Source:

South African Law Reports, The (1947 to date)/CHRONOLOGICAL LISTING OF CASES – January 1947 to November 2023/1991/Volume 1: 1 ­ 295 (January)/WILL NO
v THE MASTER AND OTHERS 1991 (1) SA 206 (C)

URL:
http://jutastat.juta.co.za/nxt/gateway.dll/salr/3/9247/9248/9269?f=templates$fn=default.htm

WILL NO v THE MASTER AND OTHERS 1991 (1) SA 206 (C)

1991 (1) SA p206

Citation 1991 (1) SA 206 (C)

Court Cape Provincial Division

Judge Tebbutt J and CONRADIE J

Heard September 6, 1989

Judgment October 24, 1989

Annotations Link to Case Annotations

Flynote : Sleutelwoorde
Will ­ Construction of ­ Provision in joint will of a husband and wife F that 'our joint estates, or the estate of the survivor of us, as the case
may be, shall devolve upon our children, or their issue by representation per stirpes' ­ Expression 'our children' can mean those children
'belonging to us', ie 'born of our union' or they can mean those 'belonging to us' in the sense of 'those children which are mine G and those
children which are yours' ­ In a joint will such as the present, former meaning the more natural one ­ Presumption that in such a will the children
of husband and wife by their present marriage as well as those of their former marriages are to be included found to be questionable ­ Provision
in question not clear and unambiguous ­ H Evidence of surrounding facts and circumstances admissible to arrive at true intention of testators ­
Expression 'our children' in said provision held to mean only the children born of the marriage of the testator and testatrix.
Will ­ Rectification of ­ Will can be rectified by the deletion, addition or substitution of words ­ Illogical to restrict rectification to the deletion of
words only ­ Extrinsic evidence of testator's I intention admissible to rectify will, including evidence of surrounding facts and circumstances
present to testator's mind when making the will ­ Evidence of declarations of intention by testator also admissible to show that an error has
occurred ­ Court finding that if it was wrong in its interpretation of expression 'our children' in a joint will of a J husband and wife as meaning
only the children born

1991 (1) SA p207

A of their union and not children born of the former marriages, will nevertheless to be rectified so as to reflect that intention.
Headnote : Kopnota
The words in a will 'our children' do not always clearly and unambiguously mean 'all our children of whatever marriages'. They can mean both
those children 'belonging to us' in the sense of those 'born of our union' or they can mean those 'belonging to us' in the sense of B 'those
children which are mine and those children which are yours'. In fact, in a joint will of a husband and wife which provided that 'our joint estates,
or the estate of the survivor of us, as the case may be, shall devolve upon our children, or their issue by representation per stirpes ', the
former meaning would be the more natural one.
The Court accordingly held that there was some difficulty in accepting the existence of the assumption and presumption set out in Corbett,
Hahlo, Hofmeyr and Kahn The Law of Succession in South Africa at 551: C 'Where a testator who has children of more than one marriage
appoints his "children" as his heirs, it must be assumed that he means the children of all his marriages. Similarly, where husband and wife by
mutual will confer benefits upon "our children" and one or both have children by former marriages, the presumption is that the children of their
present marriage as well as of all their former marriages are to be included.' The cases cited in support of the statement that there is such a
presumption throw little light on why such a presumption should D be thought to exist.
The Court held in the instant case that the words 'our children' appearing in the provision set out in the first paragraph above did not clearly
and unambiguously refer to all the children of all marriages by the testating parties, that evidence of surrounding facts and circumstances was
admissible to arrive at the true intention of the testating parties and would also be admissible to rebut the presumption against disinherison, and
that the evidence of the surrounding facts and E circumstances adduced in the present case resulted in the Court having to conclude that the
expression 'our children' was a reference to the six children born of the marriage of the testating parties and not to children born of previous
marriages.
The Court can rectify a will by the deletion, addition or substitution of words and it is illogical to restrict rectification to the deletion of words
only.
Van Zyl v Esterhuyze NO en Andere 1985 (4) SA 726 (C) approved and applied.
Extrinsic evidence of a testator's intention is admissible to rectify a F will. This would, of course, include evidence of the surrounding facts and
circumstances to show what must have been present to the mind of the testator when he made his will. The Court would also be able to
receive evidence of declarations of intention by the testator in order to show that an error has occurred.
The Court held, applying the above principles, that, even if it was wrong in its interpretation of the aforementioned provision of the will G in
question, that, having regard to the surrounding facts and circumstances adduced in evidence, it had been established that it was the intention
of the testator and testatrix only to benefit the six children born of their marriage and that the draftsman of the will, by the use of the words
'our children', had erred by not making that intention clear by either not stating 'our six children' or, preferably, H adding after the words 'our
children' the names of the six children. It was accordingly ordered that the will be rectified by the addition after the words 'our children' in the
relevant provision of the names of the six children born of the marriage of the testator and testatrix.
Case Information
Application for an order setting aside the decision of the Master upholding an objection to the first and final liquidation and distribution account
in a deceased estate. The facts appear from the reasons for judgment.
I J J Gauntlett SC (with him R G Buchanan ) for the applicant.
No appearance for the first respondent.
L S Melunsky SC for the second and third respondents.
Cur adv vult.
© 2018
J Juta and Company
Postea (Pty) 1989).
(24 October Ltd. Downloaded : Fri Nov 24 2023 22:34:31 GMT+0200 (South Africa Standard Time)
 No appearance for the first respondent.
L S Melunsky SC for the second and third respondents.
Cur adv vult.
J Postea (24 October 1989).

