The contents of an “inelegant and very badly drafted” will were recently the subject of a dispute in the South Gauteng High Court, in the matter Strauss vs Strauss and Others.

The plaintiff instituted action claiming that the joint will of his parents not only made provision for the situation where they died within 30 days of each other, but also if the survivor died after the expiry of the 30-day period without having made a subsequent will. The first and second defendants are the plaintiff’s sisters.

The late Mr and Mrs Strauss, the parents of the plaintiff and the defendants, were married in community of property. They made a mutual will on 27 March 2014. The will stipulated that in the event of the death of one of them, the surviving spouse shall inherit the estate of the other and be nominated as executor or executrix.

In the event of them passing away at the same time or within 30 days and the surviving spouse had not made a new will, then in terms of clause 4.2: “Only if we die simultaneously or within 30 days of each other, in such circumstances in which the survivor does not make a further will, then in that case we bequeath the entirety of our estate as follows:…”.

Mr Strauss passed away in 2015 and Mrs Strauss three years later. She never made a new will. The question now is whether clause 4.2 is applicable or whether the estate must devolve in accordance with the law of intestate succession.

The plaintiff alleges that clause 4.2 must be interpreted to also apply when the two testators died more than thirty days apart and the surviving spouse had not made a new will. The word “or” must then be read into the clause so that it reads as follows: “Only if we die simultaneously or within 30 days of each other, or in such circumstances in which the survivor does not make a further will, then in that case we bequeath the entirety of our estate as follows:…”.

The defendants, however, contended for a different interpretation according to which the whole estate would devolve in terms of the law of intestate succession if the surviving spouse failed to make a new will within 30 days. They argued that the word to be read into the text, if one is to be read into the text at all, is the word “and”. The clause would then read as follows: “Only if we die simultaneously or within 30 days of each other, and in such circumstances in which the survivor does not make a further will, then in that case we bequeath the entirety of our estate as follows:…”.

The court took cognisance of the common law presumption against intestacy as well as the principles of the interpretation of documents. The court held that a court should always attempt to attach an interpretation to the wording of a will that will lead to a sensible and not a nonsensical meaning.

The court held that the only sensible interpretation of clause 4.2 is to be found by reading in the word “or”, thus for the clause to read: “Only if we die simultaneously or within 30 days of each other, or in such circumstances in which the survivor does not make a further will, then in that case we bequeath the entirety of our estate as follows:…”.

The court ruled in favour of the plaintiff and awarded him costs, including the costs of senior counsel.

The omission of a single word can lead to a will being invalid with the result that the estate devolves in terms of the law of intestate succession, and not according to the wishes of the deceased.

It is advisable to obtain assistance from an attorney or a fiduciary expert with the drafting or amendment of your will.


Reference list:
1. Strauss v Strauss and Others (2020/2236) [2023] ZAGPJHC 377 (24 April 2023)
2. The Intestate Succession Act, 81 of 1987


WRITTEN BY JAN VAN ZYL
Jan van Zyl is a director at Miller Bosman Le Roux Attorneys.

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