Smith v Parsons NO and Others

• Jurisdiction: South Africa
• Citation: 2010 (4) SA 378 (SCA)

Smith v Parsons NO and Others
2010 (4) SA 378 (SCA)

2010 (4) SA p378

Citation	2010 (4) SA 378 (SCA)
Case No	187/09
Court	Supreme Court of Appeal
Judge	Lewis JA, Heher JA, Mhlantla JA, Leach JA and Seriti AJA
Heard	March 5, 2010
Judgment	March 30, 2010
Counsel	CJ Pammenter SC for the appellant.; AWM Harcourt SC for the third respondent.

Flynote : Sleutelwoorde B

Will — Validity — Acceptance of document as will — Suicide note — Whether intended to be amendment of existing will — Wording of note and surrounding circumstances indicating that deceased intended note to be his will — Requisite intention established — Master directed to accept note as C amendment of will — Wills Act 7 of 1953, s 2(3).

Headnote : Kopnota

The appellant approached the Durban High Court for an order under s 2(3) of the Wills Act 7 of 1953, directing the Master (the fourth respondent) to accept the deceased's suicide note as an amendment to his will for the purposes of the Administration of Estates Act 66 of 1965. The third D respondent, the son of the deceased, resisted the application on the ground that the suicide note had not been properly executed by the deceased. The High Court found that it was not established that the deceased had unequivocally intended the suicide note to be an amendment to his will, and refused the application. In an appeal to the SCA,

Held, that it was clear from the evidence that the deceased intended the note to E be an amendment to his will: the instructions were clear and unequivocal and it could be inferred that the deceased had intended that his instructions would be implemented. (Paragraph [17] at 381I - J.) Appeal upheld.

Cases Considered

Annotations F

Reported cases

Harlow v Becker NO and Others 1998 (4) SA 639 (D): referred to

Jordaan and Others NNO v De Villiers 1991 (4) SA 396 (C): referred to

Smith v Parsons NO and Others 2009 (3) SA 519 (D): reversed on appeal

Van Wetten and Another v Bosch and Others 2004 (1) SA 348 (SCA) ([2003] 4 All SA 442): referred to. G

Statutes Considered

Statute

H The Wills Act 7 of 1953, s 2(3): see Juta's Statutes of South Africa 2008/9 vol 7 at 2-40.

Case Information

Appeal against a decision of the Durban and Coast Local Division (Luthuli AJ). The facts appear from the judgment of Seriti AJA.

CJ Pammenter SC for the appellant. I

AWM Harcourt SC for the third respondent.

Cur adv vult.

Postea (March 30). J

2010 (4) SA p379

Judgment

Seriti AJA: A

Introduction

[1] This is an appeal which emanates from the Durban and Coast Local Division of the Kwazulu-Natal High Court. [*]

The appellant, who was the applicant in the court below, launched an B application seeking an order directing the Master of the High Court to accept a document, which was termed a suicide note, as an amendment to the will of the late Walter Percival Smith (herein called the deceased) for the purposes of the Administration of Estates Act 66 of 1965.

[2] The first and second respondents, who are the executors of the estate C of the deceased, elected not to oppose the application. The fourth respondent, the Master of the High Court, also did not oppose the application. The application was opposed only by the third respondent, Jeremy Smith, who is the son of the deceased. D

[3] Smith filed a conditional counterclaim seeking certain relief in the event that the application was granted. The court below dismissed the application and consequently did not deal with the conditional counterclaim. The parties have agreed that if the appeal is successful, the counterclaim will have to be adjudicated by the High Court. E

[4] The court below (Luthuli AJ) found that the suicide note was written by the deceased personally. However, he held that the deceased did not unequivocally intend the suicide note to be an amendment of his will. The appellant is appealing against the latter finding with the leave of the court below. F

Issues for determination

[5] Both parties agree that the only issue to be decided in this appeal is whether the suicide note written by the deceased was intended by him to be his will as contemplated by s 2(3) of the Wills Act 7 of 1953. G

[6] Section 2(3) of the Wills Act reads as follows:

'If a Court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his H will, the court shall order the Master to accept that...