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[2017] ZAWCHC 11
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Ex Parte Pretorius (16727/13) [2017] ZAWCHC 11; [2017] 2 All SA 558 (WCC) (23 February 2017)
IN THE HIGH COURT OF
SOUTH AFRICA
(Western Cape High
Court, Cape Town)
Case no: 16727/13
In the
ex parte
application of:
PETRUS
JACOBUS PRETORIUS
Applicant
INTERVENING PARTY:
JACQUELINE Stella Franklin
Date of hearing:
13 February 2017
Date of judgment:
23 February 2017
JUDGMENT
SAVAGE J:
Introduction
[1]
In this application, brought
ex
parte
on 21 October 2013, the
applicant, Mr Petrus Jacobus Pretorius, seeks an order that this
Court declare him competent in terms of
s 4A(2)(a)
of the
Wills Act 7
of 1953
to receive benefits bequeathed to him in the will of the late
Mrs Lucretia Olivier (‘the deceased’) dated 24 October
2012 (‘the will’).
[2]
Following the service of the application on the
deceased’s former attorneys, her sister, Ms Jacqueline
Franklin, sought leave
to intervene in the application before this
Court. Although at the outset of the hearing the applicant took issue
with Ms Franklin’s
locus standi
and interest in the matter, the objection was not
persisted with and Ms Franklin was granted leave to intervene in the
application.
Apart from the fact that, as the sister of the deceased,
the intervening party clearly had an interest in the matter by virtue
of her blood relationship with the deceased, the matter had, in any
event, since 2013 proceeded on the basis that Ms Franklin had
already
intervened in the matter, with a timetable for the filing of
pleadings made an order of Court on 3 March 2014. In that
order the
applicant was granted until 4 March 2014 to indicate whether he
sought the referral of any issues to oral evidence, a
referral which
was not sought and to which I shall return later.
[3]
Without opposition, the late filing by the
intervening party of her opposing papers was granted at the outset of
the hearing.
Background
[4]
The deceased died at the age of 79, some years
after her husband and without offspring. In her last will, which the
applicant and
his daughter, Ms Sandra De Gouveia, signed as
witnesses, the deceased nominated the applicant, failing which his
daughter, as the
executor of her estate. She also bequeathed to the
applicant her immovable property situated at 103, 2nd Avenue, Parow,
the household
contents of such property and a Volkswagen beetle motor
vehicle. In doing so, she recorded in her will that he “
has
always been there for me and a helpful friend, seeing to my needs for
the past 9 years
”
.
[5]
Certain small bequests were made in the will,
including R2000 to Ms Franklin; R2000 to two nieces; R1000 to a
nephew; and small
amounts to a few named charities. In addition, the
will provided that R10 000 was to be held in trust for the deceased’s
mentally disabled sister, Veronica, who is institutionalised. It was
directed that any monies left in the estate were to be dealt
with by
the executor “
as he sees fit
”
,
including the residue of the funds held in trust for Veronica in the
event that she was to pre-decease the testatrix.
[6]
In a previous will executed on 20 April 1995 the
deceased named her then attorney Mr Daroll Goldblatt as the executor
of her will,
with monetary bequests made to Ms Franklin (R10 000), Ms
Franklin’s husband (R10 000), Ms Franklin’s sons (a third
each of R5000) and daughter (R5000); and the Parow Wesley Methodist
Church (R5000). In addition, an amount of R50 000 was provided
for
Veronica, with the remainder bequeathed to five charities.
[7]
Section 4A(1)
of the
Wills Act 7 of 1953
disqualifies any person who attests and signs a will as a witness at
the time of execution of the will, and the spouse of such
person at
the time of execution, from receiving a benefit under the will.
Notwithstanding this disqualification
s 4A(2)
provides that –
‘
(a)
a
court may declare a person or his spouse referred to in subsection
(1) to be competent to receive a benefit from a will if the
court is
satisfied that that person or his spouse did not defraud or unduly
influence the testator in the execution of the will;
[8]
The applicant seeks an order in terms of
s
4A(2)(a)
that he be declared competent to receive a benefit from the
will in spite of his signature of the will as a witness.
