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- The Eastern Cape High Court in Mthatha has ruled in favour of a woman in a challenge between her and her deceased's husband's first wife over the distribution of his estate.
- The first wife attempted to claim his assets on the basis of massed will.
- His second wife, however, claimed that he died intestate.
The Eastern Cape High Court in Mthatha has dismissed a woman's bid to take control of her deceased husband's estate after she tried to wrestle it from his second wife.
According to court records, the woman, referred to as the first wife, was married to the deceased in June 1978 in a civil union and in community of property. The marriage produced three children.
In March 1988, the couple decided to have a massed will. A massed will is effected when two or more people join their assets together and form one estate, usually for the purpose of bequeathing assets to clearly defined heirs.
They divorced in June 2003 and entered into a settlement agreement, according to a judgment written by Acting Judge Mvuzo Notyesi.
Notyesi wrote:
Second wife
According to court records, the deceased married his second wife in 1984 in a customary ceremony and three children were born from that union.
"Consequent to the divorce of the deceased and the first wife in 2003, the second wife continued to be the only wife of the deceased. Their customary marriage was in community of property for the reason that there are no antenuptial agreements excluding community of property," said Notyesi.
After the man died in 2016, the second wife approached the Master of the High Court for a letter of executorship.
She informed the master that her husband has died intestate (without leaving a will).
The master provided her with a letter of authority and she started administering the estate.
However, the first wife, with the help of Standard Executors and Trustees Limited, sought and obtained a letter of executorship from the master.
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She provided a copy of the massed will in order to get a copy of the letter, prompting the master to cancel the authority provided to the second wife.
The first wife then wrote a letter to request a detailed list of the deceased's assets from his second wife.
She claimed that she was entitled to do so because there was no other will making the massed will void.
But the second wife would not accede to the request.
Instead, she responded that her husband had died intestate and successfully challenged the validity of the massed will.
The dispute went to court in May and the judgment was delivered earlier this month.
Judgment
In the judgment, Notyesi said the first problem with the massed will was that the first wife and the deceased were divorced.
He added:
He agreed with the first wife's submission that there were no assets in the joint estate as they were distributed during the divorce and said " the will should be invalidated on this basis alone".
He added that the original will was not produced.
"The deceased passed on in 2016. A copy of the will was only produced in 2018. I cannot accept the copy of the massed will in these circumstances," he said.
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He specified that the deceased was married to his second wife in community of property by virtue of customary law, and he found it difficult to determine the residue of the deceased's assets from those of his second wife.
"The version of the second wife that she holds a joint estate with the deceased was uncontested, and I do accept, considering the 13-year period from the date of divorce of the first wife.
He dismissed the first wife's submission that the massed will was the determination of the deceased's final wishes upon his death and added:
Notyesi declared the massed will null and void, and ordered the Master of the High Court to remove the first wife as the executor of the deceased's estate.
The first wife was also issued with a costs order.
