Goosen v Wiehahn

The late Abraham Gerhardus Geldenhuys (the testator) executed a will on 27 November 1990 bequeathing two farms (Hunites and Holte) to his spouse, Alberta Johanna Geldenhuys (Mrs Geldenhuys), subject to testamentary conditions. The conditions gave the spouse of his daughter, Gert Johannes Scheepers Goosen (first appellant), a first option to purchase the farms at fixed prices (R20 per morgen for Hunites and R30 per morgen for Holte) either: (a) during Mrs Geldenhuys' lifetime if she intended to sell (clause 2.1), or (b) upon her death (clause 2.3). The testator died on 26 May 1997 and the farms were transferred to Mrs Geldenhuys subject to the testamentary conditions. In June 2000, Mrs Geldenhuys sold and transferred the farm Holte to the first appellant in accordance with clause 2.1. Mrs Geldenhuys died on 5 December 2017. On 24 January 2017, within three months of her death, the first appellant exercised his option to purchase the farm Hunites and on 30 March 2017 the executrix entered into a written sale agreement with him for R176,200 (R20 per morgen). The first respondent (one of the testator's daughters) challenged the sale, arguing the purchase price was a fraction of the market value (approximately R5.2 million) and that the option was null and void for non-compliance with the formalities prescribed by the Alienation of Land Act 68 of 1981, as it had not been signed by the first appellant.

• Whether the right conferred upon the first appellant by clause 2.3 of the will constitutes an option (pactum de contrahendo) requiring compliance with the formalities of the Alienation of Land Act 68 of 1981
• Whether the testamentary disposition conferring the right to purchase at a fixed price is enforceable notwithstanding that the formal requirements for an option to purchase land were not met
• The proper interpretation of the testamentary provisions creating rights to purchase property
• Whether the right conferred was a personal right enforceable against the testator's spouse and subsequently the executrix, or an option subject to statutory formalities

The appeal was upheld with costs. The order of the high court was set aside and replaced with an order dismissing the application with costs.

A right to purchase property conferred by testamentary disposition is not a pactum de contrahendo requiring compliance with the formalities prescribed by the Alienation of Land Act 68 of 1981. Such a right is regulated through the testamentary disposition itself, which is the 'fons et origo' (source and origin) of the right. The beneficiary acquires a personal right enforceable against the person to whom the property is bequeathed (and their legal successors such as executors), rather than a contractual option. The eventual acquisition of property through such a testamentary provision constitutes 'acquisition by succession', notwithstanding that a juristic act by the beneficiary (such as exercising the right) is required. The fact that formal requirements for contractual options are not met does not invalidate rights created by valid testamentary dispositions.

The Court quoted with approval Nugent JA's observation that 'there is nothing quite like a will for fomenting family dissension', recognizing the emotive nature of disputes arising from testamentary dispositions. The Court also reaffirmed the general principles of will interpretation: courts must strive to ascertain the wishes of the testator from the language used in the context of circumstances prevailing at the time of execution, and there is a presumption in favour of construing testamentary writings to give effect to the testator's wishes rather than nullifying the disposition.

This case is significant in South African law for clarifying the distinction between rights conferred by testamentary disposition and contractual options (pacta de contrahendo). It establishes that where a testator confers a right to purchase property at a specified price through a will, that right derives from the testamentary disposition itself and constitutes acquisition by succession, not a contractual option requiring compliance with the Alienation of Land Act 68 of 1981. The case reinforces the principle that courts must interpret wills to give effect to the testator's intentions and that technical contractual formalities do not apply to rights created through testamentary dispositions. It provides important guidance on the nature and enforceability of testamentary conditions that create preferential purchase rights.