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[2012] ZAECGHC 45
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Jansen van Rensburg NO and Others v Master of the High Court, Grahamstown and Another (585/2012) [2012] ZAECGHC 45 (23 May 2012)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION - GRAHAMSTOWN)
CASE NO: 585/2012
DATE HEARD: 26/04/2012
DATE DELIVERED: 23/05/2012
In the matter between
SHAUN LEON JANSEN VAN RENSBURG N.O.
(Estate late L Jansen van Rensburg) …........................................................................1st APPLICANT
SHAUN LEON JANSEN VAN RENSBURG …................................................................2nd APPLICANT
SHARON ELIZABETH JANSEN VAN RENSBURG …...................................................3rd APPLICANT
and
MASTER OF THE HIGH COURT , GRAHAMSTOWN …....................................1s' RESPONDENT
DIANN MARLENE TODKILL …...................................................................2nd RESPONDENT
JUDGMENT
ROBERSON J:-
[1] This application involves the interpretation of the last two clauses of the will of the late Leonard Jansen van Rensburg (the deceased). It is brought by the first applicant (Shaun) in his capacity as the executor of the estate of the deceased, and in his personal capacity as the son and heir of the deceased. The third applicant (Sharon) is the daughter of the deceased, and is also an heir in the estate. The first respondent issued letters of executorship to the first respondent. The second respondent was the fiance of the deceased and is also an heir in the estate. The first respondent abides the decision of the court and the second respondent did not oppose the application.
[2] According to the founding affidavit, the deceased executed his will on 17 October 2009, and died on 14 August 2010. The deceased's mother died on 29 April 2010, and in her will bequeathed to the deceased the proceeds of the sale of an immovable property. The monetary value of such bequest is the sum of R141 913.44. The deceased died before this sum was paid out. it however forms part of his estate.
[3] It is necessary to set out the whole of the deceased's will, and, because of its peculiar format, it is more convenient to annex a copy of the will to this judgment. The clauses in question are those falling under the headings or words "Household contents" and "The rest will go to", on the second page of the will, above the signatures.
[4] The applicants seek an interpretation to the effect that these clauses are linked and deal with the household contents, and that the words "the rest will go to" refer to those items of household contents which they did not take within 30 days of the deceased's death. According to the founding affidavit Absa Trust, which was appointed as an agent to administer the estate because neither Shaun nor Sharon has the necessary expertise, is of the view that the last clause of the will means that the residue of the estate should devolve upon the second respondent.
[5] In Aubrey-Smith v HofmeyrN.O. 1973 (1) SA 655 (CPD) at 657E-H Corbett J
(as he then was) said:
"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 contradict, add to or alter the clearly expressed intention of the testator as reflected in the words of the will. (See generally, Ex parte Froy: In re Estate Brodie, 1954 (2) S.A. 366 (C) at p. 370; Ex parte Eksekuteure Boedel Malherbe, 1957 (4) S.A. 704 (C) at p. 710). As was stated in Ex parte Estate Stephens, 1943 C.P.D., by SUTTON, J. (at p. 402)-
"....in construing a will the object is not to ascertain what the testator meant to do but his intention as expressed in the will"
On the other hand, in addition to receiving evidence applying the words of the will to the external facts, the Court is also entitled to be informed of, and to have regard to, all materia! facts and circumstances known to the testator when he made it. As it has been put, the Court places itself in the testator's armchair. Nevertheless, the primary enquiry still is to ascertain, against the background of these material facts and circumstances, the intention of the testator from the language used by him in his will (see Froy's case, supra at p. 372)."
