THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

CASE NO:  402/2002
Reportable

In the matter between

C E VAN WETTEN

1st APPELLANT

A STOKES NO                                                        2nd  APPELLANT

AND

K A BOSCH                                                             1st RESPONDENT

THE MASTER OF THE HIGH COURT
NATAL PROVINCIAL DIVISION                        2nd RESPONDENT

HENRY SELZER NO

3rd RESPONDENT

J A N BORMAN NO
4th RESPONDENT

CORAM:   MPATI DP, FARLAM, LEWIS JJA, SOUTHWOOD,
VAN HEERDEN AJJA

HEARD:   21 AUGUST 2003

DELIVERED: 19 SEPTEMBER 2003

Summary: Section 2 (3) of the Wills Act 7 of 1953:  intention of deceased to make a
will.

JUDGMENT

LEWIS JA

[1] The central issue in this appeal is whether Tertius Bosch,
who died on 14 February 2000, intended a document that he had
written in September 1997 to be his final will or merely instructions
to an attorney to draft a will. If the former, then in terms of s 2(3) of
the Wills Act 7 of 19531 the Master of the High Court must be
ordered to accept the document as a will. The section provides:

‘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  (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).’

[2] The first appellant, the first applicant in the court below (Mrs
Van Wetten), sought an order in terms of the section that a
document written by the deceased, her brother,  be recognized by
the Master of the High Court, Natal as one intended to be the
deceased’s will. (I shall refer to the document as ‘the contested
will’). The order was refused by Booysen J in the Durban High

1 Inserted in the Act by s 3(g) of Act 43 of 1992.

Court. The appeal is pursued with the leave of that Court. The
other issue to be determined is whether Van Wetten had locus
standi to bring the application and to prosecute the appeal before
us. Ancillary to this is the question of costs should she be found
not to have had standing to sue.

[3] At the instance of the court below the second appellant was
joined as a second applicant, being appointed as a curator ad litem
to Corbin Bosch, the minor son of the deceased and his widow,
Karen-Anne Bosch, (Bosch)  the first respondent. The second,
third and fourth respondents are the Master and successive
executors of the estate of the deceased, respectively. They abide
the decision of the Court.

The circumstances surrounding the making of the contested
will
[4] Some background is required.  The deceased and Bosch
had been married for some six years when the deceased, a dentist
by profession, and a sportsman and businessman as well, died in
February 2000 from septicaemia following on contracting Guillain-
Barré syndrome. The couple had two children, Corbin, who was
born in September 1994, and Eathan, born in April 1998.

[5] It was assumed by Bosch that she was the sole heir to the
deceased’s estate in terms of a joint will executed in 1995.  An
executor had been appointed and had commenced the winding-up
of the estate in terms of that will.

[6] Some 18 months after the death of the deceased Van
Wetten launched the proceedings for the acceptance by the
Master of the contested will. She alleged that she had found the
contested will in a cupboard in Bosch’s home shortly after his
death, but had not brought it to the attention of Bosch or the then
executor because she had assumed that Bosch had been acting in
the interests of her child Corbin who would, if the contested will
were recognized, be the deceased’s sole heir. The motive for the
delay by Van Wetten may of course be called into question, and
indeed was done  by Bosch:  it does not, however, impact on the
principal issue – the intention of the deceased in drafting the
contested will.

[7] Van Wetten alleged, and this was not in dispute, that the
contested will had been left in a sealed envelope, addressed to a
friend of the deceased, Mr Jan van der Westhuizen, which had

been handed by the deceased to Van der Westhuizen towards the
end of 1997. The envelope contained three other envelopes. The
outer envelope addressed to Van der Westhuizen bore the words
‘(Maak net oop as daar iets met my gebeur of ek ander besluit!)’.
The one inner envelope, containing the contested will, was
addressed to ‘Mr Mike Nolan, Tate-Nolan Attorneys’; another was
addressed to ‘Karen-Anne’; and the third was addressed to ‘Corbin
op 21ste verjaarsdag!’. Van der Westhuizen confirmed that he had
been given the outer envelope but stated that he had not ever
opened it. After the deceased’s death the envelope had been
given to Bosch by Van der Westhuizen’s wife at his request.

