UNIVERSITY OF CAPE TOWN FACULTY OF LAW FOUNDATIONS OF SOUTH AFRICAN LAW (PVL1003W) TUTORIAL 3 2023 Answer the following question on the basis of what you know about the doctrine of precedent and the extracts that follow. You need not know anything about the law of succession. Some background: If a person leaves a will before dying and the will complies with the requirements of our law, then that person's estate is distributed according to the will. The person who wrote the will is known as "the testator'. The main requirement of the law is that the will must be "executed" - this means that the will must be signed in the right way with the appropriate witnesses present. Now suppose that the testator writes and executes a will, but then changes her mind about what it contains and no longer wants the will to apply. Our law allows the testator to revoke her will, or even part of it. One way to revoke the will is to destroy it, but there are other ways to revoke the will. For example, the testator might write and execute a second will, which includes a clause that revokes the earlier will. Now suppose our testator changes her mind once again. She revoked her first will, but did not destroy it. Now she wants her first will to apply again. Can she do this? Does our law allow the testator to revive her revoked will? In other words, does the 'principle of revival' apply in our law? An example: Suppose Lisa, our testator, owns a large collection of fabulously expensive jewellery. In her first will, she leaves the jewellery to her daughter Maria. Sometime later, Lisa and Maria have a bit of a disagreement. Lisa decides that someone else would better benefit from her fabulous jewellery collection. She writes a second will in which she explicitly revokes the first will and specifies that the jewellery is to be sold off. The proceeds from the sale are to be page 1given to her favourite political party. Now suppose Lisa and Maria make up and Lisa regrets making her second will. Instead of waiting for her lawyer (who would take some time and charge Lisa a lot of money to draft a new will), she simply destroys her second will and writes and executes a third document in which she says "I hereby revive my first will." Is this acceptable? Can her first will be revived? If Lisa dies right now, will Maria still get the jewellery? Consider these cases: Some early cases give support for the principle of revival - that is, they support the idea that a revoked will can be revived. These cases are Re Estate Marks 1921 TPD 180, Wood v Estate Fawcus 1935 CPD 350 and Ex parte Estate Gillespie 1943 CPD 58 (in these citations, "TPD' and 'CPD' are abbreviations for the courts). Assume that each of these judgments was decided by a single judge. Moses v Abinader 1951 (4) SA 537 (A) concerned a situation whether a testator's first will could be revived. The testator had written and executed his first will, and had then written and executed a second will which revoked the first will. The testator then wrote a third document, which revoked the second will and seemed to also be an attempt to revive the first will. The court unanimously held that there was insufficient proof that the first will was once again the valid will of the testator. However, the five judges hearing the case were split in their reasoning. Greenberg JA (Fagan JA concurring) held that there was no need to decide whether it is possible to revive a revoked will, since in the present case there was insufficient evidence to show that the testator intended to revive the first will. Schreiner JA held that the principle of revival is in fact part of our common law. However, in this particular case there was insufficient proof that the testator's third document had meant to revive the first will. Van den Heever JA, on the other hand, stated that the principle of revival is clearly not part of our law and on this basis, the testator's first will could not be revived no matter what the testator had meant to do. Finally, Hoexter JA also wrote a judgment in which he found that even if the principle of revival had been part of our law, it had now been excluded from the law of the Transvaal (where this case arose). Therefore, such a principle could not be used to revive the testator's first will. page 2Since this decision, several academic commentators (such as Beinart, Corbett et al and Paleker) have written that Schreiner JA's reasoning was correct. In Ribeiro v The Master 1981 (4) SA 248 (W) the court had to decide whether the testator's first will was valid. The testator had written and executed a first will, then written and executed a second will in which he revoked the first will. He then wrote a third document in which he revoked the second will and attempted to revive the first will. Flick J, the only judge hearing the matter, held that the first will could not be revived since the principle of revival is not a part of our law. However, Flick J cited no authority in support of his decision. Now answer the following questions: (a) Could a single judge of the Gauteng Local Division, Johannesburg refuse to apply the principle of revival? [6] (b) Could a full bench of the Western Cape High Court, Cape Town refuse to apply the principle of revival? [6] (c) Could a single judge of the Eastern Cape Division, Grahamstown refuse to apply the principle of revival? [6] (d) Could a regional magistrate in Bloemfontein hold that the principle of revival applies? [2] (e) What are the circumstances in which an existing precedent may be overruled? [5] Total: 25 marks page 3