Common law rules of interpretation

Question 2

Common law rules for interpretation: Ordinary and plain meaning

Answer 2

1. The will (words) = primary source of ascertaining the testator’s intention.
2. Unambiguous = court must give effect
3. Where the words used by the testator bear two or more possible meanings and there is no other evidence suggesting what the testator had in mind.
   *Words should be interpreted according to their usual grammatical (dictionary) meaning
   *Technical terms should be interpreted in terms of their legal-technical meaning.
   *Where words have ordinary and technical meaning, they must be given the ordinary meaning unless the intention of the testator proves otherwise.

Question 3

Presumption concerning ordinary and plain meaning of words

Answer 3

Presumption: every word used by the testator is meaningful.
Courts draw a distinction between situations where a person with legal expertise drafts a will as opposed to where a layperson drafts one.

Question 4

Difference between and ordinary and plain meaning of words by laypersons and by expert

Answer 4

Layperson:
Courts are more inclined to deviate from the ordinary and literal meaning of the words used

Legal expert:
The court assumes that the drafter had a specific intent in mind when employing certain words.
If the legal expert does not follow the instructions of the testator, the court may be inclined to either interpret the will in accordance with the testator’s true intention or to order rectification of the will, depending on the extent of deviation.

Question 5

What are the factors taken into account to determing the meaning of a word

Answer 5

grammer, punctuation and paragraphing taken into account

we consider the meaning at the time the will was made

date of death may have to be considered to determine the meaning of certain words.

Question 6

The iusdem generis rule

Answer 6

(of the same kind or nature)

which applies in statutory interpretation is also relevant to the interpretation of wills.

According to this rule, when a testator lists a series of qualifying words, a meaning is
ascribed to each word having regard to the words preceding and following the word

Question 7

In Ex parte Weir’s Executors on considering meaning of word at time will was made

Answer 7

the Court construed a bequest of ‘my shares’ in a company to include shares acquired by the testator after the execution of
the will.

Question 8

Duty of the courts even if the intention is obscure/unclear

Answer 8

The courts are generally inclined to adopt a construction which makes the bequest effective rather than one which makes it null and void

Question 9

Result of the failure to ascertain meaning

Answer 9

disposition will be struck down as invalid on grounds of uncertainty

Question 10

Charitable bequest:

Answer 10

since charitable bequests are for a public benefit, the courts treat them differently and try to uphold them as opposed to striking them down, even if it means taking a
strained but workable interpretation

Question 11

General rule on clauses

Answer 11

Erased, cancelled and revoked clauses = not considered when interpreting a will.

Question 12

Construction of a will as a whole

Answer 12

Words, expressions and clauses should not be read in isolation but as a whole and against the background of the full will.

The will must be interpreted in terms of the dominant clause (if any) – i.e. secondary clauses must be treated as being subservient to a dominant clause or clauses.

Question 13

Smith v Smith (construction of will as whole)

Answer 13

couple made a joint will and appointed the survivor as the sole and universal heir of the first dying’s property.
But also bequeathed all their immovable property to their children – contradiction.

Court: interpreted the latter clause as imposing a condition which had the effect of entitling the survivor to a life interest in the immovable property and not unfettered ownership of the property.
Where conflict arises between clauses, one should try to reconcile the clauses by having regard to the scheme of the will.
If conflict cannot be resolved, the conflicting clauses will cancel each other out and neither will take effect

Question 14

What is armchair/ extrensive evidnece

Answer 14

Evidence about facts & circumstances that the testator knew about or had in mind or should have borne in mind when the will was drafted

Question 15

How does a court gather armchair evidence

Answer 15

A court places itself in the position of the testator during the time of the making of his or her will to try to
determine the intention of the testator.

Question 16

Extrinsic evidence (or evidence aliunde)

Answer 16

Extrinsic evidence (or evidence aliunde) is evidence obtained elsewhere and not from the will itself, and refers to the surrounding circumstances (other than armchair evidence) in which the will was made.

If the wording of a will is clear, extrinsic evidence to prove a contra intention of the testator is inadmissible.

Extrinsic evidence may only be led when the will
or provisions in the will is or are obviously ambiguous or uncertain, and the intention of the testator has to be determined by means other than the wording of the will.

Question 17

When may extrinsic evidence be lead?

Answer 17

When testamentary capacity of the testator, capacity of beneficiaries to benefit & the validity of will are contested
Extrinsic evidence may only be led when the will or provisions in the will is or are obviously ambiguous or uncertain, and the
intention of the testator has to be determined by means other than the wording of the will.

