Raubenheimer v Raubenheimer

Dr S P Raubenheimer (the testator), a medical practitioner married to the appellant with two children from a previous marriage, executed a document purporting to be a will on 28 March 2006. The will was prepared by Mr Hagen, an insurance broker and investment advisor, not a lawyer. The testator signed the document at his consulting rooms but, contrary to section 2(1)(a) of the Wills Act 7 of 1953, the signature was not witnessed in his presence. Instead, two days later in Cape Town, Mr Hagen had two of his employees sign the will as witnesses, falsely representing they had witnessed the testator's signature. The will bequeathed the testator's estate to his spouse (appellant) and provided she would have a 'usufruct' over the matrimonial home until her death or remarriage. It referred to an attached list of specific bequests which was never actually prepared or attached. Clause 3 provided that if the spouse predeceased the testator, the estate would pass to his children (respondents). Upon the testator's death, the Master initially accepted the will, but the respondents later discovered the non-compliance with witnessing formalities and applied to have the will declared void. The appellant counter-applied for an order under section 2(3) of the Wills Act directing the Master to accept the will despite non-compliance with formalities.

• Whether the document dated 30 March 2006 was intended by the testator to be his will for purposes of section 2(3) of the Wills Act 7 of 1953
• Whether the failure to attach a list of specific bequests referred to in the will rendered it void for vagueness
• Whether the provision for a 'usufruct' over the matrimonial home without identifying a beneficiary rendered the will void for vagueness
• Whether the testator intended to create a usufruct or a fideicommissum over the matrimonial home
• Whether a fideicommissary beneficiary could be identified by necessary implication from the terms of the will

The appeal succeeded with costs. The order of the North Gauteng High Court declaring the will void was set aside. The application in convention was dismissed. The Master was ordered to accept the will dated 30 March 2006 (annexure GR2) as the will of the deceased for purposes of the Administration of Estates Act 66 of 1965.

The binding legal principles established are: (1) For purposes of section 2(3) of the Wills Act, a court may order the Master to accept a document as a will despite non-compliance with formalities if satisfied the testator intended it to be his will at the time of execution, regardless of subsequent omissions such as failing to attach referenced annexures. (2) A reference in a will to an unattached list of specific bequests does not render the will void for vagueness; it merely means no such specific bequests were made. (3) The mere use of the term 'usufruct' by a testator is not conclusive; where the testator has conferred a life interest, the court must determine from the will as a whole whether a usufructuary or fiduciary interest was intended, particularly where the will was not drafted by a legal professional. (4) Where a will bequeaths an 'estate' to a beneficiary, that bequest includes ownership and should not be modified unless a contrary intention is clearly indicated. (5) A beneficiary of a fideicommissum may be identified by necessary implication from the terms of the will read as a whole, applying the 'bystander test' to determine whether the identity of the fideicommissary is 'so self-evident as to go without saying' from the express terms and surrounding circumstances.

The Court made significant observations about the endemic problem of poorly drafted wills in South Africa. Leach JA expressed amazement that so many people rely on untrained advisors when preparing wills, citing a 1952 case (Ex Parte Kock NO) that urged testators to consult only suitably trained persons for will drafting, and lamented that despite such warnings courts continue to deal with disputed wills resulting from shoddy drafting or incompetent advice. The Court criticized Mr Hagen's conduct in arranging for false witnessing of the will as 'completely improper'. The Court also noted that while courts must guard against making a will for a testator and thereby doing violence to the concept of testators determining the destiny of their estates, courts will not hesitate to give effect to implied testamentary intentions where beneficiaries can be properly identified through interpretive principles.

This case is significant in South African succession law for several reasons: (1) It demonstrates the courts' willingness to apply section 2(3) of the Wills Act to give effect to testamentary intention despite non-compliance with formalities, provided the court is satisfied the document was intended to be the testator's will. (2) It illustrates the principles of testamentary interpretation, particularly the cardinal rule that wills should be construed to ascertain and give effect to the testator's true intention from the language used, even if clumsily worded. (3) It confirms that courts may identify beneficiaries by necessary implication using the 'bystander test', similar to implying tacit terms in contracts. (4) It provides guidance on distinguishing between usufructs and fideicommissa, particularly where testators use legal terminology without full appreciation of its legal significance. (5) It serves as a cautionary tale about the dangers of having wills drafted by persons not trained in law, reinforcing longstanding judicial warnings that testators should consult properly qualified persons for will drafting.