In this judgment the court expressed its view on when the Natal Joint Municipal Pension Fund principle applies and when it does not, and why it does not apply to the interpretation of a will. It also set out the requirements permitting rectification of a will. The facts are somewhat complex, so for convenience they are set out below in chronological order.
Chronology:
DS Rens (the testator) owned the remaining extent of Portion 2 of the farm Hammanskraal No 112.
July 2008: the Minister consents to sub-division into:
(1) Rem Ext of Portion 2 (which I will refer to as Portion 112); and
(2) Portion 76 of Rem Ext of Portion 2 (which I will refer to as Portion 76).
Feb 2009: the Surveyor General approves the sub-division.
March 2009: deed of sale of Portion 76 to D de Klerk on behalf of a company to be formed:
(3) subject to a suspensive condition that township rights would be granted within 18 months; and
(4) DSR would acquire 20% of the share capital of the company which would hold the property (Hammanskraal Residential Properties (Pty) Ltd).
Sept 2009: Edelstein instructs a valuer to value the properties; not Portion 76 but of another Portion. And see 17.2.
11 March 2010: DSR executes his will:
(5) Daughter Rene Zerf to get R250 000;
(6) Daughter Natalie de Klerk to get a farm valued at R18 million (is D de Klerk Natalie’s husband? Not clear from the judgment);
(7) Son TA Rens (TAR) to get Rem Ext Portion 2. (As will appear later, the issue in the case was whether this referred to the entire farm or only Portion 112). He records his intention during his lifetime to transfer the property to TAR and insofar as he achieves this it must be seen as an advance on TAR’s inheritance.
1 June 2010: deed of sale (the “second deed”) signed but nothing came of it. D de Klerk signs on behalf of DSR (how?)
25 June 2010: DSR dies. Executors appointed: TAR, Edelstein & D de Klerk.
26 Sept 2010: suspensive condition not met; contract null and void.
2 Dec 2010: the deed of sale drafted and finalised.
25 Nov 2011: registration of title and servitudes in favour of Eskom.
25 Nov 2011: subdivision registered and certificate of registered title registered.
6 Jul 2012: first and final liquidation and distribution in the estate filed and D De Klerk resigns. Had he not resigned, Edelstein would have been compelled to take action against him. The judgment does not explain the reason for this statement.
6 Jul 2012 Edelstein gets an opinion from Fine SC. He does not tell Fine about the second contract or that the subdivision had not been finalised at time of the will.
Arguments
TAR contended that Portions 112 and 76 (ie the whole of Rem Ext of Portion 2) were bequeathed to him, whereas Edelstein contended that Portion 76 should fall in the family trust (presumably the residual heir)
The court identified what it called a factual matrix summarising the inferences that the protagonists urged upon the court, based on the facts and circumstances. Based on these:
Edelstein contended that, at the date of execution of the will, Portion 76 was already sold. The time for fulfilment of the suspensive condition had not yet lapsed and the deed of sale was in force. He contended that the testator would have seen it this way, especially since he would receive a 20% shareholding;
Edelstein contended further that in September 2009 DSR had instructed him to transfer Portion 112 (ie excluding Portion 76) to TAR as an advance on his inheritance. The transfer was delayed by the Eskom servitude registration. The inference he placed before the court was that the legacy (see 6(3)) was to cover the eventuality that the donation had not been concluded by DSR’s death ie the donation related to the same property as in the will;
TAR contended that DSR would not have wanted him to inherit only R4 million (Portion 112) as opposed to R9 million (both Portions). However, Rene and Natalie disputed this and pointed to the disparity of their inheritances.
TAR contended further that DSR was an astute businessman who would have well understood the tenuous nature of the suspensive condition.
Given the competing interpretations of the will, Edelstein contended for rectification on the grounds that the provision in the will was ambiguous and that the factual matrix pointed to his interpretation.
The finding
As to rectification, the court stated that rectification is an equitable remedy, the purpose being to give effect to the true intention of the testator in the case of a will. The onus is on the applicant for rectification to establish, on the balance of probabilities, firstly that the alleged discrepancy between expression and intention was a mistake; and secondly what the testator really meant to provide. In the present matter there was no ambiguity, and therefore no room for rectification.
Edelstein contended that the will must be interpreted according to Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] (4) SA 593 (SCA). The court rejected this contention on the grounds of the difference between a contract and a will. A contract offers the parties the opportunity to explain clauses. A testator is beyond reach, and so the correct approach in the case of a will where, as here, the testator’s words are clear from the plain grammatical wording is to have regard to the material facts and circumstances known to the testator when he drafted the will. The court cannot interpret the language of the will to give effect to what the testator may have intended but has not expressed at all. The court must put itself in the position of the testator – the armchair rule. Had DSR not wanted TAR to inherit Portion 76 if the sale fell through, he could have stated as much.
The “second deed” (see 7), had “popped up” as a desperate attempt by D de Klerk to keep the original deed of sale alive and thus Portion 76 out of the picture. The court noted that D De Klerk had drafted and signed the “deed” on behalf of DSR and he, of course, was the person who stood to benefit from it.
Edelstein stated on affidavit that DSR had instructed him to exclude Portion 76 in the will but that he had omitted to do so. TAR denied this and provided evidence in support of his contention.
In the event the court found for TAR and indicated some displeasure with Edelstein’s conduct.
