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[2021] ZAWCHC 267
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Gruhn and Others v Singh NO and Others (8884/16) [2021] ZAWCHC 267 (30 November 2021)
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OFFICE OF THE CHIEF
JUSTICE
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
CASE NO: 8884/16
UTE
GRUHN
1
st
Plaintiff
PETER
HORSTMANN
2
nd
Plaintiff
ULRICH
HORSTMANN
3
rd
Plaintiff
SONIA
HSU-MICHEL
4
th
Plaintiff
v
YANITA
SINGH
NO
1
st
Defendant
YANITA
SINGH
2
nd
Defendant
THE
MASTER OF THE HIGH COURT
3
rd
Defendant
JUDGMENT
DELIVERED ON THIS 30
TH
DAY OF NOVEMBER 2021
FORTUIN,
J:
A.
INTRODUCTION
[1]
This is an application to declare the wills of the late Professor
Gisela Ingeborg
Prasad, nee Horsemann (hereinafter “Gisela”),
invalid on the following three bases:
1.1
Gisela lacked testamentary capacity at the
time of making the will.
1.2
She was unduly influenced by the late Mr
Ramesh Vassen (hereinafter “Mr Vassen”) to make the South
African will.
1.3
On a proper interpretation of the will, the
last-signed one revokes all the previous ones as it is signed one day
after the first
two.
[2]
The plaintiffs placed the following aspects at issue:
2.1
Gisela’s mental state at the time she
signed the wills and the period leading up to it.
2.2
The relationship between Gisela and Ms Yanita Singh (hereinafter
“Yanita”).
2.3
The
bona fides
of Mr Vassen and Yanita.
[3]
Gisela (hereinafter referred to as “Gisela”) was born in
Germany on 26
August 1941. She was the youngest of four
children. She was married to Prof Jamuna Prasad (“Jamuna”)
who
was born in India, for many years. She was a professor in
Geology at UCT. At the time of her death, she was a widow
with
no biological children. Her parents had predeceased her and her
intestate heirs are thus her siblings, i.e., the first
to third
plaintiffs (the third plaintiff died on 16 January 2021, and has been
substituted by his son).
[4]
Jamuna died on 18 October 2015 at the age of 98 (108). He was a
professor in
mathematics and statistics at UCT.
[5]
During March 2015, Gisela was diagnosed with lung cancer.
She fell ill in December 2015 and was hospitalized at the
Vincent Pallotti hospital with pneumonia on 18 December 2015. On 20
December
2015, she signed two wills, as well as one dated 21 December
2015, prepared by Mr. Vassen, an attorney who died during 2017.
Mr. Vassen and his wife Veena Vassen also witnessed these wills.
Gisela passed away on 30 December 2015.
[6]
The plaintiffs in essence only disputes the contents of the South
African will and
is asking for relief that would result in the
deceased’s estate being dealt with as intestate. This
would be the result
should the South African will be declared invalid
on the basis that the testator did not have the necessary capacity.
Such
a finding will result in all three wills being invalid, as they
were all signed at the time when the plaintiffs allege that Gisela
did not have testamentary capacity. Moreover, it is alleged
that Mr Vassen and/or Ms Singh unduly influenced the deceased
to
leave her South African assets to his wife’s niece.
B.
PARTIES TO THIS DISPUTE
[7]
The first and second plaintiffs, Ute Grün and Peter Horstmann,
are the brother and sister
of the late Gisela. The third plaintiff,
Christoph Horstmann NO, is the executor of the estate of a late
brother of hers, who recently
passed away. These three plaintiffs are
the heirs of her assets in Germany in terms of one of two wills dated
20 December 2015,
(hereinafter the “
German will
”).
The first plaintiff is also the nominated executor of this will. In
the absence of a valid will for Gisela, these plaintiffs
would be her
intestate heirs.
[8]
The fourth plaintiff, Sonia Hsu-Michel (hereinafter referred to as
“Sonia”) is the
heir of Gisela’s funds held in a
HSBC bank account in Bristol, England, in terms of a will dated 21
December 2015 (“the
London will
”). This will also
have nominated Sonia, a Chinese national who lived with her family in
Lesotho at the same time as the Prasads,
as executor. Sonia
moved in with the Prasads as a little girl, for them to help her with
the English language. She
and her siblings, who also lived with
them, but not at the same time, became known as the Prasads’
Chinese children. Sonia
now lives in London.
