Wessels NO v Die Meester van die Hooggeregshof, Bloemfontein and Others

The testator, F J T Bezuidenhout, and his wife executed a joint will on 18 January 2002 while married in community of property. The will primarily assumed that the testator would predecease his wife, but provided in clause 8 that if the wife died first, the testator would be the sole heir. The wife did in fact die first, and her estate was administered in terms of the joint will, with the testator inheriting the entire joint estate. Thereafter, the testator executed two valid codicils in 2003, each expressly stating that it formed part of his ‘Testament dated 18 January 2002’ and that the remainder of the testament remained unchanged. A third codicil, which expressly attempted to revive and apply the joint will, could not be found after his death and was rejected by the Master. Upon the testator’s death in 2004, the executor contended that the joint will as amended by the codicils constituted the testator’s will. The Master and certain heirs contended that the joint will had lapsed on the wife’s death and that the testator died intestate.

The appeal was dismissed with costs, payable out of the deceased estate. The counter-application declaring the estate intestate was upheld.

The case authoritatively confirms that a lapsed joint will may, in principle, be revived by a later testamentary instrument if statutory formalities are met and a clear intention to revive is proven. It clarifies South African succession law by adopting the Schreiner JA approach in Moses v Abinader and rejecting revival based on a testator’s mistaken belief that a lapsed will remains valid.