De Lange v Van Niekerk, NO and Others

• Jurisdiction: South Africa

De Lange v Van Niekerk, NO and Others
1951 (4) SA 294 (T)

1951 (4) SA p294

Citation	1951 (4) SA 294 (T)
Court	Transvaal Provincial Division
Judge	De Villiers J
Heard	June 7, 1950; August 8, 1951
Judgment	September 13, 1951

Flynote : Sleutelwoorde

Will — Execution — Transvaal — Ord. 14 of 1903 (T), sec. 1 H — Section does not prescribe same procedure for preceding pages as it does for end page — Sufficient if preceding pages signed by testator and witnesses — Costs.

Headnote : Kopnota

Ordinance 14 of 1903 (T) does not in section 1 prescribe the same procedure for the preceding pages of a will as it prescribes for the end page and, as far as the preceding pages are concerned, it is sufficient if they are signed by the testator and the witnesses.

1951 (4) SA p295

Case Information

Action to declare a will invalid. The facts appear from the reasons for judgment.

O. Pirow, K.C. (with him F. Rumpff, K.C.), for the plaintiff: It is submitted that sec. 1 of Ord. 14 of 1903 (T) requires all the sheets of A a will to be attested in the presence of the testator. Ex parte van Jaarsveld, 1944 CPD 69, and In re Ebden's Will, 4 S.C. 495, are against this construction, but should not be followed. On the merits, the evidence for the plaintiff should be accepted. There was no acknowledgment by the testator, see White v Turncliffe, 13 T.L.R. 469. B In view of the practice in the Master's Office concerning sec. 1 of the Ordinance, the Court should order costs to come out of the estate even if plaintiff fails. Alternatively, defendants are only entitled to costs as if on exception.

G. Findlay, K.C. (with him P. Cillie), for the 1st, 4th and 5th C defendants: The onus is on the plaintiff to rebut the prima facie regularity of the will. The evidence must be cogent and reliable so that the Court can act on it with confidence, Kavanagh v Tegan, 1932 I.R. 566 at p. 569; Gowar v Watson, 1909 E.D.C. 367; Kunz v Swart, 1924 AD 618; Brink v Brink, 1927 CPD 214. Simultaneous presence and D attesting in testator's presence is only required for the last page, see Ebden's case, supra, and van Jaarsveld's case, supra. If the witnesses saw one signature made and were invited to attest all on the document, that is an acknowledgment by conduct, see Hailsham (Vol. 34, paras. 75, 77, 78). The signatures on the will in question are obviously the same, Inglesant v Inglesant, 3 P. & D. 172. See, too, Roux v Lambert, 9 E.D.C. 201.

Pirow, K.C., in reply. E

Cur adv vult.

Postea (September 13th).

Judgment

F De Villiers J:

Die eiseres eis 'n bevel dat die testament van haar oorlede man wyle Hermanus Stephanus Johannes Petrus de Lange gedateer 26 Augustus 1948 ongeldig is en dat 'n vorige testament van 31 Oktober G met kodisille gedateer 4 November 1941 en 16...