Smith v Parsons N.O. and Others

The deceased, Walter Percival Smith, committed suicide on 25 February 2007. Prior to his death he wrote a handwritten suicide note, found prominently displayed under a crucifix in his home. In the note, he made specific dispositions: he gave his house to his partner, Heather Wendy Smith (the appellant), authorised her access to a bank account containing approximately R579,000, referred to cash in his safe, and stated that his existing will left everything else to his son, Jeremy Smith (the third respondent). The deceased had an existing formally executed will kept in a safe. The appellant applied to the High Court for an order directing the Master of the High Court to accept the suicide note as an amendment to the will under section 2(3) of the Wills Act 7 of 1953. The High Court found that the note was written by the deceased but held that it was not intended as a will amendment. The appellant appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The order of the High Court was set aside and replaced with an order directing the Master of the High Court to accept the suicide note as an amendment to the deceased’s will for purposes of the Administration of Estates Act 66 of 1965. The costs of the application were ordered to be costs in the winding-up of the estate, and the third respondent was ordered to pay the costs of his opposition.

The case is an important authority on the application of section 2(3) of the Wills Act, confirming the courts’ willingness to condone non-compliance with testamentary formalities where a clear intention to amend a will is established. It illustrates how suicide notes and other informal documents can be recognised as valid testamentary instruments in South African law when testamentary intention is proved.