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[2016] ZASCA 55
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Van Niekerk v Kruger and Others (20632/2014) [2016] ZASCA 55 (1 April 2016)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case
No: 20632/2014
In
the matter between:
VAN
NIEKERK ELIZABETH
ALETTA
APPELLANT
and
KRUGER GERT
ABRAHAM
FIRST RESPONDENT
CLIFTON CHARLOTTA
CATHARINA
SECOND RESPONDENT
KRUGER ROELOFF JURGENS
JOHANNES
THIRD RESPONDENT
KRUGER MARIA JOHANNA
MAGDALENA
FOURTH RESPONDENT
KRUGER
PIETER
FIFTH RESPONDENT
CLIFTON SEBASTIAN LEGALLY REPRESENTED
BY CHARLOTTA CATHARINA
CLIFTON
SIXTH RESPONDENT
CLIFTON STEFAN LEGALLY REPRESENTED BY
CHARLOTTA CATHARINA
CLIFTON
SEVENTH RESPONDENT
KRUGER RUHAN LEGALLY REPRESENTED BY
ROELOF JURGENS JOHANNES
KRUGER
EIGHTH RESPONDENT
KRUGER WERNER LEGALLY REPRESENTED
BY ROELOF JURGENS JOHANNES
KRUGER
NINTH RESPONDENT
KRUGER: WIEHAN LEGALLY REPRESENTED BY
ROELOF JURGENS JOHANNES
KRUGER
TENTH RESPONDENT
ABSA TRUST
LIMITED
ELEVENTH RESPONDENT
MASTER OF THE HIGH COURT
(ESTATES
DIVISION)
TWELFTH RESPONDENT
Neutral
Citation:
Van Niekerk v Kruger and others
(20632/14)
[2016] ZASCA 55
(1 April 2016)
Coram:
Navsa ADP, Leach and Saldulker JJA and Tsoka and Baartman AJJA
Heard:
3 March 2016
Delivered:
1 April 2016
Summary:
Wills Act 7 of 1953
,
section 4
– whether deceased had
testamentary capacity to execute a will – Expert evidence –
court must be satisfied with
the reasoning which led to conclusion by
expert witness- held testatrix not of sound mind at time of execution
of will.
ORDER
On
appeal from:
Gauteng Local Division of the High Court,
Johannesburg (Mokgoatlheng J sitting as court of first instance).
The
following order is made:
1 The
appeal is dismissed with costs, such costs to include the costs of
two counsel.
2 The
order of the Court below is altered to read:
‘
The
claim is dismissed with costs such costs to include the costs of two
counsel and the qualifying fees of the following expert
witnesses:
Dr
Edeling, Mr Ormond-Brown and Professor Vorster.
JUDGMENT
Saldulker
JA and Baartman AJA (Navsa ADP, Leach JA and Tsoka AJA concurring):
Introduction
[1]
On 28 November 2006, Mrs Maria Johanna Kruger (the deceased) executed
a will, the original of which allegedly cannot be found
(the disputed
will). After her death, the appellant sought an order that a copy of
the disputed will, Annexure X1 to the papers,
be declared a true copy
of the deceased's last will and testament, and a further order
directing the Master to accept it. In regard
to this relief the
issues in the court below were (i) whether the deceased had the
required mental capacity to have executed the
will; (ii) whether the
appellant, Mrs Elizabeth Aletta van Niekerk, the deceased's niece had
unduly influenced the deceased into
executing the disputed will and
(iii) whether the deceased's purported signature appended to the
disputed will was authentic.
The court below held that the
document presented was not a true copy of the original will and that
the deceased did not have the
testamentary capacity. This appeal with
the leave of the court below is directed against inter alia the
following order:
‘
1.
Annexure "X1"
[the disputed
will]
is declared not to be a true copy
of the Deceased's original last will and testament;
2.
Annexure "X1"
is declared not to be valid on the
face of it;
3.
The Deceased is declared not to have had testamentary capacity on 28
November
2006, nor to have possessed sufficient intelligence, sound
mind or memory to understand and appreciate the import of her
signature
when she signed
Annexure "X1"
on 28 November 2006, consequently,
Annexure
"X1"
is declared not to be
the last will and testament of the Deceased;’
[2]
Before us, the parties were in agreement that the primary question to
be addressed was whether the deceased had the required
testamentary
capacity at the time the will was allegedly executed. In the event of
a finding that the deceased lacked the necessary
capacity, that would
be dispositive of the appeal. Before turning to address that issue it
is necessary to have regard to the background.
Background
[3]
The deceased and her husband, the late Mr Pieter Andries Kruger, had
three natural children (Gert, Charlotta and Roeloff), the
first three
respondents. The deceased and the first respondent had been estranged
for eight years prior to the material events.
The deceased made a
career of taking care of young babies who were up for adoption until
the adoption process was complete. In
the course of her career, the
deceased and her husband adopted Ms Magdalena Kruger, the fourth
respondent, and ‘took in’
Mr Pieter Kruger, the fifth
respondent when he was three weeks old, never adopting him formally.
However, Pieter was treated as
their natural son and when he was 16
years old, they officially changed his surname to match theirs. The
deceased referred to him
affectionately as her ‘welfare child’.
The deceased was a strong-willed 78-year-old woman. At the time of
her death
on 24 December 2006 she was obese and suffered from
hypertension and diabetes. These conditions, no doubt, contributed to
her death.
[4]
The deceased suffered two strokes, one on 15 June 2006 followed by
another on 19 October 2006. Between those two events,
on 19
August 2006, she suffered dehydration and gastroenteritis. The
deceased was hospitalised for each of these medical conditions.
