The deceased, Tertius Bosch, died in February 2000. In September 1997, during a period of emotional distress arising from marital difficulties, he wrote a handwritten document headed “Will & Testament”, together with letters to his wife and minor son. These documents were sealed in an envelope and given to a friend for safekeeping, to be opened only if something happened to him. The document did not comply with the formal requirements for a will. After Bosch’s death, his widow assumed she inherited under a joint will executed in 1995. About 18 months later, the deceased’s sister, Van Wetten, applied for an order under section 2(3) of the Wills Act 7 of 1953 directing the Master to accept the 1997 document as the deceased’s will. The High Court dismissed the application, finding that the document was merely instructions to an attorney and that Van Wetten lacked locus standi. Van Wetten and, subsequently, a curator ad litem for the deceased’s minor son appealed to the Supreme Court of Appeal.
The appeal was upheld. The order of the High Court 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 in terms of section 2(3) of the Wills Act. The appeal, including the appeal against the costs order, was upheld with costs.
This case is a leading authority on the application of section 2(3) of the Wills Act. It clarifies that courts must focus on the deceased’s intention that a document operate as a will, rather than on compliance with formalities or on whether the document resembles instructions to an attorney. The judgment confirms that surrounding circumstances, including the manner in which a document is stored or entrusted to others, are crucial in determining testamentary intention.