It is trite that the law of succession aims to give effect to the wishes of the testator. Accordingly, when a person passes on and leaves a will or a testament, it is the duty of the court interpreting the will or testament to make an order that obeys the wishes of the testator as far as legally possible.
This article will look at the two competing approaches taken by courts in the interpretation
of wills and testaments – namely the golden rule and the use of armchair and
extrinsic evidence – and attempt to identify the current approach taken by our
courts.
I The Golden Rule
The starting
point for the interpretation of wills and testaments is the golden rule
established in the case of
Robertson v Robertson’s Executors 1914 AD
503. In this case, it was held that courts are to “ascertain the wishes of the
testator from the language used. And, when these wishes are ascertained, the
Court is bound to give effect to them, unless it is prevented by some rule or
law from doing so”.
In other
words, the golden rule holds that courts must ascertain the wishes or
intentions of the testator by merely looking at the language used by the
testator. Accordingly, this rule makes no provision for courts to have regard
to external factors when interpreting the testator’s language.
The rationale
for restricting courts to the words used by the testator in their will or
testament is because the testator’s words are the primary indication of their
intention. Therefore, the courts are often reluctant to depart from the
ordinary or literal meaning of the words used by the testator.
However,
there have been some significant developments in the approach of our courts to
the interpretation of wills and testaments since the golden rule was
established. One such development is the use of armchair and extrinsic evidence
in the interpretation of wills and testaments.
II Armchair and Extrinsic Evidence
Armchair
evidence sees a court placing itself in the position of the testator in order
to determine their intention. In other words, a court puts itself in the
armchair of the testator to understand their thought process in the creation of
their will.
Extrinsic
evidence is evidence that is obtained elsewhere, i.e. not from the will itself.
Extrinsic evidence, therefore, refers to the surrounding circumstances or
factors accompanying the will.
In
Cuming
v Cuming 1945 AD 201, it was held that armchair and extrinsic evidence may
only be used if the wording of the will is ambiguous or uncertain, and the
intention of the testator cannot be determined merely by examining the wording
used in the will.
In other
words, when armchair and extrinsic evidence is used in situations where the
testator’s use of language is ambiguous, the courts can step into the shoes of
the testator and investigate the surrounding circumstances of the creation of
the will in order to determine the testator’s intention at the time of creating
the will.
However,
this line of reasoning has been challenged. In
Allen v Estate Bloch 1970
(2) SA 376 (C), the court held armchair evidence to be admissible in cases
where there is no ambiguity or uncertainty regarding the words that the
testator used in their will. In this case, the court held that the correct
approach is that a will should not be analysed in isolation. It is seen as a
more practical approach to ascertain the intention of the testator, as it takes
into account all the relevant factors surrounding the creation of the will.
III Conclusion: What is the Approach of Our Courts?
The case law
regarding whether or not the golden rule is still adhered to by courts remains
inconclusive. The magnitude of case law seems to suggest that, to a large
extent, our courts do not follow the golden rule, but rather follow the
reasoning of the
Cuming case, which allows for the use of armchair and
extrinsic evidence only where the wording used by the testator is ambiguous.
To
summarise, it is evident that our courts still use the golden rule as the
starting point for interpreting wills and testaments, but it is generally no
longer used in isolation.
Reference List:
- Robertson v Robertson’s Executors 1914 AD 503.
- Jamneck, et al The Law of Succession in South
Africa 2 ed (2012).
- Cuming v Cuming 1945 AD 201.
- Allen v Estate Bloch 1970 (2) SA 376 (C).
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)