C E Van Wetten and Another v K A Bosch and Others

Tertius Bosch died on 14 February 2000. In September 1997, during a period of marital distress when he believed his wife Karen-Anne Bosch was having an extra-marital affair, he wrote a document addressed to attorney Mike Nolan concerning his will. This document was placed in a sealed envelope along with letters to his wife and son Corbin, and given to a friend, Jan van der Westhuizen, with instructions to open it only if something happened to him or if he changed his mind. The deceased appeared to have contemplated suicide at the time. After his death, his sister Van Wetten (the first appellant) found the document and sought an order under section 2(3) of the Wills Act 7 of 1953 that it be accepted as the deceased's will, despite not complying with formal execution requirements. The deceased and his wife had previously executed a joint will in 1995. After writing the contested document, the couple had reconciled and had another child (Eathan) in 1998. Van Wetten only brought the application 18 months after the deceased's death. The court below appointed a curator ad litem for the minor child Corbin (second appellant) and dismissed Van Wetten's application, finding she lacked locus standi.

• Whether the document written by the deceased on 5 September 1997 was intended to be his will or merely instructions to an attorney to draft a will
• Whether section 2(3) of the Wills Act 7 of 1953 permitted the Master to accept the document as a valid will despite non-compliance with formal execution requirements
• Whether Van Wetten had locus standi to bring the application
• What costs order should be made given Van Wetten's lack of standing but ultimate success on the merits

The appeal was upheld with costs. The order of the court below dismissing the application and directing the first appellant to pay costs was set aside and replaced with an order directing the Master of the High Court, Natal Provincial Division, to accept the contested document as the last will and testament of Tertius Bosch for purposes of the Administration of Estates Act 66 of 1965.

Under section 2(3) of the Wills Act 7 of 1953, a court must order the Master to accept a document as a will if satisfied that: (1) the document was drafted or executed by a person who has subsequently died, and (2) the deceased intended it to be his or her will, even if it does not comply with formal execution requirements. In determining whether a document was intended to be a will, the court must examine both the language and content of the document itself and the surrounding circumstances in which it was created. The use of clear decisional language ('I have made the following decisions', 'this is my will to be followed') indicates testamentary intention. The presence of explanations, instructions to executors, or informal language does not negate testamentary intention if the overall document demonstrates the deceased's intention to give immediate testamentary effect to his decisions. Circumstances such as handing the document to a friend in a sealed envelope to be opened only upon death, rather than to an attorney for drafting, support an inference of testamentary intention. Evidence of the testator's subsequent conduct or change of circumstances is relevant only insofar as it throws light on the testator's intention at the time of making the document.

The Court noted that the deceased appeared to have been contemplating suicide at the time of writing the document, though the parties were 'coy' in saying this directly. Lewis JA observed that the deceased's lack of knowledge about testamentary trusts (evidenced by instructing the attorney to create a trust) did not undermine his testamentary intention. The Court commented that Van Wetten should have brought an application for appointment of a curator ad litem in the first instance rather than bringing the application herself, and should not have pursued the appeal except regarding the costs order against her. The Court noted that while Van Wetten lacked standing, she had not incurred additional costs beyond what the curator would have incurred in any event. The Court indicated that allegations of misconduct against Bosch that were subsequently abandoned, while unwarranted, were not sufficient reason for a punitive costs order where the main relief sought was ultimately granted.

This case is significant for its interpretation and application of section 2(3) of the Wills Act 7 of 1953, which allows courts to validate wills that do not comply with formal execution requirements if the testator intended the document to be his or her will. The judgment clarifies the test for determining testamentary intention, emphasizing that the enquiry is not merely about what the document means, but whether the deceased intended it to be a will. The case demonstrates that a document can constitute a valid will even if it contains explanatory passages, instructions to executors, and informal language, provided the testator's intention to make it his will is clear. It establishes that surrounding circumstances, particularly the manner in which the document was preserved and the testator's state of mind, are crucial to determining intention. The case also affirms that subsequent reconciliation or change of circumstances after making a will is not relevant to determining the testator's intention at the time of execution.