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[2020] ZAWCHC 57
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Kriel v Master of the High Court and Others (22759/12) [2020] ZAWCHC 57 (30 June 2020)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION)
JUDGMENT
Case
No: 22759/12
In
the matter between
JOHN
KRIEL
APPLICANT
And
MASTER
OF THE HIGH COURT
FIRST
RESPONDENT
MARIA
WILHELMINA ROBERTS
SECOND
RESPONDENT
PAUL
COLLIS
THIRD
RESPONDENT
MICHELLE
COLLIS
FOURTH
RESPONDENT
ABSA
TRUST LTD
FIFTH
RESPONDENT
Coram:
Rogers
J
Heard
:
4 June2020
Delivered:
30 June 2020
JUDGMENT
Rogers
J
[1]
The applicant, Mr John
Kriel, seeks orders (a) declaring invalid wills purportedly
executed by the late Mrs Carol Richter on
8 April 2018 and 26 April
2018; (b) declaring that the will executed by her on 11 March 2005 is
her last will. Mrs Richter died
on 16 July 2018. Mr Kriel is her
widower. I refer to these wills, in chronological order, as the
first, second and third wills.
Mr Kriel alleges that the second and
third wills are invalid because his wife lacked testamentary capacity
at the time of their
purported execution.
[2]
The second respondent, Mrs
Maria Wilhelmina Roberts, is a sister of the late Mrs Richter.
Another of Mrs Richter’s sisters,
Mrs Patricia Collis, died on
11 July 2018, a few days before Mrs Richter. The third and fourth
respondents, Paul and Michelle Collis,
are the late Mrs Collis’
children. The second, third and fourth respondents, to whom I refer
collectively as ‘the respondents’,
opposed the
application until a very late stage.
[3]
The first respondent is
the Master of the High Court. The fifth respondent is Absa Trust Ltd
(‘Absa’). They have not
participated in the litigation,
though two officials of Absa furnished affidavits for the
respondents.
[4]
Mr Kriel is 92 years old.
Mrs Richter was 71 at the time she purportedly executed the second
and third wills. Mrs Roberts is about
to turn 80. Mrs Collis was six
years younger than Mrs Roberts.
[5]
The application was argued
on 4 June 2020 by audio-visual link. I reserved judgment. In the
course of argument I raised with counsel
the question as to what
course I should follow if I found that there were material disputes
of fact which precluded me from determining
the case on the papers.
In particular, I raised for consideration the possibility that if I
were to find that there were material
disputes of fact, I might
require key deponents to present themselves for cross-examination
rather than referring the whole case
to trial.
[6]
The applicant’s
counsel’s primary position was that there were no genuine
material disputes of fact and that I could
find in the applicants
favour on the papers. The respondents’ primary position was
that there were indeed genuine material
disputes of fact and that on
this basis I should dismiss the application. Both counsel
acknowledged, however, that if I were to
be against them on their
primary submissions, an order for cross-examination might be
appropriate.
[7]
In reserving judgment, I
asked counsel to submit supplementary notes dealing with the question
of oral evidence and the practicalities
of organising
cross-examination, having regard to the Covid-19 restrictions and the
ages of the key witnesses. On 8 June the applicant’s
counsel
duly submitted her note. On 10 June the respondents’ counsel
notified me that her clients wished to make a settlement
proposal to
the applicant and that, pending further developments, she would not
be submitting a note.
[8]
I do not know what
settlement discussions, if any, took place. The next development,
from the court’s perspective, was that
on 11 June the
respondents delivered a notice withdrawing their opposition and
tendering party and party costs. The applicant in
his notice of
motion had claimed costs on the attorney and own client scale. The
applicant’s counsel informed me that her
client pressed for
punitive costs. Although the question of costs had been touched upon
during oral argument, I afforded both sides
an opportunity to file
supplementary notes on costs, and both sides availed themselves of
the invitation.
[9]
Although during argument I
had raised the question of oral evidence, I was acutely aware of the
potential hazards of requiring elderly
witnesses to be cross-examined
during the pandemic. Mr Kriel is 92. Mrs Roberts is about to turn 80.
