Henriques v Giles NO

Francesco Franco Cammisa and his wife Jessie Agnes Maria Cammisa each instructed an accountant to draft separate wills. At a meeting on 15 September 1999, both read and approved their respective wills but inadvertently signed the will prepared for the other, resulting in ‘crossed wills’. All other statutory formalities for the execution of wills were complied with. Franco died first in October 2004. The Master accepted and registered, as Franco’s will, the document drafted for him but mistakenly signed by Jackie. After both deaths, the error was discovered. The respondents applied to the High Court to rectify the wills to reflect the true testamentary intentions. Jackie’s grandchildren opposed the application and brought a counter-application to set aside the will registered as Franco’s, contending the wills were invalid for non-compliance with the Wills Act and that rectification was impermissible.

The appeal was dismissed except to the extent that the Master’s acceptance and registration of the incorrect will as Franco’s will was set aside. The counter-application succeeded only to that limited extent, with no order as to costs. The will signed by Franco was ordered to be rectified to reflect his true testamentary intention, and the Master was directed to accept the rectified will as Franco’s last will for purposes of the Administration of Estates Act.

This decision authoritatively confirms that South African courts may rectify a will in ‘crossed wills’ situations where all formalities are otherwise complied with and the testator’s true intention is clear. It rejects rigid formalism in favour of giving effect to testamentary intention and clarifies the relationship between rectification of wills and the Master’s administrative functions under the Administration of Estates Act.