Grobler v Master of the High Court & others

The appellant, Mrs Paula Grobler, was the second wife of the late Mr Leon Peter Grobler (deceased), married out of community of property. The deceased had executed a valid will on 16 April 1996, before he met the appellant whom he married on 30 January 2010. In January 2013, the deceased instructed Mr Siegfried Eugene Stander, a senior financial advisor at Old Mutual, to prepare a new will. Over 20 months (January 2013 to August 2014), extensive email correspondence took place between the deceased and Mr Stander regarding various draft wills. The deceased sought to equitably distribute his assets among the appellant and his four biological children from his first marriage (the third to sixth respondents). The main assets were the family home in Helderkruin, Roodepoort and a holiday property in Margate. There was disagreement between the deceased and the appellant regarding whether she should have only usufruct rights over the properties or fuller ownership rights. The last communication was an email sent on 17 December 2014 by Mr Stander's assistant, Mrs Van der Walt, attaching a draft will and requesting the deceased to review it and advise of any alterations. No response or further communication followed. The deceased died on 26 December 2015, over a year later. The appellant applied to have the unsigned draft will declared valid as the deceased's last will and testament under section 2(3) of the Wills Act 7 of 1953.

• Whether an unsigned draft will prepared by a third party (financial advisor) can be validated as the deceased's last will under section 2(3) of the Wills Act 7 of 1953
• Whether the deceased 'drafted or executed' the document within the meaning of section 2(3)
• Whether it can be established on a preponderance of probabilities that the deceased intended the unsigned draft to be his will
• Whether the jurisdictional requirements for condonation of non-compliance with testamentary formalities under section 2(1) of the Wills Act were satisfied

The appeal was dismissed with costs.

For an unsigned document to be validated as a will under section 2(3) of the Wills Act 7 of 1953: (1) The document must have been 'drafted or executed' by the deceased personally, meaning created or prepared by the deceased himself/herself, not merely based on instructions given to a third party professional; (2) The court must be satisfied on a preponderance of probabilities that the deceased intended the specific document to be his or her will; (3) In the absence of evidence establishing that the deceased received, perused, and approved all the contents of the draft document, and in circumstances where there is apparent disagreement about its provisions and a significant lapse of time without action to finalize it, the court cannot find that the deceased intended it to be his will; (4) Once these jurisdictional requirements are met, the court is obliged by the peremptory provisions of section 2(3) to order the Master to accept the document as the deceased's will.

The Court acknowledged the appellant's argument that technological advances since the Bekker v Naude case have made electronic communication commonplace, but implicitly rejected the notion that this should affect the interpretation of the 'drafted or executed by' requirement in section 2(3). The Court noted but did not decide on the significance of the discord between the deceased and the appellant regarding the nature of her inheritance (full ownership versus usufruct) and the full year that elapsed without any communication or action to finalize the will. These factors were considered as part of the overall context but were not determinative. The Court also noted that the purpose of section 2(3) is to avoid thwarting the lawful wishes of a deceased would-be testator while still maintaining the protective purpose of the formalities in section 2(1), which are designed to ensure authenticity and guard against false or forged wills.

This case clarifies the strict interpretation of section 2(3) of the Wills Act 7 of 1953, which provides for condonation of non-compliance with testamentary formalities. It confirms that the exception in section 2(3) requires that the document must have been drafted or executed by the deceased personally, not merely based on instructions given to a third party. The judgment reinforces that even where there is evidence of lengthy engagement with a professional advisor regarding the content of a will, this is insufficient to satisfy the jurisdictional requirements if the deceased did not personally draft the document and there is no clear evidence of receipt, approval, and intention that the final draft be treated as the deceased's will. The case also emphasizes that technological advances in communication (such as email) do not alter the fundamental requirements of section 2(3). It provides important guidance on the evidentiary burden required to validate an unsigned or improperly executed will, particularly in situations where there is a gap in time between the last communication about a draft will and the deceased's death, or where there is evidence of unresolved disagreement about the will's provisions.