[6] With the exception of the Isuzu vehicle, and leaving aside the clauses in question, the deceased clearly intended that his assets be shared between Shaun, Sharon and the second respondent. Although the Old Mutual Flexi Pension was to be shared between Shaun and Sharon only, the deceased was apparently at pains to point out that it had been paid up before he met the second respondent, in other words if it had not been paid up she would have received a share. When it comes to the household contents, one would therefore expect, in the general scheme of the will, that the deceased would have intended that those too would be shared between Shaun, Sharon and the second respondent, implicit in the second to last clause is that there might be some household contents left over which were not taken by Shaun and Sharon. The deceased could not have intended that they be left unaccounted for. Household contents were identified and dealt with as a specific asset, in the same manner as the other assets. In my view, in view of the general scheme of the will, the words "the rest will go to" refer to those household contents not taken by Shaun and Sharon within 30 days of the deceased's death. This interpretation has the result that the deceased did not expressly deal in his will with any residue which there may have been in his estate.
[7] In my view there are no grounds for interpreting the will to the effect that by
implication the deceased intended to deal with any residue in his estate. When
he executed his will, his mother was still alive and her bequest to him did not
form part of his estate. In Estate Greenacre v Brett N.O. and Another 1956 (4)
SA 291 (N) at 295 A-F, James AJ (as he then was) said the following:
"To my mind, the effect of the cases dealing with a bequest by necessary implication may be summarised as follows:
(1) "If an event has occurred which was not contemplated by the testator at the time he made his will, the Court is not entitled to surmise what the testator's intention would have been if he had contemplated the occurrence of that event and given effect to such surmise. To do so would be to add something to the will and not construe it" (see Parker and Others v Estate Fletcher, 1932 C.P.D. 202 at p. 208):
(2) Notwithstanding the above ruie, if the Court is satisfied from the language used by the testator in his will that he has in fact contemplated the occurrence of that event and has indicated his intention in respect thereof, then, even if his intention has not been expressed in specific words, it may be gathered by necessary implication from the terms of the will (see Ex parte Estate Paley, supra at p. 186, and Jarman on Wills, 8th ed., p. 592);
(3) Conjecture must not be taken for implication and, before a Court will gather a testator's intention by necessary implication, it must be satisfied that his intention is indicated in such a way that an intention to the contrary cannot be supposed (see In re Estate Sfaelos, supra at p. 306; Ex parte Estate Paley, supra at p. 186):
(4) In cases where the testator's intention may legitimately be implied, the implication may be used not only to fix the sense of ambiguous words but to control the sense even of clear words and supply the place of express words in cases of difficulty or ambiguity (see Ex parte Paley, supra at p. 187)."
[8] In my view the language used by the deceased in his will does not reveal that he contemplated the bequest from his mother or any residue at all. There is simply no mention of any other property in his estate. There is therefore no room for implying that he bequeathed the residue in his estate to any particular person.
[9] in the result, the bequest from the deceased's mother is to devolve in accordance with the law of intestate succession.
[10] In addition to a declaratory order interpreting the last two clauses of the will, the applicants asked for an order that the amount of R141 913.44 be divided equally between them. Such a division would be on the basis that they are the intestate heirs to that portion of the estate which was not dealt with in the will. However it is not altogether clear in the founding affidavit that they are the only intestate heirs in the estate. An order merely that the residue should devolve in accordance with the law of intestate succession will not prejudice them if they are the only intestate heirs.
[11] The applicants asked for costs only in the event of the application being opposed.
[12] In the result, the following order will issue:
12.1 It is declared that:
12.1.1 The words "the rest will go to" in the last clause of the will of the late Leonard Jansen van Rensburg, identity number 490203 5068 08 2, such will having been executed on 17 October 2009, refer to those household contents of the said Leonard Jansen van Rensburg which were not taken by Shaun Leon Jansen van Rensburg and Sharon Elizabeth Jansen van Rensburg within 30 days of the death of the said Leonard Jansen van Rensburg.
12.1.2 The residue of the estate of the said Leonard Jansen van Rensburg, in the sum of R141 913.44, is to devolve in accordance with the law of intestate succession.
12.2 There is no order as to costs.
J.M. ROBERSON
JUDGE OF THE HIGH COURT
MAKAULA J:-
I agree
M. MAKAULA
JUDGE OF THE HIGH COURT
Appearances
Applicants: Adv. S. McTurk, instructed by Nolte Smit Attorneys, Grahamstown.
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