- The High Court reaffirmed that a Will regular on its face is presumed valid, and the person challenging it must prove invalidity on a balance of probabilities.
- Judge MA Makume confirmed that a Will signed by a mark remains valid even if a commissioner of oaths certifies it after the testator’s death, as permitted by statute
- The family’s legal challenge collapsed partly because the named beneficiaries were not joined, a defect the court described as fatal
When a family member dies, grief is often followed by tension. A house, a bank account, or a piece of land can quickly become the centre of a dispute.
In Johannesburg, a family’s attempt to overturn a grandmother’s Will nearly nine years after her death has resulted in a judgment that carefully restates what makes a Will valid in South African law.
This case was heard in the High Court in Johannesburg, and the applicant was Nehemia Modise. The first respondent was Rifilwe Agnes Modise, cited in her capacity as executrix of the estate. The second respondent was ABSA Bank Limited, and the third was the Master of the High Court of South Africa. The Will in question was that of the late Matsatsi Agnes Khutsoane, born 30 September 1938, and who died of natural causes on 6 December 2012 at Tsakane.
On 21 January 2013, the Master issued the first respondent with letters of executorship based on a Will dated 13 November 2012. The deceased bequeathed her estate to her grandchildren, Thabang Modise, Nthabiseng Modise, Karabo Modise, and Rifilwe Agnes Modise. None of the heirs was joined as a party to the application. In Clause 4 of the Will, the deceased nominated Rifilwe Modise as executrix. Rifilwe is the daughter of Moeketse Modise, the late son of the deceased.
How the Will was signed
The Will was drafted on ABSA Bank letterhead and signed by the deceased by making a mark, rather than a full signature. This was witnessed by two witnesses. The commissioner of oaths, Trinesha Pillay, attached her certificate on 20 December 2012, two weeks after the death of the deceased. The applicant argued this rendered the Will invalid.
The applicant, Nehemia Modise, sought an order declaring the Will invalid, as well as the removal of Rifilwe Modise as executrix. He requested that the estate be administered as intestate. He claimed the deceased could not have executed the Will on 13 November 2012 due to ill-health, relying on a medical certificate from Dr M Sarang dated 18 June 2012, which stated the deceased suffered from mild hemiplegia, was unable to walk, and needed a wheelchair.
Rifilwe Modise, the first respondent, stated that she lived with the deceased and that on 13 November 2012, she, her mother, and her aunt Winnie drove with Khutsoane to ABSA Bank in Springs, where the deceased executed the Will. Rifilwe remained outside the bank during the signing.
A Will is presumed valid
Judge MA Makume was not persuaded by the applicant’s arguments. At the centre of the ruling lies a simple but powerful legal principle. Judge Makume stated that “It is trite law that a Will which is regular on the face of it is presumed to be valid unless it is declared invalid and the onus of proving its invalidity is on the person who challenges it, which onus is discharged on a preponderance of probability.”
That presumption means that courts do not lightly interfere with a person’s final wishes. The burden rests firmly on the person attacking the Will.
The court found “overwhelming evidence” that the deceased attended the bank and was of sound mind when she signed the Will. It dismissed the argument based on the medical certificate, finding it was dated five months before the Will was signed. Judge Makume further referred to Essop v Mustapha, quoting, “The testator’s mental condition at the time he gave instructions for the drafting of his will is irrelevant, particularly in the circumstances of the present case.”
Signing by a mark does not invalidate a Will
Another source of suspicion was that the deceased had signed by making a mark. The court confirmed this was permitted under the Wills Act, provided safeguards are met. In this case, the Will was witnessed, and the commissioner of oaths appended the required certificate two weeks after the deceased had passed away.
The applicant argued that this timing rendered the Will invalid. Judge Makume disagreed, pointing to Section 2(1)(a)(v)(bb) of the Wills Act, which allows for certification after the testator’s death if the Will was properly signed before death. Judge Makume stated, “This is exactly what happened… There is no prohibition that a commissioner may not do so after the death; it can be done at any time after the signing of the testatrix. The fact that the testatrix had died is of no consequence.”
The court also relied on Roberts and Another v The Master, confirming that post-death certification does not invalidate a Will signed by mark.
Failure to join the beneficiaries proved fatal
Even beyond the debate about capacity and formalities, the case contained a procedural flaw that the court could not ignore. The Will named four grandchildren as beneficiaries; if the Will were declared invalid, they would lose their inheritance. Yet they were not joined to the proceedings.
Judge Makume raised the issue on his own initiative and relied on Amalgamated Engineering Union v Minister of Labour, which confirms that courts must address non-joinder where parties have a direct and substantial interest. He stated plainly, “That alone is fatal to his case.”
Judge Makume added, “It is trite law that immediately on the death of a deceased, the assets vest in the nominated beneficiaries represented by the executor. To say that those beneficiaries have no interest cannot be correct.”
A costly reminder for families
In the end, Judge Makume concluded that “the Applicant has failed to make out a case and that the application should be dismissed with costs.”
Nearly a decade after the grandmother’s death, the Will stands, and the distribution she chose remains intact.
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