THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 187/09

HEATHER WENDY SMITH
Appellant

and

CHARLES PARSONS N.O.
First Respondent

FRITZ ALBERT VOLKER N.O.
Second Respondent

JEREMY ALAN SMITH
Third Respondent

THE MASTER OF THE HIGH COURT
Fourth Respondent

Neutral citation:
Smith v Parsons (187/07) [2010] ZASCA 39 (30 March 2010)

Coram:
LEWIS, HEHER, MHLANTLA, LEACH JJA and SERITI AJA

Heard:
5 March 2010

Delivered:
30 March 2010

Summary:
Wills Act 7 of 1953 – Question is whether the suicide note
written by the deceased was intended to be an amendment
of his will as contemplated by section 2(3) of Wills Act.
Wording of note and the surrounding circumstances indicate
that the deceased intended it to be his will. Master of high
court directed to accept note as amendment to will for
purpose of the Administration of Estates Act 66 of 1965.

_____________________________________________________
ORDER
_____________________________________________________

On appeal from: Kwazulu–Natal High Court (Durban and Coast Local
Division) (Luthuli AJ sitting as court of first instance).

(a)
The appeal is upheld with costs, including the costs of two counsel where
so employed.
(b)
The order of the court a quo is set aside and replaced with the following:
‘1
The Master of the High Court is directed to accept the document annexed
to the Notice of Motion as Annexure "A", as an amendment to the will of the late
Walter Percival Smith (identity number 511027 50335 089) for the purposes of
the Administration of Estates Act 66 of 1965.
The costs of the application are costs in the winding up of the deceased's
estate.
The third respondent is to pay the costs occasioned by his opposition,
which include costs of two counsel where so employed.’

_______________________________________________________
JUDGMENT
_______________________________________________________

Seriti AJA (Lewis, Heher, Mhlantla and Leach JJA concurring)

Introduction
[1] This is an appeal which emanates from the Durban and Coast Local
Division of Kwazulu-Natal High Court. The appellant, who was the applicant in
the court below, launched an application seeking an order directing the Master of
the High Court to accept a document, which was termed a suicide note, as an
amendment to the will of the late Walter Percival Smith (herein called the
deceased) for the purposes of the Administration of Estates Act 66 of 1965.

[2] The first and second respondents, who are the executors of the estate of
the deceased, elected not to oppose the application. The fourth respondent, the
Master of the High Court, also did not oppose the application. The application
was opposed only by the third respondent, Jeremy Smith who is the son of the
deceased.

[3] Smith filed a conditional counterclaim seeking certain relief in the event
that the application was granted. The court below dismissed the application and
consequently did not deal with the conditional counterclaim. The parties have
agreed that if the appeal is successful, the counterclaim will have to be
adjudicated by the high court.

[4] The court below (Luthuli AJ), found that the suicide note was written by
the deceased personally. However, he held that the deceased did not
unequivocally intend the suicide note to be an amendment of his will. The
appellant is appealing against the latter finding with the leave of the court below.

Issues for determination
[5] Both parties agree that the only issue to be decided in this appeal is
whether the suicide note written by the deceased was intended by him to be the
his will as contemplated by section 2(3) of the Wills Act 7 of 1953.

[6] Section 2(3) of the Wills Act, reads as follows:
'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)'.

[7] Thus if the document in issue is shown to have been drafted or executed
by a person since deceased who intended the document in issue to be his or her
will, or an amendment of his or her will, the court must direct the Master of the

High Court to accept that document as a will or an amendment to it – see Van
Wetten & another v Bosch & others1 and Harlow v Becker NO & others.2

[8] In order to ascertain whether the deceased intended the suicide note to be
an amendment to his will, the document itself must be examined and the
surrounding circumstances must be taken into account – see Van Wetten paras
15 -16.

