The Kimberley High Court recently handed down judgment in the matter of Mokgoro N.O. // The Master of the High Court, Kimberley [2025] ZANCHC 60 (1 August 2025).
The applicants were in pursuit of an order to compel the Master of Kimberley (the First Respondent) to accept the will of Jennifer Yvonne Mokgoro (the testatrix), a Constitutional Court Justice who was no longer in active service, who passed away during 2024.
The applicants made application to the court under section 2 (3) of the Wills Act 7 of 1953 (“Wills Act”) which reads as:
“if a court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 1965 (Act 66 of 1965), as a will although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1).”
The First Applicant is both the appointed executor of the testatrix’s estate and the son of the testatrix. The other applicants are the descendants of the testatrix who stood to benefit from the estate of the testatrix. The Second Respondent, who was the partner of the testatrix, challenged the will.
The Testatrix requested the services of Capital Legacy Fiduciary Services (Pty) Ltd (the Third Respondent) to draft her will. The Testatrix signed the will using her electronic signature and requested that witnesses to the will sign in designated spaces thereafter.
The testatrix had two wills: one drafted in 2014 (“the 2014 will”) and another in 2021 (“the 2021 will”), but the second will drafted differed in respect of distribution of the testatrix’s estate. The Second Respondent was the sole beneficiary of the immovable property in the 2014 will. The 2021 will, however, distributed the ownership of the immovable property in the estate between the Second Respondent and the Applicants. It must be noted that the Second Respondent did not deny that the will drafted and executed in 2021 is the final will and testament of the testatrix.
The Second Respondent challenged the will on the following technical grounds:
- The Electronic Communications and Transactions Act 25 of 2002 (“ECTA”) does not apply to the Wills Act.
- Section 4 (4) of ECTA read with Schedule 2 of such Act prohibits the execution, retention and presentation of a will or codicil by way of electronic signature. (This misconstrues the true test as stated in section 4 (4) of ECTA comment from the judgment)
- That the Wills Act does not make provision for an electronic signature, only for a written signature or mark.
- There apparently was no compliance with the required formalities as set out in section 2 (1) (a) of the Wills Act.
- The signature of the testatrix was not executed in the presence of the witnesses to the will. That the Testatrix and witnesses appended their signatures on the will on different days.
The court considered the points raised by the Second Respondent in respect of section 4 (3) and section 4 (4) of ECTA and these sections do not stop the applicants from raising section 2(3) of the Wills Act.
The applicants did not contend that a will cannot be executed by way of an electronic signature. On the contrary, they are aware that the will does not comply with the formalities of the Wills Act but nevertheless used section 2 (3) of the Wills Act to substantiate their claim that the 2021 will is the last will and testament of Jennifer Yvonne Mokgoro.
The courts pointed out that in the Van der Merwe v the Master 2010 (6) SA 544 (SCA) case that, by inserting section 2(3) into the Wills Act, the legislature intended that failure to abide by the formalities of the Wills Act, should not frustrate the last wishes of the testators.
The case of Smith v Parsons [2010] 4 All SA 74 (SCA) sets out the requirements to determine if a will complies with section 2 (3). In terms thereof, the document needs to be drafted or executed by the person concerned; that drafter of the document must have died in the interim; and that such person must have intended that document to be his or her will.
The main issue in contention was whether the will was drafted/executed by the testatrix. As stated above, the testatrix did not draft the 2021 will in her own capacity but she directed/instructed the Third Respondent to amend her previous will to her current wishes.
This is confirmed by an email that was sent by the testatrix to the witnesses of her will. In that email, she accepted that this was her last will and testament and is confirmed by the following passage: “Please do not see my humble request as a burden because I have done all I can to make my last will and testament as fair and uncomplicated as I can. That is why it is so brief.” This illustrated to the court that, although she did not physically draft the will herself, she was very much aware of the 2021 will’s contents and could competently execute same.
The courts dwelled on the meaning of drafting and executing, as there is no definition of such in the Wills Act. As such, the words have to be used in their ordinary sense, with reference to section 2 (3) of the Wills Act, otherwise the section would be non-functional. The ordinary meaning of the word “execute” still encompasses the testatrix’s actions and this was not found to be a bar to the utilization of section 2(3) of the Will Act.
With the above in consideration, the court stated that the will conforms with section 2(3), as it was the intention of the testatrix to be her will, it was common cause that the testatrix died after the will was executed and although the testatrix instructed the Third Respondent to draft her will, it was seen as if she drafted it herself. The court therefore found in favour of the Applicants. This matter may have wide ranging implications on the disputes regarding the validity of wills. While the judgment may influence the handing down of more pragmatic judgments in the future, issues of fraud can arise. Legal practitioners should be aware that arguments like those in Mokgoro have succeeded and may succeed again.
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