Theart v Scheibert

Mr and Mrs Korsgaard, married in community of property, executed a mutual will in 1983 bequeathing their estate ultimately to their granddaughter, Diane Jean Theart. Mrs Korsgaard died in 1990. The original mutual will could not be found, though an authenticated copy existed. After her death, Mr Korsgaard executed several later wills (2005–2008) leaving the entire estate, including the immovable property at 19 Dysart Road, Green Point, to his nephew, Jan Willy Sundby. After Mr Korsgaard’s death in 2008, the executor prepared a liquidation and distribution account in terms of the later will. The appellant objected, contending that the mutual will was valid, had not been revoked, and governed the devolution of the property, either wholly or at least to the extent of the testatrix’s half share.

The appeal succeeded. The order of the Western Cape High Court was set aside and substituted with an order granting the appellant declaratory relief recognising the validity and enforceability of the mutual will in respect of the testatrix’s half share of the joint estate. The second respondent was ordered to pay the costs of the appellant and the first respondent, including the costs of two counsel.

The case is significant for its authoritative restatement of the principles governing the interpretation of mutual wills, particularly the presumption against massing and the requirement of clear intention to restrict freedom of testation. It also clarifies the application of the presumption of revocation where an original will cannot be found, emphasising the evidentiary burden required before the presumption arises.