Hlakanyane v Hlakanyane and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Notyesi AJ
• Judgment Date: 04 July 2023
• Citation: 2023 JDR 2496 (ECM)
• Hearing Date: 26 May 2023
• Docket Number: 1670/2022
• Court: Eastern Cape Division

Notyesi AJ:

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Notyesi AJ

Introduction

[1]

In this application, Ms Nonyameko Nancy Hlakanyane (the applicant) is the second wife of the late Mr Ernest Lungisa Dlangamandla Hlakanyane (the deceased), and she is asking this Court to declare null and void a massed will and testament of the deceased and Lillian Lulamile Hlakanyane, the divorced wife of the deceased (first wife).

[2]

The first wife had concluded a civil marriage, which was in community of property, with the deceased in July 1978. The civil marriage was terminated by divorce on 4 June 2003. There are three children born from that marriage. The divorce of the deceased and the first wife followed a deed of settlement regarding the division of their joint estate in accordance with the marriage in community of property. Prior to the termination of the marriage in community of property, the deceased and the first wife had executed a massed will pertaining to that joint estate. The massed will was executed on 11 March 1988. The deceased passed on in 2016, approximately 13 years after the divorce. The first wife suggests that there is no evidence that the massed will was revoked, and therefore, she seeks to enforce the provisions of the massed will.

[3]

The second wife and the deceased had entered into a customary marriage in 1984. There are three children born out of the aforesaid marriage. The marriage between the second wife and the deceased survived until the demise of the deceased in September 2016. In other words, the second wife is the surviving spouse of the deceased. According to the second wife, the deceased died intestate, and the alleged massed will is invalid. There is no dispute about the validity of the marriages. I proceeded on the basis that both marriages were valid and lawful, with the first marriage being terminated by divorce in 2003 and the second marriage having survived until the death of the deceased.

[4]

The second wife contended that the will in question fails to make provision for a joint estate, and instead, it refers to separate estates, and for that reason, the massed will is invalid. She further submitted that in terms of the Administration of Deceased Estates Act 66 of 1965 (the Act), the survivor in a massed will must formally

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Notyesi AJ

and in writing, adiate and that the first wife never complied with the requirements for adiation. Finally, the second wife contended that as a result of the deed of settlement during the divorce proceedings, the deceased had no joint assets for purposes of the massed will, for the reasons that the deceased and the first wife shared their joint assets and liabilities and thus left no consolidated assets.

[5]

On the contrary, the first wife contended that she had adiated and that the will is valid and binding irrespective of the divorce and the deed of settlement. She submitted that an adiation by her, as the survivor, had the effect of conferring her with rights arising from the massed will and that should be given effect in the absence of another will or proof of revocation of the massed will. In this regard, she relies upon a certificate of adiation which she has attached to her papers.

[6]

The original massed will was not produced by the Master in his report. The first wife, too, did not produce the original massed will.

Issue

[7]

The crisp issues for determination revolve around the validity of the massed will and the questions of whether, absent the adiation, there can be a valid massed will and the effect of the deed of settlement during the divorce proceedings in 2003.

The parties

[8]

I shall, for the sake of simplicity, refer to the parties as follows–

8.1

The applicant – the second wife;

8.2

The first respondent – the first wife;

8.3

The late husband – the deceased; and

8.4

The fifth respondent – the Master.

Background

[9]

The deceased was married to both the first and second wives. There is no dispute concerning the validity of their marriages. The first wife was married in 1978.

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Notyesi AJ

The second wife was married in 1984. Each marriage produced three children. The first wife divorced the deceased in 2003. All the children are majors.

[10]

During the subsistence of the first marriage, the deceased and the first wife executed a massed will on 11 March 1988. Below is an extract from the massed will–

“We, the undersigned, ERNEST LUNGISA DLANGAMANDLA HLAKANYANE and LILLIAN LULAMILE HLAKANYANE (born SOGONI), married in community of property, do hereby revoke all Wills, Codicils and other Testamentary Acts heretofore made by us whether jointly or severally and declare the following to be our Last Will and Testament.

1.

Provided the survivor of us outlives the other for a period of thirty days we nominate such survivor to be the sole heirs or heiress of the residue of the estate of the first-dying of us.

2.

Should neither of us survive the other for a period of thirty days we bequeath the residue of the estates of both of us in equal shares to those of our children MONDE MONWABISI LUNGILE HLAKANYANE, NOVUYISO KOLEKA NONTANDO NOLULU HLAKANYANE and THEMBEKA HLAKANYANE who are alive at the death of the survivor of us to the exclusion of the lawful issue of a predeceased child.

Should any of our children not have attained the age of twenty-five years at the date of death of the survivor of us we direct that the residue of our estates shall, with the exception of all fixed property, be reduced to cash and that any share devolving upon a child under that age with the exception of fixed property which shall be transferred into our children’s names, shall be held in trust by our Administrators and invested in equities, interest-bearing securities and/or any other investments as they in their absolute discretion may deem fit without being fettered by any of the considerations which otherwise would cause them to restrict the investments to recognised trustee securities. . . .”

[11]

In 2003, during divorce proceedings, the first wife and the deceased entered into a settlement agreement. The settlement agreement was about the distribution of the joint estate, as their marriage was in community of property. The net effect of the deed of settlement was the dissolution of the joint estate. Below, I set out briefly the terms of the settlement agreement as they are relevant–

“NOW THEREFORE the parties, in full and final settlement of all claims arising in consequence of the Plaintiff’s action and Defendant’s Counter Claim, agree as follows:

Decree of Divorce

1.

That there shall be a Decree of Divorce.

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Notyesi AJ

Movable Assets

6.

That in respect of movable assets each party shall retain possession and ownership of whatever assets are presently in his/her possession.

Cash Settlement

7.

That the Plaintiff pay the Defendant an amount of R40 000 payment to be effected on or before the 30th November 2003, failing which interest shall accrue thereon at the rate of 15.5% per annum from 1st December 2003 to date of payment.

Immovable Properties

8.

8.1

That the Plaintiff shall sign all documents and do all things necessary to transfer the right of occupation in respect of the residential allotment site at Lubacweni, Mount Frere into the name of the Defendant.

8.2

That the Plaintiff shall retain sole ownership of the immovable properties presently registered in his name and shall bear sole responsibility for payment of the bonds registered against the said properties.”

[12]

Consequent to the divorce of the deceased and the first wife in 2003, the second wife continued to be the only wife of the deceased. Their customary marriage was in community of property for the reason that there are no antenuptial agreements excluding community of property. According to the second wife, she and the deceased developed businesses. In 1999, they jointly purchased a property in Kokstad. The second wife alleged that she and the deceased were joint owners of their businesses. The second wife and the deceased shared a common home.

[13]

In 2016, the deceased passed on. This is approximately 13 years from the date that the deceased divorced his first wife. The deceased was buried in September 2016, and he is survived by his second wife and six children, of which three were born from their first marriage.

[14]

Following the burial of the deceased, the second wife reported the estate to the Master for the purposes of obtaining letters of executorship. She was issued with letters of authority and thereafter started administering the intestate estate of the deceased as, according to her, there was no will.

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Notyesi AJ

[15]

Whilst the second wife retained possession of the letters of authority, the first wife, with the assistance of the Standard Executors and Trustees Limited, sought and obtained letters of executorship from the Master. According to the first wife, both Standard...