1991 (1) SA p208

Judgment
Tebbutt J: In terms of a joint will a husband and wife provided that A

'our joint estates, or the estate of the survivor of us, as the case may be, shall devolve upon our children, or their issue by representation per stirpes '.

They had six children; the husband had two by a previous marriage. Do the words 'our children' mean their six children or were they meant to B
include also the two children of the husband's previous marriage? That is the question for decision in this case.
Francis John Wilson, to whom I shall refer as the testator, was born in the United Kingdom in 1905. He married Emily Ethel Wilson (born
Appleton) in 1924. They had two children Jean Christina, born in 1932, and Maria Joyce, born in 1934. They are second and third respondents C
respectively in this matter. The testator and Emily Wilson separated in 1945 and he emigrated to South Africa in 1950. He he formed a liaison
with Betty Rosalind Taylor, to whom I shall refer as the testatrix, and they had six children. In 1955 the testator and Emily Wilson were divorced.
It was only in 1968, however, and after the birth of all of D their six children that the testator and the testatrix were married, secretively it
seems, in Swaziland. They left a joint will dated 30 April 1983.
It provided in clause 32 thereof that in the event of the testator predeceasing the testatrix and her surviving him by seven days he
bequeathed (a) his interest in a company known as Coney Glen Hotel (Pty) Ltd to the testatrix and (b) the residue of his estate to the
testatrix E subject to her paying a bequest price of 90% of the value of such residue. The bequest price, he provided
'shall devolve upon and be awarded to my children or their issue per stirpes...'

(my emphasis). In clause 3 the will provided that in the event of the testatrix predeceasing the testator and his surviving her by seven days F
she bequeathed (a) her interest in Coney Glen Hotel (Pty) Ltd to the testator provided he pay a bequest price of 100% of the value of this
bequest and (b) the residue of her estate to the value of such residue. Both bequest prices she provided
'shall devolve upon and be awarded to my children or their issue per stirpes...'

G (my emphasis). Clause 4 of the will reads as follows:

'We will and direct, however, that should we die within a period of seven days of each other, or should the survivor of us die without leaving a further valid will
made after the death of the first dying of us, then in either of these events, our joint estates or the estate of the survivor of us as the case may be, shall devolve
upon our children, H or their issue by representation per stirpes '

(again my emphasis). The testatrix died in 1984 and the testator on 6 July 1986 leaving no further will, so that it is the second of the two
events contemplated in clause 4 of the joint will that has occurred.
The applicant, who is the executor in the estate of the testator, in his first and final liquidation and distribution account, reflected the I six
children born of the marriage between the testator and the testatrix as the beneficiaries pursuant to clause 4 of the will. To this the second
and third respondents objected to the Master of this Court, who is the first respondent in these proceedings ('the Master'), on the basis that
they, as the children of the testator and his former wife, also fell within the class of beneficiaries described as 'our children' J in clause 4.

1991 (1) SA p209

TEBBUTT J
A The Master sustained the objection in these terms:
'I have carefully considered the matter and have come to the conclusion that although the will is a joint will it nevertheless becomes only the will of the
survivor should he or she die without making a further valid will. In this context then and in view of the presumption against disinherison which exists in law I am
of the opinion that the words "our children" used in the will must be interpreted to B mean all the children of the survivor. It is the actual language used in the will
that must be looked at rather than what was allegedly intended at the time it was drafted.

Under the circumstances the aforesaid objection is upheld by me and you are directed to amend the account in accordance therewith in
terms of s 35(9)....'
The applicant has now brought an application in terms of s 35(10) of C the Administration of Estates Act 66 of 1965 for an order setting aside
the decision of the Master and for an order either rectifying the will by the addition, after the words 'our children', of the names of the six
children born to the testator and testatrix or, alternatively, declaring that on a proper construction of the will the words 'our children' refer only
to the six children and not to the second and third respondents as D well.
The Master abides the decision of the Court but second and third respondents oppose the application.
In order to consider the approach that should be adopted by the Court in this matter it is, I think, necessary to set out what I conceive to be
the legal principles that should guide the Court in its approach. E Such legal principles are those applicable to (i) interpretation of the will and
(ii) the question of its possible rectification and, for convenience sake, I shall deal with them in that order.
It is, of course, the golden rule in the interpretation of wills that the Court should seek to ascertain the wishes of the testator. They are F of
paramount importance (see Crookes NO and Another v Watson and Others 1956 (1) SA 277 (A) at 298B). It should in the first place attempt to
discover his intention from the language used in the will (see Robertson v Robertson's Executors 1914 AD 503 at 507 and Estate Maree v
Redelinghuis 1943 AD 547 at 551; and the authorities collected in Corbett, Hahlo, Hofmeyr and Kahn Law of Succession in South Africa at G 467
note 31). In considering the language used, the question is not what any words might mean apart from the testator's intention but what the
testator meant by using them (see Leiman v Ostroff and Others 1954 (4) SA 457 (W) at 461E) or as Lord Denning remarked in Re Rowland
(deceased); Smith v Russell and Others [1962] 2 All ER 837 (CA) at 844: H
'... (I)n point of principle the whole object of construing a will is to find out the testator's intentions, so as to see that this property is disposed of in the way he
wished. True it is that you must discover his intention from the words he used; but you must put upon his words the meaning which they bore to him. If his words
are capable of more than one meaning, as they often are, then you must put on them the I meaning which he intended them to convey, and not the meaning
which a philologist would put on them.'