[5]
On 15 June 2006, after the deceased had suffered her first
stroke, she was treated at Milpark Hospital in Johannesburg
by Dr
Rowji, a neurologist who attended to her from 15 June until a time
shortly before her death. On the day of her admission,
Dr Rowji
requested that a brain scan be conducted. The scan showed ‘…an
ill-defined area of hypo-intensity in the
region of the right basal
ganglia involving the head of caudate nucleus the right internal
capsule and the lentiform nucleus with
some extension into the
adjacent deep white matter.’ Also apparent from the scan was
age-related involutional change to the
cerebral cortex (age-related
brain shrinkage). The hospital records show that by 22 June 2006, the
deceased was ‘fully conscious
and communicating well with staff
and visitors’, although prone to wetting her bed.
[6]
On 30 June 2006, the deceased was transferred to Netcare
Rehabilitation facility where Dr Mochan and a team of specialists,
including a patient counsellor and a physiotherapist, attended to
her. She eventually regained full continence. According to the
Netcare records, by 5 July 2006 the deceased was only partially
orientated to time and place and only knew the day of the week.
Furthermore the Netcare records indicated that the deceased’s
short term memory and concentration had been affected by the
stroke.
The following week, 12 July 2006, her cognitive function was
still impaired, indicating ‘no rapid improvement’
of
cognitive function.
[7]
On 12 July 2006, the deceased’s husband, daughter, son and
grandsons attended a family meeting with Netcare personnel,
presumably to discuss the deceased’s condition and what she
would need after her discharge to improve her concentration.
According to the Netcare records, by 17 July 2006 her cognitive
function had improved and she was orientated to time but still
required verbal cueing, and made mistakes when working independently.
It is recorded that the medical team continued to work on
daily basic
concentration tasks.
[8]
By 19 July 2006, the same records show that the deceased was fully
orientated to time and place. The Netcare staff continued
to treat
and assist her with the aid of creative activities to improve her
concentration. The medical advice was that the deceased
could go home
for a weekend. It was suggested that the services of a caregiver
should be procured for the visit. On 26 July 2006,
the deceased went
home, for the weekend, but with no arrangements for a caregiver,
which left her husband to shoulder the burden.
Upon her return to
Netcare, the deceased remained fully orientated and the medical team
continued to engage her in activities to
improve her concentration
although she was reported to be occasionally incontinent. Thereafter,
Netcare personnel recommended home
alterations such as ‘grip
rails and a bath board’ to prepare for the deceased’s
homecoming and to facilitate
her mobility which had become impaired.
It was uncontested that the first stroke left her partially paralysed
on the left side
of her body. On 1 August 2006, the occupational
therapist made several other recommendations regarding further
alterations to be
effected in anticipation of her discharge. On 4
August 2006, she was discharged, a week prior to the planned date,
mainly due to
her uncooperative and obstructive behaviour. On the day
of her discharge, the deceased’s husband committed suicide. She
was
informed of this fact whilst awaiting transport home.
[9]
As indicated earlier, on 19 August 2006, the deceased was admitted to
Milpark Hospital and treated for dehydration and gastroenteritis.
On
22 August 2006, the deceased was discharged from Milpark but taken
into Panorama frail care facility (Panorama) at the instance
of her
children. It was envisaged that her stay at Panorama would be
temporary, pending the contemplated alterations to her home
to
address the disabilities brought on by her medical condition.
[10]
It was noted that at Panorama, the deceased was difficult,
uncooperative, refused treatment, accused personnel and patients
of
stealing her property, refused to eat and periodically wet her bed.
It is common cause that she was unhappy, dissatisfied with
her
admission to the facility and took the view that she was well able to
take care of herself. The Panorama records include a
note in which
the deceased’s behaviour and physical condition were considered
to be ‘an indication of starting dementia.’
[11]
On 15 September 2006, Dr Rowji consulted with the deceased and found
her severely emotionally distressed. Dr Rowji increased
the dosage of
the anti-depressants which he had previously prescribed. It is
uncontested that Dr Rowji favoured the deceased’s
continued
stay at Panorama. On the day she consulted with Dr Rowji, the
appellant signed her out for a weekend visit at the latter’s
home. It is necessary to record that but for a few days between the
first stroke and her death, the deceased spent all her time
outside
the hospital and rehabilitation facilities at the appellant’s
home. On 19 September 2006, after an appointment had
been arranged by
the appellant, the deceased met with Mr Johan Van der Merwe, an ABSA
broker, for the purposes of instructing him
to draft the disputed
will which is the subject matter of the present litigation. Van der
Merwe requested the relevant ABSA department
to draft the will in
accordance with the deceased’s instructions to him. He received
the following typed document which according
to him was in line with
her instructions:
‘
Ek
bemaak my boedel soos volg:
1.1
Die vaste eiendom bekend as St. Helenslaan 82, Mayfair-Wes, aan my
dogter MARIA JOHANNA
MAGDALENA KRUGER.
1.2
Die vaste eiendom bekend as St. Helenslaan 81, Mayfair-Wes, aan my
kinders CATHARINA CLIFTON
en GERT ABRAHAM KRUGER.
1.3
Die vaste eiendom bekend as 3de Laan 12A, Westdene, aan my seun
ROELOF JURGENS JOHANNES KRUGER.
1.4
Die motorvoertuig aan my pleegkind PIETER KRUGER (GEBORE 03/06/1967).
1.5
Die kontant in my boedel gevind, soos volg:
1.5.1
50% (VYFTIG PERSENT) aan my susterskind ELIZABETH ALETTA MAGDALENA
VAN NIEKERK (GEBORE 27/05/1963).
