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.
The starting point for the interpretation of
wills and testaments is the golden rule established in the case of Robertson v Robertson’s Executors
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
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
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
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
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
(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.
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
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.
- Robertson v Robertson’s Executors 1914 AD
- 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 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)