[8] Van der Westhuizen also confirmed the evidence of Van
Wetten that the deceased had been distraught during the period
when the envelope had been handed to him.  The deceased had
believed that Bosch had been having an extra-marital relationship:
he was in a state of emotional turmoil. When he asked Van der
Westhuizen to keep the outer envelope, he did not explain what he
meant by saying that it should be opened in the event of
something happening to him. Van der Westhuizen had, however,
asked the deceased what was in the envelope. The response was
‘to the effect that “if you don’t know better you don’t know”’. Some

time later, however, the deceased had seemed to him to be in an
improved frame of mind, and had said that his relationship with his
wife was better. Van der Westhuizen had forgotten that he had the
envelope until after the deceased’s death. He had attempted then
to contact Mike Nolan. When he could not do so he asked his wife
to hand the envelope to Bosch, which she did.

[9] The contested will and the letters addressed to Bosch and
Corbin bear out the allegations that the deceased had been
distressed by his wife’s conduct at the time when he composed
these documents. Because the letters throw light on the
deceased’s intention in composing the contested will, I shall set
them out in full after reproducing the contested will itself. Later in
this judgment I shall discuss the legal principles to be invoked in
determining the relevance and weight of these letters.

The documents in the outer envelope

[10] All the documents are dated 5 September 1997, and all were
written by the deceased on the stationery used in his dental
practice.

[11] The contested will reads:2

‘5 September 1997

Tate & Nolan

Durban North
Re: Will & Testament
To Mr Mike Nolan
As you are aware of the present situation which I am finding myself I have had
a long thought about the matter and I have made the following decisions
1 Declare all previous will & testaments not valid from this day the 5 Sept
1997 drawn up by me or Karen-Anne.
2 I want you (Mr Mike Nolan) the executor of my will and cancel all previous
executor’s.
3 If or when there should be a change of plan or situation for the good
(Positive) I might have a change of heart. At present moment it doesn’t seem
to going to change. I am just trying to see if might work out,  I do care and
Karen-Anne a lot but I don’t think I can say the same for her. I think she wants
freedom but don’t want to loose the comfortable lifestyle that she has. Surely
it should work 50/50?
4 I want my son (CORBIN BOSCH) born on 10th September 1994 to be my
beneficial party (Person). At this stage he will be to small to take charge so I
want Mr Nolan to executor of his trust that we (I) create for him.
5 All suretyship I have for Karen-Anne Bosch (formerly Blignault) shall and
must be withdrawn.

2 The exact wording,spelling and punctuation are reproduced.

6 All policy’s should go into a trust as Corbin Bosch as benefactor.
7 TKC action CC, I withdraw first[l]y my suretyship as 50% holder (member)
and lease holder. Karen-Anne cannot by my share I don’t want that to happen
(I have to much problems with this Action Cricket.
8 I want you to create a trust for him and look at a decent monthly retainer for
him to be well looked after. I have provided school policy’s from him to go to
private primer and secondary schools and university funds.
9 When he is 21 year old on his birthday the trust can be fully seeded [ceded]
to him and he can do as he wishes!
10 I will if the situation changes itself drastically, may consider changing my
will & Testament but as of today 5th September this is my will to be followed

Regards
Tertius Bosch

Addings to previous page to Mr Mike Nolan.
1 I want all bank accounts to be closed immediately

1 Credit cards

2 Current & cheque account
3 Any money to her accounts an that of after the day be returned to
drawer.
2 I will supply you with all of the Private Investigation reports that has led me
to all my decisions
3 She hurts me to much and I just trying for my son’s sake.
4 I want you to put this money in a trust for Corbin.

