Will NO v the Master and Others

• Jurisdiction: South Africa
• Judge: Tebbutt J and Conradie J
• Judgment Date: 24 October 1989
• Citation: 1991 (1) SA 206 (C)
• Hearing Date: 06 September 1989
• Court: Cape Provincial Division

Tebbutt J:

In terms of a joint will a husband and wife provided that A

'our joint estates, or the estate of the survivor of us, as the case may be, shall devolve upon our children, or their issue by representation per stirpes '.

They had six children; the husband had two by a previous marriage. Do the words 'our children' mean their six children or were they meant to B include also the two children of the husband's previous marriage? That is the question for decision in this case.

Francis John Wilson, to whom I shall refer as the testator, was born in the United Kingdom in 1905. He married Emily Ethel Wilson (born Appleton) in 1924. They had two children Jean Christina, born in 1932, and Maria Joyce, born in 1934. They are second and third respondents C respectively in this matter. The testator and Emily Wilson separated in 1945 and he emigrated to South Africa in 1950. He he formed a liaison with Betty Rosalind Taylor, to whom I shall refer as the testatrix, and they had six children. In 1955 the testator and Emily Wilson were divorced. It was only in 1968, however, and after the birth of all of D their six children that the testator and the testatrix were married, secretively it seems, in Swaziland. They left a joint will dated 30 April 1983.

It provided in clause 32 thereof that in the event of the testator predeceasing the testatrix and her surviving him by seven days he bequeathed (a) his interest in a company known as Coney Glen Hotel (Pty) Ltd to the testatrix and (b) the residue of his estate to the testatrix E subject to her paying a bequest price of 90% of the value of such residue. The bequest price, he provided

'shall devolve upon and be awarded to my children or their issue per stirpes...'

(my emphasis). In clause 3 the will provided that in the event of the testatrix predeceasing the testator and his surviving her by seven days F she bequeathed (a) her interest in Coney Glen Hotel (Pty) Ltd to the testator provided he pay a bequest price of 100% of the value of this bequest and (b) the residue of her estate to the value of such residue. Both bequest prices she provided

'shall devolve upon and be awarded to my children or their issue per stirpes...'

G (my emphasis). Clause 4 of the will reads as follows:

'We will and direct, however, that should we die within a period of seven days of each other, or should the survivor of us die without leaving a further valid will made after the death of the first dying of us, then in either of these events, our joint estates or the estate of the survivor of us as the case may be, shall devolve upon our children, H or their issue by representation per stirpes '

(again my emphasis). The testatrix died in 1984 and the testator on 6 July 1986 leaving no further will, so that it is the second of the two events contemplated in clause 4 of the joint will that has occurred.

The applicant, who is the executor in the estate of the testator, in his first and final liquidation and distribution account, reflected the I six children born of the marriage between the testator and the testatrix as the beneficiaries pursuant to clause 4 of the will. To this the second and third respondents objected to the Master of this Court, who is the first respondent in these proceedings ('the Master'), on the basis that they, as the children of the testator and his former wife, also fell within the class of beneficiaries described as 'our children' J in clause 4.

Tebbutt J

A The Master sustained the objection in these terms:

'I have carefully considered the matter and have come to the conclusion that although the will is a joint will it nevertheless becomes only the will of the survivor should he or she die without making a further valid will. In this context then and in view of the presumption against disinherison which exists in law I am of the opinion that the words "our children" used in the will must be interpreted to B mean all the children of the survivor. It is the actual language used in the will that must be looked at rather than what was allegedly intended at the time it was drafted.

Under the circumstances the aforesaid objection is upheld by me and you are directed to amend the account in accordance therewith in terms of s 35(9)....'

The applicant has now brought an application in terms of s 35(10) of C the Administration of Estates Act 66 of 1965 for an order setting aside the decision of the Master and for an order either rectifying the will by the addition, after the words 'our children', of the names of the six children born to the testator and testatrix or, alternatively, declaring that on a proper construction of the will the words 'our children' refer only to the six children and not to the second and third respondents as D well.

The Master abides the decision of the Court but second and third respondents oppose the application.

