Giles NO and Another v Henriques and Others

• Jurisdiction: South Africa
• Citation: 2008 (4) SA 558 (C)

Giles NO and Another v Henriques and Others
2008 (4) SA 558 (C)

2008 (4) SA p558

Citation	2008 (4) SA 558 (C)
Case No	8478/2005 and 8418/2005
Court	Cape Provincial Division
Judge	Goliath J
Heard	February 22, 2007
Judgment	September 19, 2007
Counsel	R van Riet SC (with CHJ Maree) for the applicants.; J Whitehead SC for the respondents.

Flynote : Sleutelwoorde E

F Will — Rectification — Crossed wills — Deceased and his wife inadvertently signing one another's wills — Wills rectified by deletion and substitution to give effect to testators' true intentions.

Will — Rectification — Will may be rectified by deletion, addition or substitution of words — Local and foreign precedent examined.

Will — Acceptance by Master — Effect — Acceptance administrative act not in G itself determining validity of will — Disputed validity to be determined by court.

Headnote : Kopnota

A husband and wife had inadvertently signed each other's wills. In an event for rectification the court looked at international provisions for relief against non-compliance with formal requirements and noted that the modern trend H was to move away from insistence on strict compliance with statutory formalities. Such formalities were not ends in themselves, but the means of determining whether the underlying purpose has been met. The trend was based on the broader principle that mistake, whether in execution or expression, should not be allowed to defeat intention. The court compared several foreign cases before examining local precedent.

I Held, that acceptance of a will by the Master does not in itself give validity to a will. The Master performs an administrative act; any issue relating to the validity or legal effect of any will was to be determined by the court. (Paragraph [38] at 568H - J.)

Held, that where a husband and wife inadvertently sign one another's wills, the crossed wills may be rectified by deletion and substitution to give effect to J the testators' true intentions. (Paragraph [47] at 571C - E.)

2008 (4) SA p559

Cases Considered

Annotations A

Reported cases

Southern African cases

Anderson and Wagner NNO and Another v The Master and Others 1996 (3) SA 779 (C): referred to

Bekker v Naude and Others 2003 (5) SA 173 (SCA): referred to B

Bole's Estate, Ex parte 1929 WLD 47: referred to

Botha and Others v The Master and Others 1976 (3) SA 597 (E): dictum at 640C - D applied

De Reszke v Maras and Others 2003 (6) SA 676 (C) ([2003] 2 All SA 384): referred to

Greathead v SA Commercial Catering & Allied Workers Union C 2001 (3) SA 464 (SCA): referred to

Harlow v Becker NO and Others 1998 (4) SA 639 (D): dictum at 646D applied

Headermans (Vryburg) (Pty) Ltd v Ping Bai 1997 (3) SA 1004 (SCA) ([1997] 2 All SA 371): referred to

Hotz NO v Goodman NO 1994 (2) SA 186 (C): dictum at 189F applied D

Intercontinental Exports (Pty) Ltd v Fowles 1999 (2) SA 1045 (SCA) ([1999] 2 All SA 304): referred to

Inventive Labour Structuring (Pty) Ltd v Corfe 2006 (3) SA 107 (SCA): referred to

Irvin and Others v Estate Dolman 1932 CPD 216: referred to

Magwaza v Heenan 1979 (2) SA 1019 (A): referred to E

Spiller and Others v Lawrence 1976 (1) SA 307 (N): referred to

Van Wetten and Another v Bosch and Others 2004 (1) SA 348 (SCA) ([2003] 4 All SA 442): referred to

Will NO v The Master and Others 1991 (1) SA 206 (C): dictum at 213G - I applied

Wilson NO v Estate Wilson 1913 CPD 608: referred to. F

Foreign cases

Estate of Blakely (1983) 32 SASR 473 (SC): applied

Guardian Trust and Executors Company of New Zealand Ltd v Inwood and Others [1946] NZLR 614 (CA): applied

In re Snide 418 NE 2d 656 (NY 1981): applied

McConagle v Starkey [1997] 3 NZLR 635 (HC): applied G

Re Bohachewski Estate (1967) 60 WWR 635 (Surrogate Court of Saskatchewan): applied

Re Brander [1952] 4 DLR 688: applied

Re Foster [1956] NZLR 44 (FC): referred to

Re Keast (2006 July 26, High Court Christ Church, CIV - 2006 - 409 - 162): H applied

Re Knott Estate (1959) 27 WWR 382 (Alberta District Court): applied

Re Malichen Estate (1995) 6 ETR (2d) 217 (OGD) (Ontario): applied

Re McDermid Estate (1994) 5 ETR (2d) 238 (Sask QB): applied

Re Vautier 2000 JLR 351 (Jersey): applied.

Case Information

Application for rectification of crossed wills. The facts appear from the I judgment.

R van Riet SC (with CHJ Maree) for the applicants.

J Whitehead SC for the respondents.

Cur adv vult.

Postea (September 19). J

2008 (4) SA p560

Judgment

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

2008 (4) SA p561

Goliath J

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...