5 Sell off  own [all] my assets and then put it in a trust.’

[12] The letter to Bosch read:

‘Karen-Anne, Ek is jammer wat ek nou gedoen het, maar dit is maar hoe die
lewe is (onregverdig).
Ek weet ek het baie dinge in die lewe verkeerd teenoor jou gedoen, ek dink ek
het genoeg daarvoor geboet!
Daarom het ek die besluite geneem wat Corbin sal baie bevoordeel.
Jy bly (het) seker maar net by my omdat dit vir sy onthalwe was, jou gees en
liefde is (was) by iemand anders. Wie ook dit al mag gewees het, hetsy Gary;
Craig of iemand anders. Nou kan jy jou lewe geniet en doen wat jy wil met dit,
jammer oor die klein terugslag, maar ek glo jy sal bo uitkom.
Ek moes al met Gary se tyd al gewaai het, want jou gevoelens was nooit weer
terug by my nie. Dis baie jammer, ek het baie lief geword vir jou, maar dit was
seker maar te laat.
Toe jy by Craig was het jy my liefde dood, dood gemaak, maar ek het probeer
vir Corbin se onthalwe.
Dit is moeilik om te dink jou vrou wil jou nie eers behoorlik soen nie. Ek moes
baie pes aan my hê, moeilik om saam met dit te lewe! Dit het my toetaal en al
verskeur, jy weet nie seer het ek binne in my gehad nie, maar dit rus nou in
vrede.

Groete
Tertius’

[13] The letter to Corbin read:

‘Corbin, my heelwaarskynlik my enigste seun, jammer dat ek nie by jou 21ste
Verjaardag kan wees nie.
Wat ook al oor die jare goed of sleg van my gesê, ek was baie life vir jou, al
geskenk wat ek jou kan gee is, alles wat in die trust is en alles van die beste
vir jou toe te wens in hetsy jou sport of akademiese gebied.
Baie, baie liefde
Pappa’.

It should be borne in mind that on 5 September 1997 Corbin was
not yet three years old, and that Eathan was born in April of the
following year.

The intention of the deceased

[14] Against that background I turn to consider whether the
deceased had intended the contested will to be a will at all. Section
2(3) of the Wills Act is clear: the court must direct the Master to
accept the document in issue as a will once certain requirements
are satisfied. First, the document must have been drafted or
executed by a person who has subsequently died.  Second, the

document must have been intended by the deceased to have been
his or her will. It is only with the latter that this Court is now
concerned. The meaning attributable to the phrase ‘drafted or
executed’ has recently been clarified in Bekker v Naude en
andere:3 the document must have been created by the deceased
personally.  This requirement is not in issue here.

[15] Did the deceased intend the document he wrote on 5
September 1997 to be his will? The appellant urged us to interpret
the document, looked at as a whole, in accordance with
established principles of documentary interpretation. Thus, it was
argued, the Court should, in attempting to ascertain the intention of
the deceased, have regard to the words and language used, and
only if an ambiguity or uncertainty were to be found, then look at
the circumstances surrounding the drafting of the document. The
classic cases dealing with contractual interpretation were adduced
as authority, notably Delmas Milling Co Ltd v Du Plessis.4

[16] In my view, however, the real question to be addressed at
this stage is not what the document means, but whether the

3 As yet unreported decision of the SCA: case 179/01, judgment handed down 31 March
2003.
4  1955 (3) SA 447 (A) at 454F-55C.

deceased intended it to be his will at all. That enquiry of necessity
entails an examination of the document itself and also of the
document in the context of the surrounding circumstances.  I shall,
however, first discuss the circumstances of the deceased, and his
conduct in handing to Van der Westhuizen a sealed envelope
containing others addressed to his wife, to his child and to an
attorney.

[17] At the time of writing the contested will the deceased had
confided to a number of people that he was unhappy: that he
suspected his wife of infidelity. He made it plain in his letter to her
that he no longer felt loved.  She remained with him, he said, not
because she wanted to but for the sake of Corbin. He found this
hurtful. He had decided to give her her freedom. The letter to
Corbin, then three years old, also clearly indicates that the
deceased assumed that when Corbin turned 21 his father would
for long have been dead.