In the case of In re Graumann’s Estate,
the Court unequivocally held: ‘… [I]f the words of the will are clear and unambiguous, then we cannot look even at the
surrounding circumstances to interpret their meaning.’

Question 18

Richter v Bloemfontein Town Council on the admission of armchair evidence

Answer 18

set the scene for the admission of armchair evidence for the purpose of interpreting legal documents (which includes wills) when he held that ‘[e]very document of course should … be read in the light of the circumstances existing at the time’ and that ‘evidence may rightly
be given of every material fact which will place the Court as near as may be in the situation of the parties to the instrument.’

Question 19

Other alternatives of using extrinsic evidence

Answer 19

It is also permissible to determine: meaning of illegible / incomprehensible words, abbreviations, nicknames, words in foreign languages, technical / scientific terms, words in specific context etc.

Question 20

What happens if extrinsic evidence is not available to clear up such uncertainties

Answer 20

then the unclear part of the will must be regarded as pro non scripto (As not written; as though it had not been written; as never written).
Whether the rest of the will can still be implemented under such circumstances will depend on the circumstances of each case.

Question 21

When is it admissable to use the armchair evidence?

Answer 21

Some courts have held that one cannot admit armchair evidence when the words used in the will are clear and unambiguous.

In the case of In re Graumann’s Estate,
the Court unequivocally held: ‘… [I]f the words of the will are clear and unambiguous, then we cannot look even at the surrounding circumstances to interpret their meaning.’

Question 22

Povall v Barclays Bank in supporting re Graumann’s Estate on use of armchair evidence

Answer 22

Court held that a court has to
construe a will before considering the surrounding circumstances

Question 23

Procedure to be followed according to the court in n Povall v Barclays Bank DCO

Answer 23

Firstly, one has to determine the meaning of the provisions of the will.
If the meaning is clear, one cannot use
surrounding circumstances to throw doubt on the meaning or to give the provisions another meaning.

Secondly, if the meaning of the provisions in the will is ambiguous or unclear, surrounding circumstances
can be used to determine the intention of the testator.

Question 24

Corbett J in Allen v Estate Bloch in questioning procedure in Povall v Barclays Bank DCO

Answer 24

The Court held that the correct position regarding armchair evidence has been stated in two decisions of the High Court, namely Ex
parte Froy: In re Estate Brodie and Ex parte Eksekuteure Boedel Malherbe.

According to Corbett J (as
he then was), the duty of a court is not to ascertain what the testator meant to do when he or she made his or her will, but what the testator’s intention is ‘as expressed in’ his or her will.
As a result, if the intention of the testator is clearly ascertained from the words of the will, it will not be permissible to use evidence of surrounding circumstances (extrinsic evidence) to prove that the testator must have had another intention.

Question 25

Bell v Swan

Answer 25

one cannot depart from the language of a will ‘to give effect to something which the
testator may have intended but which he has not expressed at all’.
Armchair evidence may be used for both latent and patent ambiguities

Question 26

What is a latent ambiguity

Answer 26

A latent ambiguity arises when the
testator has identified a subject and an object of the bequest, but the bequest is worded in such a way that it could be equally applicable to another subject or object

Question 27

Two forms of latent ambiguity

Answer 27

1. ‘the so-called equivocation –
   *The words may be equally applicable to two persons or objects
   e.g. testator bequeaths an asset to “my niece, Susan”. At the time of his death it emerges that he has two nieces by the name of Susan.
2. Where the words cannot apply with certainty to any known person or object
   *as they describe it incompletely or inaccurately.
   e.g. testator leaving something to “my best friend” or bequeathing “my most precious possession”

Question 28

Solutions for these latent ambiguities

Answer 28

Extrinsic evidence is admissible to solve both these types of ambiguity.

But, direct statements made by the testator about his/her intension will only be admissible for equivocation.

Question 29

Tacit/Implied provisions as a solution for T drafting a will inelegantly

Answer 29

the court may find it necessary to cautiously read words into the will so as to make the will or the bequest stand

However reading words into a will is not equal to implying bequests in a will as the court is not empowered to do so

Question 30

Test for reading in

Answer 30

1. The deduction or implication must be a necessary implication which does not lend itself to a contrary intention.
2. The deduction or implication must be in accordance with the contents of the will.