1.5.2
50% (VYFTIG PERSENT) aan sodanige van my kleinkinders SEBASTIAN
CLIFTON, STEFAN CLIFTON, ROHAN KRUGER, WERNER
KRUGER en WIEHAN KRUGER
wat my oorleef….’ (own emphasis.)
[12]
On 19 October 2006, the appellant found the deceased in her room in
the following condition: ‘ sy het nie lekker gelyk
nie. Ek het
met haar gepraat en dit was al of sy, jy kon nie met haar komminukeer
nie.’ On that day, the deceased suffered
a second stroke and
was, readmitted to Milpark Hospital. The second respondent, the
deceased’s daughter Charlotta, visited
her on 20 October 2006
and found her confused and unresponsive. She said, ‘My ma was
heeltemal, ek dink nie eers sy het geweet
ek is daar nie. …Sy
het net so gelȇ daar en ek het haar probeer skud en vat en dit,
en sy het net so gelȇ’.
The deceased was apparently in the
same condition when the second, third and fourth respondents visited
her the following week.
[13]
On 9 November 2006, the deceased was readmitted to Netcare
Rehabilitation Hospital. On the same day, Ms Russell, a psychometrist
employed by Mr Ormond-Brown, a resident clinical neuropsychologist,
met the deceased. Ms Russell saw the deceased because the Netcare
practice was for Mr Ormond-Brown to assess all neurological patients.
Ms Russell’s records show that the deceased was ‘confused…and
not testable’. In this regard she was referring to psychometric
testing. Ms Russel monitored her until the deceased was able
to sit
and concentrate for at least 20 minutes, by which time she would
be testable. It was only on 22 November that Ms Russell
took the view
that the deceased could be tested and so performed ‘the mini
mental status examination’ (the MMSE) on
her. The test results
showed that the deceased believed it was 1906, that her husband had
died the previous year – rather
than in August 2006, and that
she was unaware of anything on her left side due to paralysis. The
deceased scored 20/30, which Ms Russell
described as a poor
result. In addition, Ms Russell conducted ‘a clock test’
in terms of which the patient is
required to draw a clock face and
indicate the time as 09h50. She had great difficulty in doing so. The
purpose of the clock test
is to evaluate the patient’s planning
skills and concentration. The experts accepted the value of the test
to be following:’…because
you are able to plan, you can
draw the circle, you know you must put the numbers so that they are
equally spaced and you know therefore
to put the hands of the time…’
We shall, in due course, deal with the proper meaning and value to be
attributed to
the MMSE score and also the result of the meaning of
the clock test.
[14]
On 23 November 2006, the day after Ms Russell performed the MMSE, the
deceased was discharged from Netcare because she had
refused to
cooperate with medical personnel and for that reason her medical
scheme had refused to pay for any further treatment.
On 28 November
2006, five days after her discharge, the deceased allegedly signed
the disputed will at the appellant’s home
witnessed by Van der
Merwe and Mrs Flemming, the appellant’s neighbour. On that day,
she allegedly altered the disputed will
in regard to ‘the
Westdene property’ (clause 1.3 para 11 above) which had
previously indicated ‘my seun’,
the third respondent, as
legatee, and instead bequeathed it to the appellant. It was common
cause that the deceased had inherited
that property from the
appellant’s brother, a police officer. It was not disputed that
before the latter’s death the
deceased and he had enjoyed a
good relationship. The deceased had assisted him when he was in
financial difficulties and after
he was shot, took him in and nursed
him back to health.
[15]
On 7 December 2006, accompanied by the appellant, the deceased while
consulting Dr Rowji as an out-patient, told him that she
had
disinherited her children, saying, ‘I will not give them
anything’. On 24 December 2006, the deceased died of a
pulmonary embolism (a third stroke). On 28 December 2006, Dr Klepp
conducted a post-mortem recording the following:‘. ..
.
Intracranial contents: There are two areas of haemorrhage into the
right cerebral hemisphere. Resolution is more marked in one
of the
areas. There is marked complicated atheroma of the cerebral vessel.’
We deal with the significance of these findings
below.
[16]
We pause to record an incident which might have some relevance to the
ultimate question to be decided. In September 2006, the
first
respondent sought police assistance claiming that 11 firearms in the
deceased’s home had not been properly secured
while the
deceased was convalescing at the appellant’s home following her
departure from Panorama. This is an indication
of the extent of the
family feud that followed the deceased’s ill-advised move from
Panorama to the appellant’s home.
Pursuant to the complaint,
Inspector Claasen (Claasen), a member of the South African Police
Services, visited the deceased on
18 October 2006. He found her
in bed, emotional and still resentful of her placement in Panorama
despite the obvious benefits
it held for her recovery. She further
complained that the first respondent had taken her red Jetta motor
vehicle without her permission.
The deceased consented, however, to
the appellant collecting the firearms in question from her house,
which was done, with the
firearms remaining thereafter in the
appellant’s custody.
[17]
After the deceased’s death, the appellant requested the Master
of the High Court, the twelfth respondent, to accept a
copy of the
disputed will for the purposes of the administration of the
deceased’s estate. In terms of the disputed will
the eleventh
respondent, ABSA bank was appointed as the executor of the deceased’s
estate. The Master of the High Court,
Johannesburg refused to accept
the disputed will as it was a copy of the will and not an original.
It is this refusal that prompted
the appellant to institute action on
28 August 2007, seeking, inter alia, the following relief:
‘
1.
Declaring that the copy of the Deceased's last Will and Testament
annexed hereto marked "X1" constitutes a true copy
of the
original of the Deceased's last Will and Testament.
2.
That the Twelfth Defendant be authorised and directed to accept
annexure "X1"
annexed hereto as the last Will and Testament
of the late Maria Johanna Kruger.