[18] It is particularly significant that the contested will was handed
over not to the attorney Mike Nolan, but to a friend, Van der
Westhuizen, for safekeeping. It was to be opened only in the event
of ‘something happening’ to the deceased, or his changing his

mind. It was one of a number of documents that were to be
opened in such an event.  The parties to this dispute and Van der
Westhuizen were coy in saying directly that they inferred from the
behaviour of the deceased that he was contemplating suicide at
the time when he wrote the documents. But it is an obvious
inference to be drawn from his letter to his wife, from the tenor and
the terms of the contested will, and from the remarks made by him
to Van der Westhuizen.

[19] The inference that the deceased contemplated suicide leads
inevitably to the conclusion that, when he gave the envelope to
Van der Westhuizen, it was not intended that the latter should
hand the enclosed document to attorney Mike Nolan so as to see
to the drafting of his will. At the time when it was envisaged that
the envelope would be opened, and the document read, the
deceased would already be dead. A dead man cannot execute a
will, and the deceased, even in a troubled frame of mind, would
have appreciated that. This fact alone, in my view, shows that the
contested will was intended by the deceased to be his will. The
terms of the contested will bear that out.

[20] It was argued for Bosch, on the other hand, that the
deceased had changed his mind after 5 September 1997: that she
and the deceased had been reconciled; that they had had another
child; that she had subsequently been designated as a beneficiary
under various new insurance policies (this is in issue since it was
contended that the existing policies had been renewed rather than
new policies taken out after the contested will was made); and that
the deceased had not mentioned the contested will to anyone in
the period of his illness preceding his death. He appeared to have
forgotten about the documents that he had entrusted to Van der
Westhuizen.

[21] These factors are, in my view, not relevant in determining
what the deceased’s intention was at the time of writing the
contested will. Evidence as to subsequent conduct is relevant only
in so far as it throws light on what was on the mind of the
deceased at the time of making the contested will (as in Schnetler
NO v Die Meester en andere5). There is no such evidence in this
case.

5 1999 (4) SA 1250 (C).

[22] It was also argued that the deceased could not have
intended the contested will to be a valid will, for he knew that
formalities were required for the execution of a will. He had, after
all, had one drawn up a few years previously which had been
formally executed. The terms of the document belie this
contention, however.

[23] The contested will is a somewhat incoherent document. It
reads in part like a letter to Nolan, the deceased sometimes
recording his decisions, sometimes giving instructions, sometimes
offering explanations for his decisions. But what it does state very
clearly are  decisions reached by the deceased.  Bosch contended
that the heading – ‘re: Will & Testament’ – indicated that the
deceased was writing a letter to Nolan giving instructions on what
should be put in his will.  Similarly, it was argued that paragraph 3,
which stated that he might change his mind in the future, showed
that he had not finally settled what he proposed to do. The
explanations for disinheriting Bosch (also in paragraph 3) showed,
it was argued, that the document was not intended to be a will but
a justification for the instruction to draft a will excluding Bosch. So
too, contended Bosch, the ‘addings’ to the previous page, which
included a statement that the deceased would supply Nolan with

private investigation reports, indicated that the deceased intended
to provide further information for Nolan before his will was
executed.

[24] Van Wetten argued, on the other hand, that the proffering of
explanations for disinheriting Bosch was not inconsistent with the
intention to make a will in the same document. Indeed, even in
formally executed wills testators might choose to explain their
choices. The ‘afterthoughts’ on the last page were no more than
instructions to Nolan on what he had to do after the deceased’s
death: the deceased could hardly have wanted Nolan to close all
bank accounts and cancel credit cards if he were still alive. The
instructions to create a trust for Corbin were also no indication that
the deceased was not thereby creating his will: he would probably
not have known that he could create a testamentary trust.

[25] In my view, the presence of explanations in the contested will
does not in any way detract from what are very clearly stated
decisions:6 ‘I have made the following decisions:  . . . declare all
previous will and testaments not valid from this day the 5 Sept
1997 drawn up by me or Karen-Anne. . . . I want you (Mr Mike

6 The precise wording and punctuation are set out above, and are not reproduced here.

Nolan) the executor of my will and cancel all previous executors . .
. . I want my son (Corbin Bosch) . . . to be my beneficial party
(person).  . . . but as of today 5th September this is my will to be
followed’.

