M.L.C.B v Master of the High Court and Others (3656_2022) [2023] ZAWCHC 172 (26 January 2023)

Is the contested Will of the deceased valid despite non-compliance with the formalities set out in section 2(1)(a)(iv) of the Wills Act, and can the court condone this non-compliance under section 2(3) of the Wills Act?

The case revolves around the contested Will of the late M s [E…y D…y C…n], who passed away on 18 August 2021 from natural causes. The applicant is the foster sister and cousin of the deceased. The deceased had lived with the applicant and her family since the age of 14, having been placed in their care by a Children’s Court due to her being a child in need of care and protection. The deceased had no significant relationship with her biological father, the second respondent, throughout her childhood and adulthood, only sporadically contacting him as an adult.

Following the deceased's death, the applicant discovered a handwritten Will, titled "My Last Will of [E…y C…n]," which was located in the deceased's car. This Will was signed by the deceased and two witnesses, but only on the last page, leading to its rejection by the Master of the High Court for not complying with the formalities required by the Wills Act. The second respondent, as the biological father, opposed the application to declare the Will valid, arguing that the applicant was involved in wrongdoing regarding the Will and that he should be considered a beneficiary if the deceased died intestate.

The applicant sought to have the Will accepted as valid despite its non-compliance with the formalities, arguing that the deceased intended it to be her last Will. The applicant's position was supported by the two witnesses who confirmed that the deceased had expressed her intention for the document to be her Will. The second respondent's opposition was based on suspicions regarding the applicant's integrity and the validity of the Will, but he failed to provide substantial evidence to support his claims.

The applicant's legal team argued that the deceased's intentions were clear and that the Will should be recognised despite the technical deficiencies. The case ultimately hinged on whether the court could condone the non-compliance with the formalities of the Wills Act under section 2(3), which allows for such condonation if the court is satisfied that the document was intended to be the deceased's Will.

The ratio decidendi of the case centers on the principle that in motion proceedings, the filing of further affidavits without the court's permission is impermissible and such affidavits may be regarded as pro non scripto, meaning they are treated as if they were never filed. The court emphasised the importance of adhering to established procedural rules regarding the sequence and number of affidavits to ensure the orderly administration of justice.

Specifically, the court highlighted that the discretion to allow further affidavits rests solely with the court, and any party wishing to file additional affidavits must formally seek leave to do so. The court reiterated that failure to comply with this requirement undermines the integrity of the motion proceedings and can lead to the dismissal of the improperly filed affidavits. This principle serves to maintain clarity and fairness in the litigation process, ensuring that all parties are aware of the evidence being presented and can respond appropriately.

In this case, the second respondent's supplementary affidavit was disregarded because it was filed without the necessary leave of the court, reinforcing the notion that procedural compliance is essential in legal proceedings.

The court relied on several cases in its reasoning process regarding the filing of further affidavits in motion proceedings. Notably, the following cases were referenced:

1. Standard Bank of SA Ltd v Sewerpersadh and Another 2005 (4) SA 148 (C) - This case reiterated that a litigant must formally apply for leave to file a further affidavit, and any affidavit filed without such leave may be regarded as pro non scripto.

2. James Brown & Hamer (Pty) Ltd v Simmons NO 1963 (4) SA 656 (E) - This case emphasised the importance of adhering to the established rules regarding the number of sets and sequence of affidavits in the interests of justice.

3. Hano Trading CC v JR 209 Investments (Pty) Ltd and Another 2013 (1) SA 161 (SCA) - This case acknowledged that flexibility in the filing of further affidavits is permitted only upon proper explanation and request to the court.