the provisions of the will. As a result of this dispute, no distribution has occurred. B

The principal submissions

[19] Mr Roelof, on behalf of the applicants, submitted that rectification is an appropriate remedy. He disputes the argument that it is not competent to rectify a contract (or will) that is invalid for C non-compliance with statutory formalities and that, therefore, the present wills, having been incorrectly signed, are invalid and cannot be so rectified to overcome the problem. He relied on Intercontinental Exports (Pty) Ltd v Fowles 1999 (2) SA 1045 (SCA) ([1999] 2 All SA 304) in which the SCA upheld the validity of a suretyship agreement and held as D follows at 1051B - G:

[19.1]

It is essential for the validity of a contract of suretyship that the identities of each of the creditor, the principal debtor and the surety appear therefrom;

[19.2]

It is not competent to rectify a contract that is invalid for E non-compliance with statutory formalities;

[19.3]

On the other hand, where such formalities have been complied with, rectification is permissible if the requirements for rectification have been satisfied;

[19.4]

There are therefore two separate and distinct enquiries in a F ...