Ian David Mitchell NO v Sandra Jane Wren

Carolynn Ellen De Villiers (the deceased) committed suicide in the early hours of 9 June 2012. She had been in a same-sex life partnership with the first respondent, Sandra Jane Wren, and had been close friends with the second respondent, Yolandi Mynhardt, for many years. Before her death, the deceased wrote two handwritten notes (annexures A and B) making testamentary dispositions. Annexure A bequeathed all household goods and R1 million to the first respondent and R1 million to the second respondent. Annexure B bequeathed household goods to the first respondent and R1 million to the second respondent. The deceased had executed a formal will on 18 July 2011 appointing her father (the appellant) as executor and her father and brother as joint residual heirs. The respondents were not mentioned in that will. The Master of the High Court refused to accept annexure A as a testamentary disposition for want of compliance with formal requirements under s 2(1)(a) of the Wills Act 7 of 1953.

• Whether annexure A was intended by the deceased to be a valid codicil to her existing will in terms of s 2(3) of the Wills Act 7 of 1953
• Whether the two handwritten notes (annexures A and B) were compatible or reconcilable
• Which of the two notes was executed last by the deceased
• Whether the court should accept annexure A as a valid testamentary disposition despite non-compliance with formal requirements

1. The appeal is dismissed. 2. The costs of the appeal on the scale as between attorney and client, including the costs of two counsel where employed, are to be paid out of the estate of the deceased Carolynn Ellen De Villiers.

Where a deceased has executed two informal testamentary documents on the same day that make provisions for beneficiaries, and it cannot be determined from the face of the documents which was executed last, a court may examine all surrounding circumstances and probabilities to determine which document reflects the deceased's final testamentary intention. In determining which of two codicils was executed last, the court must consider: (1) the relationship between the deceased and beneficiaries; (2) the nature and value of bequests; (3) the deceased's expressed sentiments toward beneficiaries; (4) the inherent probability or improbability of the deceased intending particular dispositions; and (5) the form and structure of the documents. A document that substantially complies with the intention requirement under s 2(3) of the Wills Act 7 of 1953 may be accepted as a valid codicil even if it does not comply with all formalities, provided the court is satisfied it was intended to amend an existing will.

The court observed that it is inherent logic that any bequest of a specific legacy diminishes the value of the residue of an estate that devolves upon residual heirs, and if a testator intends to provide a beneficiary with an additional legacy by way of codicil that does not affect another legacy to another beneficiary, effect must be given to it. The court also noted that in cases concerning testamentary validity and interpretation, the customary costs order is that costs on the scale as between attorney and client, including costs of two counsel where employed, should be paid from the deceased's estate regardless of the outcome, as this was a genuine dispute requiring judicial determination.

This case clarifies the application of s 2(3) of the Wills Act 7 of 1953, which allows courts to accept non-compliant documents as valid wills or codicils if satisfied the deceased intended them as such. It demonstrates how courts should reconcile multiple testamentary documents executed on the same day by examining surrounding circumstances and probabilities. The case is particularly significant in recognizing same-sex life partnerships in the context of testamentary intention, and affirms that courts will look beyond mere formalities to give effect to a testator's true intentions. It establishes principles for determining the sequence of execution where multiple informal testamentary documents exist, emphasizing that courts should draw inferences consistent with known facts and probabilities rather than adhering rigidly to formal requirements where the testator's intention is manifest.