[9]
The first and second defendants, Yanita Singh (hereinafter referred
to as “Yanita”)
is the nominated executor and heir in
terms of the third will
, dated 20 December 2015 (the “
South
African will”)
.
She has been
cited as the first defendant in her capacity as executor, and cited
as the second defendant in her capacity as heir
of the South African
will.
C.
COMMON CAUSE FACTUAL BACKGROUND
a.
Visits by family members during 2015
[10]
Upon receiving the news of Gisela’s illness during March 2015,
Sonia in the UK and her
two sisters, Min-Hua (Amy), in Johannesburg
and Hsin-Yu in Taiwan, all members of the Chinese family, decided to
take turns to
come to Cape Town to look after and assist Gisela in
her time of need. Min-Hua came for two weeks during April, two long
weekends
in May, and in August 2015.
[11]
On 14 September, Jamuna fell and had a hip operation on 15
September. Hsin-Yu came to Cape
Town during May, and Sonia came
from the middle to the end of June.
[12]
During Sonia’s visit, she stayed with “
her parents
”
at their home in F[...] Road. On 17 October 2015, Amy and Pai-I
(their brother) arrived in Cape Town. On 18
October, Jamuna
died and Sonya arrived from London. On 21 December Pai-I
visited Gisela at Vincent Palotti hospital and left
again on 24
December. Sonia arrived on 26 December and visited Gisela in
hospital. On 31 December after Gisela died,
Amy arrived in Cape
Town.
[13]
The European family members who travelled to South Africa were:
13.1 Henriette (Ms.
Schlupmann’s sister) visited from 30 September to 10 October
2015;
13.2 Mr. Jakob
Schlupmann (hereinafter referred to as “Jakob”) visited
from 14 to 26 October 2015;
13.3 Ms. Jenny
Schlupmann (hereinafter referred to as “Jenny”) visited
from 6 to 23 November 2015. This
was also when Yanita met her
for the first time;
13.4 Ute Grün
visited from 22 November to 3 December 2015; and
13.5
On 2 January 2016, Jenny and Jakob arrived in Cape
Town. The wills were read.
[14]
Gisela fell ill during December and was hospitalised. While in
hospital, she signed three wills: one wherein
her Chinese daughter
Sonia inherited the assets in the UK, one wherein her siblings
inherited all her assets in Europe and one
wherein Yanita (First
Defendant) inherited all her assets in South Africa.
b
.
The Prasads’ interactions with the
rest of the family, Yanita and the
Vassens, during 2015.
[15]
During September and October 2015, Yanita visited Jamuna with her
parents at the Science Institute at UCT/Kingsbury
Hospital. She also
visited on her own after he suffered a cardiac arrest. During
this time, Gisela also called Yanita to
discuss Jamuna’ s
health.
[16]
Jamuna died on 18 October 2015 and his funeral was on 20 October
2015. Gisela and Yanita had lunch on the
day before the funeral to
discuss the cultural and/or religious aspects of the funeral.
[17]
Yanita was in KwaZulu Natal between 7 and 15 November, and she and
Jenny communicates via WhatsApp during
this time. On 17 November,
Yanita visits Gisela while Jenny was there. During this visit, Gisela
was ready to sort out Jamuna’
s affairs and Mr. Vassen is
called to advise.
[18] On
21 November, Gisela, Jenny, Ramesh and Veena meets at Gisela’s
house.
[19] On
24 November, Yanita visits Gisela and Ute, who was visiting at the
time. Yanita takes Ute on a sightseeing
trip to Signal Hill.
[20] On
2 December Ramesh consulted with Gisela. Yanita visited Ute and
Gisela after this consultation.
[21] On
6 December, Yanita and Gisela had lunch in Constantia. The next day
Gisela went to the bank and made payment
for her own treatment.
D.
