31 January 2008 by Cliffe Dekker Hofmeyr

Revival of a joint will: no intention – no revival

In a recent Supreme Court of Appeal decision, Wessels NO v The Master, the court had to decide whether a surviving spouse could in principle revive a joint will that lapsed at the death of the predeceased spouse.

The testator and testatrix, who were married in community of property, executed a joint Will on 18 January 2002. The testatrix predeceased the testator and in terms of the Will the testator inherited the whole of the joint estate. Thereafter the testator executed three codicils stating that they should form part of his will dated 18 January 2002 and that the rest of his will would remain unchanged. On his death however, the Master took the view that the testator died intestate.

It is an accepted principle that a joint will is basically two separate Wills where the testator and testatrix can dispose of their own estates. After the death of the first spouse, the surviving spouse can execute a new will regardless of whether he or she accepted the benefits in terms of the joint will. The question is therefore what happens when the surviving spouse does not constitute a new will?. The answer lies in whether the surviving spouse made the disposal of his or her assets that formed part of the joint will subject to him or her dying first. If not, then the will stays in force until the surviving spouse's death, provided that no new will was executed. If, however, the disposal is subject to him or her dying first, then the will shall lapse at the death of the first dying.

In the Wessels case, the relevant disposal of the assets of the testator was subject to him dying first. No provision was made for the circumstances should he survive the testatrix, and the presumption must be that he would have made a new will at the death of the testatrix. The joint will therefore lapsed at the death of the testatrix.

The executor argued that it was the intention of the testator that the 18 January 2002 will, as amended by the codicils, must constitute his will. Two options of revival were argued by the executor, namely the re-institution in the two later codicils and the incorporation by reference to it in the codicils.

The Court held that re-institution is possible only if the document in which the intention is stated is validly executed and the intention is evident from this new document. Applying this principle to the present case, the Court found that the codicils as well as the will of 18 January 2002 were in fact validly executed. They held however that a problem existed with the intention requirement as the testator was clearly under the impression that the joint will was still valid. This belief excluded the possibility of a revival intention as the testator could have no intention to revive a will which he still considered valid. The testator's estate was therefore treated as intestate.

Koos Rossouw and Elana le Roux

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