Court rules that diary must be accepted as will of deceased

A LANDMARK judgment accepting a diary as a will was handed down by the South Gauteng High Court this week.

Patience Rikhotso died on October 7, 2016 without leaving a will that complied with the formalities prescribed in section 2(1) of the Wills Act.

However, instructions on how the assets in her estate should be disposed of when she died were contained in her diary and written in her handwriting.

Rikhotso listed her relatives and fiancé with whom she lived as beneficiaries. Her mother was not listed.

The Master rejected the diary as the deceased’s will on the basis that it did not comply with the formalities regarding the execution of wills prescribed in section 2(1) of the Wills Act.

Accordingly, in March 2020 the parties listed in the diary as beneficiaries brought an application for it to be accepted as a will.

The deceased’s mother opposed the application and defended the action. The Master did not oppose the application or defend the action.

During the proceedings, it was revealed that Rikhotso had a close relationship with her relatives and her fiancé. The applicants also contended that the deceased had a bitter relationship with her mother, and that this would explain why she was not included in the diary.

In her answering affidavit, the mother, among other things, denied the diary belonged to her daughter, or that she “wrote the document/diary sought (sic) to be the last will and testament of (her daughter)”.

She alleged that, even if the diary had been written by the deceased, pages had been torn from it. She contended that what was attached to the founding affidavit was a “selected extract and (did) not give a total view of the intention of the diary and its recorded content”.

The presiding judge inspected the diary, together with those involved in their case and their representatives, and all were satisfied there were no visible signs of pages having been removed from the diary or it having been tampered with.

During the defendant’s testimony, it became apparent there was no real dispute to try, the judge said. The defendant admitted that pages 4(a), 4(b), 6(a) and 6(b) of exhibit A – namely, the journal – were written by the deceased. She said she was, however, not satisfied that the signatures in the journal were those of the deceased.

She conceded, however, that Peculia and Moses (two of the deceased’s 11 relatives) were better placed than she was to identify the deceased’s signature.

The court ordered the Master to accept the diary as the will of the deceased, even though it did not comply with the formalities for the execution of wills contained in section 2(1) of the Wills Act.

The deceased’s mother was ordered to pay the costs in the matter.