If, therefore, the words used by a testator are clear and unambiguous and no doubt as to the sense in which the testator intended to use
them is raised by any other expressions in the will or by any other circumstances manifestly appearing from the will itself effect must be J given
to those

1991 (1) SA p210

TEBBUTT J
A words. If, however, doubt arises as to what the testator intended by the use of the words, extrinsic evidence is admissible to ascertain his
intention. Corbett J, as he then was, has set out the principles regarding the admissibility of extrinsic evidence in the interpretation of wills with
particular clarity in two decisions in this Court. In Allen and Another NNO v Estate Bloch and Others 1970 (2) SA 376 (C) a t B 380A ­ E (a
passage approved by the Appellate Division in Dison NO and Others v Hoffmann and Others NNO 1979 (4) SA 1004 (A) at 1035G ­ 1036B) he
said:
'Briefly, the position is as follows: basically the duty of the Court is to ascertain not what the testator meant to do when he made his will but what his intention
is, as expressed in his will. Consequently, where C his intention appears clearly from the words of the will, it is not permissible to use evidence of surrounding
circumstances or other external facts to show that the testator must have had some different intention. At the same time no will can be analysed in vacuo. In
interpreting a will the Court is entitled to have regard to the material facts and circumstances known to the testator when he made it: it puts itself in the
testator's armchair. Moreover, the process of applying the D words of the will to external objects through the medium of extrinsic evidence may reveal what is
termed a latent ambiguity in that the words, though intended to apply to one object, are in fact equally capable of applying to two or more objects (known
technically as an "equivocation") or in that the words do not apply clearly to any specific object, as where they do not describe the object or do not describe it
accurately. In both these instances additional extrinsic evidence is admissible in E order to determine, if possible, the true object of the bequest, but, except in
the cases of an equivocation, such evidence may not include extrinsic declarations of the testator's intention.'
© 2018 Juta and Company (Pty) Ltd. Downloaded : Fri Nov 24 2023 22:34:31 GMT+0200 (South Africa Standard Time)
In Aubrey­Smith v Hofmeyr NO 1973 (1) SA 655 (C) at 657E ­ 658B, Corbett J said:
 interpreting a will the Court is entitled to have regard to the material facts and circumstances known to the testator when he made it: it puts itself in the
testator's armchair. Moreover, the process of applying the D words of the will to external objects through the medium of extrinsic evidence may reveal what is
termed a latent ambiguity in that the words, though intended to apply to one object, are in fact equally capable of applying to two or more objects (known
technically as an "equivocation") or in that the words do not apply clearly to any specific object, as where they do not describe the object or do not describe it
accurately. In both these instances additional extrinsic evidence is admissible in E order to determine, if possible, the true object of the bequest, but, except in
the cases of an equivocation, such evidence may not include extrinsic declarations of the testator's intention.'

In Aubrey­Smith v Hofmeyr NO 1973 (1) SA 655 (C) at 657E ­ 658B, Corbett J said:
F 'Generally speaking, in applying and construing a will, the Court's function is to seek, and to give effect to, the wishes of the testator as expressed in the will.
This does not mean that the Court is wholly confined to the written record. The words of the will must be applied to the external facts and, in this process of
application, evidence of an extrinsic nature is admissible to identify the subject or object of a disposition. Evidence is not admissible, however, where its object is
to G contradict, add to or alter the clearly expressed intention of the testator as reflected in the words of the will.... As was stated in Ex parte Estate Stephens
1943 CPD 397, by Sutton J (at 402):
"... (I)n construing a will the object is not to ascertain what the testator meant to do but his intention as expressed in the will."
On the other hand, in addition to receiving evidence applying the H words of the will to the external facts, the Court is also entitled to be informed of, and to
have regard to, all material facts and circumstances known to the testator when he made it. As it has been put, the Court places itself in the testator's armchair.
Nevertheless, the primary enquiry still is to ascertain, against the background of these material facts and circumstances, the intention of the testator from the
language used by him in his will.... If the application of the words I of the will to the external facts reveals what is termed a "latent ambiguity" then additional
evidence may be admitted to remove it. There are two types of latent ambiguity: the first is where the words of the will are equally applicable to two objects and
there arises what is known as "an equivocation"; and the second is where the words of the will are not clearly or definitely applicable to any known subject­
matter. In both these cases further extrinsic evidence may be admitted but it would seem that only in the case of an equivocation (if J at all) may direct

1991 (1) SA p211

TEBBUTT J
A declarations of intention by the testator before, at the time of or after the execution of the will be admitted, and then only when all other aids and evidence
have failed to provide a solution to the problem.'

Extrinsic evidence is therefore admissible where the will reveals a latent ambiguity in that the words may apply to two or more objects (an
'equivocation') or to identify the objects contemplated by the words B used, including potential beneficiaries.
M r Melunsky, who appeared for the respondents, submitted, however, that while surrounding facts and circumstances can be taken into
account where the words used give rise to a latent ambiguity, they cannot be used to create an ambiguity. He relied for this submission on a
passage from Kliptown Clothing Industries (Pty) Ltd v Marine and Trade Insurance C Co of SA Ltd 1961 (1) SA 103 (A) at 108B ­ C where, in
dealing with a latent ambiguity in a contract, Schreiner JA said it must be
'... a real and not a manufactured difficulty in ascertaining the true interpretation of the condition, whether that difficulty is apparent on the face of the policy or
is only made to appear when it is sought to D apply the condition to the facts'.

