THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case no : 345/10

NADINE BLOM
First Appellant
ELMARI BROWN
Second Appellant

and

CECILIA GETRUIDA BROWN
First Respondent
GERT VAN SCHALKWYK
Second Respondent
THE MASTER OF THE HIGH COURT PRETORIA
Third Respondent

____________________________________________________________

Neutral citation:

Blom v Brown

(345/10) [2011] ZASCA 54 (31 March 2011)

BENCH:

PONNAN, TSHIQI and SERITI JJA

HEARD:

14 MARCH 2011
DELIVERED:
31 MARCH 2011

SUMMARY:
Wills Act 7 of 1953 – section 4A – interpretation of.

____________________________________________________________

______________________________________________________________________

ORDER
______________________________________________________________________

On appeal from:
North Gauteng High Court (Pretoria) (Ismail AJ sitting as court of
first instance).

The appeal is dismissed with costs.

______________________________________________________________________

JUDGMENT
______________________________________________________________________

PONNAN and SERITI JJA  (TSHIQI JA concurring):

[1] The first appellant, Nadine Blom (born Brown) and her sister, the second
appellant, Elmari Brown are the children of Alfred Samuel Brown (the deceased). Their
parents divorced in 1984. On 27 September 1985 the deceased married the first
respondent, Cecilia Getruida Brown, out of community of property. No children were
born of his marriage to the first respondent. On 28 March 1995 the deceased executed
a will (the first will), in terms whereof he left to the first respondent his entire estate
provided that she survived him by at least seven days.

[2] On 24 August 2007 prior to travelling to Ulundi in KwaZulu Natal, where he
expected to spend one month on a work related assignment, the deceased asked to
see the first will because, as he put it, he did not want the first respondent to struggle,
should something happen to him whilst he was in Ulundi. His concern was triggered, it
would seem, by him having been hospitalised for a lung infection during the course of
the preceding month. The first respondent informed the deceased that he ought not to
be concerned as he had a valid will, but she could not immediately lay her hands on it
when she searched for it, and was thus unable to put his mind at ease. The deceased
then asked her to call her nephew, Heinrich Kossatz and the latter’s girlfriend, Natasha
Gerber, who were living in a granny flat on their property. In their presence he then

dictated a will which the first respondent wrote out in her own handwriting. After first
reading it, he signed that will (the second will) in the presence of the first respondent,
Kossatz and Gerber. Each of the latter two then signed as witnesses. In terms of the
second will he revoked all of his previous wills and codicils and once again bequeathed
his entire estate to the first respondent.

[3] On 28 August 2007 and whilst in Ulundi the deceased met his death. After his
death First National Bank lodged the first will with the third respondent, the Master of
the High Court, Pretoria. The first respondent consulted with an attorney and pursuant
to that consultation on 24 September 2007 she lodged the second will with the Master.
As the second will made no provision for an executor, she also sought the appointment
of Angelique Scheepers, an attorney, as executor of the deceased’s estate. The Master
took the view that Ms Scheepers, not having been exempted by the deceased, was
obliged to furnish security for the due discharge of her duties as executor. Ms
Scheepers was unwilling to do so and in consequence the Master declined to appoint
her.

[4] On 13 March 2008 the Master wrote to the first respondent enquiring about:
‘the relationship between the writer of the handwritten portions of the will and the witnesses to the
signature of the testator and the beneficiaries under the will.’
She responded fully in writing to the Master that very day. Shortly thereafter the first
respondent called on the office of the Master in an endeavour to resolve the
appointment of an executor. She was informed that if she were appointed executor it
would not be necessary for her to furnish security. As the first respondent was an
unrehabilitated insolvent and thus did not qualify for appointment, she made application
to court and on 24 April 2009, by order of the North Gauteng High Court (Pretoria), an
order for her rehabilitation issued. Armed with the order she once again approached the
office of the Master and was duly appointed executor. She was also informed that she
was disqualified from benefiting under the will by virtue of s 4A of the Wills Act 7 of
1953.

[5] The first respondent on the advice of attorney Gert van Schalkwyk, the second
respondent, then launched an ex parte application to the North Gauteng High Court
(Pretoria) for an order in the following terms:
‘1
Dat verklaar word dat die oorledene, Alfred Samuel Brown, se eggenote, Cecilia Getruida Brown,
bevoeg is om die voordele te ontvang wat aan haar bemaak is in die testament van gesegde oorledene
gedateer 24 Augustus 2007.
Dat verdere of alternatiewe regshulp aan die Applikant verleen word.’
That application succeeded before Pretorius AJ.

