It is important to make sure that a person’s intentions are clearly set out in his/her Last Will and Testament. - Theart v Scheibert

Facts of the case:

  • Theart’s grandparents drafted a joint Will where she was nominated as a beneficiary.
  • Her grandparents were married to each other in community of property which means that half of the joint estate belonged to her grandmother and the other half to her grandfather. Her grandparents owned a house which formed part of the joint estate.
  • At the death of her grandmother, Theart’s grandfather reported her grandmother’s estate to the Master of the High Court as not having any value. The Master of the High Court marked the grandmother’s estate as finalised.
  • The grandfather drafted another Will where Theart was not nominated as a beneficiary.
  • Upon the death of her grandfather, Theart approached the court for an order that she should be entitled to her grandmother’s share of the joint estate in terms of the joint Will, despite Theart not being nominated in her grandfather’s latest Will.

What the court said:

  • A joint Will is where two persons make a Will in one document with the intention that each of their belongings will be divided and distributed separately, in a manner mentioned in that joint Will.
  • A joint Will must be interpreted to be two separate Wills, unless it can be proved that “massing” of the testators’ separate belongings occurred (the testators are the persons who make a Will).
  • “Massing” means that the separate belongings of the testators are blended into one estate with the intention that both of their belongings must be divided and distributed as a whole in terms of the joint Will.
  • The court found that the grandparents did not have the intention to blend their equal shares of the joint estate and that the joint Will must be interpreted to be two separate Wills.
  • The court found that the latest Will of the grandfather had the effect that he only cancelled the joint Will relating to his share of the joint estate and not the share of the grandmother’s estate.

Conclusion:

  • The court found that Theart is entitled to her grandmother’s share of the joint estate and that the joint Will remains valid.
  • The grandfather’s belongings will be distributed in accordance with his latest Will, with the exception of the belongings that should have formed part of the grandmother’s estate.
Legal content disclaimer

The information contained on this website is aimed at providing members of the public with guidance on the law in South Africa. This information has not been provided to meet the individual requirements of a specific person and LegalWise insists that legal advice be obtained to address a person’s unique circumstances. It is important to remember that the law is constantly changing and although LegalWise strives to keep the information up to date and of high quality, it cannot be guaranteed that the information will be updated and/or be without errors or omissions. As a result, LegalWise, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable, for any innocent or negligent actions or omissions by LegalWise, which may result in any harm or liability flowing from the use of or the inability to use the information provided.