Background facts
[9] The deceased was a senior pilot employed by South African Airways. His
wife died on 4 September 2002. Smith was their only child. After the death of his
wife, the deceased met the appellant, they developed a relationship and in
January 2003, the appellant moved into the house of the deceased where they
lived together. At that time, the appellant was employed by British Airways as a
customer service agent based at the Durban International Airport.

[10] Whilst living together, the deceased, who was earning much more than
the appellant, assisted the appellant financially with accommodation and food.
Essentially he supported her financially and at some stage he provided her with a
motor vehicle for her to use. During February 2004, the appellant, after an
argument with the deceased, left his home and went to stay on her own. During
February 2005 the appellant returned to the United Kingdom, her country of
origin.

[11] She kept in contact with the deceased. He visited her and persuaded her
to come back to South Africa to stay with him. She returned in December 2005
and again went to live with the deceased.

[12] On the morning of 25 February 2007 she left home and went to work. The
deceased was at home. Whilst at work, she spoke to the deceased over the
telephone. On her return, she discovered that he had committed suicide. He had

1 2004 (1) SA 348 (SCA) para 14.
2 1998 (4) SA 639 (D) at 647C-D

shot himself in the bathroom. The suicide note under consideration was found on
the kitchen counter. A crucifix had been placed on top of it.

[13] The suicide note reads as follows:
'(De)ar Heather,
Thanks for all you have done and tried to do for me –
I'm sorry I've been miserable – I do love you, but this depression and continuous pain
and battle with my health is no longer tolerable. If I've hurt you it has not been intentional
– please forgive me. I love Jeremy more that I can express and I'm sorry if I have not
been the best Father to Him. God knows I've tried. Forgive me Jeremy.

Heather you can have this house, you will obviously?3 sell it and should meet all your
future needs. Also I authorise Standard Bank to give you immediate access to Plusplan
– there is R579,000.00 which will not leave you battling. My love (and forgiveness) to
your folks – they are fine people. There are also several thousand Rands in the bottom
drawer of the safe.
Forgive me – it's not your fault. Move on, I pray you will find happiness that I couldn't
give you.
God – forgive me.
Lastly – Please tell Barry and SAA it's no reflection on our pilot-body – wonderful people.
I've just had enough of fighting this health on a daily basis.
God Bless you always, my blessings upon Jeremy for his future – He's strong and will
come through O.K. Please look after Him for me.
My will is in the Brown envelope in the safe. I leave everything else to Jeremy as stated
therein.

Bless you – Wally xxx
Sunday 25/02/07 xxx.

The intention of the deceased
[14] The suicide note is dated 25 February 2007 which is the date on which the
deceased died. The appellant left for work in the morning and came back home
just after 14h00. It can safely be inferred that the deceased wrote, or at least
signed and dated the note, that morning. He had a will in the safe. It follows that

3 This correctly reflects text of the note.

he probably knew that formalities are required for making a will. For reasons that
follow he clearly intended the note to be an amendment to his will.

[15] In the note the deceased wrote that 'Heather you can have this house, you
will obviously? sell it and should meet all your future needs.' In this statement,
the deceased is giving clear instructions on what should happen to his house.
There is no ambiguity in the statement. The house would devolve on the
appellant on his death.

[16] The note further stated that 'Also I authorise Standard Bank to give you
immediate access to Plusplan – there is R579,000.00 which will not leave you
battling.' Smith's counsel submitted that the deceased, when writing this note,
could not have thought that he was giving instructions to the bank. But the
question whether the bank could have acted on his instructions does not come
into the picture. What is relevant is the intention with which he wrote the
instruction. My view is that the deceased was expressing an instruction that the
money in the account should be given to the appellant. The instruction clearly
demonstrates his wish as to what should happen to the money.

[17] Another telling indication that the deceased wanted the note to be acted
upon are the following words at the end of the note: 'My will is in the Brown
envelope in the safe. I leave everything else to Jeremy.' He was conscious of the
fact that he had a will and that it did not make provision for the appellant, hence
the instructions contained in the suicide note making provision for her. The
instructions are clear and unequivocal.  It can thus reasonably be inferred that
when he wrote the suicide note, the deceased intended that his instructions
would be implemented by the bank and his executors.