Question 31

Estate Dempers v Estate Dempers as example of court reading words into a will

Answer 31

Estate Dempers v Estate Dempers
the testators had executed a joint and mutual
will stipulating that the survivor was to have a life usufruct over their joint estate.

The will provided further that on the death of
the survivor ‘we appoint our children, and by the predeceasing of one or more, the deceased’s lawful descendants by substitution, and as such in equal portions’. The problem was that the testators failed to stipulate what the children were appointed as. The Court had no problem finding that, as a necessaryimplication, the children were the implied ultimate heirs.

Question 32

Aubrey-Smith v Hofmeyr as example of court reading words into a will

Answer 32

the testatrix nominated her husband as the executor of her will and as the guardian of their minor children.

She then went on to stipulate what was to happen to her estate in the event of her and her husband dying simultaneously.

Strangely, the will did not nominate the husband in the event of him surviving her

The Court held that the words ‘and as the sole and universal heir’ of her estate had to be added to the clause appointing the husband as executor of her estate. In so doing, the Court implied words into the will because without those words, the will would not
have made sense.

Question 33

Legal presumption as solution for unclear and ambiguous intentions of the T

Answer 33

Legal presumptions are common law aids which are employed to determine the meaning of certain words which the testator used in his will. While the law is amenable to the use of presumptions, note that they encapsulate a
fictional way of reasoning.

Question 34

List the relevant presumptions

Answer 34

1. Writing or typing prevails over standard form wills
2. Presumption against intestacy
3. Ambulatory nature of a will
4. Immediate vesting, acceleration of benefits, finality of institution, maximum benefit and minimum burden
5. Presumption against disinherison and inequality

Question 35

1. Writing or typing prevails over standard form wills:

Answer 35

Where there is conflict between the typed or written part and printed part (the standard form will),
there is a presumption that the typed/written part reflects the intention of the testator.

(but with the advent of modern technology, perhaps there is no justification for
keeping this presumption)

Question 36

Presumption against intestacy:

Answer 36

If a person drafted a will there is a strong presumption that he/she intended to die testate despite that a person may die partly testate and partly intestate.

Thus it is presumed that the testator had intended the will to govern his/her entire estate and not just a portion of it.

Question 37

Ambulatory nature of a will:

Answer 37

It is presumed that vesting takes place, beneficiaries are to be determined and capacity of the beneficiaries to inherit is to only be determined when the testator dies, unless there is a contrary intention in the will.

Question 38

Presumption against disinherison and inequality:

Answer 38

There is a presumption against unequal treatment by a testator of his/her descendants and furthermore, a presumption against disinhersison of children.
Therefore, if the testator wants to exclude his/her children , he/she needs to be quite specific in this regard or the presumption against disinhersion will work in favour of the children.

Question 39

Immediate vesting, acceleration of benefits, finality of institution, maximum benefit and minimum burden

Answer 39

There is a presumption that a testator intended vesting of an inheritance to occur on his/her death and did not intend it to be postponed, unless the testator clearly created a conditional bequest.

In light of the presumption in favour of immediate vesting, it is also presumed that the testator would have intended an unconditional bequest and not a fideicommissum.

Where there is uncertainty as to whether the testator intended to create a fiduciary or usufructuary interest, there is a presumption in favour of a fudiciary interest.
If a usufruct is bequeathed to an intermediate beneficiary, but the will fails to state who is to be the ultimate beneficiary, the presumption is that it was intended for the intermediate beneficiary to also be the ultimate beneficiary.

Question 40

What happens when theres an absence of clarity of the intention?

Answer 40

Conditions will be interpreted restrictively so as to impose the least burdensome result on the beneficiaries because there is a presumption in favour of freedom as opposed to
restraint; convenience as opposed to inconvenience and reasonableness as opposed to unreasonableness

Question 41

In the face of doubt as to whether a restriction attached to a bequest is a condition or a modus

Answer 41

There is a presumption in
favour of a modus.

Question 42

General rule on variation of wiils

Answer 42

The court will not vary a will which is capable of being carried out

Question 43

Court’s responses to applications for
variation by beneficiaries who are unhappy with stipulations in a will as to how the property of the deceased is to be realised or invested. (The argument is sometimes made that
there are more profitable ways of distribution.)

Answer 43

They have taken the view that if the stipulation is clear, effect must be given to it, even if it results in a loss of profit.