3.
That the Twelfth Defendant be and is hereby authorised to register
the copy of
the Deceased's last Will and Testament annexed hereto
marked "X".
4.
That the Eleventh and Twelfth Defendants be and are hereby authorised
and directed
to administer the estate of the late Maria Johanna
Kruger in accordance with the contents of annexure "X1"
annexed hereto.’
[18]
The respondents, one to four (the deceased's children) and six to ten
(the deceased’s grandchildren) opposed the action.
Since they
challenged the validity of the disputed will on the basis of the
deceased’s lack of testamentary capacity, they
bore the onus of
proving that fact.
[1]
They also did not accept the authenticity of the deceased’s
signature. They pleaded in the alternative, that in the event
of an
affirmative finding of the authenticity of the deceased’s
signature, that the appellant had influenced the deceased.
Below we
deal to the extent necessary with the further evidence led in the
court below.
Further evidence
[19]
According to the appellant, who was employed at ABSA bank as a Risk
Manager, the deceased executed the disputed will on 28
November 2006
at her home and was of sound mind when she did so. The appellant
testified that she had a good relationship with
the deceased, whom
she occasionally referred to as ‘Tannie Ma’. She had
weekly contact with the deceased; either personal
visits or
telephonically. She further indicated that she took the deceased in
at the latter’s request when her children had
admitted her to
Panorama. While in her care, with the assistance of Mrs Nchube, a
caregiver, the deceased returned to her normal
self although she
remained physically challenged. Regarding the deceased’s state
of mind on 28 November 2006, the appellant’s
evidence was that
‘Tannie was by haar volle positiewe en sy het altyd logies
gedink en haar besluit was gewees as sy ‘n
ding besluit het,
het sy dit besluit en niemand kon dit verander nie.’
[20]
Van der Merwe, who testified in support of the appellant’s
case, stated that he had approximately thirty years' experience
in
drafting wills. On 19 September 2006, he met the deceased as a result
of the appellant arranging such appointment. At that meeting
the
deceased requested him to draft a will and supplied the necessary
information. Van der Merwe sent the information to the relevant
ABSA
department, which drafted the disputed will referred to above. On 28
November 2006, he met with the deceased and the appellant’s
husband and presented the disputed will for signing. The deceased,
prior to signing, instructed him to alter the draft document
so that
paragraph 1.3 would reflect the appellant as heir of ‘the
Westdene property’, instead of ‘my seun’,
the third
respondent. This amendment was witnessed by Mrs Flemming, the
deceased and him. He presented the altered document to
the ABSA
department to be retyped. The deceased died before she could sign the
retyped document. According to Van der Merwe, he
deduced that the
original altered will was in his briefcase which had been stolen from
his shopping trolley at a supermarket. Thus
only a copy is available.
[21]
Mrs Flemming, the appellant’
s 71
-year old neighbour, testified
that she had witnessed the disputed will in the presence of the
deceased, Van Der Merwe and the appellant’s
husband who had
fetched her for that purpose. Mrs Flemming had not known the deceased
prior to that day. She described the deceased
as ‘pleasant . .
. fine and alert’ and stated that she communicated well.
[22]
The fifth respondent, ‘the welfare child’, testified in
support of the appellant’s case. He testified that
he was the
only one who had taken care of the deceased after her husband passed
away. He testified about the stormy relationship
that the deceased
had with her other children who, according to him, had abandoned her
when she suffered the strokes. He described
the deceased as someone
who could not be easily influenced. On 25 November 2006 the deceased
visited him at his home and was fully
orientated. During that visit
the deceased told him that she was going to change her will and leave
him her entire estate because
her children had abandoned her. He
advised against this and instead requested that she leave him her car
and the policy that he
had been paying for. He conceded that he was
bitterly upset with his siblings and felt that he was not valued by
them.
[23]
We do not deem it necessary to deal in more detail with the evidence
of the other lay witnesses who testified at the trial.
We proceed
instead to deal in some detail with the expert evidence led.
The expert evidence
[24]
The experts, Dr Rowji called by the appellant, and Dr Edeling, a
neurosurgeon, Mr Ormond-Brown, and Professor Vorster,
a psychiatrist,
called by the respondents, had conflicting views on whether the
medical conditions, referred to above, had resulted
in frontal lobe
executive mental impairment which would have rendered the deceased of
unsound mind and incapable of executing a
valid will.
[25]
Although, neither Dr Edeling nor Professor Vorster treated the
deceased, they had accessed the medical records relevant to
the
deceased’s time in hospital and in the rehabilitation
facilities, and based their opinions on those records. Dr Edeling
said that they were accordingly in as good a position as the treating
doctors to formulate their opinions. The experts called by
the
respondents suggested that the deceased had suffered from dementia
following the first stroke and that she got progressively
worse. We
deal with their evidence in turn below.
[26]
Dr Edeling, whose expertise as a neurosurgeon was not in dispute,
testified that the first stroke occurred in the right middle
cerebral
artery, which means that it was an ischaemic stroke, which blocked an
artery and thus that area of the brain supplied
by that artery ‘died’
through lack of blood supply. The affected area was in the right side
of her brain deep in the
basal ganglia regions, not around the
surface but deep in the right hemisphere of her brain. The stroke was
triggered by her history
of hypertension and diabetes, both of which
are risk factors for the development of cerebrovascular disease. When
she was admitted,
her blood pressure was high with a systolic reading
over 200mmHg; she was also paralysed on the left side, leaving her
left arm
and leg weak. He translated the results of the scan,
referred to above, as follows:
‘…
a
stroke involving those structures would predictably cause left
hemiparesis and also left hemianopia. So the pathway coming from
the
vision to the eyes going to the back of the head the nerves bringing
information from the left visual field so the left side
of the left
eye and the left side of the right eye would go through that area.’
