Blom v Brown

Alfred Samuel Brown (the deceased) died on 28 August 2007. He was survived by his second wife, Cecilia Getruida Brown (the first respondent), and two daughters from his first marriage, Nadine Blom and Elmari Brown (the appellants). On 24 August 2007, before traveling to Ulundi for a work assignment, the deceased asked to see his existing will (made in 1995) but the first respondent could not immediately find it. At the deceased's request, the first respondent wrote out a new will in her own handwriting, which the deceased dictated and then signed in the presence of two witnesses (Kossatz and Gerber). This second will bequeathed his entire estate to the first respondent. After the deceased's death, the first respondent lodged this handwritten will with the Master. The Master initially informed the first respondent that she was disqualified from benefiting under the will by virtue of section 4A of the Wills Act 7 of 1953 because she had written out the will. The first respondent successfully obtained an ex parte order from Pretorius AJ declaring her competent to receive the benefits under the will. The appellants then applied to rescind that order, arguing that the first respondent should only be entitled to inherit one child's share (one-third of the estate) under section 4A(2)(b), with the remainder passing to them.

• Whether section 4A(1) of the Wills Act 7 of 1953 disqualifies a spouse who writes out a will from benefiting under it
• The proper interpretation of section 4A(2)(a) and (b) of the Wills Act
• Whether subsection (2)(a) applies only to persons who are not family members or whether it can also apply to those who would be entitled to inherit on intestacy
• Whether a person who falls within subsection (2)(b) can also rely on subsection (2)(a) to receive benefits exceeding their intestate share
• Whether the first respondent should be entitled to the full benefit bequeathed to her or only her intestate share

The appeal was dismissed with costs. The order of Pretorius AJ declaring the first respondent competent to receive the benefits under the will was upheld.

Section 4A(1) of the Wills Act 7 of 1953 sets out a general rule disqualifying persons who write out a will from benefiting under it. However, subsections 2(a) and (b) provide qualifications and exemptions from this general rule. These subsections are not mutually exclusive. Subsection 2(a) permits any person disqualified under subsection (1) to apply to court to be declared competent to receive benefits (including benefits exceeding their intestate share) if the court is satisfied there was no fraud or undue influence. Subsection 2(b) operates automatically to permit persons who would inherit on intestacy to receive benefits up to the value of their intestate share. A person who falls within subsection 2(b) is not thereby excluded from the ambit of subsection 2(a). The statute must be construed consistently with common law principles unless it clearly intends to alter them - the common law permitted exemptions from disqualification where fraud could be disproved, and section 4A codifies and extends these remedies rather than restricting them.

The court observed that it had difficulty appreciating why the legislature would differentiate between strangers and family members in the manner suggested by the appellants - why would a stranger who writes out a will be entitled to full benefits upon proving absence of fraud, while a spouse in identical circumstances would be limited to an intestate share? The court noted that the legislative history showed that the South African Law Commission had recommended complete abolition of disqualification rules for writers and witnesses of wills, viewing such rules as frustrating testators' intentions while seldom preventing fraud, but the Legislature chose instead to retain disqualification subject to the exemptions in section 4A(2). The court commented that where a beneficiary acts as a testator's amanuensis there is almost always room for suspicion of improper influence, which explains why the common law disqualification was retained in section 4A(1), but the section permits beneficiaries to satisfy the court of their bona fides.

This case provides authoritative guidance on the interpretation of section 4A of the Wills Act 7 of 1953, particularly the relationship between subsections 2(a) and (b). It establishes that these subsections are not mutually exclusive - a person who would be entitled to inherit on intestacy (falling within subsection 2(b)) may also apply under subsection 2(a) to receive benefits exceeding their intestate share, provided they can satisfy the court that there was no fraud or undue influence. The judgment clarifies that the legislative reform introducing section 4A was intended to provide statutory exemptions from disqualification that were previously available at common law, rather than to create rigid categories of beneficiaries subject to differential treatment. The decision reinforces the principle that where a beneficiary acting as amanuensis can demonstrate bona fides and absence of undue influence, they should not be penalized by rigid application of disqualification rules that were designed to prevent fraud.