‘There is nothing quite like a will for fomenting family dissension’

‘There is nothing quite like a will for fomenting family dissension’

A Judge of the Supreme Court of Appeal observed these words in a judgement in 2006. The importance to avoid the above quote was once again illustrated in the Supreme Court of Appeal case of Goosen and Another v Wiehahn and others.

The facts in short were that the testator bequeathed two farms to his spouse in a will executed on 27 November 1990, subject to certain testamentary coditions. The conditions of importance were that if his spouse decided to sell the farms, his son in law would have the first option to buy for R20.00 and R30.00 per morgen, respectively. The same conditions would be applicable at his wife’s demise, namely that the son in law will have the option to buy the farms at the above mentioned calculated price. The wife passed away in December 2017 and the son in law exercised the option to buy the farms at the calculated price stipulated in the will. One of the heirs felt aggrieved with the calculation of the price of one of the farms, as it was only a tiny fraction of its actual value of some R5.2 million. Her contention was that it was “ utterly unreasonable and clearly not what her late father contemplated at the time”.

In the High Court it was argued that the purported exercise of the option by the son in law was a legal ground for the conclusion of the deed of sale that followed. In other words the conditions in the will that grant the option to the son in law were construed as a contractual instrument. The sale of land is governed by the Alienation of Land Act and the court found that the option exercised by the son in law did not adhere to the formalities prescribed in the said Act and was therefor null and void.

The Supreme Court of Appeal ruled that it is important that “when interpreting a will, a court must strive to ascertain the wishes of the testator from the language used. Generally, the language used must be construed in the context of the circumstances that prevailed at the time the will was executed.” The real source of the son in law`s right (to exercise the option to buy) was the disposition by the testator and not an agreement to make a contract. The son in law was entitled to buy the farm at a fraction of the true value thereof.

In conclusion it is my opinion that the person who drafts the will must use clear language to describe the wishes of the testator and secondly the importance of revising your will regularly is paramount.

For more information kindly contact Janél Kruger at office@rgprok.com or 044 601 9900.

www.rgprok.co.za

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