[27]
Also apparent from the scan was age-related involutional change to
the cerebral cortex (age-related brain shrinkage), which
according to
Dr Edeling, was significant as it would have made the deceased more
vulnerable to the effects of a stroke. Dr Edeling
said the
following about her incontinence, reflected in the Milpark hospital
records of 22 June 2006:
‘…
from
that anatomical situation of the stroke if that was the only part of
her brain that was damaged one would not expect incontinence
the fact
that she was incontinent following the first stroke means that there
was other damage to other parts of her brain that
the scan could not
see. The part of the brain that is involved in this kind of
incontinence is the cortex in the frontal lobes.
So the cortex was
affected but the fact that she was incontinent means that the
shrinkage of the frontal lobes was to such an extent
that there was
impaired functioning.’
[28]
Although by 19 July 2006, the deceased was fully orientated as to
time and place, Dr Edeling testified that such ‘orientation
is a very low-level basic mental function. One needs to have a lot
more advanced and complex mental function before one can conduct
one’s affairs.’ Following her admission to Milpark
Hospital for dehydration and gastroenteritis, Dr Williams,
her
attending doctor certified her as unable to manage her affairs. Dr
Edeling confirmed that Dr Williams’ certification
was in line
with his opinion that the dehydration had hampered her mental
function, despite the fact that mental impairment was
not clearly
documented in Milpark's records. Dr Edeling said that this
condition would have had following effect on the deceased:
‘…
[A]
person who has had a stroke and a person who has cerebral vascular
disease as she is known to have had and a person who has
mental
impairment on the basis of that and cerebral atrophy which we know
she all had by that time will be aggravated by dehydration
because it
will impair the blood flow to the brain.
So
I would expect that this dehydration from gastroenteritis would have
further compromised her mental function.
’
(own emphasis.)
[29]
Dr Edeling testified that the Panorama records showed that the
deceased was awake and alert, though sleeping most of the time,
which
he said was in keeping with brain damage as had her brain had been
normal, she would not have slept most of the time because
gastroenteritis and dehydration would not on its own have made her
sleep; brain damage and dehydration, however, hampers cerebral
blood
flow thus causing drowsiness.
[30]
Dr Edeling explained the deceased’s uncooperative and
obstructive behaviour as recorded in the Panorama records as follows:
‘. . . frontal lobe executive mental impairment, where a
person’s mental function has deteriorated to the level
where
she is unable to care for herself.’ He went on to say that once
mental impairment has reached the level of impaired
social
functioning or occupational functioning, it is called dementia. This
view was shared by, Ms Viljoen, the owner and manager
of Panorama,
who obtained her honours degree in nursing at the University of the
Orange Free State in 1981 and had been in the
profession since that
time. She described the deceased’s condition as ‘an
indication of starting dementia.’
[31]
According to Mr Ormond-Brown, the deceased had suffered a
cerebrovascular incident or CVA stroke, involving the right middle
cerebral artery which supplies about 60 per cent blood to the brain.
He further agreed with the views expressed by Dr Edeling above.
[32]
Mr Ormond-Brown described the deceased’s mental and physical
condition after the second stroke as follows:
‘…
She
was confined to a wheelchair and had a dense hemiparesis, in other
words, she was paralysed on the left side of her body. Muscle
tone
was 3/5 in the left arm and leg, in other words, it is reduced. She
had generalised left-sided hyperaesthesia, meaning that
she could not
feel on the left side of her body. She had left hemianopia, meaning
the she was blind in the left visual field of
both eyes.’
[33]
Dr Edeling described the second stroke as follows:
‘…
[I]t
was in the same area of the brain as the first stroke but as opposed
to a blockage of a vessel there was bursting of a vessel
so there was
haemorrhage or bleeding into that region of the brain and the
haemorrhage actually went further than the confines
of the first
stroke but it was in the same area of the brain.’
[34]
Dr Edeling also testified that the expected consequence of the second
stroke was that the hemiparesis and the lack of vision
would become
worse but her level of consciousness would be impaired. He claimed,
therefore, that the scan did not depict the full
extent of the brain
damage and that the post-mortem findings confirmed this view.
[35]
The visual impairment meant the deceased was only able to see
‘50 percent of her visual field’. Mr Ormond-Brown
considered the impairment significant as the left side did not exist
for the deceased.
[36]
Professor Vorster testified that the MMSE is of value in the
cognitive assessment of patients. She confirmed that psychiatrists
generally use the MMSE to test for cognitive impairment, and is a
standardised part (‘gold standard’) of their evaluation.
She said that a score of 20 out of 30 indicated a very poor result
and was suggestive that the deceased had suffered a multi-infarction
syndrome in the nature of dementia, given her history of
hypertension, diabetes and cholerostomia. She said the following
about
the scores achieved by the deceased, views shared by Doctors
Edeling and Ormond-Brown:
‘
Ja
20 out of 30 is an abnormal score it is low and would be indicative
of some kind of pathology and what one would need to look
at is where
she did poorly. . . . . Her major losses are on orientation
where she scored 1 out of 5 and on calculation where
she scored 1 out
of 5, those are indicative of pathology. In terms of the date the
importance of asking people the date is in fact
to see how well their
memories are functioning because it is your memory that tracks the
date and in terms of attention and calculation
where one sees you
have to subtract you know 7 from 100 that little test. So she was
able to correctly subtract the first one but
from there on made an
error and then did not proceed by the looks of the scoring here shows
that she had very poor concentration.
