Hotz NO v Goodman NO

• Jurisdiction: South Africa

Hotz NO v Goodman NO
1994 (2) SA 186 (C)

1994 (2) SA p186

Citation	1994 (2) SA 186 (C)
Case No	9120/92
Court	Cape Provincial Division
Judge	Berman J and SELIGSON AJ
Heard	February 5, 1993
Judgment	February 11, 1993

Flynote : Sleutelwoorde F

Will — Rectification of — By addition of words — Open to Court to rectify will by addition of words to reflect true intention of testator or testatrix.

Headnote : Kopnota

It is open to the Court to rectify a will by the addition of words to reflect the true intention of the testator or testatrix, as the case may be. (At 189H/I-I read with 187J-188A.)

G Will NO v The Master and Others 1991 (1) SA 206 (C) approved and applied.

The dicta in Botha and Others v The Master and Others 1976 (3) SA 597 (E) at 603A-D and 604A-B/C approved and applied.

Case Information

Application for an order for the rectification of a will. The facts appear H from the reasons for judgment.

J Newdigate for the applicant.

R G Goodman as curator ad litem for possible intestate heirs.

Cur adv vult.

Postea (11 February 1993). I

Judgment

Seligson AJ:

The applicant is an attorney of this Court and the duly appointed executor in the estate of the late Edith Raine, a spinster who died on 21 April 1990, and to whom I shall refer herein as 'the testatrix'. For most of her adult life the testatrix lived with her J spinster sister, Mary

1994 (2) SA p187

Seligson AJ

A Eileen Raine, who died on 16 November 1989. During September 1983 both the testatrix and her sister requested their nephew, one Lawrence Carter, who is also an attorney of this Court, to draw wills for each of them in terms whereof the survivor of them would inherit the estate of the first dying of them, and upon the death of the survivor their grandnephew, Roxy Pern, B and two grandnieces Robyn and Taryn Hosford, the grandchildren of their youngest sister, would inherit the survivor's estate in equal shares. According to the affidavit of Mr Carter, his aunts gave him joint instructions to this effect.

When drafting the wills Mr Carter made provision for the eventuality that C his aunts might die simultaneously or within three months of each other, whereupon their respective estates were to go to their aforementioned relatives in equal shares. Mr Carter omitted, however, to make provision for the devolution of either aunt's estate to the three children in the event of her surviving the first-dying aunt by more than three months, so as to give full effect to his aunts' instructions.

D Mr Carter affirms quite clearly in his affidavit that at all relevant times his aunts regarded the three children referred to above as their ultimate heirs, and that it was always their intention that they would inherit upon the death of the survivor of the aunts. They at no time contemplated that intestacy would occur, which will be the result if the testatrix's will, as it reads at present, is given effect to. There are E also affidavits from the testatrix's surviving sisters, Annie Carter (Mr Carter's mother), and Cynthia May Hosford, who both confirm the contents of Mr Carter's affidavit and support the application.

Clause 4 of the testatrix's will reads as follows:

'In the event of the said Mary Eileen Raine dying at the same time or F within three calendar months after my death then and in that event only I nominate, constitute and appoint as heirs in equal shares of my estate and effects of whatsoever nature, wheresoever situate, whether in possession, reversion, remainder, expectancy or contingency nothing excepted, Robyn Ann Hosford, Taryn Ann Hosford and Roxy Wesley De Saint Pern.'

G It appears from the papers that the heirs on intestacy would be the testatrix's sisters, Annie Carter and Cynthia Mary Hosford, and the children of two other deceased sisters, Maureen Emily Clark and Dorothy Francis Hitchcock, and a brother, Benjamin Raine, most of whom are resident outside the Republic of South Africa, and whose precise H whereabouts are unknown. The applicant accordingly seeks an order in the following terms:

'That the last will and testament dated 13 September 1983 of the late Edith Raine (estate No 3067/90) be rectified by the insertion of the words "predeceasing me or" immediately after the name "Mary Eileen Raine" in the first line of clause 4 thereof.'

I Mr R G Goodman, an advocate of this Court, was appointed as curator ad litem to represent the absent and unknown...