[9]
It is not disputed that in the absence of such an
order,
s 4A(1)
disqualifies the applicant from receiving a benefit
under the will; and, although the applicant has since declined to act
as executor
of the deceased’s estate, that in terms of
s 4A(3)
the nomination as an executor constituted a benefit under the will.
Applicant’s case
[10]
The applicant is not related to the deceased. He
knew the deceased, who he called Aunty Val, from April 2003 as she
lived 200 metres
from his home and he would see her walking in the
neighbourhood with her sister, Veronica, who lived with her at the
time. He was
a police man and the deceased sought his advice
regarding a family dispute. Thereafter, over time he and the deceased
became closer
and when from 2007 she was no longer able to drive due
to her failing eyesight, he took her shopping in his car, to visit
friends
and relatives, to visit Veronica, who was moved into care, to
church and to her medical and hospital visits. He stated that he also
maintained the deceased's garden and home and in the last two years
of her life, his wife did her washing and cooking and he took
food
and toiletries to Veronica. The applicant stated that he and his wife
visited the deceased every morning as the years progressed,
fed her
cat, ensured she bathed regularly and that she had food every
evening. The deceased got to know the applicant's daughter
well,
would often look after the applicant’s grandchildren and they
exchanged cards and gifts at Christmas and birthdays.
[11]
The applicant described the deceased as a fiercely
proud, private and independent woman who until 2011 was relatively
healthy. He
stated that he willingly assisted her as a friend “
as
her family were not much in the picture at the time
”
.
There were, according to the applicant, “
complications
in her relationships with her immediate family
”
with
the deceased and Ms Franklin estranged and not on speaking terms for
some years, until “
a thaw
”
in their relationship at the beginning of 2013. In
the applicant’s opinion Ms Franklin and her husband, who live
in the United
Kingdom, “
were
incredibly harsh and critical
”
of
the deceased, “
often making
personal comments”
about her such
as that she “
would not see out
that winter
”
. The applicant
considered this insensitive and stated that it left the deceased
“
distraught”
.
A disagreement also arose between the deceased and her sister
concerned the lifestyle choices made by her sister's children, Colin
and David, who live in Table View and the United Kingdom
respectively, who had very little to do with the deceased. When the
deceased’s
sister visited and stayed in Parow, according to the
applicant, she did not see the deceased or have dealings with her.
[12]
The applicant stated that he became the deceased’s
main care provider. He detailed occasions in which he had found the
deceased
with her arm broken and later with an injured toe and taken
her to hospital for treatment. While hospitalised he stated that no
family members visited her.
[13]
In late 2010 or early 2011 the deceased informed
the applicant that she wished to change her will and asked him to
accompany her
to Goldblatt's attorneys in Parow to do so as she had
known Mr Goldblatt for many years. The applicant stated that the
deceased
made it clear to Mr Goldblatt that she wished to exclude her
family from the will and leave the bulk of her estate to the
applicant.
Mr Goldblatt asked to speak to the deceased alone and when
the deceased exited his office she informed the applicant that they
were to leave as Mr Goldblatt refused to change her will. The
applicant stated that he was told by Mr Goldblatt that the deceased
had instructed him to draft a will leaving a substantial benefit to
him but that he had refused to do so as this would largely
exclude
her relatives from benefiting under the will. In addition, Mr
Goldblatt raised the repayment of a R100 000 loan that the
deceased
had made to the applicant, apparently after he had experienced
problems receiving his pension following his retirement
from the SAPS
in 2005 causing him regularly to be in arrears with his bond
repayments. The applicant stated that he considered
the loan and the
drafting of the will to be separate issues and that he repaid the
loan amount plus R2000 in interest in 2012 when
he sold two motor
vehicles.
[14]
The applicant stated that the deceased was adamant
that a change to her will was her wishes and that in late 2012 she
approached
him to request him to accompany her to the police station
in order to attest to the execution of a new will. He stated that he
was very busy and put this off a few times but that eventually she
became “
most insistent
”
and on 24 October 2012, with the deceased adamant
that she did not want anyone else involved, they went to the SAPS in
Parow to
do so. In the presence of a police constable and the
applicant’s daughter the deceased signed a new will. The
applicant stated
that he was hesitant to sign the will and, not being
legally trained, he was not aware that his signature as a witness may
affect
the validity of the will or the validity of any bequest to
him. He stated that he was ignorant of the contents of the will and
saw himself as a witness to a friend’s will, with his
friendship one based on mutual respect.
