Henriques v Giles NO

• Jurisdiction: South Africa
• Citation: 2010 (6) SA 51 (SCA)

Henriques v Giles NO
2010 (6) SA 51 (SCA)

2010 (6) SA p51

Citation	2010 (6) SA 51 (SCA)
Case No	213/08
Court	Supreme Court of Appeal
Judge	Navsa JA, Van Heerden JA, Mhlantla JA, Kroon AJA and Tshiqi AJA
Heard	May 15, 2010
Judgment	May 29, 2010
Counsel	XJ Whitehead SC for the appellant.; RS van Riet (with CHJ Maree) for the respondent.

Flynote : Sleutelwoorde F

Will — Rectification — Requirements — Court may rectify will where, due to mistake by testator or drafter, will not correctly reflecting intention of testator — Applicant for rectification to establish (a) that alleged discrepancy between G expression and intention due to mistake; and (b) what testator really meant to provide — Though will to be formally valid for it to be amenable to rectification, court not to sacrifice testamentary intention to needless formalism.

Will — Rectification — Crossed wills — Deceased and his wife inadvertently signing one another's wills — Wills may be rectified to reflect testators' true H testamentary intentions.

Headnote : Kopnota

It is now generally accepted that courts have the power to rectify a will where, due to a mistake, be it on the part of the testator or the drafter, the will does not correctly reflect the testator's intention. The applicant for rectification must establish (a) that the alleged discrepancy between expression and I intention was due to a mistake; and (b) what the testator or testatrix really meant to provide. The onus, which must be satisfied on a balance of probabilities, is on the party seeking rectification. (Paragraphs [15] - [16] at 56D - 57A.) Although a will must be formally valid on the face of it for it to be amenable to rectification, the court should be careful not to sacrifice testamentary intention to needless formalism. (Paragraphs [18] - [22] at 57C - 58D.) J

2010 (6) SA p52

A Thus, if spouses through inadvertence sign 'crossed wills', ie each spouse signs the will that was drafted for the other spouse, such wills may, provided the above requirements are met, be rectified to reflect the spouses' true testamentary intentions. (Paragraph [23] at 58D - E.)

Cases Considered

Annotations

Reported cases B

Southern Africa

Bekker v Naude en Andere 2003 (5) SA 173 (SCA): referred to

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

Giles NO and Another v Henriques and Others 2008 (4) SA 558 (C): upheld on appeal C

Hotz NO v Goodman NO 1994 (2) SA 186 (C): referred to

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 D

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

Van Zyl v Esterhuyse NO en Andere 1985 (4) SA 726 (C): referred to

Will NO v The Master and Others 1991 (1) SA 206 (C): referred to.

Canada E

Re McDermid Estate (1994) 5 ETR (2d) 238 (Sask QB) (1994 CanLII 4950): compared.

Jersey

In the Estate of Vautier (née McBoyle) 2000 JLR 351: compared. F

Case Information

Appeal against the decision in Giles NO and Another v Henriques and Others 2008 (4) SA 558 (C). The facts appear from the reasons for judgment.

J Whitehead SC for the appellant.

RS van Riet (with CHJ Maree) for the respondent. G

Cur adv vult.

Postea (May 29).

Judgment

Van Heerden JA (Navsa JA, Mhlantla JA, Kroon AJA and Tshiqi AJA concurring): H

Introduction

I [1] In about August 1999, acting on the instructions of Mr Francesco Franco Cammisa, Mr Ronald Nes (Nes), an accountant and a partner of the second respondent, PKF (Cape Town) Inc (PKF), drafted two wills, one for Mr Cammisa and the other for his wife, Mrs Jessie Agnes Maria Cammisa. (For the sake of convenience, Mr and Mrs Cammisa will be referred to hereafter in this judgment as 'Franco' and 'Jackie', respectively.) J

2010 (6) SA p53

Van Heerden JA

[2] On 15 September 1999 the couple met with Nes and his colleague, A Ms Erica Swailes (who had typed up the wills on Nes' instructions), in PKF's boardroom. These four persons were present at all times during the gathering. The Cammisas carefully read through their respective wills and Nes and Swailes explained to them in detail the contents of each of the wills. As Franco and Jackie were satisfied with their wills, they B then proceeded to sign them, Nes and Swailes signing each of the wills as witnesses.