So from here it looks as though
her memory and concentration is poor and if one then looks at her
draw a clock . . .there one can
see evidence of abnormality quite
easily see the evidence of the abnormality in that she is unable to
plan where the numbers should
be in appropriate places on the clock,
a clock being something one sees very commonly….
Your
frontal lobe is the most important part of your brain for thinking
people, your frontal lobe is what allows you to plan and
if one looks
alone without doing anything else at her drawing a clock you can see
the evidence of the lack of planning…
because
you are able to plan, you draw the circle you know you must put the
numbers so that they are equally spaced and you know
thereafter you
put the hands of the time that on its own shows a lack of planning so
it is quite likely she had frontal lobe damage….’
(own emphasis.).
[37]
Dr Edeling said the following about the impairment, concluding that
the result of the ‘mini mental status examination
20 over 30 .
. . is diagnostic of dementia’:
‘…
Now
this “left sided unilateral spatial neglect” is a very
serious problem and you would not expect that even just from
where
the stroke was. Because neglect means your brain is not aware of the
fact that there are things on the left side of you and
in her case
even her paralysed left arm she did not realise that she had a left
arm, she did not realise that her arm was paralysed.
… That is
a severe impairment of cerebral cortical processing at a basic level,
it is far more basic than the mental function
of understanding and
insight and complex decision making, I do not even know that there is
a left side to the world.’
[38]
Mr
Ormond-Brown's conclusion based on the
MMSE results is that the deceased who had suffered two strokes 'was
dementing because she
had had a series of tiny little strokes that
had compromised her brain function, that is the multi infarction
dementia component
of the diagnosis’. The MMSE score of 20/30
bolstered his ‘suspicion that the deceased may have been
suffering from
multi-infarction dementia and not simply the sequelae
of two cerebrovascular accidents, that the deceased had major
cognitive dysfunction
. . .’ ‘that is clearly defined,
which is indisputably a major impairment of mental functioning'.
[39]
Mr Ormond-Brown concluded that the deceased suffered from
multi-infarction dementia. It was later conceded by Dr Rowji that
a
score of 20 out of 30 on the MMSE indicated vascular dementia.
According to Mr Ormond-Brown, the neuropsychological evidence
in the
Milpark and Netcare hospital records conclusively established that
the deceased's executive functioning and reasoning, which
are based
in the left hemisphere frontal lobes, were cognitively impaired as a
result of the two strokes the deceased suffered.
Mr Ormond-Brown said
that the fragmented nature of the clock diagram was suggestive of
impaired mental functioning and cerebral
vascular pathology.
[40]
In regard to the post-mortem findings referred to above, Mr
Ormond-Brown said that blood supply to a major section of the brain
had been compromised. Dr Edeling said that the findings confirmed his
diagnosis of ‘a progressive decline’ which indicated
that
the blood supply to the whole brain had been compromised.
[41]
Dr Edeling concluded that it was improbable that the deceased would
have had testamentary capacity on 28 November 2006. Mr
Ormond –
Brown shared this view and said it was not possible that the deceased
would have been capable of processing the
information in the disputed
will as it would not have been possible for her to make sense of what
she was reading given the combination
of hemianopia, her unilateral
left spatial neglect and dementia. Professor Vorster and Mrs Viljoen
shared this view.
Dr Rowji’s opposing view
[42]
Prior to the stroke, Dr Rowji had never met the deceased. His
impression of her, however, was that she was a difficult person
who
exercised her will at all times. He was not convinced that the
deceased had been confused. He rather believed that she was
just
difficult, wanting things done her way. Dr Rowji said the following
about dementia:
‘
Dementia
implies that the person has cognitive impairment and the cognitive
impairment we are looking for is a variety of neurological
deficits
of higher executive function. The way we would associate is to use as
a basic screen the mini-mental state examination
and based on the
score that we would get and the impression we get from the
examination we would then go into specific areas of
the brain
function to guide us with attention, registration, short-term memory,
geographical orientation, language insufficiencies
which would guide
us towards a specific clinical diagnosis and the mini-mental state
would obviously help us do that. Dementia
implies that the person has
significant cognitive impairment. We categorise impairment into mild,
moderate and severe.
We consider anybody
with mild cognitive impairment as somebody who might go on to develop
a dementing disorder
. A person with
moderate to severe dementia or moderate impairment would then be
regarded as a demented person.’ (own emphasis)
[43]
Dr Rowji who attended to the deceased from 15 June until the end of
the period relevant to this judgment, did not think that
the first
stroke had introduced dementia in the deceased. Instead he described
the first stroke as a subcortical stroke or an infarct,
occurring in
the sub cortex – the area of the brain housing the fibres or
‘Telkom wires’ as he described it that
take information
to the part of the spinal cord that ultimately supplies that segment
of the body. According to Dr Rowji, this
is not something that
affects the cortical area where the real reasoning and functions
exist. He said that the brain was divided
into different sections and
that damage to one section does not necessarily impair other brain
functioning.
[44]
Dr Rowji disagreed with Dr Edeling’s conclusions and questioned
whether Dr Edeling was qualified to make the assessment,
claiming that at most the deceased suffered from delirium, a
temporary phase common in hospitalised elderly persons. He said the
condition would improve within 48 hours of return to normal routine.
Dr Rowji also criticised Dr Edeling’s suggestion that
the
deceased had suffered from vascular dementia, a slow progressive
diminished cognitive faculty which worsens with each subsequent
event. Dr Rowji relied on the fact that the deceased had improved,
which he said indicated the absence of dementia.