Mr Melunsky contended that there was no ambiguity in the word 'children'. It normally meant all children of a testator whether of his union with
his spouse to whom he was married at the time of his death or any previous marriages. Similarly, he argued, there was no ambiguity in the words
'our children' in a joint will: they meant all the children of the testator and testatrix whether of their union or of any prior E marriages of either
of them. The Court could also not resort to the 'testator's armchair' approach. Its first duty was to construe the will. The procedure to be
adopted was accordingly not first to ascertain the surrounding circumstances and with that knowledge to approach the will but first to construe
the will. If the meaning of the words used was F clear, surrounding circumstances could not be looked at to throw a doubt upon the meaning or
to give the will a different meaning (see Povall v Barclays Bank DCO 1965 (3) SA 322 (C) at 324E ­ G). He further relied on the following
statement by Van Zyl J in Campbell v Daly and Others 1988 (4) SA 714 (T) at 718B ­ D: G
'It is hence possible for a testator to express a specific intention by the use of certain words in his will which intention may differ from what he actually had in
mind. The Court is, however, bound by the expressed intention and is not empowered to look beyond such intention with a view to establishing what may be
believed to have been the testator's actual intention. See Cuming v Cuming and Others 1945 AD 201 H at 206 ­ 7; Bell v Swan 1954 (3) SA 543 (W) at 550; Ex
parte Eksekuteure Boedel Malherbe 1957 (4) SA 704 (C) at 710. It follows that evidence tendered to prove the actual wishes of the testator are in conflict with or
differ from his clearly and unambiguously expressed intention is not admissible. See De Klerk v Estate De Klerk and Others 1950 (3) SA 62 (T) at 65. Only if the
words in question are ambiguous or uncertain may recourse be had to extrinsic evidence.'

I Mr Melunsky submitted that the accepted meaning of 'my children' or 'our children' was all children, of whatever marriages the testator or
testatrix may have had.
With Mr Melunsky's contentions as to what the legal principles are, I have no fault to find. I do not agree, however, that the words 'our
children' clearly and unambiguously mean 'all our children of whatever J marriages'.

1991 (1) SA p212

TEBBUTT J
A They can, in my view, mean both those children 'belonging to us' (The Shorter Oxford Dictionary sv 'our') in the sense of those 'born of our
union' or they can mean those 'belonging to us' in the sense of 'those children which are mine and those children which are yours'. In fact, in a
joint will such as the present, the former meaning would, in my opinion, be the more natural one. Mr Melunsky had, indeed, to rely for B his
submission that all the children were included in the meaning of 'our children' on the presumption referred to in Corbett et al (op cit at 551) and
relied on by the Master in upholding the respondent's objection to the applicant's account, viz:
'Where a testator who has children of more than one marriage appoints C his "children" as his heirs, it must be assumed that he means the children of all his
marriages. Similarly, where husband and wife by mutual will confer benefits upon "our children" and one or both have children by former marriages, the
presumption is that the children of their present marriage as well as of all their former marriages are to be included.'

(My emphasis.)
D I must say immediately that I have some difficulty with the assumption and particularly with the presumption referred to in the passage
cited from Corbett et al. The cases cited by the authors in support of their statement that there is such a presumption throw little light on why
such a presumption should be thought to exist. Most of them refer to the E early case of Du Preez v Du Preez (1881) 1 SC 259. There A and B
each having children by a former marriage, married in community of property and begot children. In a joint will certain property was left to 'our
children'. It was held that these words referred to the children of the three marriages. The matter was raised by way of exception. The
judgments of three members of the Full Court (Dwyer J, Smith J and F Jacobs J) are extremely short and give no reasons for the opinions
expressed. Dwyer J felt that the question had been improperly raised in an exception and that the Court had 'no jurisdiction to decide it' as the
surrounding circumstances had not been put before it ­ which suggests that the words are not clear ­ but as his Brethren thought it ought to
be decided he said simply:
G 'I think the words refer to the children of the three marriages.'

Smith J said 'I am of the same opinion', but added that he would not say that, if the question had been raised in another way, the Court might
not have come to some other decision. And Jacobs J also said 'I am of the same opinion'. As no reasons for their opinions are given these H
expressions can hardly be said to create a presumption that 'our children' means 'all our children by all our marriages'. Du Preez v Du Preez was
cited as the basis for the decision in Russouw's Executors and Heirs v Russouw's Executor (1894) 11 SC 283 where the Court held that as the
testator's words were 'all our children' it was a fortiori the position that all the children of whatever marriages was intended. In I Smith v Smith
and Others 1913 CPD 869, where Du Preez v Du Preez was also referred to, the Court based its judgment to a large extent thereon that the
testator and testatrix must have intended to include their children by former marriages in 'our children', as these lived and farmed on the same
farm as their own children and were part of the family. This was a surrounding fact to which the Court had regard. This J decision, too, can
hardly be the basis for the presumption referred to by

1991 (1) SA p213

TEBBUTT J
A Corbett et al. The other cases cited at 551 do not really assist either. Indeed in Els and Others v Els and Others (1906) 27 NLR 482 where
Du Preez v Du Preez was also followed by the majority of the Court, Beaumont J gave a dissenting judgment stating that when he read the will
(containing the words 'our children') before being apprised of the surrounding facts, in which it appeared that both husband and wife had been
married before, he never contemplated the existence of other B previous marriages.