PLAINTIFFS’ CASE
[22]
It is the plaintiffs’ case that Mr Vassen and/or Yanita unduly
influenced Gisela to leave
her South African assets to his wife’s
niece. Moreover, that she did not have the mental capacity at the
time to make a valid
will. In
casu
,
the Plaintiff alleges
inter alia,
that
the will itself is illogical, unusual and unfair. Moreover, that
Gisela overlooked material assets entirely that may point
to a
conclusion that she was not
“
capable
of comprehending the nature and extent of [her] property
”.
[23]
Jenny and Jakob Schlupmann
(hereinafter referred to as “Jenny”
and “Jakob”) knew Gisela as their “
aunt in
Africa
”. They visited her in Tanzania in 1974 and
1978 and in Lesotho in 1982.
[24]
Jenny
has a doctor’s degree and works as a
physicist at the Free University of Berlin.
The
family would see the Prasads in Europe “
very
often
”, and she met up with them
in the United States of America in 1987. She said that
she spoke to Gisela on the
telephone “
maybe
every two or three weeks
”.
She was, however, in much more contact with her after she left Cape
Town in November 2015.
[25]
Jakob
testified that his wife stayed with the Prasads in 1988
to complete her Master’s degree. He also explained that the
Prasads
visited him in Paris in the 1990’s and 2000’s.
[26]
In 1983, when
Sonia
was ten years old, her parents moved to
Lesotho and she went to live with the Prasads, who taught her
English. Although never
formally adopted, Sonia testified that
the Prasads were her
de facto
family for approximately 30
years.
[27]
She remembered meeting Meena Vassen at the Prasad house in Lesotho
when she was 13 years old.
She was instructed not to tell
anyone about Meena’s visit, as she was a South African
political refugee at the time.
According to her Meena kept in
touch with the Prasads throughout the years.
[28]
Sonia also testified that since moving to London in 2000 she visited
the Prasads for two weeks
“
around once a year or once every
two years
”, within the constraints of her work, and that
she and Gisela spoke on the telephone two or three times a week.
She
testified that her two younger siblings, Pai-I and Hsin-Yu, had
also gone to live with the Prasads at a later stage. During
the
trial, they were referred to as the “
adoptive children
”
or the “
Chinese children
”. Yanita testified
that Gisela mentioned them at their first meeting, or shortly
thereafter. Sonia testified
that she met Yanita in 2013.
According to her, she did not consider Yanita to be close to Gisela,
this despite the family
relying on Yanita for information on Gisela’s
health during the last month or more of her life.
[29]
Sonia described Gisela as her mother throughout her evidence. This
accords with the way she described
herself when she reported Gisela’s
death. Mr. Vassen’s notes record that Gisela described
Sonia as such during
a consultation on 21 November 2015 when she was
admitted to Vincent Pallotti hospital. Her conduct as described
during the evidence
in court leaves it in no doubt that the
relationship between Sonia and Gisela was effectively one of parent
and child. It
was obvious that Sonia was shocked and saddened
by Gisela’s death on 30 December 2015.
[30]
Gisela’s family had a similar reaction to the news of her
diagnosis. Jenni testified
that a “
whole caravan of
family members traveled to Cape Town
” after hearing this
news. She calculated that, together they “
traveled 230
000km, which is almost six times around the world
”.
[31]
Jenni went on to testify that she was concerned when Gisela contacted
the first plaintiff during
September 2015, around the time Jamuna
fell and broke his hip:
“…
and
at a point in September my aunt talked to my mother and she asked her
for her help. That was already very frightening,
because my
aunt asking for help is an alarm signal, and then my sister flew down
within a 48 hours’ notice and there was
a very short gap.
My brother came, another short gap; and I came.
”
[32]
When Gisela told Sonia that Jamuna did not have long to live during a
telephone call on 16 October
2015, Sonia immediately arranged to
travel to South Africa to see her. Min-Hua also came from
Johannesburg. This, too,
illustrates the nature of the
relationship between Sonia and the Prasads.
[33]
The plaintiffs called
Dr Parker
, a neurosurgeon, as an expert.
