Deceased’s diary accepted as last will

THE importance of having a valid will was stressed during the 2022 National Wills Week, from September 12 to 16. However, a diary or a journal will suffice in certain instances.

This was proven in the case of a woman who wrote down her last wishes in the form of a diary in the days preceding her death.

Patience Rikhotso died from cancer in 2016 in a Gauteng hospital. By her side was a document described to be her diary or journal in which she wrote in detail what she wanted upon her death and who should receive what – from her X-box to her designer jeans.

Rikhotso even indicated what should happen to her Facebook account; she mentioned the fact that she wanted flowers at her funeral, and she provided numbers for friends to be contacted upon her death.

She bequeathed all her possessions to her close family members and her fiancé. Her mother, however, was to receive nothing. In fact, she requested the family not to allow her mother to attend her funeral.

But the problem was that Rikhotso died without leaving a will which complied with the formalities prescribed in the Wills Act. The Master of the High Court rejected her journal, but several of her family members turned to the High Court in Johannesburg to have the document acknowledged as a will.

According to them, all instructions on how her estate must be disposed of are contained in her journal and in her handwriting.

The mother, at first, denied the journal belonged to her daughter or that she wrote its contents. She insisted it was a forgery. She also claimed that several pages had been torn from the document.

She, however, later agreed while testifying that the handwriting did seem like that of her daughter.

She told the court her relationship with her daughter had been good and that there was no way she would not have taken care of her in her will.

The mother claimed that the daughter did not have the strength to write in her journal in the week preceding her death or was pressured by other family members to hand her belongings to them.

Acting Judge SK Hassim inspected the journal entries at the start of the proceedings, together with the legal teams. It was agreed that no pages had been torn from the document.

The judge observed that several pages in the journal had a signature, in most instances, on the top of the page and often close to where the date and time of the entry was recorded by the author.

The deceased’s name is written on the front of the journal.

Several family members testified that while in hospital before her death, they noticed the journal either next to Rikhotso on her pillow or on the table next to her bed. Some of them also saw her writing in the journal.

It was, however, only after her death and when they went to fetch her belongings that they opened the journal and saw that it contained her last wishes.

One of her cousins, to whom she was extremely close, told the court that Rikhotso had said she was writing “everything down” before she died. This was to make life as easy as possible for those she loved dearly and left behind.

The cousin recognised Rikhotso’s handwriting and told the court she had impeccable handwriting. The cousin said she would recognise the handwriting any time, even if she was woken up from her sleep. She described and pointed out a peculiar characteristic in the deceased’s formation of the capital letters “P” and “R.”

Although the mother in court accepted that it was her daughter’s handwriting, she still insisted that “some pages were torn” from the journal.

Judge Hassim remarked that there was no need for the court to decide whether the relationship between mother and daughter was bad, as the court had accepted that the journal contained Rikhotso’s last wishes, as drawn up by herself.

The judge remarked that the journal contained detailed information on various matters. The amount of information and the detail in which it had been written, pointed to the deceased as the source thereof.

Judge Hassim said, according to the evidence, Rikhotso knew her time was short while she was in hospital. She wanted to provide for her family and her fiancé and his family, all of whom had either been good to her or had tended to her during her illness. This was something that occupied her mind.

“She was clearly trying to sort out her affairs while she was alive and expressed what should happen not only to her estate when she dies but also what should happen, for instance, to her Facebook account.”

As her final sign of love, Rikhotso not only left telephone numbers of those to be informed of her death, but also a bank account number.

She explained where documents could be found and went to great lengths to make life easier for those she was leaving behind.

The court consequently ordered the Master to accept the journal as a last will and testament.