Tilayi and another v Master of the High Court Mthatha and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Laing J |
| Judgment Date | 10 May 2023 |
| Citation | 2023 JDR 1621 (ECM) |
| Hearing Date | 15 February 2023 |
| Docket Number | 3588/2021 |
| Court | Eastern Cape Division |
Laing J:
This was an application for an order directing the first respondent to accept the codicil of the late Mr Samuel Sonwabo Tilayi ('the deceased') as his last will and testament, under section 2(3) of the Wills Act 7 of 1953 ('the Act'). The court previously dismissed the application. The reasons for judgment follow, pursuant to the applicants' request.
Background:
The applicants alleged that the deceased prepared a codicil to his will on 28 July 2020, while undergoing medical treatment for COVID-19 at St Anne's Hospital in Pietermaritzburg. He commenced drafting the document in manuscript, but fatigue prevented him from completing the process. Consequently, alleged the applicants, he dictated the remainder of the codicil to his wife, the second respondent, who recorded his wishes in her own handwriting. The deceased confirmed the contents after the second respondent had read them back to him. He signed the document, to which the second respondent and a nurse, Ms Raindree Sewran, then added their signatures.
The deceased subsequently passed away on 2 August 2020. The first respondent issued letters of executorship to the applicants on 30 August 2020. They are the deceased's son and nephew, respectively.
The applicants averred that the deceased intended the codicil to be his last will and testament. They admitted that the document did not comply with the formalities of the Act because it was not prepared entirely by the deceased and had not been properly signed. Nevertheless, said the applicants, the codicil should be treated as the deceased's last will and testament and the first respondent should be directed to accept it as such.
2023 JDR 1621 p4
Laing J
The supporting affidavits of two nurses and a unit manager accompanied the application. To that effect, all three individuals indicated that they had seen the deceased 'draft a document in the presence of his wife'. Both nurses were in attendance when the deceased and his wife had signed it. One of the nurses, Ms Sewran, confirmed that she had signed the document as a witness.
Issue to have been decided:
The main issue was whether the deceased had intended the codicil described by the applicants and attached to the application as indeed his will or an amendment thereof. This arose from the provisions of section 2(3) of the Act.
None of the respondents opposed the application.
Legal framework:
The formalities to be observed in the drafting and completion of a will are contained in section 2(1) of the Act:
Subject to the provisions of section 3bis–
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
2023 JDR 1621 p5
Laing J
(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
(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...
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