Jeffrey v the Master and Others

• Jurisdiction: South Africa

Jeffrey v the Master and Others
1990 (4) SA 759 (N)

1990 (4) SA p759

Citation	1990 (4) SA 759 (N)
Court	Natal Provincial Division
Judge	Page J
Heard	July 16, 1990
Judgment	July 16, 1990

Flynote : Sleutelwoorde

Will — I Execution — Certificate in terms of s 2(1)(a)(v) of Wills Act 7 of 1953 — Person signing certificate holding one of the offices specified in section — Such fact will not validate the certificate unless it appears ex facie the document that he was acting in that capacity when he signed the certificate — Person signing certificate J doing so as a 'practising attorney' — Such not sufficient to indicate

1990 (4) SA p760

A that he was signing as a commissioner of oaths — Certificate not complying with s 2(1)(a)(v) of Act and will accordingly invalid.

Headnote : Kopnota

Where a person signing a certificate on a will in terms of s 2(1)(a)(v) of the Wills Act 7 of 1953 does hold one of the offices specified in the section, that fact will not serve to validate the certificate, and therefore the will, unless it appears ex facie the document that he was acting in that capacity when he signed the certificate. B

The Court accordingly held that a certificate signed by a person as a 'practising attorney' did not comply with s 2(1)(a)(v) of the Wills Act even though practising attorneys were, in terms of s 6 of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963, commissioners of oaths, one of the offices specified in s 2(1)(a)(v) of the Wills Act. The Court found that there was not sufficient indication that the person had signed the certificate in his capacity as a commissioner of oaths C and not simply as a practising attorney.

Case Information

Application for an order directing the Master to accept a document as a valid will. The facts appear from the reasons for judgment.

A J Rall for the applicant.

No appearance for any of the respondents. D

Judgment

Page J:

This application concerns the validity of a will executed by one Kuppamma on 5 December 1985. The testatrix was illiterate and executed the will by placing her right thumb print on each page thereof in the presence of two witnesses who also signed in her presence. One of the E witnesses, in addition, signed on each page of the will a certificate reading as follows:

'I, Ronnie Naidoo, do hereby certify that I have satisfied myself as to the identity of the testatrix and the will so signed is the will of the testatrix Kuppamma.' F

This statement is followed by the signature of Mr Naidoo and a stamp reading:

'Ronnie Naidoo, practising attorney, Republic of SA and SWA, Shop 29, Natraj Centre, Bombay Walk, Merebank.'

The will appointed the applicant the executor and sole heir of the G testatrix. The testatrix died on 3 January 1986 and the will was submitted for acceptance to the Master by Mr Naidoo on behalf of the applicant some time later. The Master refused to accept the will on the ground that it did not comply with the requirements of s 2(1)(a)(v) of the Wills Act 7 of 1953. That provision lays down that:

H 'Subject to the provisions of ss 3 and 3bis -

(a)

no will executed on or after the first day of January 1954 shall be valid unless -

...

(v)

if the will is signed by the testator by the making of a mark or by some other person in...