[45]
Dr Rowji also considered that the deceased was ‘a larger than
life person, in more than one way…[who] exercised
her will
over everybody, including myself…was just upset with
everybody…at that stage the first hospitalisation I
could not
wait to get her out of the hospital….’ During her stay
in hospital he only had contact with the deceased’s
husband and
therefore formed this strong opinion on the deceased’s
pre-stroke personality based on information received from
her
husband. On that basis, Dr Rowji did not clinically interrogate the
reason the deceased was still prone to wetting her bed
a week after
her first stroke on 22 June 2006. Dr Rowji said the following about
the second stroke:
‘
Again
this is a haemorrhage which occurred in the thalamus which is a group
of nuclei that are very important in relaying information.
So this is
a relay station for information in the brain and it was a small
haemorrhage . . .[a]n important consequence of this
kind of a
haemorrhage is that they recover very quickly, which we saw in this
patient and most importantly when you get a haemorrhage
into these
areas you do not get cells dying in her. . .we saw that in Mrs
Kruger's case is that physically and cognitively in terms
of what
happened initially was after each stroke we expect that there would
be a little bit of confusion, because there is new
changes in the
brain. The recovery is very quickly and the reason for that
haemorrhages are not as incapacitating as infarcts,
especially if the
haemorrhage is small.’
The findings of the court below
[46]
The court below per Mokgoatlheng J dismissed the appellant’s
action with costs, and found amongst others, that the deceased
was
not mentally competent when she executed the disputed will, and that
this was as a result of the two strokes that she had suffered.
The
court below concluded:
‘
(283)
. . . In my view, the Milpark and Netcare Hospital records from 15
June to 23 November 2006 respectively, the two vascular
accidents
suffered by the deceased on 15 June 2006 and 19 October 2006
respectively, progressively show as conceded by Dr Rowji
that the
deceased's neuro cognitive impairment progressively worsened, that
his acute confusional state and clouding of consciousness
degenerated
into a delirium and ultimately vascular dementia, a state which
authoritative medical literature irrefutably concur
is sufficient
cogent proof that on 28 November 2006 the deceased could not by any
stretch of the imagination be said to have possessed
testamentary
capacity to execute a valid will.
(284)
. . . It is indisputable that the deceased's second stroke on 19
October 2006 exacerbated the deceased's cognitive impairment,
consequently, up to her discharge on 23 November 2006 the deceased's
cognitive impairment status remained unchanged.
(285)
On the probabilities it is neuropsychologically improbable if not
impossible that the deceased's cognitive condition could
suddenly
within a period of six days after MMSE test score of 20 out of 30 on
22 November 2006 which established that the deceased
had dementia,
could change to the extent that on 28 November 2006 her cognitive
impairment and mental deficits were reversed, despite
being severely
afflicted with dementia an irreversible permanent progressive
disease.
(286)
O
n the probabilities it is
neuropsychologically not possible having regard to the deceased's age
of 78, obesity, diabetes, hypertension
and cholestoromia, and two
vascular strokes, dementia, that the deceased could cognitively fully
recover to such an extent that
on 28 November 2006, it can be said
that the deceased had full testamentary capacity to execute a will.’
[47]
In addition to the above, the court said ‘the plaintiff’s
false and improbable denial that she did not discuss
the content of
the alleged disputed will of the deceased is a contrivance to
distance herself from the obvious probability that
she must have
influenced the deceased in her enfeebled cognitively impaired state
to devolve her estate in the alleged original
of Annexure X1 [the
disputed will] by making her a beneficiary of the Westdene property,
and to disinherit the fifth defendant
as a beneficiary of the
Westdene property against her better judgment because the deceased on
23 September 2006 and on 28 November
2016 was of unsound mind and
memory and lacked testamentary capacity.’
Conclusion
[48]
An expert is there to assist the court, not to be partisan towards
the party who calls them. A court of appeal can test the
expert’s
reasoning and is therefore in the same position as the trial court to
determine an expert’s credibility.
[2]
When faced with conflicting expert opinions, it is for the court to
determine which, if any, of the opinions to accept based on
the
reasoning and reliability of the various expert witnesses.
‘Objectivity is the central prerequisite for his or her
opinions.’
[3]
[49]
In our view, the signs were there, as Ms Russell and Dr Edeling and
Mr Ormond-Brown concluded, that the deceased was mentally
dysfunctional after the two strokes. The contemporaneous medical
notes and the post-mortem findings, from which it is apparent
that
the blood supply to the whole brain had been compromised, bears that
out. It follows that Dr Rowji’s evidence that the
brain was
only partially affected was wrong. The deceased’s fluctuating
confused state further appears from the evidence
of Ms Ncube, the
caregiver, who took care of the deceased from 27 November 2006
until her death on 24 December 2006. She testified
that the deceased
had told her ‘sy dink nie dat haar kinders sal enige iets erf
uit haar bates nie’, at a time when
the disputed will had
already been signed. Moreover, on 7 December 2007, the deceased told
Dr Rowji that she had disinherited her
children, when she had not.
[50]
Dr Rowji formed an opinion about the deceased’s personality
prior to her first stroke without having met her before.
He therefore
failed to do the most basic psychological inquiry into the deceased’s
confused state and did not interrogate
her continued incontinence; he
showed lack of insight into her condition. When confronted with the
MMSE scores and the numerous
indications in the medical records
indicating brain damage, he reluctantly conceded that the severe
depression could have been
linked to brain damage. It follows that
his reasoning is of limited assistance. Conversely, Dr Edeling, Mr
Ormond-Brown and Professor
Vorster took the court logically through
their reasoning based on the objective facts and confirmed by the
post-mortem findings.
In the light of Dr Edeling’s
well-reasoned opinion, supported by the medical records and
post-mortem findings, and further
confirmed by the other
professionals, including Mr Ormond-Brown, Professor Vorster, Ms
Viljoen and Ms Russell, there is no
reason to find that the
trial court erred in holding that the deceased was not of sound mind
at the time of signing the disputed
will.