[15]
The applicant's daughter confirmed her signature
of the will as a witness, recording that to the best of her knowledge
the applicant
had not influenced or defrauded the deceased and that
she was certain that the deceased wished for the applicant to receive
the
benefits she left to him. She confirmed the relationship between
the deceased and her family, stating that she took over feeding
their
dogs and that she acted as a surrogate grandmother to her own
children. She stated that for three years prior to 2013 Ms
Franklin
came to South Africa but did not contact the deceased due to a
personal disagreement between the two and that, in February
2013,
when she visited the two sisters had an argument. In addition, the
deceased’s nephew, David Franklin, who at the time
lived a few
houses from the deceased, would not acknowledge the deceased when she
passed his house on her way to the applicant's
house to feed his dogs
and that had the applicant and his wife not been there for the
deceased, she “
would have probably
died long before due to neglect and loneliness. As it was, she was a
major part of all of our lives and I was
very glad and honoured to
know her
”
.
[16]
Ms De Gouveia stated that in 2012 the deceased
approached the applicant to arrange for him to accompany her to the
police station
to attest to the execution of her new will. She was
not certain who drafted the will but on 24 October 2012 they went to
the SAPS
in Parow where the will was signed and witnessed. Ms De
Gouveia was not aware of the contents of the will and “
did
not really read through it
”
as it
was not any of their business, the deceased was “
an
immensely private person
”
and she
did not want to be seen to be prying into her affairs. The deceased
was not in her presence coerced or forced to sign the
will, which
given their relationship “
would be
totally unthinkable
”
as she was a
major part of their lives, they loved her as if she was their own
flesh and blood and looked after her as one of their
own family
members.
[17]
Mr Rafle Cloete, a minister at the Uniting
Reformed Church in Parow, who lived opposite the deceased for 10
years confirmed on oath
that the deceased referred to the applicant
and his wife as “
special, caring
friends
”
. He stated that the
applicant would assist and care for the deceased, sometimes visiting
her house more than once daily, at times
late at night to check that
she was well and bring her food. He would take out her rubbish, tend
her garden, take her to the doctor
and hospital, take care of her cat
and her home and would drive her places in his own car. The applicant
“
was really the one person that
made a positive difference
”
in
the deceased's life and was by far the most involved and supportive
of the people around her.
[18]
Ms Anne Samuel, a friend of the deceased for the
past six years, stated on oath that the deceased would often mention
her relationship
with the applicant, who she viewed as a good friend
and a guardian of the interests, with their relationship based on
mutual concern
and respect.
[19]
Ms Edna Botha, a retired schoolteacher, knew the
deceased and her parents since she was 10 years old. She lived next
door to the
deceased and has known the applicant for 10 years, since
he moved into the neighbourhood. She stated on oath that she has
personal
knowledge of the positive role that the applicant played in
the deceased's life, confirming the help he gave her over the last
nine years and that the deceased spoke highly of the applicant and
respected him as a true friend who had a direct and positive
impact
on her life. Ms Botha stated that the deceased and her sister were
not fond of each other and when her sister stayed around
the corner
while visiting from the United Kingdom, she often did not visit her
sister although she walked in the area with husband.
[20]
Subsequently both Mr Cloete and Ms Botha filed
affidavits in which they stated that they “withdrew”
their first affidavits.
Ms Botha stated that this was following
further information she had received regarding the applicant’s
conduct of the matter.
Intervening party’s
opposition
Ex parte application
[21]
Ms Franklin vigorously opposed this application.
In doing so she took issue with the fact that the applicant had not
explained the
reasons for bringing the application on an
ex
parte
basis. In argument it was stated
for the applicant that it was not clear who should be given notice of
the application given that
Ms Franklin and other family members did
not have a material interest in the outcome of the matter and for
this reason the application
was served on the deceased’s former
attorney, Mr Goldblatt.
