The Eastern Cape High Court in Mthatha has dismissed a woman’s bid to control her late husband’s estate after she tried to wrestle it from her second wife.
Gallo Images/Jacques Stander
- The Eastern Cape High Court in Mthatha has ruled in favor of a woman in a challenge between her and her deceased husband’s first wife regarding the distribution of his estate.
- The first wife atried to claim his properties based on the massed will.
- His second wife, however, claimed that he died unmarried.
The Eastern Cape High Court in Mthatha has dismissed a woman’s bid to control her late husband’s estate after she tried to wrestle it from her second wife.
According to court records, the woman, referred to as the first wife, married the deceased in June 1978 in a civil union and community of property. The marriage produced three children.
In March 1988, the couple decided to have a massed will. A massed will is created when two or more people combine their assets and create an estate, usually for the purpose of bequeathing assets to obvious heirs.
They divorced in June 2003 and entered into a settlement agreement, according to the judgment written by Acting Judge Mvuzo Notyesi.
Notesi wrote:
“The settlement agreement is about the distribution of the joint estate, because their marriage is in community of property. The net effect of the deed of settlement is the dissolution of the joint estate.”
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.
“Due to the divorce of the deceased and the first wife in 2003, the second wife continues to be the sole wife of the deceased. Their customary marriage is in community of property for the reason that there are no antenuptial agreements outside of community of property,” Notesi said. .
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 had died intestate (without leaving a will).
The master gave him a letter of authority and he began to manage the land.
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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He gave a copy of the mass testament to obtain a copy of the letter, prompting the master to cancel the authority given 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.
He admits that he has the right to do this because there is no other will that makes the mass useless.
But the second wife did not agree to the request.
However, she responded that her husband had died intestate and successfully challenged the validity of the respondent’s will.
The dispute went to court in May and the verdict was handed down earlier this month.
judgments
In the judgment, Notyesi said that the first problem with the mass will is that the first wife and the deceased are divorced.
He added:
“At the time of the divorce, the first wife and the deceased dissolved their joint estate and distributed the assets in terms of the deed of settlement. That conduct, in my view, made their mass null and void and useless, because there are no united properties for the purposes. of a mass will.”
He agreed with the first wife’s submission that there were no assets in the joint estate because 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 made.
“The deceased died in 2016. A copy of the will was only made in 2018. I cannot accept the copy of the mass will in these circumstances,” he said.
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He pointed out that the deceased married his second wife in community of property according to customary law, and he had difficulty in determining the remainder of the deceased’s properties from his second wife.
“The version of the second wife that she held a joint estate with the deceased is not contradicted, and I accept, considering the 13-year period from the date of the divorce of the first wife.
He rejected the submission of the first wife that the mass testament was the determination of the last wish of the deceased at his death and added:
“It is mentioned that the first wife only appeared in relation to the deceased state at the end of 2017, although the deceased died in 2016. I see that this is an opportunist in himself. It is surprising that the first wife, who did not live with of the deceased for approximately 13 years, will only come forward to claim the deceased’s property in circumstances where he has taken his own property from the joint estate.”
Notyesi declared the mass null and void, and ordered the Master of the High Court to remove the first wife as executor of the deceased’s estate.
The first wife was also granted a costs order.