[6] During May 2009 the appellants caused application proceedings to be instituted
in the North Gauteng High Court against the first and second respondents, as also the
Master. The relief sought was:
‘1
Rescinding the order granted on 14 July 2008 in case no. 28005/2008 and replacing it with the
following:
“1
Dit word verklaar dat die Applikant (Cecilia Gertruida Brown) in terme van Artikel 4A(2)(b) van die
Wet op Testamente, Nr 7 van 1953, bevoeg is om ‘n voordeel uit die testament van Alfred Samuel Brown
gedateer 24 Augustus 2007 te ontvang, onderhewig daaraan dat die waarde van sodanige voordeel nie ‘n
kindsdeel soos in die Wet of Intestate Erfopvolging, Nr 81 van 1987 bedoel, sal oorskry nie;
Dit word verder verklaar dat gemelde Alfred Samuel Brown se twee afstammelinge, Nadine Blom
en Elmari Brown, ingevolge die bepalings van die Wet op Intestate Erfopvolging, Nr 81 van 1987, bevoeg
en geregtig is om in gelyke dele die restant van voormelde Alfred Samuel Brown se boedel te erf.”
In the alternative to paragraph 1 above, rescinding the order granted on 14 July 2008 in case no.
28005/2008 and granting leave to the First and Second Applicants in this application to oppose the
application in case no. 28005/2008 and to deliver their notice of intention to oppose within 10 days from
date hereof;
That the First Respondent be removed from office of executor in the administration of the
deceased estate of Alfred Samuel Brown, Master’s reference no. 19545/07, in terms of the provisions of
Section 54(1)(a) of the Administration of Estates Act, No. 66 of 1965 and that she be ordered to forthwith
return her letters of executorship to the Third Respondent;
That the First and Second Respondent be ordered to pay the costs of this application, jointly and
severally, the First Respondent in her personal capacity and the Second Respondent de bonis propriis;
That further and/or alternative relief be granted.’

[7] In an affidavit filed in support of the relief sought the first appellant states:
‘10

It is now a well-known fact that the First Respondent was involved in the execution of my father’s last will
(Annexure “A” hereto), because she, as his wife, wrote out the will for him in her own handwriting. This is
more fully explained by herself in an affidavit which I shall later refer to more fully.
I am advised that in this regard the provisions of Section 4A(1) read with subsection (2)(b) of the Wills
Act, No. 7 of 1953, are applicable, as the First Respondent, being my late father’s wife, would have been
entitled to inherit from him if he had died intestate.
In terms of Section 4A(1) read with subsection (2)(b) of the Wills Act such person shall be disqualified
from receiving any benefit from that will, but that a court may declare such a person competent to receive
a benefit which shall not exceed the value of the share to which that person would have been entitled in
terms of the law relating to intestate succession.
In terms of Section 1(1)(c) of the Intestate Succession Act, No. 81 of 1987, where a person dies intestate
and is survived by a spouse as well as a descendant, such spouse shall inherit a child’s share (or so
much of the intestate estate as does not exceed in value the amount fixed from time to time by the
Minister) and the descendant shall inherit the residue.
In terms of Section 1(4)(f) a child’s portion, in relation to the intestate estate of a deceased, shall be
calculated by dividing the monetary value of the estate by a number equal to the number of children of the
deceased, plus one.
This means, I respectfully submit, that the First Respondent would only be entitled to inherit one third (a
child’s portion) of my father’s nett estate, whilst the Second Applicant and I would be entitled, in terms of
the law relating to intestate succession, to the remainder of this estate divided equally between us.
Therefore, at all relevant times hereto, the Second Applicant and I, as my late father’s only two children,
had (and still have) a direct and substantial interest in all matters relating to the inheritance and liquidation
of my father’s deceased estate.’