[22]
It was argued for Ms Franklin that the deceased’s
family members were clearly interested parties with a material
interest
in the matter; and that the applicant would have been aware,
given disputes which had arisen between the parties following the
death of the deceased regarding access to the deceased’s
property, that the application would be opposed. The applicant had
failed, it was submitted, to approach the Court with the utmost good
faith and had been dishonest in various of the facts he put
up in his
founding affidavit. These included that he had retired from the SAPS
when in a document put up by Ms Franklin it was
evident that his had
been a dishonourable discharge; his claims that he was the deceased’s
primary carer when this was false;
his failure to indicate that his
refusal to provide the deceased’s family with access to her
property had caused conflict
between the parties; and his failure to
provide full details of a loan he had been advanced by the deceased
and a further loan
which he had sought be advanced to him.
Failure to seek
referral to oral evidence on disputed issues
[23]
Ms
Franklin also opposed the application on the basis that a number of
disputes of fact had arisen on the papers and that on an
application
of the rule in
Plascon-Evans
Paints v Van Riebeeck Paints,
[1]
the relief sought could not be granted. These disputes included the
circumstances under which the will was drafted; the circumstances
surrounding the execution of the will; the nature and extent of the
relationship between the applicant and the deceased; the existence
of
undue influence on the deceased in the execution of the will; and the
mental capacity of the deceased at the time of the execution
of the
will.
[24]
The applicant denied that relevant and material
disputes of fact had been raised which were of such a nature as to
justify a refusal
to grant the relief sought, while acknowledging
that the applicant had elected not to seek a referral of any issues
to oral evidence
in spite of an order of this Court having granted
him the opportunity to do so.
Claim of undue
influence
[25]
Ms Franklin in her affidavit opposing the
application agreed that the deceased was an independent person and
stated that she was
relatively healthy until 2011. She stated that
the applicant overstated and exaggerated his relationship with the
deceased, falsely
contending that he was her main caregiver and that
her family did not visit or have contact with her, when extended
periods would
elapse when the applicant did not see or visit her. It
was, she said, a “
blatant lie
”
that the deceased was estranged from her immediate
family who have always been around, both in Cape Town permanently and
through
visits from the United Kingdom, and with other family members
contacting her on a monthly basis. She cited examples such as her
son
attending to the deceased’s needs during 2005 and 2006 and,
more recently, her daily visits to the deceased in January
and
February 2013. Although she had been temporarily estranged from the
deceased from 2006 to 2007, which she said was caused by
the
applicant’s deliberate lie about a family member, she met the
deceased on 27 December 2007 and resolved the matter when
the
deceased apologised for what she had written in a letter. Thereafter
a normal cordial relationship with regular contact resumed,
including
letters, visits to the deceased’s home and visits from family
members while she was in hospital. Ms Franklin stated
that it was her
view that the applicant has deliberately exaggerated the extent of
the rift with her sister to gain advantage and
was “
particularly
mischievous
”
in relying on an
alleged rift in 2013, which did not exist, after the will had been
changed. Examples were given of comments made
by the deceased’s
family, which were deliberately taken out of context by the applicant
with the sole intention of upsetting
the deceased. Further concern
arose when, while in hospital, the deceased was heard by her nephew
to refer to the applicant as
“
Andries
”
,
which was her late husband's name and which was “
another
indication”
of the applicant’s
“
influence upon her
”
.
[26]
Ms Franklin took issue with the applicant’s
claim that he undertook maintenance for the deceased stating that he
removed her
geyser more than three years earlier, telling her that it
would explode, and did not replace it leaving her without hot water.
It was disputed that the applicant kept the deceased’s home
maintained and that his wife did her washing. Her bedding, stated
Ms
Franklin, was always filthy and urine-stained, the condition of most
furnishings was “
squalid, most
horribly
”
, she lived without hot
water and she wrote in correspondence to her family that she
struggled with her own washing, describing
her discomfort. She paid
the applicant to do maintenance for her, describing in a letter that
this was “
to keep the wolf from
[his]
door
”
.