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basis of the presumption referred to by Corbett et al. It is and remains, however, only a presumption which can be rebutted by evidence to the
 A Corbett et al. The other cases cited at 551 do not really assist either. Indeed in Els and Others v Els and Others (1906) 27 NLR 482 where
Du Preez v Du Preez was also followed by the majority of the Court, Beaumont J gave a dissenting judgment stating that when he read the will
(containing the words 'our children') before being apprised of the surrounding facts, in which it appeared that both husband and wife had been
married before, he never contemplated the existence of other B previous marriages.
It is, of course, true that there is a presumption against disinherison of children and in favour of their equal treatment which may be the true
basis of the presumption referred to by Corbett et al. It is and remains, however, only a presumption which can be rebutted by evidence to the
contrary.
It follows that I am of the view that, as the words 'our children' do C not clearly and unambiguously refer to all the children of all marriages
by the testating parties, evidence of surrounding facts and circumstances is admissible to arrive at the true intention of the testating parties
and would also be admissible to rebut the presumption. Both of these would admit of the 'testator's armchair' approach which Viljoen AJA, as he
then was, in Dison's case supra at 1036G said would D include
'... evidence to supplement, and enlighten the Court on, matters alluded to and obliquely or incompletely dealt with in the will, which is admissible because it
properly places the Court in the armchair of the testator, evidence of the testator's health, his own life expectation, his age, the composition of his family and
other circumstances of which he was aware and which were uppermost in his mind E at the time of the making of the will would, in my view, on the same score
be admissible'.

The relationship of a testator to his family and those whom he chose as his beneficiaries would also be relevant matters.
Indeed it is always possible to identify the beneficiaries under a will: or as stated by Corbett J in Allen's case and Aubrey­Smith's case F supra
'to identify the subject or object of a disposition', even before any question of latent ambiguity arises. As stated by Corbett et al (op cit a t
479):
'Before the dispositions of the testator can be carried out "words must be translated into things and facts, with the result that it is necessary to consider their
association with things and facts". Where the testator has conferred a benefit upon his "wife" or "cousin Jim", G the surrounding circumstances have to be looked
at before the beneficiary can be identified.'

Insofar as rectification of a will is concerned, a Court will rectify a will where, due to a mistake, be it on the part of the testator himself or on
the part of the draftsman, the will does not correctly represent the intentions of the testator (see Corbett et al (op cit a t H 499)). The
applicant for such rectification must establish (a) that the alleged discrepancy between expression and intention was due to a mistake and (b)
what the testator really meant to provide (see Estate Levitas v Levitas' Minors 1962 (4) SA 385 (T) at 389; Welldon v Andrews and
Others 1982 (2) SA 44 (N) at 44H ­ 45C). The onus, which must be satisfied on a balance of probabilities, is on the party seeking the I
rectification (see Rens v Esselen NO and Others 1957 (4) SA 8 (T) at 13H; Welldon v Andrews and Others (supra at 45B)).
Whether a will can be rectified by the addition or insertion of words into it has been the subject of some controversy. It has long been
considered permissible to rectify a will by deleting words from it if it is proved that they appeared there by mistake and the will therefore did J
not express the

1991 (1) SA p214

TEBBUTT J
A testator's true intention. The same approach has not always been taken in regard to rectifying a will where words are to be inserted into it.
In this Division in Ex parte Stephens 1943 CPD 397 the Court concluded that rectification by insertion as opposed to deletion could not be
ordered. A similar approach was adopted by Vieyra J in Ex parte Van der Spuy NO 1965 (4) SA 336 (T) and by De Beer J in Ex parte Botha 1943
OPD B 171. In Aubrey­Smith v Hofmeyr NO (supra at 659E ­ 663H) Corbett J in an obiter dictum came to the same conclusion. The learned
Judge's rationale was, in brief, that words to be deleted were not intended to be part of the will and were not included animus testandi. This
line of authority has, however, not been followed in a large number of other cases. Vieyra C J's judgment in Ex parte Van der Spuy (supra ) was
overruled on appeal by a Full Court of the Transvaal Provincial Division (see Ex parte Van der Spuy NO 1966 (3) SA 169 (T) especially at 176A ­
B). The latter judgment was followed in Ex parte Dison 1968 (3) SA 368 (W) and Van Rooyen v Die Meester en Andere 1982 (3) SA 486 (W).
In the Eastern Cape, Addleson J and Smalberger AJ (as he then was) D also held that a will could be rectified by the insertion of words as
well as by their deletion (see Botha and Others v The Master and Others 1976 (3) SA 597 (E)). Corbett J's judgment was carefully analysed by
Addleson J who said that '... his (ie Corbett's) carefully reasoned grounds... obviously warrant respectful consideration'. At 603A ­ D Addleson J
said:
E 'One may at this stage enquire whether it is logically justifiable to differentiate in principle between rectification by way of the deletion of words, and
rectification by the insertion of words, in a will. The omission of material words by a testator would seem to be just as much an instance of making a purported
bequest without animus testandi, as the insertion by him of words without such animus. In both cases the phrase or disposition recorded in the will is defective by
reason of the F failure to achieve what was intended; and rectification by way of insertion achieves no different a consequence than rectification by deletion.
Insertion of words in error in a will is no less a mistake by a testator than the omission by him of words; and where a Court feels itself entitled to rectify by
deletion, it may be achieving as far­reaching a result in that particular case as it may achieve in another case by inserting words in a bequest. With great
respect G therefore it seems to me to be untenable to hold that there is a difference in principle between rectification by deletion and rectification by insertion
and that the former may justify departure from the parol evidence rule and the latter not.'