Three other relevant witnesses
for the respondents – Ms Nupen,
Mr Leibrandt and Mr Clover are 62, 70 and 73 respectively (one can
derive their ages from
their ID numbers, which appear in documents in
the record). Covid-19 poses particular risks for the elderly. On the
papers I was
strongly disposed in favour of the applicant. If I
concluded that there were material disputes of fact, it is most
unlikely that
I would have dismissed the application; I would have
instead required some form of oral evidence. However, I was by no
means sure
that there were material disputes of fact, and the
circumstances seemed to call for a measure of robustness. I thus
began to write
a judgment in order to test whether I could properly
and fairly decide the case on the papers.
[10]
I had substantially
completed my draft judgment by the time I received the respondent’s
counsel’s notification that
her clients were going to make a
settlement proposal to the applicant. As it happens, I had come to
the conclusion that the applicant
was entitled to succeed on the
papers and that there was no need for oral evidence.
[11]
Since the respondents
subsequently withdrew their opposition, little purpose would be
served in now delivering the full judgment
I prepared. However,
because of its bearing on costs, I quote the concluding three
paragraphs of that draft:
‘
74.
Having regard to the above circumstances, and the particulars
provided by Mr Kriel and Ms Cater about their interactions
with Mrs
Richter, I am satisfied on a balance of probability that she lacked
the mental capacity, in April 2018, to make a will.
In particular, I
am satisfied that she was unable to comprehend information of the
complexity embodied in the clauses that were
read to her from the
second and third wills. I am also satisfied that she was unable to
remember, or hold in her mind, the various
assets she owned and their
approximate value. In order to have had a disposing mind, she needed
to have a reasonable grasp of the
financial implications for her
husband of revoking the first will and replacing it with the second
will, and then revoking the
second will and replacing it with the
third will. I am satisfied that she lacked that capacity.
75. Leaving
aside the wills themselves, the evidence about Mrs Richter’s
cognition and capacity for communication
does not go beyond childlike
basics. One may charitably accept the evidence of the respondents’
witnesses that they genuinely
believed that Mrs Richter understood
the contents of the wills but I am satisfied on a balance of
probabilities that they were
genuinely mistaken in that belief.
76. Mr
Kriel is thus entitled to the substantive relief he seeks. He seeks
costs against the respondents on the attorney
and own client scale.
His counsel supported a punitive costs order, submitting that Pat
[the late Mrs Collis]
and Maria’s
[Mrs Roberts’]
conduct warranted a mark of the court’s disapproval. I have
given careful consideration to that submission but have decided
not
to accede to it. In disputes about the validity of wills, it is often
ordered that both sides’ costs be paid from the
estate. It will
be a sufficient mark of the court’s displeasure that the costs
in this instance will have to be borne by
the respondents personally.
[12]
The conduct warranting
disapproval is, in the first place, the way in which Mrs Collis and
Mrs Roberts kept the applicant in the
dark about the ‘discussions’
they were having with Mrs Richter about changes to her will. He was
not even aware, until
after his wife’s death, that she had
signed two new wills, despite the fact that the signing ceremonies
took place in the
house where he and she lived and which he seldom
left. In the second place, there is the allegation that Mrs Collis
and Mrs Roberts
took advantage of Mrs Richter’s enfeebled state
to bring about a change in her will which benefited themselves and
prejudiced
the applicant.
[13]
This is the conduct I had
in mind when I concluded, in my draft judgment, that the payment of
costs by the respondents personally,
rather than out of the estate,
was a sufficient mark of the court’s displeasure (cf
Estate
Rehne & others Rehne
1930
OPD 80
at 94-95;
Lewin
v Lewin
1949 (4) SA
241
(T) at 282-283;
Naidoo
NO & another v Crowhurst NO & others
[2020]
2 All SA 379
(WCC) para 89). I have not been persuaded by the
applicant’s counsel’s supplementary submissions that I
should go further.
[14]
In
Kirsten
& others v Bailey & others
1976
(4) SA 108
(C), where a will was set aside on grounds of undue
influence, the party responsible for the undue influence was ordered
to pay
the plaintiffs’ costs but not on a special scale
(113C-D). A similar order was made in similar circumstances in
Executors of
Cerfontyn
v O’Haire
1873
Buch 47. In
Westerhuis
& another v Westerhuis & others
[2018]
ZAWCHC 84
a full court set aside a will, finding that it had not in
truth been signed by the testatrix. As a mark of its displeasure at
the
reprehensible conduct of the appellants (the persons responsible
for the bogus will), the full court ordered that the costs of the
litigation should not come from the estate but should be paid by them
personally. However, the costs were not ordered to be paid
on a
special scale. I do not wish to suggest that in similar circumstances
the penalising of reprehensible conduct should never
go beyond an
order that the costs be paid by the ‘guilty’ party
personally rather than by the estate, but these cases
do reflect that
the courts take into account that there is already an element of
penalisation when costs have to be paid personally
rather than from
the estate.