He was of the opinion that Gisela was not
compos mentos
when
she signed the three wills, i.e. that she was not orientated for
time, place and person. In short, he testified that
the lung
cancer with which she was diagnosed earlier that year, spread to her
brain and affected her testamentary capacity. He
testified that
he was not an oncologist and certainly not an expert in lung cancer.
[34]
He was convinced that she was going downhill after being hospitalised
and this would have affected
her cognitive functioning. He drew
these conclusions from the notes of Dr Van der Plas, Dr Hall and the
extensive hospital
notes provided by Vincent Pallotti hospital.
[35]
The factors he considered were,
inter alia,
that the cancer
that was noted in the brain on 27 October 2015 would have spread by
20 December 2015. Moreover, he considered
her weight loss of
20kg as extensive for a person of her age and a sign of her going
downhill. As she had a possible fit
on 27 October 2015, she was
put on Epilim, which further reflected the spread of the cancer to
the brain. A further fit on
14 November also indicated a
further spread to the brain.
[36]
In addition, the fact that the nurses changed her nappies unsolicited
was, in his view, an indication
that she was not alert and
orientated. He interpreted the fact that the cot sides of her
bed were up that the nurses did
not trust her mental state anymore.
Moreover, the fact that she, on 20 December, could not
recognise that she was wet, was
in his opinion an indication that she
was very weak at this stage and debilitated. In addition, she
had redness on her buttocks,
which meant that she hardly moved.
[37]
He also noted that she was constantly on strong painkillers, a strong
schedule 7 Opiate, and
a sleeping tablet. She was also
suffering from so-called “happy–hypoxia” with a low
oxygen blood saturation
level of 90%.
[38]
When Gisela refused analgesia on 21 December, notwithstanding that
the Glasgow Coma Scale (GCS)
was 14/15, Dr Parker speculated that the
deceased “was towards the end” and that the patient “has
just given
up”.
[39]
Dr Parker gave a detailed explanation of the Glasgow Coma Scale (GCS)
and how it is used globally.
It is common cause that this is
the tool used to determine whether a patient is orientated for place,
person and time. In
the end though, he concluded that little
weight could be attached to Gisela achieving a “good GCS
score”.
[40]
When referred to Dr Van der Plas’s notes on 19 December 2015 of
nuero: nil focal,
and to Dr Ameen’s, (one of the
defendant’s experts) reliance on this note, he distinguished
between a neuro physical
and neurocognitive examination. He was
of the view that Dr Ameen assumed that Dr Van der Plas did both a
neuro physical and
neurocognitive test. Dr Parker, in the
absence of any certainty, speculated that Dr Van der Plas did not do
much and only
conducted a neuro physical examination, which would
have included assessing whether Prof Prasad could lift her arms.
[41]
He further speculated that, because of Gisela’s advanced age,
the fact that she had lung cancer, which
had spread to her brain, and
that she was emaciated and incontinent, it would have made little
sense for Dr Van der Plas to perform
a full neurocognitive
examination. He remained unconvinced that the words
nil
focal
gave any indication of what examination was done by Dr Van
der Plas.
[42]
Dr Parker admitted that he initially missed/did not comment on this
note by Dr Van der Plas.
He however stood by his interpretation of
her notes in court, after being alerted thereto.
[43]
Apart from questioning the notes by Dr Van der Plas, Dr Parker also
strongly criticised the notes
made by the nurses in the ward at
Vincent Pallotti Hospital. It was his evidence that the court
should not place much reliance
on these notes as these notes are made
“…
by nurses who are just not worth their salt
.”
[44]
Dr Jacqueline Hall
was the plaintiffs’ fifth witness.
She was the treating physician of Gisela from 26 March 2015
when she was first diagnosed
with lung cancer. Dr Hall is an
oncologist who only gave factual evidence and not evidence of an
expert nature. Dr
Hall concluded that the patient was
“
definitely confused at times”
. She was not
cross-examined.
E.
DEFENDANT’S CASE
[45]
It is the defendants’ case that the testator had testamentary
capacity at the time of making
her will and that she was not unduly
influenced by anyone at the time. The defendants called four
witnesses; Ms Meena Vassen,
Dr Ozayer Ameen and Prof
Daniel Niehaus as experts and Yanita.
