THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable
Case No: 645/2018
In the matter between:

PAULA GROBLER
APPELLANT
and

MASTER OF THE HIGH COURT
FIRST RESPONDENT
MARTHINUS CHRISTOFFEL BARNARD NO      SECOND RESPONDENT
(IN HIS CAPACITY AS THE EXECUTOR OF THE
ESTATE LATE L P GROBLER)
LEON RUDOLF GROBLER                                          THIRD RESPONDENT
PIETER JOHANNES GROBLER                             FOURTH RESPONDENT
HENK JOHANNES GROBLER                                     FIFTH RESPONDENT
ELSIE SUSANNA OLIVIER                                          SIXTH RESPONDENT

Neutral citation: Grobler v Master of the High Court & others (645/2018)
[2019] ZASCA 119 (23 September 2019)

Coram:
Maya P, Leach and Dambuza JJA and Mokgohloa and Plasket
AJJA

Heard:

28 May 2019

Delivered:
23 September 2019

Summary:
Will – validity of unsigned draft will in terms of s 2(3) of Wills
Act 7 of 1953 – not established that deceased received,
approved and intended draft will prepared by his financial
advisor to be his last will and testament – appeal dismissed.

__________________________________________________________________

ORDER
__________________________________________________________________

On appeal from: Gauteng Division, Pretoria (Janse van Niewenhuizen J sitting as
court of first instance):

The appeal is dismissed with costs.

__________________________________________________________________

JUDGMENT
__________________________________________________________________

Maya P: (Leach and Dambuza JJA, Mokgohloa and Plasket AJJA concurring):

[1] This is an appeal against the judgment of the Gauteng Division, Pretoria
(Janse van Niewenhuizen J). The court a quo dismissed an application in which the
appellant, Mrs Paula Grobler, sought, inter alia, (a) a declaration that an unsigned
will of the late Mr Leon Peter Grobler (the deceased) constituted his last will and
testament and (b) the appointment of the appellant and Imke Dekker Prokureurs as
the executors of his estate. The appeal is with the leave of the court a quo.

[2] The appellant is the deceased’s widow and second wife to whom he was
married, out of community of property, at his death. The third to the sixth
respondents, Mr Leon Rudolf Grobler, Mr Pieter Johannes Grobler, Mr Henk
Johannes Grobler and Mrs Elsie Susanna Olivier, are the deceased’s biological
children who were born of his marriage to his first wife. The second respondent,
Mr Marthinus Christoffel Barnard, is the executor of the deceased’s estate. The
only relief sought against him was that he and the first respondent, the Master of
the High Court, Pretoria should stay the finalisation of the deceased’s estate
pending the outcome of the application.

[3] It is common cause that before he died on 26 December 2015, the deceased
had signed a properly executed will on 16 April 1996, which was still in existence
at his death. This was before he met the appellant whom he married on 30 January
2010. It appears, however, that he wished to revise it because in January 2013 he
instructed Mr Siegfried Eugene Stander, a senior financial advisor employed by
Old Mutual Life Assurance Company (SA) Ltd, to prepare a will for him. Their
exchange on this subject is contained in a chain of email communications, which
commenced with a message dated 9 January 2013. The deceased requested Mr
Stander to provide him with specimens of wills dealing with bequests of movable
and immovable assets to surviving partners and children.

[4] The correspondence between the deceased and Mr Stander and among Mr
Stander’s office staff, each one acknowledged by the deceased in writing, went
back and forth until 8 August 2014. By then a draft will, which had been amended
a few times to incorporate the deceased’s various wishes, was in place. The long

email trail shows that over that period of 20 months the deceased doggedly sought
an equitable disposition of his assets among the appellant and his children, the
respondents. The main assets were his immovable property, the family home in
Helderkruin, Roodepoort and a holiday property in Margate, in respect of which he
wanted the appellant to enjoy only a right of usufruct either until her remarriage or
her being in an intimate relationship that had lasted for longer than six months.