[8] Of the second respondent’s involvement in the matter and in explaining why he
has been cited as a respondent, the first appellant states:
‘26
On or about 12 June 2008 I received a telephone call from the Second Respondent who informed me that
because my late father failed to appoint an executor, the First Respondent was about to apply for the
appointment of an independent executrix in the deceased estate of my father. At no stage was I informed
that the First Respondent had already issued an application for the relief claimed in terms of the ex parte

application referred to above or that the First Respondent would apply to be appointed as executrix
herself. The ex parte application was also never served on me or the Second Respondent.
During or about the beginning of March 2009 I called the Second Respondent to enquire about the state
of affairs with regard to my late father’s estate. When I asked him if an executrix had already been
appointed, he informed me that the First Respondent is the executrix.
This came as a shock to me and I immediately telephoned my attorney of record who then conducted a
search in the office of the Third Respondent where she noticed a copy of the ex parte application and the
court order. I refer in this regard to the confirmatory affidavit of my attorney of record which is attached
hereto as Annexure “F”.
On 9 March 2009 my attorney addressed a letter to the Second Respondent in this regard. A copy thereof
is attached hereto as Annexure “G”. In this letter my attorney pointed out that we were not given notice of
this application and that the Second Applicant and I intend to apply for the necessary relief.
On 12 March 2009 the Second Respondent replied in writing and a copy of his letter is attached hereto as
Annexure “H”. In this letter he alleges that he invited me to collect a copy of the application in case no.
28005/2008 at his offices and that he was of the view that it was not necessary to serve the application on
me. I deny any reference to this application or that he invited me to collect a copy thereof at his offices.
He only informed me about the First Respondent’s intention to apply for the appointment of an
independent executrix in the deceased estate of my father.
This new explanation is an afterthought to cover up his deliberate failure to give me proper notice and to
have the said application properly served on me. Furthermore, there is no explanation or supporting
affidavit by the Second Respondent in the ex parte application (case no. 28005/2008) that he had a
telephonic conversation with me with regard to the application itself.’

[9] In support of the contention that the first respondent should be removed as
executor, the first appellant stated:
‘32
I am advised by my attorney of record that according to the Third Respondent’s file, the First Respondent
has already been appointed as the executrix in my father’s deceased estate. A copy of her letters of
executorship is attached hereto as Annexure “J”. The Second Respondent is apparently assisting the
First Respondent in the execution of her duties.

Due to the circumstances described above, I have lost all confidence in the First and Second
Respondents. The First Respondent has, in collaboration with the Second Respondent, launched an ex
parte application without giving any notice thereof and has already obtained an order to which she was
not entitled to.’

[10] And finally in support of their entitlement to a rescission or variation of the order
granted by Pretorius AJ, the first appellant states:
‘35
As I have already pointed out above, the Second Applicant and I have a direct and substantial interest in
matters relating to the inheritance and liquidation of my father’s deceased estate. Notwithstanding this,
the First and Second Respondents erroneously sought and obtained an order in the absence of the
Second Applicant and myself under circumstances where we are each entitled to a child’s share of my
father’s deceased estate as more fully explained above.’

[11] Ismail AJ dismissed the application for rescission with costs essentially because
he was satisfied that the order made by Pretorius AJ was correct, but, granted leave to
the appellants to appeal to this court. Neither the second nor the third respondent take
any part in this appeal.

[12] Two issues arose for decision before the high court. First, the interpretation of s
4A of the Act and second, whether the first respondent should be removed as the
executor of the deceased’s estate in terms of s 54(1)(a) of the Administration of Estates
Act 66 of 1965. Before us the second was specifically abandoned by counsel and
accordingly warrants no further consideration.

[13] We  thus turn to s 4A. A useful starting point is Smith & another v Clarkson 1925
AD 501, where Kotze JA (at 503-4) after an elaborate examination of the common law,
summarised the position as follows:
‘The rule of the Roman Law, adopted in our own law, is that no one, in writing out the will of another, can
derive any benefit for himself under it; and it has been held by this Court that being appointed executor in
a will is a benefit within the meaning of the rule Benischowitz v The Master (1921 AD 589). The Roman
law on the subject is contained in the Digest (lib. 48 tit. 10) and in Code (9.23). But even in the Roman
law, as Brunnemann in his Commentary on this passage of the Code observes we find instances
mentioned which go to show that the rule was not extended beyond cases where the reason for the rule

did not apply. Thus if a slave or a son wrote out a will; in which he was instituted heir or otherwise
benefited, the mere subsequent general superscription, by way of confirmation by the testator was
sufficient; but, in the case of a stranger writing out a will, the special superscription of the testator, to the
effect that he had dictated and acknowledged the will (dictavi et recognovi) was necessary. In none of
these instances was the penalty of the lex Cornelia de falsis, nor forfeiture of the benefit, incurred Dig.
(48.10.1.8). So, in the Code (9.23.1) we find a similar instance put of a son writing out a will at his father's
dictation in his own favour. It was there held that as the son, even without the will, would have succeeded
to his father's estate, and was merely writing at his father's dictation, it was as if his father had himself
written the will. If this reasoning amounts to anything, it can only hold on the ground that the
circumstances removed all suspicion of falsity or fraud on the part of the son.’