[18] Counsel for Smith submitted that when he wrote the suicide note the
deceased intended to give instructions for the drafting of a formal amendment to
his will. One of the reasons for the submission is hat there was no formal
signature on the note – just the name ‘Wally’. I find no merit in this submission.
The deceased could not have thought about drafting instructions for the
amendment to his will as he knew that he was about to commit suicide. And

signing the note as ‘Wally’ was the most natural way to sign an essentially
personal letter, albeit one with instructions as to the disposition of his property. A
formal signature is not required to meet the requirements of s 2(3) of the Wills
Act. The section requires only that the document is drafted or executed with the
intention of making or amending a will.

[19] The note was placed by the deceased, who was apparently a committed
Christian at a place where it could be seen, under a crucifix. This fact fortifies my
view that he wanted the instructions contained in it to be implemented on his
death.

[20] I agree with the submission by appellant’s counsel that the words used in
the suicide note indicate that the deceased was expressing his clear instruction
that, save for the house, the money in the Plusplan account and cash in the safe,
the residue of his estate should go to Smith.

Donatio mortis causa
[21] Smith's counsel further submitted that the language in the suicide note is
that of a donatio mortis causa rather than a will and as such fails to comply with
the formalities required by the Wills Act and was not accepted by the applicant
prior to the deceased's death.

[22] For a donatio mortis causa to be valid it must be executed with the same
formalities as are required for a will – see Jordaan & others NNO v De Villiers.4 It
is common cause that the suicide note does not comply with the formalities
required for a valid will.  But in my view the deceased did not have a donation in
mind: he was regulating the disposition of the estate in anticipation of death. He
did not contemplate a donation that would have to be accepted by the appellant.

[23] I am satisfied that the suicide note was intended by the deceased to be an
amendment of his will as contemplated by s 2(3) of the Wills Act.

4 1991 (4) SA 396 (C) at 402E-H, and Lawsa (reissue) vol 31 para 370 and the authorities
cited.

Order
[24] (a)
The appeal is upheld with costs, including the costs of two counsel
where so employed.
(b)
The order of the court a quo is set aside and replaced with the following:
‘1
The Master of the High Court is directed to accept the document annexed
to the Notice of Motion as Annexure "A", as an amendment to the will of the late
Walter Percival Smith (identity number 511027 50335 089) for the purposes of
the Administration of Estates Act 66 of 1965.
The costs of the application are costs in the winding up of the deceased's
estate.
The third respondent is to pay the costs occasioned by his opposition,
which include costs of two counsel where so employed.'

________________

W L SERITI
Acting Judge of Appeal

APPEARANCES:

For appellant:
C J Pammenter SC

Instructed by:
Anthony Whatmore & Company, Durban North

Webbers, Bloemfontein

For respondent:
A W M Harcourt SC

Instructed by:
J H Nicolson Stiller & Geshen, Durban

Honey Attorneys Inc., Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

Status:
Immediate

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal.

* * *
Ms. Heather Wendy Smith was staying together with the late Mr. Walter Percival
Smith (no relationship). They were lovers. Mr. Smith committed suicide. Prior to
committing suicide he wrote a ‘suicide note’ in which he stated that Ms. Smith (his
girlfriend) can have a house situated at 688 Kingsway, Athlone Park, Amanzimtoti,
Kwa-Zulu Natal and about R 579,000 00 which was in a Plus Plan savings
account. Mr. Jeremy Allan Smith, son of the deceased, challenged the validly of
the suicide note.

The Supreme Court of Appeal found that the ‘suicide note’ amends the formal will
of the deceased. In terms of the formal will, the deceased left his entire estate to
the son, Mr. Jeremy Allan Smith.