[5] The last email before the deceased died, was sent to him by the appellant on
12 August 2014. This was apparently in response to an email he sent to Mr
Stander’s personal assistant, Ms Hannelie van der Walt, on 8 August 2014. The
deceased’s message was copied to both the appellant and Mr Stander and was, in
turn, a reply to Mrs Van der Walt who had recently sent him yet another revised
draft with an invitation for his comments. He wrote as follows:
‘Hi Hannelie,
Thank you for the will
This, however, does not address my property in Margate
I think it will be better to keep both houses in Trust with Paula having sole usufruct of the house
in Helderkruin and the Margate property for everybody’s use (Paula and the children)
Both properties can be sold and divided up with a greater benefit to Paula with regard to the
house at Helderkruin, if Paula and the children reach consensus on this, at any stage.
Please advise if this could be a possibility.’1

1 The original Afrikaans text reads:
‘Hi Hannelie
Dankie vir die testament
Dit spreek egter nie my eiendom in Margate aan nie
Ek dink dit sal beter wees om beide huise in Trust te hou met vrug gebruik uitsluitlik aan Paula tov die Helderkruin
huis en [g]ebruik aan almal [Paula en kinders] tov die Margate eiendom
Beide eiendomme kan verkoop word en verdeel word, met n groter voordeel vir Paula –m.b t die Helderkruin huis se
opbrengs, as Paula en kinders konsensus het oor die verkoop, op enige stadium
Adviseer asb of dit moontlik sal wees.’

[6] The tone of the appellant’s response to the deceased was rather sharp. The
email also disclosed that this was a touchy subject. This may also explain why she
decided to communicate with her husband, with whom she lived, in writing,
instead of talking to him. She wrote:
‘You and I have had this discussion already.
I do NOT want usufruct, Margate is fine, but not Helderkruin.
Can I make a suggestion that I pay each of the children R250 000. That would mean that I buy
the Margate house for a million. The rest is my share. I should be able to get a loan at the bank
for R1 million. I know it is uncomfortable talking about this, but I will not live like a squatter in
my own house. Why are we making the house beautiful – so that somebody else can buy it one
day?
Who is to say that I [will not] pass away before you – then you will not have a problem anymore
and you can give the house to whomever you want.’2

[7] Thereafter, the deceased and Mr Stander met on 18 and 19 November 2014
and again, for the last time, at the deceased’s home on 25 November 2014.
According to the appellant and Mr Stander, at the last meeting the deceased
suggested further amendments to the draft will. Mr Stander recorded these on a
typed version of the draft will in manuscript and understood them to constitute the
deceased’s final instructions that he would later effect electronically. He would
thereafter arrange a formal meeting with the deceased and the appellant for the
signing of their final separate wills as he was also tasked with drafting one for the
appellant.

2 The original Afrikaans text reads:
‘Ek en jy het mos nou al gepraat hieroor
Ek wil NIE vruggebruik he NIE Margate is fyn, maar nie Helderkruin
Kan ek eerder `n voorstel maak dat ek dan die kinders elk R250 000 betaal   Dit beteken ek koop die huis vir 1
Miljoen Die res is my gedeelte   Ek behoort seker `n lening van R1 miljoen by die bank te kry
Ek weet dis ongemaklik om hieroor te praat, maar ek gaan nie soos `n bywoner in my eie huis bly nie   Hoekom
maak ek en  jy nou die huis mooi – sodat iemand dit eendag kan koop?
Wie se dalk gaan ek voor jou dood – dan het jy nie meer `n probleem nie en kan die huis bemaak aan wie jy wil’.

[8] On 17 December 2014 Mrs Van der Walt sent the draft will to the deceased
and the appellant, who were on holiday abroad. The accompanying message
requested the deceased to read the draft will and inform Mrs Van der Walt if he
wished to make any alterations.3 The draft will, inter alia, vested the appellant with
lifelong usufruct, free of the obligation to pay security, over the immovable
property and one half of the nett profit of any sale proceeds if they were sold, the
rest to be shared among the respondents in equal parts. Nothing happened
thereafter and all was quiet until the deceased died a year later, whereupon the
appellant approached the court a quo in these proceedings. According to her, the
deceased and Mr Stander were unable to meet and finalise the draft will during
2015 because of the deceased’s busy schedule. Nevertheless, no correspondence
confirming the deceased’s receipt of the email of 17 December 2014, as he
previously did, or setting up a meeting between him and Mr Stander during that
entire year was produced.

[9] The court a quo dismissed the application on the bases that the final draft
will was not drafted by the deceased and that there was no proof that he even
received the email of 17 December 2014 and approved the draft will. The court
held that in light of relevant case law, in particular the judgment of this Court in
Bekker v Naude en andere,4 the unsigned document could not be accepted as the
deceased’s will within the exceptions set out in s 2(3) of the Wills Act 7 of 1953
(the Wills Act).