[14] The South African Law Commission in its Review of the Law of Succession,
observed in June 1991 (Project 22 para 4.35):
‘The Commission holds the view that the rules concerning the disqualification of persons involved in the
execution of the will frustrate the intention of the testator while they seldom succeed in preventing fraud.
The persons who are usually available to write out the will or who sign as witnesses are precisely the
family and friends whom the testator wishes to benefit. Those who intend forging a will usually see to it
that they are not disqualified by the rules. The witnesses or a writer whose benefit appears from the will is
penalised, while persons who may covertly receive a benefit are not affected.  The disqualification has
been described as “unfair” and “a trap for the unwary”.’
It thus recommended (para 4.38):
‘The Commission recommends that the rules concerning the disqualification of persons involved in the
execution of a will be abolished. This may be done by repealing sections 5 and 6 of the Wills Act 7 of
1953 and by substituting for them a provision that will cause the writer of and witnesses to a will not to be
incapable of inheriting.’

[15] Sections 5 and 6, prior to their repeal, provided:
‘5  A person who attests the execution of any will or who signs a will in the presence and by direction of
the testator or the person who is the spouse of such person at the time of attestation or signing of the will
or any person claiming under such person or his spouse, shall be incapable of taking any benefit
whatsoever under that will.

6  If any person attests the execution of a will or signs a will in the presence and by direction of the
testator under which that person or his spouse is nominated as executor, administrator, trustee or
guardian, such nomination shall be null and void.’

The Law Commission’s recommendations were not accepted by the Legislature. By s 7
of the Law of Succession Amendment Act 43 of 1992, the Legislature did, however,
repeal sections 5 and 6 and in their stead, inserted s 4A into the Act.

[16] Section 4A, to the extent here relevant, provides:
‘(1)   Any person who attests and signs a will as a witness, or who signs a will in the presence and by
direction of the testator, or who writes out the will or any part thereof in his own handwriting, and the
person who is the spouse of such person at the time of the execution of the will, shall be disqualified from
receiving any benefit from that will.
(2)   Notwithstanding the provisions of subsection (1) ―
(a)
a court may declare a person or his spouse referred to in subsection (1) to be competent to
receive a benefit from a will if the court is satisfied that that person or his spouse did not defraud or
unduly influence the testator in the execution of the will;
(b)
a person or his spouse who in terms of the law relating to intestate succession would have been
entitled to inherit from the testator if that testator has died intestate shall not be thus disqualified to
receive a benefit from that will: Provided that the value of the benefit which the person concerned or his
spouse receives, shall not exceed the value of the share to which that person or his spouse would have
been entitled in terms of the law relating to intestate succession.’

[17] It is immediately apparent that the classes of persons previously disqualified by
the now repealed ss 5 and 6 were extended by s 4A to include someone who writes out
a will or any part thereof in his or her own handwriting. And unlike those repealed
sections which admitted of no qualifications or exemptions, s 4A does. Prior to the 1992
amendment the general rule was that a person who had written out a will on behalf of
the testator was disqualified from taking any benefit under that will. The rationale for
disqualifying such persons was to prevent fraud. But, our courts have always
recognised that at common law exceptions should be made. It was put thus In Re
Estate Barrable 1913 CPD 364 at 368:
‘The object of the stringency of the law, and of the rules laid down, was the prevention of falsity, and
fraud, and of the exertion of undue influence over people in bad health or in feeble state of mind; yet in
some cases it was recognised that all the circumstances and even the document itself so entirely
disproved fraud that exceptions should be made from the pains and penalties laid down.’
Using Barrable as its lodestar In Re Estate Maxwell 1949 (4) SA 84 (N) held that a son,
who had completed and read over the will of his mother during her last illness, after she

had told him how she wished to dispose of her estate, was entitled to the benefits
reserved to him by the will.

[18] Counsel for the appellants submitted:
‘(a)
Subsection (2)(a) applies to persons who are not family members of the testator and who are
disqualified (and will remain disqualified), unless a court is satisfied that the testator was not defrauded or
unduly influenced;
(b)
Subsection (2)(b) applies to persons who are family members (i.e. a spouse, descendant, parent
or other blood relation). As far as this category of persons is concerned, the intention is not to disqualify
them, but to entitle them to inherit a benefit, the value of which shall not be more than his/her intestate
portion. This is to ensure that other family members are not prejudiced and are treated equally in terms of
the law relating to intestate succession.

