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Though your father’s will seems grossly unfair to you, and even if it’s contrary to agreements you had with him, as long as the will is clear, there’s probably nothing you can do about it. A new judgment from the Supreme Court of Appeal (SCA) makes that point. It also illustrates the problems and ill-feelings that can be caused when family members don’t talk to each other about their intentions for an estate. Central to the SCA case is the will that Hendrik Spangenberg signed and completed 18 years before his death in 2010. Though the master of the high court accepted the document as Spangenberg’s valid last will and testament, his children were deeply shocked when they discovered what it said.

Read the judgment here:


When Hendrik Spangenberg died, his three children seemed to have had a nasty surprise. His second wife not so much.

The problem for the children was his will and, in particular, his intention for two plots that he owned in Olyvenshoutsdrift in the Northern Cape.

In his will, he wrote,

‘I give and bequeath my entire estate as follows:

  1. To my daughters Maria Cornelia van der Westhuizen and Christina Aletta Spangenberg,the following:
  • my plots 243 and 741 subject to the right of habitatio in favour of my spouse until her death or remarriage, whichever may occur first.


[Habitatio is essentially a life right in terms of which someone is given the right to live in or let out a property that they don’t themselves own. This right is for a specified term, usually as long as the person lives.]


Mistake in the will

The will raised a question for the three children, two daughters and a son: what did clause B (i) mean for them? They all lived on plot 741; the two daughters lived in homes built for them there by their father, the deceased Mr Spangenberg. If their stepmother had rights over those properties, where did that leave the three siblings?

The executor of the deceased estate took the view that since the stepmother had the right of habitatio over both plots, she was entitled to all the benefits that flowed from them. That included “the right to receive all rentals for properties situated on the two plots.”

As far as the daughters and their brother, Izak Spangenberg, were concerned, though, this was surely a mistake.

Flatlets on the plot

They felt it couldn’t have been their father’s intention to give his second wife a habitatio over plot 741 since Spangenberg and his three children had informally agreed to divide that plot into three portions, with each sibling being allocated a portion.

The father paid for the construction of homes on plot 741 for both the daughters, while the son developed some flatlets on the part of the plot allocated to him and collected rentals from them. In view of all this, they said that a habitatio would be inconsistent with their father’s agreement.

To shore up their argument, they pointed to the ante-nuptial contract (ANC) concluded between their father and their stepmother in 1985. It provided that the new Mrs Spangenberg would have the right of habitatio over plot 243 until her death.

Charged rent for their properties

When, after their father’s death, the three siblings were charged rent for their properties on plot 741 by the executor, they refused to pay. The executor then approached the high court in Kimberley, where a judge found that the habitatio rights bequeathed to Mrs Spangenberg applied to both plots 243 and 741 as the will stated.

The judge said that Mrs Spangenberg was entitled to lease and sublease the two properties, and she was entitled to the rentals that accrued from the plots. Further, “no other person” could occupy the properties without the agreement of the executor. Finally, said the court, the three siblings were to pay the costs of the matter.

Obviously still dissatisfied, the three then appealed.

Freedom to dispose of their assets

During the argument on appeal, counsel for the executor and Mrs Spangenberg said the will was clear: she had the right of habitatio over both plots. There was nothing ambiguous about the wording of the will; it was therefore not permissible to incorporate the siblings’ evidence about the ANC signed between their father and his second wife in deciding on the meaning of the will. Extraneous evidence like this would be considered only if it might be needed to resolve ambiguities.

The SCA judges said it was generally accepted that people have the freedom to dispose of their assets in the way they think fit, unless the law placed restrictions on that freedom.

Quoting earlier decisions, the appeal judges said the “golden rule” for interpreting wills was to “ascertain the wishes of the testator from the language used.” Once these wishes were ascertained, “the court is bound to give effect to them, unless… prevented by some rule or law from doing so.”

Emerging trend

However, the constitutional court had also said that there was an “emerging trend” when interpreting documents to “have regard to the context in which the words occur, even where the words are clear and unambiguous.”

It was this latter principle that the Spangenberg siblings latched onto, saying that even if there was no ambiguity in the wording of the will, “the surrounding circumstances and background facts will establish that the intention of [their father] was not as it appears” in clause B(i) of his will.

They then referred to the chronology of events that, they said, showed their father had a different intention for plot 741. They pointed to the informal agreement to divide the plot between the three children and the building of houses for the two daughters. Among other factors, they added that in 1996, the son began to live on his part of plot 741 and developed flats on it. Since then, he has seen to the upkeep of the flats and collected income from them.

Any ambiguity was contrived

The siblings made several arguments from this chronology. One was that habitatio could only apply to plot 243, as set out in the ANC, and that the court should take the “relevant surrounding circumstances” into account in deciding the meaning of the will.

But the judges didn’t agree. They said that as there was no ambiguity about the will, there was no reason to consider extrinsic evidence to interpret its clauses.

What the siblings were trying to do was use the wording of the clause in the ANC to create an ambiguity in the will that would allow them to introduce evidence about the surrounding circumstances. But there was no ambiguity in the will itself, and any ambiguity was “contrived.”

Spousal maintenance

The deceased Mr Spangenberg probably included the habitatio over plot 741 in order “to see to the financial well-being and maintenance of Mrs Spangenberg,” the judges said.

The siblings had argued that they would be evicted from their homes if the will was allowed to stand. “But this is not necessarily so,” said the court. What it did mean, however, was that they would have to come to an agreement with Mrs Spangenberg and the executor about the rent that would have to be paid. And the court reminded the siblings that “on their own version, the houses were, in the main, built by the deceased and essentially at [his] cost.”

Clearly, therefore, the appeal had to fail. But what about costs?

Though the siblings wanted the costs to be borne by the deceased estate, there was “no rationale” for this, said the judges. Since there was no reason why Mrs Spangenberg, who also had an interest in the estate, should be prejudiced by this “ill-fated application and appeal,” the court ordered that the appellants, and not the estate, should pay the costs.