Pienaar v Master of the Free State High Court

The testator, Frederik Jacobus du Toit, executed a will in November 2006 and another will in May 2007, shortly before his death on 30 June 2007. The testator had divorced his first wife and later married the second respondent, Cynthia du Toit, with whom he had a son, Derick. The testator and Cynthia divorced in October 2006, before both wills were executed. The 2006 will expressly revoked previous wills and bequeathed: (i) his Sanlam Personal Portfolio to Cynthia (if payable to his estate); (ii) an immovable property and motor vehicle to Derick; and (iii) the residue to the appellants (his daughters from his first marriage). The 2007 will did not contain a revocation clause but bequeathed immovable properties to each of his three children, granted Cynthia lifelong use of Derick's property, awarded cash amounts to the first appellant and Derick, bequeathed a motor vehicle to the testator's son-in-law, and left the residue to the appellants. The dispute centered on a Sanlam investment policy valued at approximately R827,000. The testator had three investments in his Sanlam Personal Portfolio, with no beneficiary appointed for the third investment made on 22 March 2007. The Master determined that the Sanlam Personal Portfolio should be paid to Cynthia under the 2006 will. The appellants challenged this determination, arguing the 2007 will impliedly revoked the bequest to Cynthia.

• Whether the 2007 will impliedly revoked the 2006 will in whole or in part
• Whether the bequest of the Sanlam Personal Portfolio to Cynthia du Toit in the 2006 will was revoked by the 2007 will
• The proper approach to interpreting multiple testamentary instruments executed by the same testator
• Whether two wills dealing with the entire estate but with different schemes can stand together

1. The appeal was upheld with costs. 2. The order of the Free State High Court was set aside and replaced with: (a) A declaration that the testament dated 28 May 2007 impliedly revoked the earlier testament dated 27 November 2006 insofar as inconsistent with the latter; (b) The Sanlam Personal Portfolio is to form part of the residue of the testator's estate; (c) The second respondent (Cynthia du Toit) was ordered to pay the costs of the application.

Where a testator dies leaving more than one testamentary disposition, the wills must be read together and reconciled, and the provisions of earlier testaments are deemed to be revoked insofar as they are inconsistent with later ones. Where there is conflict between provisions of two wills, the conflicting provisions of the earlier testament are deemed to have been revoked by implication. Where two wills each purport to dispose of the testator's entire estate but represent different schemes of distribution (not simply later dispositions superimposed on earlier ones), they cannot stand together and the later will impliedly revokes the earlier will to the extent of any inconsistency, even in the absence of an express revocation clause. The golden rule for interpretation of wills is to ascertain the wishes of the testator from the language used, and once ascertained, courts are bound to give effect to those wishes. Where a bequest has been made in an earlier testamentary disposition, clear and unambiguous language in a later testamentary disposition is required to justify a finding that the testator intended to revoke such bequest. The testator's intention can be gathered from the scheme and terms of the will, not merely from individual clauses. An inconsistency in the treatment of the residue of an estate as between two wills is sufficient to establish implied revocation of the earlier bequest that would otherwise have formed part of that residue.

The court observed that the 2006 will contained important provisions for the administration of the estate that did not need to be changed, explaining why there was no need for the testator to expressly revoke the previous will—where change was intended, it was clearly prefaced with the words that he bequeathed his estate 'as follows'. The court noted that it must be assumed, in the absence of evidence to the contrary, that the testator had knowledge of the meaning of the word 'residue' when used in his wills. The court also commented on the Master's reasoning, noting that while the Master correctly found an inconsistency regarding the motor vehicle (which was bequeathed to Derick in 2006 but to the son-in-law in 2007), the Master erred in failing to identify the inconsistency regarding the treatment of the Sanlam investment as between the two wills.

This judgment is significant in South African succession law as it clarifies the principles governing implied revocation of wills and the interpretation of multiple testamentary instruments. It establishes that where a testator executes multiple wills each purporting to dispose of the entire estate, the later will may impliedly revoke the earlier one even in the absence of an express revocation clause, where the two wills represent different schemes of distribution. The case reinforces the golden rule of will interpretation—to ascertain and give effect to the testator's intentions from the language used. It demonstrates that courts will look at the scheme and structure of wills, not just individual clauses, to determine whether inconsistencies exist. The judgment also clarifies that the absence of an express revocation clause does not prevent implied revocation where the testamentary dispositions are fundamentally inconsistent. This case is frequently cited in succession matters involving multiple wills and provides important guidance on reconciling testamentary instruments and determining when provisions are sufficiently inconsistent to trigger implied revocation.