It is therefore respectfully submitted that the legal principle underlying Section 4A of the Wills Act can be
formulated as follows: Only those persons who are disqualified shall have locus standi to apply for an
order in terms of subsection (2)(a). In other words, disqualification is a prerequisite. The question is which
persons are disqualified and which are not?’

[19] In our view that foundational premise, upon which the rest of counsel’s argument
rested, is untenable. Section 4A(1) provides that a person who writes out a will (and the
spouse of that person) shall be disqualified from receiving any benefit from that will.
That general principle set out in subsection 1 is subject to the qualification and
exceptions set out in subsection 2. To answer the question posed by counsel: Section
4A(1), which encapsulates the general rule, operates without more to disqualify a
particular class of persons, namely those who attest, sign (as a witness or in the
presence of and by the direction of the testator) or write the will, from benefitting under
that will, unless they are exempted by either subsections (a) or (b) of section 4A(2).
Subsection 2(a) empowers a court to declare any such person who may be disqualified
by the operation of subsection 1 to be competent to receive a benefit from the will if it is
satisfied that such person (or such person’s spouse) did not defraud or unduly influence
the testator in the execution of the will. Unlike subsection 2(a), subsection 2(b) applies
automatically - that is without the necessity for an order of court to be obtained. But like
subsection 2(a), it too serves to exempt those who fall within the ambit of its scope from

the operation of the general rule envisaged in subsection 1. There is  nothing in s 4A to
suggest that the applicability of subsection 2(a) is dependent on the inapplicability of
subsection 2(b). If it was the intention of the legislature that a person contemplated in
subsection 2(b) was to be excluded from the ambit of subsection 2(a) then one would
have expected the section to contain words such as ‘other than a person referred to in
paragraph (b) of sub-section 1’ to appear in subsection 2(a).

[20] Moreover,  we  have some difficulty in appreciating why the legislature would
have seen fit to differentiate between a stranger, on the one hand, and ‘a spouse,
descendant, parent or other blood relation’, on the other, as counsel postulates. Let us
take two scenarios for illustrative purposes: In the first a neighbour, A, writes out a will
for a testator, T, and in the second a spouse, B, writes out a will for her husband, the
testator, T. If Counsel’s submission is correct then, notwithstanding the fact that both A
and B may be able to show that they did not defraud or unduly influence T in the
execution of his will, the former will be entitled to all of the benefits reserved to him in
terms of T’s will but the value of B’s benefit will be limited to what she would have been
entitled to on intestacy - presumably one child’s share.  Why the legislature would
subject two similarly placed beneficiaries to such differential treatment is not readily
apparent to  us.

[21] In addition to the considerations that  we  have just alluded to, counsel’s
argument, in  our view, finds no support in the plain language of the section. Subsection
1 refers to ‘any person’ who inter alia ‘writes out the will’ of the testator. And subsection
2(a) refers in terms to ‘a person or his spouse referred to in subsection 1’. It is that
person, namely the person who writes out the will, that a court may declare to be
competent to receive a benefit under that will. In that respect as Kotze JA made plain in
expatiating on the common law, sections 4A(2)(a) and (b) do no more than afford to a
beneficiary remedies to reverse the effect of a disqualification. Those remedies, as the
other authorities to which  we  have referred illustrate, were available to such
beneficiary under the common law. As it was put by Wessels J in Casserley v Stubbs
1916 TPD 310 at 312

‘It is a well-known canon of construction that we cannot infer that a statute intends to alter the common
law. The statute must either explicitly say that it is the intention of the legislature to alter the common law,
or the inference from the Ordinance must be such that we can come to no other conclusion than that the
legislature did have such an intention.’
In a similar vein Innes CJ stated in Johannesburg Municipality v Cohen’s Trustees 1909
TS 811 at 823:
‘In considering the question of the extent to which the common law is abrogated by statute, the rule which
as been adopted by the English courts is thus laid down by Byles, J., in Reg. v Morris (1 CCR 95): “It is a
sound rule to construe a statute in conformity with the common law rather than against it, except where
and so far as the statute is plainly intended to alter the course of the common law.” ’

[22] Where a beneficiary acts as a testator’s amanuensis there is almost always
room,  one  would imagine, for the suspicion that the testator may have been improperly
influenced by that self-interested beneficiary. It is perhaps for this reason that the
common law disqualification in respect of persons who wrote out the will in their own
handwriting, was retained in s 4A(1) of the Act. What the section seeks to achieve,
consistent with the common law, however, is to permit a beneficiary, who would
otherwise be disqualified from inheriting, to satisfy the court that he or she (or his or her
spouse) did not defraud or unduly influence the testator in the execution of the will.