In order to consider the approach that should be adopted by the Court in this matter it is, I think, necessary to set out what I conceive to be the legal principles that should guide the Court in its approach. E Such legal principles are those applicable to (i) interpretation of the will and (ii) the question of its possible rectification and, for convenience sake, I shall deal with them in that order.

It is, of course, the golden rule in the interpretation of wills that the Court should seek to ascertain the wishes of the testator. They are F of paramount importance (see Crookes NO and Another v Watson and Others 1956 (1) SA 277 (A) at 298B). It should in the first place attempt to discover his intention from the language used in the will (see Robertson v Robertson's Executors 1914 AD 503 at 507 and Estate Maree v Redelinghuis 1943 AD 547 at 551; and the authorities collected in Corbett, Hahlo, Hofmeyr and Kahn Law of Succession in South Africa at G 467 note 31). In considering the language used, the question is not what any words might mean apart from the testator's intention but what the testator meant by using them (see Leiman v Ostroff and Others 1954 (4) SA 457 (W) at 461E) or as Lord Denning remarked in Re Rowland (deceased); Smith v Russell and Others [1962] 2 All ER 837 (CA) at 844: H

'... (I)n point of principle the whole object of construing a will is to find out the testator's intentions, so as to see that this property is disposed of in the way he wished. True it is that you must discover his intention from the words he used; but you must put upon his words the meaning which they bore to him. If his words are capable of more than one meaning, as they often are, then you must put on them the I meaning which he intended them to convey, and not the meaning which a philologist would put on them.'

If, therefore, the words used by a testator are clear and unambiguous and no doubt as to the sense in which the testator intended to use them is raised by any other expressions in the will or by any other circumstances manifestly appearing from the will itself effect must be J given to those

Tebbutt J

A words. If, however, doubt arises as to what the testator intended by the use of the words, extrinsic evidence is admissible to ascertain his intention. Corbett J, as he then was, has set out the principles regarding the admissibility of extrinsic evidence in the interpretation of wills with particular clarity in two decisions in this Court. In Allen and Another NNO v Estate Bloch and Others 1970 (2) SA 376 (C) at B 380A - E (a passage approved by the Appellate Division in Dison NO and Others v Hoffmann and Others NNO 1979 (4) SA 1004 (A) at 1035G - 1036B) he said:

'Briefly, the position is as follows: basically the duty of the Court is to ascertain not what the testator meant to do when he made his will but what his intention is, as expressed in his will. Consequently, where C his intention appears clearly from the words of the will, it is not permissible to use evidence of surrounding circumstances or other external facts to show that the testator must have had some different intention. At the same time no will can be analysed in vacuo. In interpreting a will the Court is entitled to have regard to the material facts and circumstances known to the testator when he made it: it puts itself in the testator's armchair. Moreover, the process of applying the D words of the will to external objects through the medium of extrinsic evidence may reveal what is termed a latent ambiguity in that the words, though intended to apply to one object, are in fact equally capable of applying to two or more objects (known technically as an "equivocation") or in that the words do not apply clearly to any specific object, as where they do not describe the object or do not describe it accurately. In both these instances additional extrinsic evidence is admissible in E order to determine, if possible, the true object of the bequest, but, except in the cases of an equivocation, such evidence may not include extrinsic declarations of the testator's intention.'

In Aubrey-Smith v Hofmeyr NO 1973 (1) SA 655 (C) at 657E - 658B, Corbett J said:

F 'Generally speaking, in applying and construing a will, the Court's function is to seek, and to give effect to, the wishes of the testator as expressed in the will. This does not mean that the Court is wholly confined to the written record. The words of the will must be applied to the external facts and, in this process of application, evidence of an extrinsic nature is admissible to identify the subject or object of a disposition. Evidence is not admissible, however, where its object is to G contradict, add to or alter the clearly expressed intention of the testator as reflected in the words of the will.... As was stated in Ex parte Estate Stephens 1943 CPD 397, by Sutton J (at 402):

"... (I)n construing a will the object is not to ascertain what the testator meant to do but his intention as expressed in the will."

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