[26] These are not the words of a person giving instructions for
the drafting of his will. They are the words of a person who has
made a decision to which immediate effect is to be given. They are
his will. The very words used by the deceased are thus also
decisive of the question before the Court: the deceased intended
the document to be his will. The surrounding circumstances, and in
particular, as I have said, the handing over of the documents in
sealed envelopes to Van der Westhuizen, to be opened only
should something happen to him, lead to the same conclusion.

[27] I am satisfied therefore that the contested will was indeed
intended to be the will of the deceased, and that the Master should
be directed to deal with it in terms of s 2(3) of the Wills Act.   The
appeal should thus succeed.

Locus standi of Van Wetten
[28] When Van Wetten launched the application for the order that
the contested will be accepted by the Master, the court of first
instance considered that she had no locus standi. However, the
second appellant accepted appointment as the curator ad litem for
the minor child Corbin and was joined as an applicant in that
capacity. He is before us as the second appellant. Counsel for Van
Wetten appeared for him also. Counsel submitted initially that Van
Wetten did have locus standi in that she had an interest both as
Corbin’s aunt, and because she might, if he were to die intestate,
be an heir. It was conceded that the latter possibility was extremely
remote, and gave her no direct interest in the litigation.  And it was
eventually conceded as well that Van Wetten should have brought
an application in the first instance for the appointment of a curator
ad litem and that her application for the relief that she did seek was
ill-advised. Similarly it was conceded that Van Wetten should not
have pursued the appeal before this Court save in so far as the
adverse costs order against her in the court below was concerned.
Moreover, since the matter is before this Court at the instance of
the second appellant as well, the lack of standing on the part of
Van Wetten is relevant only to the order of costs in the court
below.

Costs

[29] In dismissing the application the court below ordered Van
Wetten to pay Bosch’s costs, and that the fees of the curator ad
litem be paid from the deceased estate. It was argued in this Court
that Van Wetten should not be penalized by a costs order against
her if the appeal were to succeed. Even though she had not had
locus standi, she had in fact served the interests of Corbin in
bringing the application. Although the procedure adopted by her
was incorrect she had nonetheless placed the matter before the
court. Moreover, it was argued, no additional costs were incurred
in the launching of the application, or the prosecution of the
appeal, through Van Wetten’s  initiative than were incurred in any
event by the curator.

[30] It was argued for Bosch, however, that Van Wetten’s conduct
warranted an adverse costs order even should the appeal
succeed. When she launched the application she had made a
number of attacks on the character and conduct of Bosch, asking
for orders related to these allegations. Yet the relief sought in

respect of the allegations of misconduct was subsequently
abandoned.

[31] In my view, Van Wetten was not entitled to a costs order in
her favour in the Court below: she had no standing to bring the
application. But that she had made allegations about Bosch that
were unwarranted, and sought relief in respect thereof that was
subsequently abandoned, is not reason enough to visit her with a
punitive costs order. The main relief that she sought – that the
Master be ordered to accept the contested will under s 2(3) – is to
be granted, albeit not to her.

[32] The curator’s costs in the court below were ordered to be
paid from the deceased estate. That order was not appealed
against.

Order

[33] (a)
The appeal, including the first appellant’s appeal
against the costs order, is upheld with costs.

(b)
The order of the court below  dismissing the application and
directing the first appellant to pay the first respondent’s costs is
replaced with the following:
‘The Master of the High Court, Natal Provincial Division, is
ordered to accept the document marked “H”, annexed to the
founding affidavit of the first applicant, as the last will and
testament of Tertius Bosch for the purposes of the
Administration of Estates Act 66 of 1969.’

___________

CH Lewis
Judge of Appeal
CONCUR:
Mpati DP
Farlam JA
Southwood AJA
Van Heerden AJA