Court name
High Court
Case number
APPEAL 28 of 2008
Title

Dreyer v Master of the High Court of Namibia and Another (APPEAL 28 of 2008) [2008] NAHC 107 (28 July 2008);

Media neutral citation
[2008] NAHC 107




























SUMMARY

A 28/2008











JOHANNES
HENDRIK DREYER v MASTER OF THE HIGH COURT OF NAMIBIA & ANOTHER



















FRANK,
A.J.











28
July 2008







Will
– original codicil in possession of deceased missing –
rebuttable presumption that deceased destroyed it
animius
revocandi
.







Will
– codicil – donation of legacy subsequent to codicil
making bequest – donation presumed to have adeemed the bequest
– ademption not necessarily reversed by repudiation of donation
– ademption also not necessarily conditional on donation being
accepted.














CASE
NO. A 28/08


IN
THE HIGH COURT OF NAMIBIA






In the matter between:






JOHANNES
HENDRIK DREYER APPLICANT







and







MASTER
OF THE HIGH COURT



OF
NAMIBIA 1
ST
RESPONDENT



JOCOMINA
MAGARETHA FOUCHE



(born
DRYER) 2
ND
RESPONDENT







CORAM: FRANK,
A.J.







Heard
on: 2008.07.15



Delivered
on: 2008.07.28



_______________________________________________________________


JUDGMENT



FRANK,
A.J.:
[1] This
is an application in which the applicant seeks an order compelling
the Master of the High Court to accept a copy of a codicil as the
original has gone missing, alternatively to compel the Master of the
High Court to accept a copy of a deed of donation where the original
had likewise gone missing. Both the codicil and deed of donation are
to the effect that applicant would receive one half of an immovable
property situate at Walvis Bay which belonged jointly to applicant
and his late mother.







[2] The
facts advanced by the applicant in support of the application are
briefly stated the following. Before I state these facts I should
mention that the Master in a report pointed out that she cannot
accept a copy of the codicil without a court order. That this was
the correct approach by the Master was not questioned. Second
respondent, applicant’s sister, although objecting to the copy
of the codicil being accepted by the Master did not file an affidavit
nor does she officially oppose the relief sought. The matter is thus
to be adjudicated on the facts advanced by applicant.







[3] Applicant
and his late mother (the deceased) jointly purchased immovable
property in Walvis Bay during 1986 for a purchase consideration of
N$27500. At the time of the purchase of the property, which
contained a dwelling house, neither of them lived in Walvis Bay but
intended to use it as a holiday home. By agreement the deceased paid
the full purchase price and applicant would be responsible for all
the running expenses, improvements and maintenance. Pursuant to this
agreement and during 1986-1987 repairs to the tune of at least
N$15000 were paid for by applicant. During 1988 applicant became
aware of the fact that the deceased executed the codicil that forms
the subject matter of this application and in which she bequeathed
her share in the Walvis Bay property to him. At the time deceased
told him that she paid applicant’s sister about N$7000 “to
compensate her” for the disposition in the codicil. During
1996 a mortgage bond was registered over the property in Walvis Bay
to the tune of about N$300 000. The money advanced and secured by
the said bond was to effect substantial improvements to the property
including the erection of a second dwelling house. Up to then and
pursuant to his agreement with the deceased applicant had spent about
N$20000 on the erection of a boundary wall and, of course, maintained
the property. Although the applicant and deceased had to both agree
to the registration of the mortgage bond over the property it was
agreed between them that applicant was solely responsible for the
payments in respect of the monies secured by the mortgage bond. The
money acquired under security of the mortgage bond was used for the
purposes indicated and applicant and his family moved to Walvis Bay
to reside on the now improved property.







[4] In
January 1998 the deceased moved to Pretoria in South Africa. On the
17
th
March 1998 the deceased signed a written donation of her share in the
property to applicant. During March 1998 a copy of this donation was
forwarded to applicant who took this to a lawyer who advised him that
it would be cheaper to seek the transfer of the half share of the
deceased pursuant to the codicil and applicant decided “to
leave matters as they are”.







