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Can a Court Recognize an Oral Dying Wish for Asset Distribution? Insights from Mthimunye v Kabini and Another

Oral testament dyin wish


In a noteworthy judgment by the North Gauteng High Court in Pretoria, case number 39849/2021, the court delved into the complexities surrounding the recognition of oral dying wishes regarding the distribution of assets. This case, Mthimunye v Kabini and Another, issued on January 23, 2024, highlights significant legal inquiries into the extent of executory powers and the possible need for the development of the common law to accommodate such wishes.


Case Overview:

The executrix of the deceased estate sought judicial intervention against HNK’s interference with the estate’s administration. The case unearthed the deceased’s intentions to allocate his assets for his grandchildren’s benefit, an intention he could not formalize due to his untimely death.


Legal Conundrum:

The heart of this case lies in the deceased’s oral communication of his wishes to create a trust for his grandchildren’s benefit, an intention that was only partially realized through the creation of the I…. Family Trust before his passing. This scenario raised pivotal questions about the recognition of oral dying wishes and the extent to which such intentions could influence the administration of an estate.


Court’s Reasoning:

The Court meticulously dissected the legal framework surrounding donations mortis causa (donations in anticipation of death) and the formalities required for their recognition. The court recognized the need to potentially develop common law to give effect to such oral donations, underscoring the clash between existing legal formalities and the fundamental right to freedom of testation and human dignity.


Implications for Legal Practice:

This judgment emphasizes the necessity for individuals to formalize their last wishes through appropriate legal instruments to avoid posthumous legal battles. It also opens a dialogue on the evolution of common law to better serve modern societal values and the sanctity of a person’s last wishes.



  1. What is a donation mortis causa? A donation mortis causa is a gift made in anticipation of the donor’s death, which requires the donor’s intention to donate for it to be valid and enforceable.
  2. Why did the court consider developing the common law? The court considered this to reconcile the clash between the current legal formalities for a valid donation mortis causa and the constitutional rights to freedom of testation and human dignity.
  3. What was the outcome of Mthimunye v Kabini and Another? The court granted interim relief to prevent the alienation of the estate’s assets pending the resolution of a lawsuit aimed at honouring the deceased’s oral wishes. This case underscored the potential need for common law development to recognize such oral wishes formally.
  4. What should individuals do to ensure their last wishes are recognized? To avoid legal uncertainties, individuals should formalize their wishes through written wills or trusts, clearly specifying their intentions and the distribution of their assets.



Mthimunye v Kabini and Another serves as a poignant reminder of the complexities surrounding estate planning and the critical need for legal clarity in expressing one’s final wishes. As society evolves, so too must our legal frameworks to ensure they reflect contemporary values and uphold the dignity of individuals’ last desires.

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