Wessels NO v Die Meester van die Hooggeregshof, Bloemfontein

The testator (F.J.T. Bezuidenhout) and his late wife executed a joint will on 18 January 2002 while married in community of property. The joint will's main bequests presumed the wife (testatrix) would survive the testator. Clause 8 provided that if the testatrix predeceased the testator, he would be the sole heir. The testatrix did predecease the testator, and her estate was wound up according to the joint will, with the testator receiving the entire joint estate. After her death, the testator executed two codicils (7 May 2003 and 11 June 2003) which both referred to "my Testament dated 18 January 2002" and stated "the rest of my Testament remains unchanged." He also executed a third codicil on 11 June 2003, but the original could not be found and was not accepted by the Master. The testator died on 7 March 2004. The executor (appellant) contended that the joint will as modified by the two codicils constituted the testator's valid will. The Master contended the estate should devolve intestate. The respondents who would benefit from intestacy opposed the application.

• Whether a joint will that lapsed upon the death of the testatrix could be revived by the testator in subsequent codicils
• Whether the testator's later codicils evidenced an intention to revive the lapsed joint will by reinstatement
• Whether the lapsed joint will was incorporated by reference into the later codicils
• What are the requirements for revival of a lapsed or revoked will under South African law

The appeal was dismissed with costs, such costs to be paid from the estate of the late F.J.T. Bezuidenhout. The estate would devolve intestate.

A lapsed or revoked will can in principle be revived by reinstatement in a subsequent validly executed will or codicil, without requiring the lapsed will to be executed afresh. For revival to occur, two requirements must be satisfied: (1) the document evidencing the revival intention must itself be properly executed in accordance with statutory formalities, and (2) the testator's intention to revive the lapsed or revoked will must be clearly established from the terms of the new testamentary document. A testator's mistaken belief that the earlier will remains valid precludes the finding of a conscious intention to revive it. The party alleging revival bears the onus of proving that the testator executed the later document knowing that the earlier will had lapsed or been revoked and was then of no effect.

The Court made several obiter observations: (1) In joint wills without estate merger, the document essentially comprises two separate wills in one document, each disposing of their own estate. The survivor remains free to make a new will after the first spouse's death, even after accepting benefits under the joint will. (2) Whether a testator's portion of a joint will survives depends on whether it was made conditional on the testator predeceasing the spouse. If conditional, it lapses upon the spouse's death; if not, it continues in effect. (3) The Court noted academic support for the reinstatement approach over the re-execution approach. (4) The Court indicated that the possibility of using section 2(3) of the Wills Act (condonation of formality defects) to overcome problems with incorporation by reference was not applicable as no such application was made. (5) An invalid testamentary document cannot be used for interpretive purposes to determine the testator's intention in valid testamentary writings.

This is the leading South African case establishing the principles for revival of lapsed or revoked wills. The Supreme Court of Appeal authoritatively endorsed the approach of Schreiner JA in Moses v Abinader over that of Van den Heever JA, confirming that revival by reinstatement in a subsequent will is possible in principle, without requiring the lapsed will to be re-executed afresh. The judgment clarifies that the same principles apply to both revoked wills and wills that have lapsed. It emphasizes that revival requires both proper execution of the reinstating document and clear proof of the testator's conscious intention to revive a will known to be lapsed or revoked. A mistaken belief that the earlier will remains valid negates the necessary revival intention. The case provides important guidance on joint wills and when they lapse, and confirms that incorporation by reference of an earlier will into a later one is not permitted under the Wills Act 7 of 1953 due to statutory formality requirements.