And at 604A ­ C, he said:

'Undoubtedly the Courts should not, as a matter of policy, encourage a H situation in which proceedings to rectify wills on spurious or fraudulent grounds will
proliferate. Equally, it seems to me, the Courts should not, as a matter of policy, bar the door to a beneficiary who has lost his inheritance by reason of an
incontestable mistake on the part of a testator in the drawing of his will. The right to introduce extrinsic evidence of the testator's intention already exists to a
limited degree on the authorities referred to in the judgment; and in my
I respectful view considerations of policy should extend that right to cases where it is clear that the testator did not give effect to his intention, rather than
exclude such evidence with the result that there is not only manifest injustice, but also that the testator's true intention is frustrated. It would seem to me to be
contrary to public policy to refuse to admit evidence of a testator's intention where, for example, there is unimpeachable evidence that he intended to bequeath
R100000 to an heir and the will through a typist's unnoticed error, J recorded the bequest as one of R1000.'

1991 (1) SA p215

TEBBUTT J
A I find the reasoning of Addleson J persuasive.
The judgments in Botha and Others v The Master and Others (supra) and in Ex parte Van der Spuy (supra ) have been followed in Ex parte
Blasberg 1979 (2) SA 589 (SWA) and in Natal in Welldon v Andrews and Others (supra at 45B ­ C). They have also been followed in this Division
in Van Zyl v Esterhuyze NO en Andere 1985 (4) SA 726 (C) where Burger J and Van B Heerden J concluded that the Court was not bound by
Stephen's case and that the approach by Corbett J was too restrictive, and that the reasoning in Van der Spuy's case, Botha's case and
Blasberg's case was correct and should be followed. It was held that in line with the decision in the other Divisions of the Supreme Court, this
Division could rectify a will by the deletion, addition or substitution of words, C it being illogical to restrict rectification to deletion only. The
judgment in Van Zyl's case has subsequently been followed in an unreported judgment in this Court by Selikowitz J and Conradie J in Wright v
Pierpont and Rindell delivered on 2 November 1987. I too agree with respect that the decision in Van Zyl's case is correct and should be
followed.
Extrinsic evidence of a testator's intention is admissible to rectify D a will (see Botha's case supra at 604 ­ 5). This would, of course, include
evidence of the surrounding facts and circumstances to show what must have been present to the mind of the testator when he made his will.
The Court would also be able to receive evidence of declaration of intention by the testator in order to show that an error has occurred E (see
Aubrey­Smith's case supra at 659G; Van Rooyen v Die Meester en Andere (supra at 492G ­ H)). In Van der Spuy's case supra the Court
obviously allowed evidence regarding the execution of the will including that of the instructions given by the testatrix in that case to the
attorney who drew the will and in Botha's case supra at 604D Addleson J said: F
'Indeed parol evidence of a mistake in a will may be based on unimpeachable written evidence such as the notes of the attorney who was instructed to draw
the will....'

I turn then to the evidence of what the salient facts and circumstances are.
After the testator emigrated to South Africa in 1950 leaving Emily G Wilson and the second and third respondents in England, second
respondent in 1954 emigrated to the United States of America. She never saw the testator again. They 'did not communicate very frequently'
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respondent GMT+0200 moved
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and sold
her business and left no forwarding address. She tried unsuccessfully in H 1984 and 1985, nine or ten years later, to trace the testator. For
 the will....'

I turn then to the evidence of what the salient facts and circumstances are.
After the testator emigrated to South Africa in 1950 leaving Emily G Wilson and the second and third respondents in England, second
respondent in 1954 emigrated to the United States of America. She never saw the testator again. They 'did not communicate very frequently'
but 'nevertheless maintained contact until about 1975' through telephone calls and letters. Second respondent thereafter moved home and sold
her business and left no forwarding address. She tried unsuccessfully in H 1984 and 1985, nine or ten years later, to trace the testator. For
about 11 years prior to his death and eight years prior to the will being drawn, the testator had no contract whatsoever with the second
respondent and obviously had no idea of her whereabouts or circumstances. The third respondent and Emily Wilson went to Australia and then
to the United States in 1955, returning to the United Kingdom I in 1958. They communicated regularly with the testator who visited them from
time to time until 1964. Thereafter third respondent never saw him again and lost contact of any kind with him after the family residence was
demolished in 1975. He, too, therefore, had no contact with third respondent for eight years prior to the drawing of the will and for the J last 11
years of his life and obviously had

1991 (1) SA p216

TEBBUTT J
A no knowledge either of her whereabouts or circumstances. Neither second nor third respondents had any knowledge of the testator's South
African family. Of the South African family, the testatrix knew of the testator's English family and she told one of their children in confidence
about two and a half weeks before her death that the testator had previously been married but that his former wife had died and that B they
had one daughter. The testator never told her of these facts. One other child in 1981 found the testator's passport and saw that it indicated
his marital status as a divorcee. She mentioned this to the testatrix who asked her not to mention it to anyone and she complied with this
request. The testator never told her that he had been C previously married or that he had two children of that marriage and she never knew of
this until the objection to the estate account was lodged by second and third respondents which was also when the other children first got to
learn of the latter's existence. Given, as it is, under oath, this evidence must be accepted despite disputatious expressions of doubt as regards
thereto by the respondents. Moreover, even after his D marriage in 1968, he did not tell the second and third respondents about it, despite the
fact that he was still then communicating with them. It would seem therefore that on the probabilities he had created a new life with a new
family in South Africa and wished to keep the existence of it from second and third respondents and their existence in turn from his children in
South Africa. He had also built up for himself, with the E testatrix, a new estate in South Africa.
Placing oneself in the testator's armchair, therefore, it seems that he, at the time the will was drafted, obviously wished to benefit his six
children with the testatrix. As to the second and third respondents he had long before separated from them; he did not know of their F
whereabouts nor what their circumstances were, ie whether they were financially well­off or not; nor indeed did he even know whether they
were alive or dead. Having regard to these facts and that he had created a new life with a new family in South Africa, I am of the view that the
applicant, on behalf of the six children of the testator and testatrix, has shown that it is probable that the testator did not intend that the G
second and third respondents should be included among the beneficiaries. Furthermore, sitting as it were in the testatrix's armchair, that is, in
my opinion, a fortiori, the position.
It is nowhere suggested that the testatrix knew or had any contact whatsoever with second and third respondents. Even though, as the
Master would have it, the will is now technically to be seen as the testator's H will, at the time it was drawn it was the joint will of the testator
and testatrix, who also signed it, and there is no reason, nor has any reason been suggested, why she should wish to see the second and third
respondents benefit equally with ­ and at the expense of ­ her own children from her marriage to the testator in the estate that they had
accumulated together.
I Should there be any doubt as to this, however, there is certain other evidence which, in my view, makes it clear that on a balance of
probabilities it has been established that the testator and testatrix did not intend to include the second and third respondents among 'our
children' as the beneficiaries in the estate. This is the evidence of Mrs Irene Sell who took the instructions for the drafting of the will J and of
D'Arcy Maynier

