- High Court dismissed an application to validate a disputed Will signed with a thumbprint.
- Judge found the applicant’s explanation for the missing statutory certificate was improbable.
- The court accepted the respondents’ version and dismissed the application with costs.
The High Court in Pretoria has dismissed an application by Mputsa Rose Molapo to have the purported last Will of the late Julia Thembani Nkosi declared valid despite its failure to comply with the formal requirements of the Wills Act.
Judge J Holland-Muter found that Molapo failed to prove that the document should be condoned under Section 2(3) of the Wills Act and instead accepted the version presented by the executor and members of the deceased’s family.
Validity of the Will signed with a mark
At the heart of the dispute was the alleged validity of a document presented as the last Will of Nkosi.
Molapo claimed she was a nominated beneficiary under the Will and asked the court to declare it valid even though it lacked the certificate required when a testator signs a Will with a mark or thumbprint.
The application was opposed by Simon Madlenkosi Mnguni, in both his capacity as executor of the deceased estate and in his personal capacity, together with Lucas Kheithi Mnguni. Standard Bank Trust Limited was also cited as a respondent.
Although the deceased had no biological children, the court accepted that Lucas and Bongani Richard Mnguni had lived with her and regarded her as an extended mother.
According to Molapo, the Will was prepared with assistance linked to Standard Bank before the deceased signed it with a thumbprint at Mamelodi Police Station.
However, the document was never accompanied by the commissioner’s certificate required by law confirming that the deceased had signed it in the commissioner’s presence. That omission became the central issue before the court.
Wills Act requirements
Judge Holland-Muter explained that Section 2(3) of the Wills Act allows a court to condone certain formal defects if it is satisfied that the deceased executed the document and intended it to serve as his or her final will.
Referring to established legal principles, the judge said, “The court must direct the Master to accept the document in issue as a Will once certain requirements are satisfied.”
The judge emphasised that a Will signed by means of a thumbprint requires a commissioner of oaths to certify the identity of the testator and confirm that the document was signed in the commissioner’s presence.
The court found that the missing certificate was not merely a technical defect. Instead, it went to the heart of whether the statutory safeguards protecting the authenticity of the Will had been met.
Applicant’s version rejected
Molapo argued that police officers who witnessed the signing were unfamiliar with the requirements of the Wills Act and therefore failed to attach the necessary certificate. The court was not persuaded.
Judge Holland-Muter noted that confirmatory affidavits from the police officers were obtained only long after the alleged signing of the Will and only once litigation had begun.
The judge also found it highly improbable that Standard Bank, which was nominated as executor and routinely dealt with estate planning, would have allowed the deceased to complete such an important legal process outside the bank before accepting a Will that lacked the required statutory certification.
“The version of the applicant fails the test for reasonableness,” Judge Holland-Muter said. The court further observed that Molapo worked in Standard Bank’s financial planning division and would likely have understood the importance of complying with the legal formalities governing wills.
The judgment also questioned the reliability of several confirmatory affidavits supporting Molapo’s case. “It is clear from these affidavits that they are genetically the same,” the judge said. “A shadow of doubt should hang over these affidavits. A red herring is afloat.”
Respondents’ evidence accepted
The court also rejected Molapo’s challenge to the customary union between the deceased and Simon Madlenkosi Mnguni.
Judge Holland-Muter accepted evidence that lobola negotiations had taken place and found the respondents’ account of their relationship with the deceased to be coherent and credible.
The court further accepted that the fourth and fifth respondents had formed part of the deceased’s household and regarded her as a parental figure.
Applying the Plascon-Evans principle governing disputes of fact in motion proceedings, the judge concluded that the respondents’ version was more probable.
“When comparing the two destructive versions with the other, the court is of the view that the version of the third respondent is more likely to be accepted over that of the applicant,” the judge said.
The court found that Molapo had failed to discharge the burden of proving, on a balance of probabilities, that the disputed document represented the deceased’s true final wishes.
Application dismissed
Judge Holland-Muter concluded that the absence of the commissioner’s certificate could not be cured after the event and that the evidence did not satisfy the requirements for condonation under Section 2(3) of the Wills Act. The application to validate the Will was therefore dismissed.
The court also ordered Molapo to pay the successful respondents’ costs on the ordinary party-and-party Scale B, finding no basis for a punitive costs order.
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