3 The original Afrikaans text reads: ‘Ek heg die veranderde testament vir u aandag hierby aan. Lees asseblief die
dokument deur en kontak my asseblief indien daar enige veranderinge ens aangebring moet word.’
4 Bekker v Naude en andere 2003 (5) SA 173 (SCA).

[10] On appeal before us, it was contended on the appellant’s behalf that she was
entitled to the declaratory relief she sought because the requirements of s 2(3) of
the Wills Act were met. This was so, it was argued, because the deceased ‘played
an active role in the drafting and completion’ of the draft will and it could be
inferred in the circumstances of the matter that he did receive it. We were urged to
consider the technological advances since the Bekker case, which make it easy for
people to communicate by electronic means, and accordingly apply the relevant
statutory requirements.

[11] Section 2(1) of the Wills Act, which is designed to ensure authenticity and
guard against false or forged wills,5 stipulates the formalities required in the
execution of a valid will. It reads, in relevant part:
‘(1) Subject to the provisions of section 3 bis –
(a)
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
(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 so signed by the testator or by such other person anywhere on the page;
and . . . .’

5 Van der Merwe v The Master & another [2010] ZASCA 99; 2010 (6) SA 544 (SCA) para 13.

[12] However, s 2(3) creates an exception to these requirements and provides:
‘If a court is satisfied that a document or the amendment of a document drafted or executed by a
person who has died since the drafting or execution thereof, was intended to be his will or an
amendment of his will, the court shall order the Master to accept that document, or that
document as amended, for the purposes of the Administration of Estates Act, 1965 (Act 66 of
1965), as a will, although it does not comply with all the formalities for the execution or
amendment of wills referred to in subsection (1).’

[13] Condonation of non-compliance with the testamentary formalities set out in
s 2(1) is, therefore, possible in terms of these provisions as they empower courts to
validate a document that would otherwise not pass muster as a will due to a
technical flaw in its attestation. The purpose of the provisions is to avoid thwarting
the lawful wishes of the deceased would-be testator. However, the document must
have been drafted or executed by the deceased whose will it purports to be, ie
created or prepared by the deceased personally.6 Furthermore, the court must be
satisfied on a preponderance of probabilities that the deceased intended it to be his
or her will.7 And once satisfied that the document meets the requirements of s 2(3),
the court is obliged by these peremptory provisions to order the Master to accept it
as the deceased’s will.8

[14] The question relating to the first jurisdictional requirement ie whether the
draft will was drafted by the deceased, presents no difficulty. The answer is an
unequivocal ‘No’. It is clear from the evidence that the document was prepared by
Mr Stander. The amendments which followed were also effected by him. The

6 Bekker v Naude, ibid para 9; Van Wetten & another v Bosch & others 2004 (1) SA 348 (SCA) para 14.
7 Letsekga v The Master & others 1995 (4) SA 731 (W) at 735F-G.
8 Van der Merwe v The Master & another, ibid, para 14; Stolz ID v The Master & another 1994 (2) PH G2 (E); Back
& others NNO v Master of the Supreme Court [1996] 2 All SA 161 (C).

deceased was then presented with the draft will under cover of Mrs Van der Walt’s
message which expressly anticipated further consideration and alterations. And as
the court a quo rightly found, there is simply no indication on the record that the
deceased received the document sent on 17 December 2014 and accepted it as his
will, which merely awaited signature. The uncertainty is heightened by the
apparent discord between the deceased and the appellant regarding the nature of
the latter’s inheritance of the deceased’s immovable property and the lapse of a
whole year with no tangible move by any of the parties to finalise the exercise. In
the absence of evidence that establishes that the deceased received, perused and
approved all the contents of the draft will, I am unable to find that he intended it to
be his will. The appeal must accordingly fail.

[15] In the result the following order is made:
The appeal is dismissed with costs.

________________________
MML Maya
President of the Supreme Court of Appeal

APPEARANCES:

For the Appellants:

Adv C Goosen
Instructed by:

B J Erasmus Pieterse Attorneys

Honey Attorneys, Bloemfontein

For the Third and Fourth Respondents:
Adv H Fraser
Instructed by:

Pieter Coetzee Attorneys

Martins Attorneys, Bloemfontein