1991 (1) SA p217

TEBBUTT J
A who drafted it. Their evidence is admissible in regard to the rectification that is sought (see Aubrey­Smith's case supra at 659G; Van Rooyen
v Die Meester en Andere (supra at 492G ­ H); Botha's case supra at 604 ­ 5).
Mrs Sell and Maynier were both employees of Barclays Bank in Port Elizabeth when the will was drawn up and signed. Mrs Sell travelled to
Knysna, where the testator and testatrix were then living, to give them B financial advice and there on 15 March 1983 took their instructions
for their will. These she recorded in her handwriting on a standard form used by Barclays Bank headed: 'Instructions for the preparation of a
will.' The original form is an exhibit before this Court. It contains a number of questions to which the testator and testatrix furnished replies to
Mrs Sell. These include formal particulars such as the C parties' full names, their address, their dates and places of birth, identity numbers and
the fact that they were married according to them under 'British law'. Questions 5(c), (d) and 6 are important. In question 5(c) the information
sought was whether either party was 'widowed' and, if so, they were requested to give the names of the predeceased spouse and the date of
his or her death and in question 5(d) D the query was
'if divorced or previously divorced give (i) names of ex­spouse; (ii) date and place of divorce...'.

Mrs Sell said that the instructions she received from the testator and testatrix were that neither was either widowed or previously divorced and
she therefore drew lines through the spaces provided for the answers E to the questions. Question 6 reads:
'Children.
Give full names and ages indicating which children, if any, are legally adopted or born of different marriages. State whether any children have died leaving
issue.'

F (My emphasis.) In the space provided for the answer to appear only the names of the six children born of the marriage between the testator
and testatrix which Mrs Sell said were the names of their children given to her by the parties.
Mrs Sell also noted the instructions given to her by the parties as to the distribution of their estates. She did so roughly at the time of her G
discussion with them and rewrote them later to set them out in clearer language for the draftsman. Her rough notes read as follows:
'Mr Wilson. Coney Glen Hotel (Pty) Ltd. Shares loan a/cs to wife or failing her equally between the six children or their issue.
Mrs Wilson. Coney Glen to Mr Wilson subject to 100% B/P.
Balance assets to S/S subject to 90% B/P and failing which equally H between children.'

Her written notes read as follows:

'Mr Wilson ­ Coney Glen Hotel (Pty) Ltd. Shares and loan a/c to wife or failing her equally between six children or their issue per stirpes.
Mrs Wilson ­ Coney Glen Hotel (Pty) Ltd. Shares and loan a/cs to husband subject to 100% B/P or failing him to children equally or their I issue per stirpes.
Remaining assets: To surviving spouse subject to 90% bequest price or failing such spouse equally between six children or their issue per stirpes.'

(B/P obviously means 'bequest price'.) Mrs Sell said that the fact that she had written down in the instructions specific reference to 'the six
children' was unusual as she would not normally have done so unless J either the

1991 (1) SA p218

TEBBUTT J
A testator or testatrix or both referred specifically to 'the six children'. Normally, she said, she would only have referred to 'the children'. Mrs
Sell said further:
'There is no doubt in my mind that the instructions given to me by the (testator) and the testatrix at the time were that the six children born of their marriage
and mentioned in para 6... were the only children B they intended to benefit from their will.'

The will was drafted by Maynier from the instructions given to him by Mrs Sell. He said:
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that either the deceased or testatrix were previously married, I drafted the will by referring merely to "my children" and "our children" in paras 2, 3 and 4 of the
will. At the time it was not my practice to insert into the will the names of the children if it was clear from the instructions made available to me that each of the
 Sell said further:
'There is no doubt in my mind that the instructions given to me by the (testator) and the testatrix at the time were that the six children born of their marriage
and mentioned in para 6... were the only children B they intended to benefit from their will.'

The will was drafted by Maynier from the instructions given to him by Mrs Sell. He said:
'As there was nothing in the instructions to alert me to the fact that there were any other children except the six children mentioned in the C instructions or
that either the deceased or testatrix were previously married, I drafted the will by referring merely to "my children" and "our children" in paras 2, 3 and 4 of the
will. At the time it was not my practice to insert into the will the names of the children if it was clear from the instructions made available to me that each of the
children were to receive similar benefits in terms of the will.'

