From: The Registrar, Supreme Court of Appeal

Please note that the media summary is intended for the benefit of the media and does not form part of the judgment of the Supreme Court of Appeal

ANDRE DE RESZKE v CZESLAW MARAS & OTHERS

In a judgment handed down today the Supreme Court of Appeal has ruled that the intention to draft or execute a will, contemplated in s 2(3) of the Wills Act No 7 of 1953, must have existed concurrently with the execution or drafting thereof.

The deceased had drafted a document which he signed at a later stage. In it he set out how he wished his assets to be dealt with. The document was addressed to an attorney. The appellant, the deceased’s only son, contended that when the deceased drafted the document he had intended it to be his will. The Master of the High Court refused to accept the document as a will. The Cape High Court dismissed the appellant’s application to declare the document a will, a decision upheld in an appeal to the Full Court.

Upholding the Cape High Court the SCA held that the intention of the deceased when he drafted the document was to instruct an attorney to draft his will. This intention, the SCA held, was not transformed by the deceased’s subsequent signature of the document. This, the SCA found, was apparent from the deceased’s own conduct as well as the document itself.