[15]
The applicant’s
counsel submitted that it was only when faced with the prospect of
cross-examination that the respondents
threw in the towel. This was
said to show an absence of a genuine belief in the justice of their
case and to justify a conclusion
that their opposition was in bad
faith and that, by opposing the case on the papers, they were simply
‘taking a chance’.
While that is one possibility, I
cannot discount another possibility, put forward by the respondents’
counsel, that the respondents
did not want the main deponents
(including Mrs Roberts) to be put through the stressful experience of
cross-examination and that
they did not want to incur the costs
associated with oral evidence.
[16]
As para 75 of my draft
judgment reflects, I was willing to accept, even if this was somewhat
‘charitable’, that the
respondents and their witnesses
genuinely believed that Mrs Richter was able to understand the
proposals put to her and that she
had approved them when she put her
very shaky and illegible signature to the second and third wills. I
should mention that the
respondents’ witnesses, apart from Mrs
Roberts, included two officials from Absa Trust (one of whom was Mr
Clover), two neighbours
(Ms Nupen and Mr Leibrandt) and another
gentleman who regularly visited the home as an employee of Paul
Collis. These five witnesses
did not have a personal interest in the
estate. On
Plascon-Evans
principles, I doubt if
I could properly conclude that none of these witnesses had an honest
belief that Mrs Richter had testamentary
capacity. The honesty of
their belief is not itself a
factum
probandum
in relation
to the validity of the will but it has an obvious bearing on costs.
[17]
As to the secretive way in
which Mrs Collis and Mrs Roberts arranged for the execution of the
second and third wills, this may have
reflected an appreciation on
their part that Mrs Richter, even if she had testamentary capacity,
was nevertheless malleable and
that engagement between Mrs Richter
and her husband on the subject of her will should thus be prevented
at all costs. While this
conduct was morally reprehensible, the
respondents were nevertheless entitled to defend the will if they
genuinely believed that
Mrs Richter had possessed testamentary
capacity. I should add that while Mrs Roberts and the late Mrs Collis
may have acted reprehensibly,
the evidence does not point to any
misconduct by Paul and Michelle Collis in relation to the execution
of the second and third
wills.
[18]
Thus far I have considered
the question of costs from the perspective of the court’s
disapproval of the respondents’
conduct. I do not lose sight of
the applicant’s personal interest in a punitive costs order,
namely that he should not be
out of pocket in respect of expense
caused to him in the litigation. But ultimately this comes down to
the same consideration:
Have the respondents been guilty of conduct
of which the court sufficiently disapproves to meet the applicant’s
desire to
be fully indemnified? My reasons for returning a negative
answer have already been explained. The applicant is already shielded
to some extent by the fact that the respondents’ costs will not
come out of the estate, an estate of which he is now the
sole
beneficiary.
[19]
Although I have not found
the adjudication of costs easy, I have on balance come to the
conclusion that I should not penalise the
respondents beyond making
them personally liable for costs in accordance with their tender.
However, the applicant’s case
for attorney and client costs had
considerable merit, and the additional costs occasioned by
supplementary submissions on costs
should thus be costs in the cause.
[20]
I make the following
order:
(a) The will purportedly executed
by Carol Richter (‘the deceased’) on 26 April 2018 is
declared invalid.
(b) The will purportedly executed
by the deceased on 8 April 2018 is declared invalid.
(c) The will executed by the
deceased on 11 March 2005 is declared to be her last will and
testament.
(d) The second, third and fourth
respondents jointly and severally must pay the applicant’s
costs, including those reserved
on 26 February 2020 and those
occasioned by the preparation of supplementary notes regarding oral
evidence and costs.
_____________________
O L
Rogers
Judge
of the High Court
Western
Cape Division
APPEARANCES
For
Applicant
M
Holderness
Instructed
by
Ashersons
Attorneys
34
Plein Street
Cape
Town
For
2
nd
, 3
rd
& 4
th
Respondents
M
Adhikari
Instructed
by
Cliffe
Dekker Hofmeyr Inc
8
th
Floor, 11 Buitengracht Street
Cape
Town