[5] On
3 January 2006 the deceased passed away. Neither the original of the
codicil or the donation in terms whereof applicant was nominated to
receive the deceased’s share in the property could be found. A
last will and testament dated 1982 in terms whereof applicant and his
sister were appointed the equal heirs and a codicil dated January
1998 appointing his sister as co-executer were the only original
documents found amongst the deceased’s papers.







[6] The
lawyer who drafted the documents which forms the subject matter of
this application confirms in an affidavit that he drafted them a
request of the deceased and that he and his wife witnessed them. He
states that the originals were handed to the deceased and her
daughter as the deceased was residing with her daughter (the second
respondent) at that stage. Applicant confirms in his affidavit that:
“to the best of my knowledge, my late mother retained the
originals of all wills, codicils and other documents which were
prepared on her behalf by the said attorney Smuts”.







[7] Applicant
further mentions the efforts he made, to no avail, to obtain the
originals of the documents that form the basis of this application.
He mentions that the deceased never informed him that she revoked the
bequest/donation and that he regretted the fact that his sister was
not supportive of him on this issue.







[8] With
the above brief background I now turn to deal with the relief sought.
I do so in reverse order by first dealing with the donation and
thereafter with the codicil.







[9] As
is evident from the fact that the donation was made subsequent to the
codicil the codicil was,
prima
facie
,
adeemed by the donation.
1
Applicant did not accept the donation as he, after being advised as
to the costs involved, decided not to act on the donation. This was
the end of the donation.
2
Even if the donation somehow remained open for acceptance this
acceptance had to take place prior to the death of the donor which
did not occur in this matter and applicant cannot now attempt to
accept the donation.
3
It follows that the relief claimed on the basis of the written deed
of donation cannot be sustained.







[10] As
far as the codicil is concerned the applicant must not only address
the tacit or implied ademption of the legacy in his favour he must
also address the factual presumption that arises by virtue of the
fact that the original codicil that was, on the probabilities, in
possession of the deceased cannot be found. The missing original
codicil gives rise to a rebuttable presumption that the deceased
destroyed the original
animo
revocandi
.4







[11] Whereas
it may be correct that the written donation made about 10 years after
the codicil was confirmation that deceased at that stage still
intended to make over her share in the property to the applicant the
dead silence on this score from 1998 (date of donation) up to her
death in August 2006 cannot in my view be supportive of applicant’s
claim. She might have decided to destroy the codicil after she
executed the donation and when the donation was not accepted decided
not to favour applicant anymore.







[12] She
was, after all, the person who kept the originals and the other last
will and testament dated 1982 was still amongst her possessions when
she passed away. She could have destroyed both the deed of donation
and the codicil because of rising land values in Walvis Bay as she
felt the N$7000 paid to her daughter was not sufficient compensation.
There is simply no evidence of any value that the deceased,
subsequent to applicant declining to act on the donation, intended
that the bequest must still stand. This is so even if it can be said
that the ademption of the bequest in the codicil was conditional on
the donation being accepted (which issue was not addressed at all by
applicant in his affidavit). The question remains why was other
original testamentary documents still found among the papers of
deceased but not the two that favoured the applicant with her share
in the Walvis Bay property?







[13] I
have stated the reasons why the donation cannot be enforced at this
stage. As far as the codicil is concerned I can only state that
whereas it may be that it had been lost or even accidentally
destroyed but the facts averred by applicant does not in my view go
far enough to establish this on a balance of probability. The fact
that deceased kept the other original documents, the presumptions
raised by the later donation, even if it was conditional, and by the
missing original codicil together with the dirth of evidence as to
the deceased’s intention or actions after the applicant
declined to act on the donation are factors which make a finding that
the applicant has not discharged the onus of showing a preponderance
in favour of loss or accidental destruction the logical and most
reasonable result. The application must thus fail.







[14] In
the result the application is dismissed.

























FRANK,
A.J.































ON
BEHALF OF APPLICANT ADV. I VISSER



Instructed
by: METCALFE LEGAL PRACTITIONERS







1
Corbett, Hofmeyer & Khan: The Law of Succession in South Africa,
2nd ed p106




2
LAWSA: 1st Reissue Vol 8 Part 1 paragraph 272




3
LAWSA: supra, paragraph 272




4
Ex parte
Warren 1955 (4) SA 326 (W)