Diary valid as last will

THE importance of having a valid will was stressed during 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 as her diary or journal in which she noted 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 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 fiancée. 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 that the journal belonged to her daughter, or that her daughter wrote its contents. She insisted it was a forgery. She also claimed several pages were “torn” from the document. She, however, later agreed while testifying that the handwriting did seem like that of her daughter.

She told the court that her relationship with her daughter was good and that there was no way her daughter would not have taken care of her in her will. The mother claimed 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 out 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 were 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.

Rikhotso’s name is written on the front of the journal.

Several relatives 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 when they went to fetch her belongings that they opened the journal and saw it contained her last wishes.

One of her cousins, who said she was extremely close to Rikhotso, told the court Rikhotso said she was writing “everything down” before she died. This was to make life as easy as possible for those she loved so 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 accepted in court 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 contains detailed information on various matters. The amount of information and the detail in which it has been written points to Rikhotso as the source.

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 fiancée 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 died 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 who must 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 this journal as a last will and testament.