While the deceased continued driving until 2011 when she broke her
elbow in 2012, although her doctor declared her fit to drive
again,
she was convinced by the applicant that driving would damage her arm
again and he “
took control of the
car and disallowed her to ever drive again
”
.
It was disputed that the applicant drove the deceased in his car,
with Ms Franklin stating that it was “
definitely
”
in her car. It was denied that the applicant took
the deceased to visit Veronica every week or that he visited Veronica
of his own
accord. Also placed in dispute was the nature of the
medical care given to the deceased by the applicant and his wife,
with it
contended that he failed to ensure during 2012 that she
obtained professional medical treatment timeously and that this led
to
her losing a toe to amputation.
[27]
Turning to the circumstances under which the will
was executed, Ms Franklin stated that it was “
strange
”
that although the applicant received a substantial
benefit under the will he was unaware of both the circumstances in
which the
will was drafted and its contents in spite of his close
contact with the applicant. This led Ms Franklin to be “
convinced
”
that the will was drawn up by the applicant or
someone close to him and that the deceased did not even read it
before she was coerced
into signing it “
on
a day when she was so ill that she passed out there and her teeth
fell out onto the floor in the police station
”
.
Furthermore, had the deceased read the will she would not have
misspelt the names of her two nieces; nor substantially reduced
the
amount bequeathed to Veronica given her deep concern for her sister.
This led Ms Franklin to conclude that the deceased was
unduly
influenced by the applicant in the conclusion and signature of the
will.
[28]
Mr Darroll Goldblatt confirmed on oath that the
deceased visited his office during 2012 with the applicant to
instruct him to draft
a new will. During the consultation she also
sought that a loan agreement be prepared for a loan of R180 000 which
she intended
to make to the applicant and which was to be repaid when
the applicant received his pension from the SAPS. Mr Goldblatt stated
that he “
immediately realised that
the deceased was not thinking rationally when she gave me the
instructions and concluded that she was
unduly influenced by the
applicant.”
He took the view that
the applicant had manipulated her and he was therefore uncomfortable
drafting a new will which would prejudice
her sister, Veronica.
[29]
Mr Dave Fidler, the Minister of the Parow Wesley
Methodist Church until 13 December 2013, stated on oath that it
became apparent
to him that the deceased had a misplaced trust in the
applicant, who exercised an undue influence over her, that she
listened to
no one but the applicant who “
systematically
”
removed her from her friends and church support,
convincing her that only he cared for her which was not true. This
was aimed, in
Mr Fidler’s view, at having the applicant made
the main beneficiary of the deceased’s estate and to place him
in control
of it. This caused Mr Fidler to contact Ms Franklin to
express his concerns.
[30]
The deceased's niece, Ms Dawn Hewlett, who lives
in the United Kingdom, confirmed on oath that for 40 years she
corresponded up
to 8 times a year with the deceased. From these
letters it was apparent that her family assisted the deceased, with
the applicant’s
involvement, it was stated, not being as
regular as suggested by him.
[31]
Mr David Franklin, the deceased's nephew who
resides in the United Kingdom, stated that after he made use of the
applicant’s
services to undertake some steelwork at a house he
was renovating nearby but that the workmanship was of poor quality. A
dispute
ensued between them and in February 2006 the applicant told
the deceased a deliberate lie that Mr Franklin had had an affair
while
he was doing his renovations. Mr Franklin stated that this was
untrue but that it nevertheless caused conflict with his aunt.
[32]
Ms Eleanor Furter started visiting the deceased at
her house in 2012. She was shocked at the state of her living
conditions. The
deceased told her that she would be provided with a
meal each day in return for her cooking dog food for the applicant's
dogs.
This seemed like a “
strange
arrangement
”
to Ms Furter. When
the deceased’s toe was amputated she told Ms Furter that the
applicant could not visit her in hospital
for various reasons, one of
which was that he was going to watch rugby at someone's house and he
was only seen at the hospital
two or three times in the first week
she was admitted. After her discharge from hospital the deceased told
Ms Furter that she had
left money on the table with her accounts for
the applicant to pay but that the applicant had insisted there was no
money with
the accounts. The deceased concluded that “
ghosts
”
must have taken it and she provided more money for
the payments. The deceased also told Ms Furter that the applicant was
building
a wheelchair for her and that she would have to pay money to
him to get the wheels attached to the chair.