Question 44

Jewish Colonial Trust Ltd v Estate Nathan o variation of wills

Answer 44

The testator executed a will in which he created a testamentary trust. He stipulated, among other things, that the trust income be paid in the form of annuities to certain individuals, charitable societies and institutions.

These annuities were to be paid for a period of 50 years whereupon the trust was to be wound up and the residue paid to the Jewish Colonial Trust for the purpose of creating a fund to be named The Solomon Nathan Family Fund.

This fund was to be ‘used for the
restoration of the Jews to their ancient home in Palestine, either by acquisition of lands, financial assistance or otherwise in such manner as may be found most expedient’.
A few years after the testator died, the Jewish Colonial Trust instituted an action in which they claimed payment of so much of the residue as was not needed for the payment of the annuities.
They claimed that the
trust had sufficient surplus funds, that the money was immediately needed and that there was no need to defer payment for 50 years.
In this regard, the Court held that the Jewish Colonial Trust was asking it to do more than enforce its legal rights by asking it (the Court) to supplement the legal rights of the Trust. The Court made it clear that this could
only be done if a power or discretion was conferred on it (the Court) by law.

Although the Court had ‘certain
powers of dealing with immovable property contrary to the will of the testator’, it had ‘no general discretionary power to modify or supplement rights given under a will or to authorise the property of a testator to be dealt
with otherwise than in terms of his will …’.

When the Jewish Colonial Trust tried again in 1967 to avoid the 50-year period by securing releases and waivers from the annuitants, the Natal Provincial Division also denied the request. On this occasion, it stated
that the Court will interpret a will in order to ascertain who the beneficiaries are and the extent of their benefits,
and it will give consideration to what may be properly implied into the will in order to do this. It cannot,
however, vary the will and change the devolution of the estate, nor add to or subtract from the benefits
conferred. The beneficiaries must, the Court said, be content to take what they are given in accordance with
the terms on which it is given. Furthermore, the Court held that there is no principle which justifies a departure
from the will just because circumstances have changed since the testator made his or her will.

For a departure, the testator must have envisaged a departure in the event of changed circumstances, or it must
have become impossible or impractical to carry out the provisions of the will. The Court held that it was not so in this case

(permits the general attitudes of SA )

Question 45

They list the following occasions
when the courts will permit a variation:

Answer 45

1. where the circumstances of a case make it practically impossible or utterly unreasonable to fulfil the testator’s intentions
2. where the strict enforcements of the testator’s directions would result in a failure of the testator’s bequests or
   would result in the testator’s intentions being frustrated
3. where the testamentary mechanisms mentioned in the will are unable to realise the intentions of the testator
   and/or would result in severe loss to the estate
4. where the circumstances of a case demand a departure from the will
5. where the testator makes dispositions but the dispositions are based on mistaken assumptions about the
   testator’s assets or liabilities.

Question 46

What would an applicant have to do to justify variation?

Answer 46

An applicant would have to show a change of circumstance, not contemplated by the
deceased, causing prejudice to the estate and/or the beneficiaries.

Question 47

Ex parte Estate Marks on variation

Answer 47

The testator prohibited the sale of any immovable property until the death of his
children and directed that the cash in his estate be invested in approved stocks. Some of the property had to be sold to meet the liabilities of the estate and some was expropriated.

The Court permitted a variation of the
terms of the will to permit the proceeds of the expropriated property to be invested in new property or in shares in property-owning companies.

The Court held that since the testator had intended to preserve a property
portfolio for future inheritance, the proceeds of the unforeseen expropriation could be invested in entities which would approximate his general intention. It was thus not necessary to invest the proceeds of the expropriation in the stocks identified by him in the will. However, as regards the proceeds of the sale of the
properties to meet the estate liabilities, the Court was unwilling to permit these proceeds to be invested in stocks other than those identified by the testator. The Court was of the opinion that the sale of the properties to meet liabilities was not indicative of changed circumstances.

Question 48

Ex parte Sidelsky

Answer 48

the testator executed a will in 1944.

In it he provided for an amount of £75 to be paid
to his daughter for her upkeep. This amount was increased by the Court to R1 500 with provision for an inflation-linked annual increase based on changes in the consumer price index. This was to take into account the intention of the deceased to provide a reasonable amount of money for his daughter to maintain herself

Question 49

Variation by the courts concerning legality of a will

Answer 49

The courts do not have discretion to vary a will to rectify an illegality. Thus, where a testator makes a stipulation that is invalid because it is illegal (either in terms of statute or the common law), the court cannot vary the terms of the will to make it legal.
The consequence is that the stipulation will fall away without affecting the
rights of the beneficiary to the inheritance in question

Question 50

Variation of a will When it comes to charitable bequests

Answer 50

the courts are more inclined to vary the terms of the will to meet the
general objectives of the testator as it is in the public interest for such bequests to yield the best possible results as
opposed to being hamstrung by conditions which are difficult to carry out

Question 51

What is rectification?

