STUDY UNIT 11

Question 1

GOLDEN RULE OF INTERPRETATION: ROBERTSONS v ROBERTSON’S EXECUTORS

Answer 1

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 prevented by some rule or law from doing so.

Question 2

The courts are reluctant from deviating from the original and literal meaning of the words used by the testator unless it is shown in clear and admissible evidence that the testator:

Answer 2

1. had not intended those words to bear their ordinary and literal meaning.
2. had not intended those words to be used in the first place and had intended that other words be used to convey his intention.

Question 3

The MASTER:

Answer 3

the Master of the High Court has an administrative function, when it comes to the interpretation of wills, the Master interprets a will literally, having regard to the actual words used by the testator.

Question 4

STATUTORY RULES OF INTERPRETATION:

Answer 4

1. SECTION 2B: ex-spouses (JW v Williams-Ashman)
2. SECTION 2D(1): child or children (Wilkison v Crawford 2021)

Question 5

CONSTITUTIONALITY OF SECTION 2B:

Answer 5

the constitutionality of section 2B was tested in JW v Williams-Ashman

Question 6

COMMON-LAW RULES OF INTERPRETATION

Answer 6

1. Ordinary and plain meaning
2. Construction of the whole will
3. Armchair and Extrinsic evidence
4. Implied provisions
5. Legal presumptions

Question 7

1. ORDINARY AND PLAIN MEANING:

Answer 7

if the testator’s words are unambiguous, the courts must give effect to them.
-if a word contains two or more possible meetings the courts will favor the rational, convenient and reasonable construction.

Question 8

A WILL DRAFTED BY A LAYPERSON:

Answer 8

the courts are more inclined to deviate from the ordinary and literal meaning of words used.

Question 9

A WILL PREPARED BY A LEGAL EXPERT:

Answer 9

it is assumed that the drafter had a specific intent in mind when employing certain words.

Question 10

IUSDEM GENERIS RULE

Answer 10

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

Question 11

GENERAL RULE:

Answer 11

clauses in a will that the testator erased or cancelled, therefore revoked, may not be considered during the interpretation of the will.

Question 12

2. CONSTRUCTION OF THE WHOLE WILL

Answer 12

the words, clauses and expression should not be read in isolation but against the background of the whole will.

Question 13

Physical construction will be considered, and:

Answer 13

• division into paragraphs
  -punctuation
• the place where stipulation is found in relation to other stipulations.

Question 14

3. ARMCHAIR AND EXTRINSIC EVIDENCE

Answer 14

Armchair evidence is evidence used by the court to place itself in the position in which the testator was at the time of making the will.
Extrinsic evidence is evidence obtained elsewhere, not from the will itself, refers to the surrounding circumstances in which the will was made.

Question 15

4. IMPLIED PROVISIONS

Answer 15

when the testator drafts a will so inelegantly that it becomes necessary for the court to read words into the will to make it a will.
case: Estate Dempers v Estate Dempers
Aubrey-Smith v Hofmeyer