[33]
On 20 July 2013 when Ms Furter visited, the
deceased was ill, her face was swollen and she looked grey with blood
in her nostrils,
she could not lift up her arms and said that two
ghosts had been chasing her around the house. The applicant showed
her photographs
of what the house looked like after the ghost had
chased the deceased and before he had cleaned up. Ms Furter stated
that the need
for the pictures puzzled her, as did the applicant’s
conduct in showing these to her.
[34]
Ms Joan Bay met the applicant in September 2003
when the deceased brought him to her house. The deceased told her
that “
she felt sorry for
[the applicant]
and
helped to pay towards his existing home bond
”
.
In addition she told her that she sat in the applicant's vehicle
whilst his case was going on against the SAPS at his door lock
was
faulty and she had to look after the car; that she was told by him
that she could not drive her car after an operation to the
her
forearm as the arm will break when she drives a vehicle; and that she
had to pay the applicant for petrol when he took her
shopping with
her own car. Whilst the deceased visited friends regularly, this was
only until the applicant became involved with
her during the last
five years. She stated that the deceased’s house was never
cleaned.
[35]
Mr Colin Franklin, the deceased's nephew, stated
that he had been in regular contact with the deceased since
emigrating from London
in 1995. He had always got along with her
“
just fine
”
and
was willing to render assistance to her in any form. He and his wife
were told by the deceased in 2012 that she had changed
her will and
that she had collapsed at the police station when the will was
signed. Mr Franklin stated further that he visited
the deceased in
hospital and that when he questioned her subsequent discharge from
hospital she told him that this was because
the food was terrible.
[36]
After her death the applicant refused the family
any access to the deceased’s home and produced the will,
claiming that it
was incontestable. He also claimed that there was no
money in her bank account and the family paid the R8000 for her
cremation,
while the applicant was “
extremely
rude to the family appointed undertaker
”
,
demanding a death certificate and refusing to hand over her identity
document.
Applicant’s
reply
[37]
In his replying affidavit the applicant put up a
copy of an unsigned handwritten will dated 22 October 2012 which he
said he had
found amongst the deceased’s papers. He did not
state how that will came to be drafted, nor why it had not been
produced
initially, nor did he explain the circumstances under which
the subsequent signed will came to be typed. The applicant took issue
with repeated allegations of an “
extremely
provocative and argumentative nature
”
made
by Ms Franklin and disputed that there was any evidence to show that
he had either defrauded or unduly influenced the deceased
in the
execution of the will. He stated that the deceased had nine months
from date of signature of the will until her death to
amend, destroy
or revoke it, which she did not do. Furthermore, the benefits left in
her 1995 will to family members were “
not
much different to the latest will
”
and
that the deceased’s wishes were for him to receive the benefit
under the will. He questioned whether, if he had had ulterior
motives, he would have signed the will as a witness and stated that
he acted on a promise made to the deceased to protect her assets
when
he did not allow family members to remove items from her home.
Evaluation
[38]
For the applicant to obtain the order sought,
namely that he is competent to receive a benefit under the deceased’s
will in
spite of his signature of the document as a witness, this
Court must be satisfied in terms of
s 4A(2)(a)
that he “
did
not defraud or unduly influence the testator in the execution of the
will
”
.
[39]
The intervening party places this pertinently in
issue, contending that the applicant unduly influenced the deceased
in the execution
of the will.
[40]
Motion
proceedings, as was stated in
National
Director of Public Prosecutions v Zuma
[2]
-
‘…
unless
concerned with interim relief, are all about the resolution of legal
issues based on common cause facts. Unless the circumstances
are
special they cannot be used to resolve factual issues because they
are not designed to determine probabilities. It is well
established
under the Plascon-Evans rule that where in motion proceedings
disputes of fact arise on the affidavits, a final order
can be
granted only if the facts averred in the applicant’s …
affidavits, which have been admitted by the respondent
…,
together with the facts alleged by the latter, justify such order. It
may be different if the respondent’s version
consists of bald
or uncreditworthy denials, raises fictitious disputes of fact, is
palpably implausible, far-fetched or so clearly
untenable that the
court is justified in rejecting them merely on the papers…
’
.