[3] Unbeknown to any of the persons concerned, however, the wills must have got mixed up in the process of explaining and reading them. A silly - and most unfortunate - mistake occurred and Franco and Jackie C each inadvertently signed the will prepared for the other. All the other formalities prescribed by law for the execution of wills were duly complied with, and on the face of it each will appeared to be perfectly valid. This error only came to light after the respective deaths of both Franco and Jackie, which occurred on 19 October 2004 and 5 January 2005, respectively. In the meantime, on 10 November 2004, the Master D of the High Court accepted and registered the will prepared for Franco, but signed in error by Jackie, as Franco's last will in terms of s 8 of the Administration of Estates Act 66 of 1965 (the Estates Act). As a witness to a will is prohibited from being appointed executor of the deceased estate concerned, [1] Nes could not be appointed executor of Franco's E deceased estate and the master thus appointed the first respondent, Mr Michael Giles (a director of PKF), in his stead.

[4] Is it possible for the will signed by Franco to be rectified so that his estate can devolve in the manner in which he undoubtedly intended or has he died intestate? This is the question that confronts us in the present F appeal.

The proceedings in the court below [*]

[5] The respondents applied to the Cape High Court to rectify the two wills - annexed to the notice of motion as RN1 (the will drafted for Jackie G and in her name, but signed by Franco) and RN2 (the will drafted for Franco and in his name, but signed by Jackie) - 'so as to reflect the true intention of' Franco and Jackie, respectively, 'in relation to [each's] last will and testament'. They sought an order in the following terms:

'1.

That the document (will) annexed as RN1 to the affidavit of H Ronald Nes filed herewith be rectified by deleting the undermentioned words and/or clauses therefrom and substituting them with the words and/or clauses also referred to hereunder from annexure RN2 to the said affidavit of Ronald Nes . . . :

(a)

Delete clause 2 of RN1 and substitute the same with clause 2 of RN2. I

2010 (6) SA p54

Van Heerden JA

(b)

A Delete clause 3 of RN1 and substitute the same with clause 3 of RN2.

(c)

Delete the first subclause 5.1 and the second subclause 5.1 of RN1 and substitute the same with the (two) respective subclauses 5.1 of RN2.

(d)

B Delete the words just above the heading Clause 1 on the first page of RN1, namely -

I, the undersigned JACKIE CAMMISA, married out of community of property to FRANCO CAMMISA, do hereby make and execute my Last Will and Testament.

C And substituting the same with the words -

I, the undersigned FRANCO CAMMISA, married out of community of property to JACKIE CAMISSA, do hereby make and execute my Last Will and Testament.

2.

That the document (will) annexed as RN2 to the affidavit of D Ronald Nes filed herewith be rectified by deleting the undermentioned words and/or clauses therefrom and substituting them with the words and/or clauses also referred to hereunder from annexure RN1 to the said affidavit of Ronald Nes :

(a)

Delete clause 2 of RN2 and substitute the same with clause 2 of RN1.

(b)

Delete clause 3 of RN2 and substitute the same with clause E 3 of RN1.

(c)

Delete the first subclause 5.1 and the second subclause 5.1 of RN2 and substitute the same with the (two) respective subclauses 5.1 of RN1.

(d)

Delete the words just above the heading Clause 1 on the F first page of RN2, namely -

"I, the undersigned FRANCO CAMMISA, married out of community of property to JACKIE CAMMISA, do hereby make and execute my Last Will and Testament.

And substituting the same with the words -

G I, the undersigned JACKIE CAMMISA, married out of community of property to FRANCO CAMISSA, do hereby make and execute my Last Will and Testament.'

[6] In the alternative the respondents applied in terms of s 2(3) of the Wills Act 7 of 1953 for RN2 and RN1 to 'be declared the last will and H testament' of Franco and of Jackie, respectively.

[7] The respondents prayed that the costs of the application be paid from Franco's deceased estate. However, in the event of the application being opposed, they applied for an order that 'the costs occasioned by the opposition . . . be paid by such party or parties opposing the same I jointly and severally'.

[8] The appellant, Elizabeth Henriques, and her four siblings (the adult children of Douglas Jackson, Jackie's son from a previous marriage) (Jackie's grandchildren) - the five respondents in the court below - opposed this application on two grounds. The first was that because the J 'wills' drafted by Nes did not comply with ss 2(1)(a)(i), (ii), (iii) and (iv)

2010 (6) SA p55

Van Heerden JA

of the Wills Act 7 of 1953, [2] they were invalid and could not be rectified. A The second was that since neither Franco nor Jackie personally drafted or executed these 'wills', s 2(3) of the Wills Act [3] was not applicable.

[9] As regards the second ground, both before the court a quo and in this court, counsel for the respondents conceded that it could not be said that B either of the Cammisas personally 'drafted' either of the wills...