Henriques v Giles NO

In August 1999, Mr Ronald Nes drafted two wills, one for Francesco Franco Cammisa and one for his wife Jessie Agnes Maria Cammisa. On 15 September 1999, the couple met with Nes and his colleague at PKF's boardroom to execute the wills. After reading and understanding the wills, Franco and Jackie proceeded to sign them in the presence of two witnesses. However, the wills got mixed up and each spouse inadvertently signed the will prepared for the other. All other formalities prescribed by the Wills Act 7 of 1953 were complied with. Franco died on 19 October 2004 and Jackie died on 5 January 2005. On 10 November 2004, the Master accepted and registered the will prepared for Franco but signed by Jackie as Franco's last will. The error was only discovered after both deaths. Respondents applied to the Cape High Court for rectification of both wills. The appellant (one of Jackie's grandchildren from a previous marriage) opposed the application, arguing the wills were invalid for non-compliance with statutory formalities and could not be rectified. A counter-application was brought to set aside the Master's acceptance of Franco's will.

• Whether a will that does not comply with the formalities prescribed in section 2(1)(a)(i) and (iv) of the Wills Act 7 of 1953 can be rectified
• Whether rectification is available in a 'crossed wills' situation where each spouse signed the will prepared for the other
• Whether section 2(3) of the Wills Act applies where the testator did not personally draft the will
• The requirements and principles governing rectification of wills in South African law
• Whether the Master's acceptance of a will under section 8 of the Administration of Estates Act 66 of 1965 prevents subsequent rectification

The appeal was dismissed with costs (including costs of two counsel), save for setting aside paragraph 2 of the order below (relating to rectification of Jackie's will). The appeal against dismissal of the counter-application succeeded to the extent set out, with no order as to costs. The order of the court a quo was set aside and replaced with an order: (1) succeeding with the counter-application to set aside the Master's acceptance and registration of the will signed by Jackie as Franco's will; (2) rectifying the will signed by Franco (RN1) by deleting and substituting specified clauses and the introductory words to reflect Franco's true testamentary intention; (3) ordering the Master to accept the rectified will as Franco's last will; (4) referring the issue of Jackie's testamentary capacity at the time of signing to oral evidence; (5) ordering costs of the application to be paid from Franco's estate, but costs occasioned by opposition to be paid by the first to fifth respondents jointly and severally.

A will may be rectified where (a) the discrepancy between expression and intention was due to a mistake, and (b) the applicant proves what the testator actually intended, on a balance of probabilities. Rectification is available even in 'crossed wills' cases where spouses inadvertently sign each other's wills, provided all other statutory formalities are complied with and the testamentary intention is clear. Mistakes relating to the description of the testator or the incorrect inclusion/omission of provisions are not matters fatal to formal validity under section 2(1) of the Wills Act 7 of 1953 and are capable of rectification. Courts must not sacrifice clear testamentary intention to excessive formalism. The Master's acceptance and registration of a will under section 8 of the Administration of Estates Act 66 of 1965 is merely administrative and must be set aside before a rectified will can be accepted, but does not prevent rectification by the court.

The court observed that South Africa has no legislation on rectification of wills, unlike section 20 of the UK Administration of Justice Act 1982, which has been criticized as unduly restrictive. The court favorably noted the international trend in jurisdictions such as New Zealand, Australia, Canada and the United States toward allowing rectification whenever a will fails to give effect to true testamentary intentions, citing with approval Re McDermid Estate from the Saskatchewan Court of Queen's Bench and In the Estate of Vautier from the Royal Court of Jersey. The court also confirmed the established principle that section 2(3) of the Wills Act (dispensing power) does not apply where the testator did not personally draft the will, citing Bekker v Naude. The court noted that statutory formalities for wills are intended to ensure authenticity and provide evidence of testamentary intention, and courts must ensure these objects are not jeopardized when ordering rectification.

This landmark case establishes clear authority in South African law for the rectification of wills in 'crossed wills' situations where spouses inadvertently sign each other's wills. The judgment confirms that South African courts have broad equitable powers to rectify wills where there is a mistake between the testamentary intention and the written expression, even where this involves substituting provisions. The court rejected an excessively formalistic approach that would defeat clear testamentary intention based on technical non-compliance. The case clarifies that mistakes in describing the testator or including/omitting provisions are not matters relating to formal validity under the Wills Act and are therefore capable of rectification. It aligns South African law with the international trend favouring substance over form in giving effect to testamentary intentions. The judgment also confirms that the Master's acceptance of a will under section 8 of the Administration of Estates Act is merely administrative and does not prevent subsequent rectification by the court.