The second and third respondents have put in issue whether the will was D drafted on the strength of the instructions taken down by Mrs Sell
and have denied 'that the original instructions are annexure "A" ', ie the standard form. No basis for these bald denials exists and in the light of
the clear evidence by Mrs Sell and Maynier, supported as it is by the writing on the standard form, it is, I feel, established that such E writing
reflects the instructions given by the testator and testatrix.
The second and third respondents also deny that the notes reflect the intention that only the six children mentioned were to benefit. They
point to the fact that in the rough notes reference is made in relation to 'Mr Wilson' to six children but in relation to the 'Balance assets' F to
'children'. In my view this distinction is completely artificial. No reference is made anywhere on the form to any other children and the reference
to 'between children' in regard to the balance of assets in my opinion means the six children referred to a few lines earlier and no others. Any
doubt as to this, even if a doubt would be said to exist, is, however, cleared up by the rewritten notes. These were done, G according to Mrs
Sell 'within a day or two of taking the original instructions and the details were accordingly fresh in my mind at the time'. Therein it appears that
the remaining assets were to be divided 'equally between six children or their issue'.
Mr Melunsky in his argument also strenuously attacked Mrs Sell's affidavit. He argued that as the testator and testatrix said they had H not
been previously married and were not widowed or divorced she may have assumed that there were no other children and therefore also not
have asked whether there were any children born of different marriages as appears in the portion of question 6 emphasised by me above. Her
affidavit, so he argued, was made five years after taking the instructions and her memory could therefore not be clear as to what I occurred.
The reference to 'six children' may accordingly have been her own impression or interpretation as the names of no other children had been given
to her. Mr Melunsky contended that her evidence was too vague to justify a rectification being granted on the basis of it.
I cannot agree. It is clear from what Mrs Sell was told and wrote down J that the testator made no reference to his previous marriage
whatsoever.

1991 (1) SA p219

TEBBUTT J
A Asked the names and addresses of the children, the testator and testatrix gave only the names of their six children. No mention was
obviously made of the second and third respondents. The Coney Glen asset was dealt with separately from the 'balance' or 'remaining assets'.
Mrs Sell says that with regard to the disposition of the latter she specifically asked them how they should be dealt with. Her B
contemporaneous notes 'between six children' refer to that. No mention was ever made of the second and third respondents and the fact that
the testator specifically chose not to disclose that he was previously married in my view indicates a determination not to disclose the existence
of these two respondents. This is strongly indicative of an intention not to include them as beneficiaries. In any event he did not C know where
in the world they might be or whether in fact they were even still alive. To suggest that he and the testatrix should therefore have had the
desire that they should share equally with their own six children would, in my opinion, be unrealistic and fly in the face of all the probabilities. It
is also not without significance that in subsequent dealings with the Coney Glen property provision was made for D the subdivision of it for the
benefit of the children into six residential erven and not eight.
Mr Melunsky referred finally to the presumption against disinherison and submitted that a testator would not normally want to disinherit his
children. It is, however, as I have said, merely a presumption which can be rebutted by the facts. Many parents have been known to disinherit
their offspring, for whatever reason. In the present case, having regard E to all the facts I have mentioned, I find that it has been established
on the probabilities that the testator and testatrix did not intend the second and third respondents to be included in 'our children' and that the
presumption against disinherison has been rebutted.
In the result, I come to the conclusion that on a true interpretation F of the will the words 'our children' do not include all children born of all
marriages between the testator and testatrix but only the six children born of their union. Should I be wrong in this conclusion, however, I am of
the view that the surrounding facts and circumstances establish that it was the intention of the testator and testatrix only to benefit the six
children of their marriage and that the draftsman of G the will, by the use only of the words 'our children', erred by not making that intention
clear by either not stating 'our six children' or, preferably, adding after the words 'our children' the names of the six children. I thus find that
there has been established on the probabilities the need to rectify the will accordingly.
H As to costs, I am of the view that as the wording of the will was ambiguous, the second and third respondents were entitled to contest
this application, particularly in the light of the Master's ruling that their objection to the liquidation and distribution account was sound and that
they should have been included among the beneficiaries. I therefore hold that as their opposition to the application was not unreasonable,
second and third respondents' costs should come out of the I estate. The applicant who was obliged to come to Court to upset the Master's
ruling is also entitled to have his costs come out of the estate and in view of the fact that the issues both of law and fact were complex those
costs should include the costs of two counsel.
J There will accordingly be the following order:

1991 (1) SA p220

TEBBUTT J
A 1. The Master's decision dated 2 June 1988 upholding the objection by second and third respondents to the first and final liquidation and distribution account
drawn by the applicant and dated 15 February 1988 is set aside.
2. It is declared that on a proper construction of the joint will of the late Francis Joseph Wilson and Betty Rosalind Wilson (born B Taylor) (the parties) the
words 'our children' is a reference to the six children born of the marriage of the parties.
3. The joint will of the parties is rectified by the addition after the words 'our children' of the following names
'Sheila Mary Rosalind Siddle (born Wilson) C Angela Marian Wilson
Anthony Hugh Wilson
Rosemary Monica Bernadette Mills (born Wilson)
Anne­Marie Kathryn Hope (born Wilson)
Mary Christine Landon (born Wilson)'.
4. The costs of the applicant, which shall include the costs of two D counsel, and the costs of the second and third respondents shall be paid out of the estate of
the late Francis Joseph Wilson.

Conradie J concurred.
Applicant's Attorneys: Buchanan, Boyes & Klossers. Second and Third E Respondents' Attorneys: Jan S de Villiers & Son.

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