[51]
In argument before this court, counsel who appeared on behalf of the
appellant submitted that the affidavit, which the deceased
made to
Claasen, contained personal detail such as the deceased’s
identity number, residence and an account of her dissatisfaction
with
her children, all of which indicated that she was alert and thus
contradicted any opinion that her mental capacity was steadily
declining. We disagree. The information referred to largely appears
from the first respondent’s complaint, which Claasen
had in his
possession. Claasen had found some of the 11 firearms in an unsecured
safe. The deceased clearly lacked insight to appreciate
the real risk
to life and property the unsecured firearms posed. The court below,
correctly, did not place any weight on Claasen’s
assessment of
the deceased.
[52]
It was submitted further that the progressive decline theory was at
odds with the objective evidence that the deceased was
able to attest
to an affidavit on 18 October 2006. On the contrary, Claasen’s
observation that the deceased was emotional
supports the diagnosis
that she was in ‘progressive decline’. Dr Rowji found her
severely emotional on 15 September
2006 and conceded it could
have been symptomatic of brain damage. He further conceded that the
deceased had remained ‘blunted
for the duration of her stay in
hospital’ and severely depressed.
[53]
Counsel on her behalf, was constrained to agree that the appellant’s
sudden rise to prominence in the life of the deceased
in this time of
crisis in her life appeared calculated and aimed at serving her own
interest. Prior to the deceased’s illness,
the appellant was
not an integral part of the family. The appellant facilitated the
meeting between the deceased and Van der Merwe,
in which the deceased
instructed Van der Merwe to draft the disputed will, a mere four days
after the deceased had left Panorama
against medical advice. As
indicated above, the deceased had three natural children and one
adopted child. The fifth respondent
appeared to be bitter and was not
an unbiased witness. When he married and bought a house, the deceased
had helped him. He said
the deceased had furnished the house telling
him it was his inheritance because she feared that the other children
would exclude
him upon her death. It follows that at that stage she
envisaged leaving her estate to her children. The premises upon which
the
appellant operated, the changes in the will occurred because the
deceased was disenchanted with her children and that she repeatedly
spoke out about disinheriting them, is not borne out by the evidence.
[54]
On 23 September 2006, the day she left Panorama, the deceased gave
the appellant a power of attorney over her estate. Prior
to her
illness, not even her husband had had signing powers in respect of
her bank accounts. After her first stroke, the second
respondent took
the deceased to the bank to draw money to pay utility bills. The
second respondent suggested that the deceased
give authorisation in
respect of her accounts to allow the second respondent to make the
payments on her behalf. The deceased refused
saying, ‘Ek het
nie eers vir jou pa teken reg gegee nie, wie dink jy is jy.’
[55]
The deceased paid her own way while she was convalescing at the
appellant’s home notwithstanding the appellant’s
attempt
to create the impression that she bore those costs. All of the above
show the appellant’s calculating nature. Despite
the fifth
respondent’s asserted admirable conduct towards the deceased in
her hour of need, she left him only a motor vehicle.
The evidence of
the appellant and the fifth respondent do not detract from the expert
evidence. Similarly, no reliance could be
placed on the evidence of
Mr Van Rooyen, the deceased’s brother.
[56]
Clearly, the above irrational behaviour of the deceased, confirms the
expert opinion that she was in a confused state after
her first
stroke that became progressively worse after her further medical
problems. The probabilities point to the deceased being
confused when
she attested to the disputed will, evidenced by her telling Dr Rowji
that she had disinherited her children and Ms Ncube
that she was
not sure whether her children would inherit after she had apparently
signed the disputed will.
[57]
From the aforegoing, there is no reason to find that the court a quo
incorrectly found that on 28 November 2006, the deceased
had not
been of sound mind and memory, suffered from a lack of insight and
was unable to execute a valid will. The order of the
court below
appears to be based on the erroneous assumption that the respondents
had counter claimed for the order in the terms
that it had granted,
an error that must be corrected. On the facts it found to be proved,
it should merely have dismissed the appellants'
action.
[58]
The following order is made:
1 The appeal is dismissed
with costs, such costs to include the costs of two counsel.
2 The order of the Court
below is altered to read:
‘
The claim is
dismissed with costs, such costs to include the cost of two counsel
and the qualifying fees of the following expert
witnesses:
Dr Edeling, Mr Ormond-Brown
and Professor Vorster.
_____________________________
H
Saldulker
Judge
of Appeal
_____________________________
E
D Baartman
Acting
Judge of Appeal
Appearances
For
Appellant:
G C Pretorius SC
Instructed by:
Nerina Wessels Attorneys, Randburg
Phatshoane Henney, Bloemfontein
For
Respondent:
G J Strydom SC (4
th
– 10
th
)
H Kriel
Instructed by:
Van der Merwe, Cronje & Kaplan,
Krugersdrop
Schoeman Maree Inc, Bloemfontein
[1]
Wills Act 7 of 1953
,
s 4.
[2]
Stock v Stock
1981(3)
1280 (A) at 1296E
–
G.
[3]
Jacobs & another v
Transnet Ltd t/a Metrorail & another
[2014]
ZASCA 113
;
2015 (1) (SCA) 139 paras 14
–
15;
R
oman’s
Transport CC v Zihlwele
(13/2014)
[2015] ZASCA 13
(16 March 2015) ‘[9]…An expert’s
opinion represents his reasoned conclusion based on certain facts or
data,
which are common cause, or established by his own
evidence…Before weight can be given to expert’s
opinion, the facts
upon which the opinion is based must be proved.’