Wolman and Others v Wolman

• Jurisdiction: South Africa
• Judge: Hoexter JA, Beyers JA, Holmes JA, Williamson JA and Wessels JA
• Judgment Date: 14 March 1963
• Citation: 1963 (2) SA 452 (A)
• Hearing Date: 21 February 1963
• Court: Appellate Division

Hoexter, J.A.:

The respondent, to whom I shall refer as the plaintiff, D is the grand-daughter of the late Noah Wolman, to whom I shall refer as the testator. She brought an action in the Cape Provincial Division for an order declaring the testator's will of the 30th August, 1945, to be null and void. As defendants she cited the executors appointed to the estate of the testator, the beneficiaries under the aforesaid will, and E the Master of the Cape Provincial Division. In her declaration, to which she annexed the impugned will, she made the following allegations:

'5. The aforesaid document which purports to be the will of the late Noah Wolman is not a valid will in that it was not executed in terms of the requirements of Ord. 15 of 1845 (Cape) in that

(a)

two witnesses did not attest the said document in the presence of the said late Noah Wolman;

(b)

F the said Noah Wolman did not sign the said document in the presence of both witnesses present at the same time nor did he acknowledge his signature in the presence of the said witnesses present at the same time.'

The interest of the plaintiff in the action appears from the following paragraphs of her declaration:

'6. Prior to the execution of the said document, the said Noah Wolman had on the 17th December, 1943, and at Cape Town duly and properly G executed a valid will, copy whereof is hereunto annexed marked 'B' and which said will will be the last will of the deceased, Noah Wolman, in the event of this Honourable Court setting aside the purported will dated the 30th August, 1945.

7. Plaintiff is a beneficiary under both the purported will and under the prior valid will but in terms of the latter (i.e. annexure 'B' hereto) she was bequeathed a much greater interest than under the former and she respectively refers to clause 3 (the penultimate paragraph in the purported will and the final paragraph in the valid will) of each H document which she prays may be regarded as if incorporated herein.'

The paragraph in the impugned will referred to above reads as follows:

'I do hereby will and direct that my said executor shall from time to time at his complete and entire discretion apply the nett income derived from my shares in Achuzath Wolman Ltd., shares in Palestine Binyan Bank, and interest from my bond on Abraham and Millie Levy, towards the maintenance and education of Aaron Wolman and Sarita Wolman, children of my son Bertie Wolman, or the survivor of them, in such proportions as my Palestine executor

Hoexter JA

may deem advisable at his entire and complete discretion and until such time as the said Aaron Wolman shall attain his twenty-fifth birthday, or if he should die before attaining his twenty-fifty birthday, then until the said Sarita Wolman shall attain her twenty-first birthday. Should the nett income accruing from the aforementioned shares and bond be more than required for the maintenance and education of the said Aaron Wolman A and Sarita Wolman, the excess income shall revert back to my estate.'

The corresponding paragraph of the prior will reads as follows:

'I do hereby specially give and bequeath as a legacy in equal shares to Aaron Wolman and Sarita Wolman, children of my son Bertie Wolman, my shares in Achuzath Wolman Ltd., subject to the conditions that the said shares shall be retained by my executor in Palestine in trust. My said executor shall from time to time at his complete and entire discretion B apply the nett income derived from these shares towards the maintenance and education of the said Aaron Wolman and the said Sarita Wolman, or the survivor of them, in such proportions as my Palestine executor may deem advisable at his entire and complete discretion and until such times as the said Aaron Wolman shall attain his twenty-fifth birthday, or if he should die before attaining his twenty-fifth birthday, then until the said Sarita Wolman shall attain her twenty-fifth birthday.

Upon the said Aaron Wolman attaining his twenty-fifth birthday (or in the event of his predeceasing Sarita) then on Sarita attaining her 21st C birthday the aforesaid shares in equal shares, or in the event of one of them dying, all the shares shall be transferred to the survivor.'

Of the defendants cited only the first three, being the South African executors to whom the Master had issued letters of administration, appeared to conest the plaintiff's claim. The sole issue at the trial D was whether the plaintiff could establish by evidence the allegations in para. 5 of her declaration. After hearing evidence the trial Court held that the plaintiff had established these allegations and accordingly declared the impugned will to be null and void. Against this judgment the executors now appeal to this Court, and in the first place they ask E that the judgment should be set aside on the ground that the plaintiff failed to cite all the beneficiaries under the will. In order to appreciate the point made by the executors it is necessary to quote the following portion of the testator's will:

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