Smith v Parsons NO and Others

• Jurisdiction: South Africa
• Judge: Luthuli AJ
• Judgment Date: 29 January 2009
• Citation: 2009 (3) SA 519 (D)
• Docket Number: 15884/2007
• Counsel: CJ Pammenter SC (with PC Prior) for the applicant. No appearance for the first, second and fourth respondents AWM Harcourt for the third respondent.
• Court: Durban and Coast Local Division

Luthuli AJ: D

Introduction

[1] The applicant seeks an order in terms of s 2(3) of the Wills Act 7 of 1953 directing the Master of the High Court to accept the document annexed to the notice of motion, marked 'A' (the suicide note), as an E amendment to the last will and testament of the late Walter Percival Smith (identity No 5110275035089) (the deceased) for the purposes of the Administration of Estates Act 66 of 1965.

[2] The first and second respondents (the executors in the deceased's estate) and the fourth respondent (the Master of the High Court) do not F oppose the application. The third respondent (the deceased's son) opposes the application.

[3] There is also a conditional counter-application by the third respondent in the event of this court finding that the suicide note was intended to be an amendment to the will of the deceased. The third respondent G seeks an order declaring that the bequests in favour of the applicant were conditional upon the applicant not applying for or obtaining any benefits from the pension and provident funds of which the deceased was a member and that the applicant is not entitled to the bequests because she applied for benefits from the Transnet Pension Fund of which the H deceased was a member and was awarded an amount of R6 515 238,74 and she also applied for benefits from the South African Airways Flight Deck Crew Provident Fund of which the deceased was a member. Alternatively, the third respondent seeks an order declaring the applicant to be unworthy (indignus) to receive any benefit in terms of the suicide note. I

Background to the application

[4] During his lifetime the deceased was employed as a pilot by South African Airways and owned the immovable property in which he resided at 688 Kingsway, Athlone Park, Amanzimtoti, KwaZulu-Natal. J

Luthuli AJ

A [5] The deceased's wife, Ruby Smith, died on 4 September 2002. The applicant and the deceased met during October 2002 and subsequently formed an intimate relationship with each other which culminated in them living together in the deceased's house in Amanzimtoti. Despite having the same surname, the applicant and the deceased were not B related. At the time, the deceased was approximately 50 years old and a senior pilot with South African Airways. The applicant was approximately 32 years of age and employed as a customer supervisor with British Airways/Comair at Durban International Airport. The applicant moved into the deceased's house during January 2003.

C [6] The deceased executed his last will and testament on 7 May 2003. In the said will the deceased appointed the third respondent as the sole heir to his entire estate.

[7] During the period February 2004 to 5 December 2005 the deceased and the applicant were separated from each other and the applicant went D to live abroad in the United Kingdom. During March and October 2005 the deceased paid for the applicant to holiday with him in the Republic of South Africa. During November 2005 the deceased visited the applicant in the United Kingdom. The purpose of these holidays and visits was to facilitate reconciliation between the parties. The deceased persuaded the applicant to return to live with him in Amanzimtoti. The E applicant returned to the Republic on 5 December 2005 and resumed cohabitation with the deceased. During January 2006 the third respondent left for the United States of America in order to study at the Newbury College on a tennis scholarship. On 29 May 2006 the deceased signed the beneficiary nomination form appointing the third respondent as the F sole beneficiary of the Transnet Pension Fund.

[8] The deceased committed suicide on 25 February 2007. The suicide note addressed to the applicant was found on the kitchen counter in the deceased's house.

[9] The suicide note was lodged together with the deceased's will by the G first and second respondents acting as executors of the deceased's estate with the master in terms of the provisions of the Administration of Estates Act, 1965. On 16 March 2007 the master rejected the suicide note as being a valid amendment to the existing will on the grounds that:

The purported will dated 25.02.07 has not been accepted because it is H not signed on each page by the Testator in terms of s 2(1)(a)(v) of Act 7 of 1953 as amended, neither is it signed by witnesses as required by s 2(1)(a)(v) of Act of (sic) 1953 as amended.

The suicide note

[10] The suicide note is a handwritten document. It consists of two I pages. It reads as follows:

Dear Heather,

Thanks for all you have done & Tried to do for me - I'm sorry I've been miserable - I do love you, but this depression & continuous pain & battle with my health is no longer Tolerable. If I've hurt you it has not J been intentional - Please forgive me. I love Jeremy more that I can

Luthuli AJ

express & I'm sorry if I have not been the best Father to Him. God A knows I've Tried. Forgive me Jeremy.

Heather you can have this house, you will obviously? sell it & should meet all your future needs. Also I authorise Standard Bank to give you immediate access to Plusplan - there is R579 000 which will not leave you battling. B

My love (& forgiveness) to your folks - they are fine people.

There is also several thousand Rands in the bottom drawer of safe.

Forgive me - it's not your fault. Move on, I pray you will find happiness that I couldn't give you. C

God - forgive me.

Lastly - please Tell Barry & SAA it's no reflection on our pilot body - wonderful people. I have just had enough of fighting this health on a daily Basis.

God Bless you always, my blessings upon Jeremy for his future - He is D strong & will come through OK. Please look after Him for me.

My will is in the Brown envelope in the safe. I leave everything else to Jeremy as stated therein.

Bless you - Wally xxx E

Sunday 25/02/07.

Grounds on which the third respondent opposes the application

[11] The third respondent has challenged the applicant's right to benefit from the deceased's estate on the following grounds:

(a)

There is no proof that the suicide note was written or executed by F the deceased. In the event that it is found to have been written by the deceased, the benefits granted to the applicant in terms thereof were not intended to be a testamentary disposition but rather a donation. However, the same did not comply with the strict requirements necessary for valid executory contracts of donation. G

(b)

The deceased did not intend the suicide note to be an amendment to his will.

(c)

Alternatively, the disposition was a conditional one in the sense that the applicant would not get more than what is set out in the suicide note. The applicant breached this condition by claiming further H benefits as a dependant of the deceased from his pension and provident funds.

(d)

Further alternatively, the applicant is unworthy to inherit as a result of her conduct after the death of the deceased in forging his signature on a cheque, attempting to forge his signature on traveller's cheques, and using his credit card. I

The issues

[12] The issues to be decided in this application are:

(a)

Should the master be directed to accept the suicide note as a codicil to the deceased's will in terms of s 2(3) of the Wills Act 7 of 1953? J

Luthuli AJ

A If so:

(b)

Were the bequests in the suicide note conditional upon the applicant not applying for or obtaining any benefits from the deceased's pension and provident funds?

(c)

Is the applicant unworthy to receive any benefits in terms of the B suicide note?

[13] Issues (b) and (c) are raised in the third respondent's conditional counter-application. If issue (a) is decided in favour of the third respondent then the counter-application falls away.

The applicable statutory provisions C

[14] The application is brought in terms of s 2(3) of the Wills Act 7 of 1953 (the Act) which provides: If a court is satisfied that a document or amendment of a document drafted or executed by a person who has died since the drafting or D execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 1965 (Act 66 of 1965), as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection 1(1).

E [15]...