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					          1ST RESPONDENT
JOCOMINA MAGARETHA FOUCHE
(born DRYER)						 2ND 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 17th 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.  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.  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.  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.

[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