Theart v Scheibert

Mr Kristian Jens Korsgaard (the testator) and Mrs Isabel Louisa Wilhelmina Korsgaard (the testatrix) executed a mutual will on 28 March 1983. They were married in community of property and owned property at 19 Dysart Road, Green Point in equal undivided shares. The appellant, Diane Jean Theart, was the testatrix's granddaughter who had been raised by the testators from age 9 as if she were their own daughter, and was named as beneficiary in the mutual will. The testatrix died on 11 February 1990. Death notices filed seven years later incorrectly stated she died intestate married out of community of property, and an inventory indicated no assets of value. After the testatrix's death, the appellant's relationship with the testator deteriorated. The testator subsequently executed at least three wills (the last being on 15 March 2008) bequeathing his entire estate to the second respondent, his nephew. The testator died on 6 May 2008. The appellant challenged the validity of the new will, asserting her rights under the mutual will. The original mutual will could not be found, but an authenticated copy was available. The executor of the testator's estate prepared a liquidation and distribution account giving effect to the new will.

• Whether the mutual will effected a massing of the testators' estates
• The proper interpretation of the mutual will and specifically clauses 3, 4 and 5
• Whether the testator had adiated under the mutual will
• Whether the mutual will had been revoked by the testatrix
• Whether the presumption of revocation by destruction applied where the original will could not be found
• Whether the appellant could competently seek declaratory relief against the testator's estate

The appeal succeeded. The order of the high court was set aside. An order was granted in terms of paragraphs 4.1, 4.2 and 4.3 of the notice of motion, declaring that: (1) the new will was invalid insofar as it purported to dispose of one half of the assets of the matrimonial estate (including the undivided half share in the property); (2) the mutual will was the will in terms of which one half of the matrimonial estate assets must devolve; and (3) the Master was directed to accept the mutual will for this purpose. The second respondent was ordered to pay the costs of the appellant and first respondent in both the high court and Supreme Court of Appeal, including costs of two counsel where employed and costs of the interlocutory application.

1. Mutual or joint wills of spouses married in community of property must in the first instance be read as separate wills, with the person analyzing such a will proceeding on the hypothesis that separate wills are being dealt with until the contrary clearly appears. The presumption against massing applies when there is vagueness or ambiguity. 2. The test for massing is whether one testator disposed of the other testator's share of the joint estate as well as their own. Where ambiguity exists as to whether massing was intended, the presumption against massing is decisive, in order to preserve testamentary freedom. 3. The presumption that a will last in a testator's possession which cannot be found was destroyed with intent to revoke only applies if it is established that the will was last known to be in the testator's possession. The presumption does not apply if the will was in the hands of a third party or if there is no evidence of who had possession. 4. Even where the presumption of revocation by destruction applies, it is rebuttable and must be assessed against all the evidence and circumstances.

The Court declined to determine the exact nature of the rights conferred on the survivor under the mutual will, noting it was suggested these were fiduciary rights under a fideicommissum residui, but finding this incorrect as there was no indication of a power of alienation. However, it was unnecessary to determine the precise nature of these rights given the primary asset in dispute was the property and the survivor (testator) had died. The Court also noted it was unnecessary to decide which of two approaches regarding adiation summarized in Ex parte Estate van Rensburg should prevail, as no massing was found and therefore the question of adiation fell away. The Court indicated it would be undesirable to comment further on this issue as no argument had been addressed to it.

This case provides important guidance on the interpretation of mutual wills in South African law, particularly regarding: (1) the presumption against massing and the approach to determining whether testators intended to mass their estates; (2) the application of Rhode v Stubbs principles that mutual/joint wills of spouses married in community of property must initially be read as separate wills until the contrary clearly appears; (3) the conditions for application of the presumption of revocation by destruction where an original will cannot be found; and (4) the importance of preserving testamentary freedom unless a clear contrary intention appears. The judgment illustrates the careful interpretive approach required when dealing with mutual wills that use first person plural language, and reinforces that the presumption against massing is decisive where ambiguity exists.