Heather Wendy Smith v Charles Parsons N.O. and Others

The appellant (Heather Wendy Smith) lived with the deceased (Walter Percival Smith) in a relationship after his wife's death in 2002. She moved in with him in January 2003. He supported her financially during their relationship. On 25 February 2007, while the appellant was at work, the deceased committed suicide by shooting himself. A suicide note was found on the kitchen counter with a crucifix placed on top of it. The note, dated the day of his death, contained specific instructions disposing of his property: it gave the house to the appellant, authorized her to access R579,000.00 in his Plusplan account at Standard Bank, mentioned cash in the safe, and stated that everything else would go to his son Jeremy (the third respondent) as provided in his will. The deceased had an existing will in the safe. The appellant sought an order directing the Master to accept the suicide note as an amendment to the deceased's will.

• Whether a suicide note written by the deceased was intended to be an amendment to his will as contemplated by section 2(3) of the Wills Act 7 of 1953
• Whether the document complied with the requirements of section 2(3) despite not meeting the formal requirements for execution or amendment of wills
• Whether the suicide note constituted a donatio mortis causa rather than a testamentary disposition

The appeal was upheld with costs, including costs of two counsel. The order of the high court was set aside and replaced with an order: (1) directing the Master of the High Court to accept the suicide note as an amendment to the will of Walter Percival Smith for purposes of the Administration of Estates Act 66 of 1965; (2) declaring the costs of the application to be costs in the winding up of the estate; and (3) ordering the third respondent (Jeremy Smith) to pay the costs occasioned by his opposition, including costs of two counsel.

To satisfy section 2(3) of the Wills Act 7 of 1953, a document need not comply with the formal requirements for execution of wills provided it was drafted or executed by the deceased with the intention that it be their will or an amendment to their will. The court must examine both the wording of the document and the surrounding circumstances to determine testamentary intention. Clear and unequivocal instructions regarding the disposition of property, coupled with awareness of an existing will and actions indicating the document should be acted upon (such as placing it where it would be found), demonstrate the requisite intention. A suicide note can constitute a valid amendment to a will under section 2(3) where it contains specific testamentary dispositions and the circumstances indicate the deceased intended it to regulate the devolution of their estate upon death.

The court observed that the deceased was apparently a committed Christian, as evidenced by placing the crucifix on the note, which fortified the view that he wanted the instructions implemented. The court noted that signing as 'Wally' was the most natural way to sign an essentially personal letter, albeit one with testamentary instructions. The court stated that a formal signature is not required to meet the requirements of section 2(3) - the section requires only that the document is drafted or executed with the intention of making or amending a will. The court commented that the question of whether the bank could have acted on the deceased's instructions 'does not come into the picture' - what matters is the intention with which the instruction was written.

This case is significant in South African succession law as it demonstrates the courts' willingness to give effect to testamentary intention under section 2(3) of the Wills Act, even where documents are highly informal. It establishes that suicide notes can qualify as valid testamentary documents if the requisite intention is demonstrated. The judgment clarifies the approach courts should take in determining testamentary intention: examining both the wording of the document and surrounding circumstances. It confirms that formal signatures and traditional testamentary language are not required under section 2(3) - what matters is whether the deceased intended the document to regulate the disposition of their estate. The case also distinguishes testamentary dispositions from donationes mortis causa in the context of documents written in contemplation of imminent death.