Will NO v the Master and Others

• Jurisdiction: South Africa
• Citation: 1991 (1) SA 206 (C)

Will NO v the Master and Others
1991 (1) SA 206 (C)

1991 (1) SA p206

Citation	1991 (1) SA 206 (C)
Court	Cape Provincial Division
Judge	Tebbutt J and Conradie J
Heard	September 6, 1989
Judgment	October 24, 1989

Flynote : Sleutelwoorde E

Will — Construction of — Provision in joint will of a husband and wife F that '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' — Expression 'our children' can mean those children 'belonging to us', ie 'born of our union' or they can mean those 'belonging to us' in the sense of 'those children which are mine G and those children which are yours' — In a joint will such as the present, former meaning the more natural one — Presumption that in such a will the children of husband and wife by their present marriage as well as those of their former marriages are to be included found to be questionable — Provision in question not clear and unambiguous — H Evidence of surrounding facts and circumstances admissible to arrive at true intention of testators — Expression 'our children' in said provision held to mean only the children born of the marriage of the testator and testatrix.

Will — Rectification of — Will can be rectified by the deletion, addition or substitution of words — Illogical to restrict rectification to the deletion of words only — Extrinsic evidence of testator's I intention admissible to rectify will, including evidence of surrounding facts and circumstances present to testator's mind when making the will — Evidence of declarations of intention by testator also admissible to show that an error has occurred — Court finding that if it was wrong in its interpretation of expression 'our children' in a joint will of a J husband and wife as meaning only the children born

1991 (1) SA p207

A of their union and not children born of the former marriages, will nevertheless to be rectified so as to reflect that intention.

Headnote : Kopnota

The words in a will 'our children' do not always clearly and unambiguously mean 'all our children of whatever marriages'. They can mean both those children 'belonging to us' in the sense of those 'born of our union' or they can mean those 'belonging to us' in the sense of B 'those children which are mine and those children which are yours'. In fact, in a joint will of a husband and wife which provided that '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 ', the former meaning would be the more natural one.

The Court accordingly held that there was some difficulty in accepting the existence of the assumption and presumption set out in Corbett, Hahlo, Hofmeyr and Kahn The Law of Succession in South Africa at 551: C 'Where a testator who has children of more than one marriage appoints his "children" as his heirs, it must be assumed that he means the children of all his marriages. Similarly, where husband and wife by mutual will confer benefits upon "our children" and one or both have children by former marriages, the presumption is that the children of their present marriage as well as of all their former marriages are to be included.' The cases cited in support of the statement that there is such a presumption throw little light on why such a presumption should D be thought to exist.

The Court held in the instant case that the words 'our children' appearing in the provision set out in the first paragraph above did not clearly and unambiguously refer to all the children of all marriages by the testating parties, that evidence of surrounding facts and circumstances was admissible to arrive at the true intention of the testating parties and would also be admissible to rebut the presumption against disinherison, and that the evidence of the surrounding facts and E circumstances adduced in the present case resulted in the Court having to conclude that the expression 'our children' was a reference to the six children born of the marriage of the testating parties and not to children born of previous marriages.

The Court can rectify a will by the deletion, addition or substitution of words and it is illogical to restrict rectification to the deletion of words only.

Van Zyl v Esterhuyze NO en Andere 1985 (4) SA 726 (C) approved and applied.

Extrinsic evidence of a testator's intention is admissible to rectify a F will. This would, of course, include evidence of the surrounding facts and circumstances to show what must have been present to the mind of the testator when he made his will. The Court would also be able to receive evidence of declarations of intention by the testator in order to show that an error has occurred.

The Court held, applying the above principles, that, even if it was wrong in its interpretation of the aforementioned provision of the will G in question, that, having regard to the surrounding facts and circumstances adduced in evidence, it had been established that it was the intention of the testator and testatrix only to benefit the six children born of their marriage and that the draftsman of the will, by the use of the words 'our children', had erred by not making that intention clear by either not stating 'our six children' or, preferably, H adding after the words 'our children' the names of the six children. It was accordingly ordered that the will be rectified by the addition after the words 'our children' in the relevant provision of the names of the six children born of the marriage of the testator and testatrix.

Case Information

Application for an order setting aside the decision of the Master upholding an objection to the first and final liquidation and distribution account in a deceased estate. The facts appear from the reasons for judgment.

I J J Gauntlett SC (with him R G Buchanan) for the applicant.

No appearance for the first respondent.

L S Melunsky SC for the second and third respondents.

Cur adv vult.

J Postea (24 October 1989).

1991 (1) SA p208

Judgment

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.

1991 (1) SA p209

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...