[23] In this case, the first respondent gained no unfair advantage over anybody, and
there is no room for any falsity or fraud. Nothing can be clearer than the absolute bona
fides of the first respondent. Nowhere on the papers was her bona fides as the writer of
the will questioned. Nor, given the existence of the deceased’s first will, which left his
entire estate to her, could it have been. She was merely acting at his special request as
his amanuensis and she gained absolutely nothing by so doing, nor did she attempt to
gain anything. In  our opinion she ought to receive the benefits reserved to her by the
will.

[24] It follows that the appeal must fail and it is accordingly dismissed with costs.

_________________
V M  PONNAN
JUDGE OF APPEAL

___________________
W SERITI
JUDGE OF APPEAL

APPEARANCES:

For Appellants:

D S Fourie SC

A Trumpie

Instructed by:

Macintosh Cross & Farquharson

Pretoria

Honey Attorneys

Bloemfontein

For Respondents:

J D Maritz SC

Instructed by:

Weavind & Weavind Inc

Pretoria

Vermaak & Dennis Inc

Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

31 March 2011

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment.

Blom v Brown
345/10) [2011] ZASCA 54 (31 March 2011)

Media Statement

Today the Supreme Court of Appeal (SCA) dismissed an appeal by Nadine Blom (Born
Brown) and her sister Elmari Brown the children of Alfred Samuel Brown (the deceased)
against a judgment of the North Gauteng High Court (Ismail AJ) that the first respondent,
Cecilia Brown, who the deceased had married after his divorce from the mother of the
appellants, was entitled to receive the benefits reserved to her by the will of the deceased.

Prior to travelling on a work related assignment, the deceased asked to see his first will, in
terms of which he had left to the first respondent his entire estate.  As this will could not be
located he decided to dictate a second will, in the presence of witnesses, which the first
respondent wrote out in her own handwriting.  He read through the will, which revoked all his
previous wills and signed it. Whilst away on that assignment the deceased met his death.
When the second handwritten will was lodged with the Master, the first respondent was
informed that in terms of s 4A of the Wills Act 7 of 1953 she was disqualified from benefitting
under the will.

Section 4A(1) disqualifies, amongst others, a person who writes out the will of another in his
or her own handwriting from receiving any benefit under the will. The first respondent applied,
without notice to the appellants, to the Johannesburg High Court for an order that she was
entitled to benefit from the will. The high court (Pretorius AJ) agreed and granted her the relief

that she had sought. Once the appellants came to learn of that order they applied for a
rescission of that order. Ismail AJ, who heard the rescission application, dismissed it with
costs essentially because he was satisfied that Pretorius AJ was correct.

According to the SCA the general principle encapsulated in s 4A(1) is subject to the
qualification and exceptions set out in s 4A(2)(a) which empowers a court to declare any such
person competent to receive a benefit under the will if it is satisfied that such a person did not
defraud or unduly influence the testator. On behalf of the appellants it was argued that the
qualification and exception in s 4A(2)(a) did not apply to persons who are family members of
the testator. Rather, so the argument went, section 4A(2)(b), which makes provision for a
person, who in terms of the law relating to intestate succession would have been entitled to
benefit from the testator if that testator had died intestate, applied. As subsection 2(b)
restricted the benefit of such a beneficiary to the value of the share such a person would have
received in terms of the law relating to intestate succession, it was contended that being the
spouse of the deceased the first respondent’s benefit should not exceed a child's share being
what she would have been entitled to inherit had the deceased died intestate.

The SCA held that on the plain language of the section there was nothing to suggest that the
application of s 4A(2)(a) was dependent on the inapplicability of s 4A(2)(b).  If it had been the
intention of the legislature that family members should be excluded from the ambit of subsec
2(a) one would have expected the relevant section to contain clear wording to that effect.  The
court thus rejected this argument. The court held that, as was the position under the common
law, s 4A(2)(a) seeks to permit a beneficiary who would otherwise be disqualified from
inheriting, to satisfy the court that he or she did not defraud or unduly influence the testator in
the execution of the will. The court held that as the first respondent had not, by way of the
second will, gained any advantage over anyone nor had her bona fides been questioned, that
she should receive the benefits reserved to her by the will.

The SCA consequently dismissed the appeal with costs.

--- ends ---