[41]
It was
made clear in
Wightman
t/a JW Construction v Head Four (Pty) Ltd & another
[3]
that –
“
(a)
real,
genuine and bona fide dispute of fact can exist only where the court
is satisfied that the party who purports to raise the
dispute has in
his affidavit seriously and unambiguously addressed the fact said to
be disputed. There will of course be instances
where a bare denial
meets the requirement because there is no other way open to the
disputing party and nothing more can therefore
be expected of him”.
[42]
The
intervening party disputes the facts surrounding the signature of the
will by the deceased and puts up facts to support her
contention that
the deceased was unduly influenced in signing it. These include the
nature and extent of the relationship between
the deceased and the
applicant; the applicant’s role in the deceased’s
estrangement from individuals close to her;
the nature and extent of
the applicant’s influence over her; the circumstances under
which the will was prepared; and her
mental and physical health on
the day of its signature. These are not bald or hollow denials put up
by the intervening party. The
version put up by Ms Franklin does not
constitute one which is on the face of it either fanciful and
untenable. There is therefore
no reason as to why this Court should
approach the matter in the robust common-sense manner proposed in
Truth
Verification Testing Centre CC v AE Truth Detection CC and others,
[4]
with
reference to the earlier decision in
Soffiantini
v Mould.
[5]
[43]
Unlike
in
Blom
and
Another v Brown and Others,
[6]
the
facts of this matter do not suggest that it is a case in which there
is no room for undue influence or that that “
nothing
can be clearer than the absolute bona fides
”
of the
applicant. This is a deeply contested matter in which the factual
disputes raised cannot be resolved in favour of the applicant
on
affidavit in motion proceedings.
[44]
It is
directly relevant that the applicant elected to proceed by way of
application to this Court in circumstances in which he should
have
realised that his benefit under the will was to be contested and that
a serious dispute of fact incapable of resolution was
bound to
develop on the papers.
[7]
At the
very least, the breakdown in relations between the parties and the
applicant’s refusal to allow the deceased’s
family access
to her property following her death would have made him aware of as
much.
[45]
The applicant did not seek the referral of the
matter to oral evidence, even when the disputes of fact become
patently clear to
him after the opposing papers had been filed and he
had been given an opportunity in the agreed court-ordered timetable
to do so.
Instead, he persisted with the course of action chosen,
even to the extent of putting up in reply, without adequate
explanation,
a handwritten draft of the will, which had inexplicably
not been previously disclosed.
[46]
Additionally,
the applicant’s failure to make full disclosure of all relevant
facts in his founding affidavit, including but
not limited to
disclosing the circumstances surrounding the preparation and
signature of the will and the deceased’s mental
and physical
state at the time of her signature of it, when the application was
launched
ex
parte
and
both good faith and full disclosure was required, justifies the
dismissal of the application.
[8]
Given the fundamental disputes of facts on the papers and with
the applicant having failed to make out a case for the relief
claimed, the application falls to be dismissed.
[9]
[47]
For these reasons the application must fail. There
is no reason as to why costs should not follow the result.
Order
[48]
In the result, an order is made as follows:
1. The application is
dismissed with costs.
_________________
SAVAGE J
Appearances
:
For applicant:
Mr D de Mink of De Mink Posniak
Attorneys
For Intervening party:
Ms A de Wet
Instructed by Visagie Vos
[1]
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635D.
[2]
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) at 290D.
[3]
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) at para 13.
[4]
1998 (2) SA 689
(W) at 698H–J.
[5]
1956 (4) SA 150
(E).
[6]
[2011]
3 All SA 223
(SCA) at para 23.
[7]
Gounder
v Top Spec Investments (Pty) Ltd
[2008] ZASCA 52
;
2008
(5) SA 151
(SCA) at 154B-C.
[8]
Hassan
v Berrange NO
2012
(6) SA 329
(SCA) at 335G-H.
[9]
Transnet
Ltd t/a Metrorail v Rail Commuters Action Group
2003
(6) SA 349
(A) at 368C-D.