Pillay v Master of High Court, Durban

• Jurisdiction: South Africa
• Judge: Chetty J
• Judgment Date: 26 April 2017
• Docket Number: 5663/2016
• Hearing Date: 30 March 2017
• Court: KwaZulu-Natal Division, Durban

Chetty J:

[1]

The applicant, the son of the late Sheila Pillay, brought an application against his brother, the second respondent and the Master of the High Court, Durban for the following relief:

a.

that the document headed "Last Will and Testament of Sheila Pillay" dated at Durban on 8th of September 2006, and attached to the applicant's founding affidavit as annexure "LP7" is declared to be the Last Will of the Late Sheila Pillay under the estate number: 772/2010 DBN and whose identity number was 5301060013080 and who died on 22 January 2009.

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b.

That the first respondent (Master of the High Court of South Africa, Durban) is directed to accept the original of the said an Annexure 'LP7' as described in paragraph 1 above as the Last Will of the Late Sheila Pillay under estate number 772/2010 DBN for the purposes of the Administration of estates act, 66 of 1965.

c.

That the costs of the application on an attorney-client scale shall be borne by the estate of the Late Sheila Pillay under the estate number 772/2010 DBN but in the event of this application being unsuccessfully opposed by any one of the respondents then the respondent so opposing the application shall pay, jointly and severally the one paying the other to be absolved, the applicant's costs of this application on the scale as between attorney and client."

[2]

The application is opposed by the second respondent, whilst the Master has filed a notice to abide by the decision of the Court.

[3]

The facts of the matter are largely common cause, and revolve around the requirements of s 2(1)(a)(i) to (v) of the Wills Act 7 of 1953 (the Act ). Section 2 of the Act provides for the following:

'2 Formalities required in the execution of a will - (1) Subject to the provisions of section 3bis-

(a)

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

(i)

the will is signed at the end thereof by the testator or by some other person in his presence and by his direction; and

(ii)

such signature is made by the testator or by such other person or is acknowledged by the testator and, if made by such other person, also by such other person, in the presence of two or more competent witnesses present at the same time; and

(iii)

such witnesses attest and sign the will in the presence of the testator and of each other and, if the will is signed by such other person, in the presence also of such other person; and

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(iv)

if the will consists of more than one page, each page other than the page on which it ends, is also signed by the testator or by such other person anywhere on the page; and

(v)

if the will is signed by the testator by the making of a mark or by some other person in the presence and by the direction of the testator, a commissioner of oaths certifies that he has satisfied himself as to the identity of the testator and that the will so signed is the will of the testator, and each page of the will, excluding the page on which his certificate appears, is also signed, anywhere on the page, by the commissioner of oaths who so certifies: Provided that-

(aa)

the will is signed in the presence of the commissioner of oaths in terms of subparagraphs (i), (iii) and (iv) and the certificate concerned is made as soon as possible after the will has been so signed; and

(bb)

if the testator dies after the will has been signed in terms of subparagraphs (i), (iii) and (iv) but before the commissioner of oaths has made the certificate concerned, the commissioner of oaths shall as soon as possible thereafter make or complete his certificate, and sign each page of the will, excluding the page on which his certificate appears;

…' (My emphasis)

[4]

Sheila Pillay executed a document purporting to be a will on 8 September 2006. Her husband pre-deceased her in May 2001. She died on 22 January 2009. The only asset in the deceased estate is the immovable property being Section 11 in the Sectional Title Scheme known as Rainforest Gardens, situated at 39 Rainforest Place, Rainham, Phoenix, Durban. The applicant currently resides at the same premises.

[5]

After the death of the deceased, a Mr Naidoo found a document purporting to be her will and read it out on 25 January 2009 in the presence of the applicant, the second respondent and his wife. The applicant contends that in terms of the document attached marked 'LP7' to the founding affidavit; his mother bequeathed

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her entire estate to him and nominated him as the executor of the estate. The disputed document in question contains the heading "Last Will and Testament", with the same wording appearing on a cover page to the document. The document contains the foreword that "Sheila Pillay, presently residing at 39 Rainforest Place, Rainham, Phoenix Durban declares this to be my last Will and testament."

[6]

According to the applicant the will was signed by his mother affixing her right thumb print (RTP) above the word 'testatrix', on each page of the document. Each page was witnessed by two persons who were well known to her. As the testatrix was unable to sign her name, at the foot of each page and below the signatures of two witnesses, provision was made for the signature of the Commissioner of Oaths, P Jungbahadur, who signed each page of the disputed document. It is not disputed that Jungbahadur drew up the document in accordance with the instructions of the testatrix.

[7]

On 14 January 2010 the applicant reported the estate of the deceased to the Master, and an estate number was duly allocated. The applicant had furnished the Master with the original of the disputed document.

[8]

On 20 January 2010 the Master rejected the will of the deceased due to non-compliance with s 2(1)(a)(v) of the Act. The founding affidavit does not contain a letter from the Master to this effect. The...