Answer 51

Rectification refers to the correcting of a mistake in a will (after death of t) by the court in that evidence is presented on the fact that:
*There is a mistake in the will;
*What the nature of the mistake is; and
*How it could be set right

Question 52

What does rectification entail?

Answer 52

entails correcting clerical errors or adding or deleting words that were omitted or inserted by mistake (perpetrated either by the testator or a third party who drafts the will), or as a result of duressor undue influence

Question 53

Rectification can thus only be affected by a court and in only one of three ways:

Answer 53

Correcting a clerical mistake or typing error
Deleting words
Inserting words

Question 54

what should the rectification of a will be distinguished from?

Answer 54

Its amendment or variation
Because a testator may amend or vary his/her will anytime before his/her death as long as he/she complies with the relevant formalities

Rectification can thus only be affected by a court and in only one of three ways:

Question 55

Three ways in which rectification can be affected by the courts

Answer 55

Correcting a clerical mistake or typing error
Deleting words
Inserting words

Question 56

What proof will the court require before it can rectify a will?

Answer 56

That the alleged discrepancy between intention & expression was due to a mistake;
and of what the testator intended should form part of the will

Question 57

What would the reason be for deleting words inserted inadvertently:

Answer 57

The testator did not have necessary ANIMUS TESTAHENDI with regard to the words inserted inadvertently thus, such words / clauses can be deleted in order to give effect to the true intention of the testator

Question 58

Van zyl v esterhuyse: Insertion of words inadvertently omitted from the will

Answer 58

Facts: the applicant claimed that it had been her & her husband’s intention that upon the death of either party, the surviving spouse will inherit everything & only if the parties died simultaneously or shortly after one another would the bequests to legatees & their children come into effect.
Applicant requested court to rectify will by inserting the words ‘if my spouse and I … die simultaneously …

Legal question: Can court rectify the will by inserting words that have been inadvertently omitted from will?

Judgement: yes

Question 59

Giles V Henriques
Extension to further possible instances
(cross-wills)

Answer 59

Facts:
A married couple instructed an audit firm to draft a will for each of them.
Wills were prepared accordingly & both parties were satisfied with their respective wills.
However the husband erroneously signed wife’s will & vice versa unusual circumstances (i.e. ‘crossed wills’)

Legal question: Can rectification be used to give effect to husband’s will?

Judgment: Yes

Question 60

Will v The Master

Answer 60

Facts:
‘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.’ But husband (John) had 2 children from a previous marriage with ex-wife (Emily) and 6 children with current wife (Betty)

Legal problem: Do the words ‘our children’ mean the six children born from John’s marriage with Betty only; or does it also include the two children born from John’s marriage with Emily?
The executor, in the L&D account, only included six children
two children from previous marriage objected to this – alleged they are to be included in the class of beneficiaries ‘our children’ as they are children of the testator

The Master sustained the objection
‘Our children’ = all children of t (meaning from all marriages) and that the court must look at actual language used in will & not what was allegedly intended at the time will was drafted

Question 61

Overturn in Will v The Master case

Answer 61

Executor brought an application to court to:
Set aside master’s decision; and an order that:

Declaring that ‘our children’ refers only to the six children from marriage with Betty, and not the two children from marriage with Emily

Court: considered the facts that the testator moved to South Africa wanting to start a new life and him hiding the existence of his UK family from his new family in South Africa (armchair evidence) our children refers to the six children from the testator’s marriage with Betty

Question 62

Difference between definition of interpretation and rectification

Answer 62

INTERPRETATION
ASCERTAINING the intention of the testator as expressed in the will

Processes: Find intention of the testator; and
Give effect to that intention

RECTIFICATION
CORRECTION of a mistake in a will by the court after death of a testator

Question 63

Evidence on proving interpretation v rectification

Answer 63

INTERPRETATION
Statements made by the testator during his/her lifetime = permissible in certain circumstances only!

RECTIFICATION
Statements made by the testator during his/her lifetime = always permissible