[46]
Ms Veena Vassen
(hereinafter “Ms Vassen”)
testified that she was the 72-year-old widow of the late Mr Vassen.
Yanita is her cousin,
but she considered her a niece. She studied
law, and met her late husband while they were both studying in
Durban. She married
her husband in 1972 and moved to Cape Town
in 1975 where her husband joined the law firm of the late Dullah
Omar.
[47]
She explained that then her husband did mostly political matters.
When the ANC was disbanded
in the early nineties, a discrepancy
of approximately R120 000 was found being money paid to him by the
International Defence Aid
Fund (IDAF). He used this money from
his trust account. The money was repaid but Mr Vassen was removed
from the roll of attorneys
in 1995, charged criminally, convicted and
was handed a suspended sentence.
[48]
In 1995 Mr Vassen joined the legal department of the Department of
Foreign Affairs and also worked
as a parliamentary officer in Cape
Town.
[49]
Mrs Vassen testified that her cousin, Meena Vassen who is the sister
of Yanita’ s father,
spent time with the Prasads in Lesotho
while she was doing her PhD.
[50]
The witness recalled accompanying her husband to the home of the
deceased on 21 November 2015
in connection with the estate of Jamuna.
[51]
She remembered that her husband consulted with the deceased again at
her home on 18 December
2015 and that he was “shaken”
when he returned home. When she asked him about it, he informed her
that Gisela has decided
that she wanted to leave all her South
African property to Yanita. According to her, he
explained that he asked Gisela
whether she did not want to consider
her other family members, and she said that “
she did give to
her family and that they are okay
”. Her husband
further informed the witness that Gisela also turned down a
suggestion that the money could go
to charity.
[52]
The witness testified that she did not discuss the will with anyone
after this because of professional
confidentiality.
[53]
She recalled the signing of the wills at the Vincent Pallotti
Hospital on 20 December as follows:
She accompanied her husband into
the ward. Gisela was awake and said that Mr Vassen did not have to
read the wills back to her
again. A nurse was asked to assist. She
brought a table closer. The nurse asked Mr Vassen whether the patient
knew what she was
signing, and before he could answer, Gisela said
yes.
[54]
According to this witness, the three wills were explained to Gisela.
She signed each one
of them and Mr Vassen and his wife witnessed them
respectively. Hereafter, Gisela asked the nurse to take her to
the bathroom.
The witness and her husband left at this point.
[55]
The two of them visited the deceased again on the next day and found
her neighbours living opposite
her in F[...] Road, talking to her.
They also visited the deceased in hospital on 24 and 29
December 2015.
[56]
Dr Ozayr Ameen,
a neurologist, was called by the respondents
as their first expert. Referring to the patient’s hospital
records, it was his
opinion that the primary tumour in Gisela’s
lungs had shrunk and not increased as suggested by Dr Parker.
[57]
The witness did a detailed analysis of Dr Van der Plas’ notes
between 27 October 2015 and
21 December 2015 as well as a report by
Dr Van der Plas to Dr Hall on 2 November 2015. This witness
focussed on the note
“
neuro non focal
” by Dr Van
der Plas. It was Dr Ameen’s opinion that, because of Dr Van der
Plas’ history with the patient, she
was primed to note down
whether the patient had an abnormal mental state or not, which she
did not do. Instead, she noted
down “
neuro non focal
”.
It was further his view that, because Dr Van der Plas knew that
the patient had a brain lesion, she would therefore
have been
checking the neurological system.
[58]
The court was urged to look at her notes, e.g. “
frail, but
alert and orientated”
and “
neuro non focal
”.
He stressed that this doctor was primed as she detected neurological
decease on 27 October 2015. He pointed out that
there was only
one single gyrus that was abnormal at the time. On
re-examination Dr Ameen asked the court to accept that
Dr Van der
Plas would have checked the neurological system and thereafter made
the note “
neuro non focal
”. Prof Niehaus
agreed with Dr Ameen in this regard.
[59]
Dr Ameen was adamant that there was no clinical evidence that there
was an increase in the cancer
in the brain. Moreover, in his
view, there were no physical signs of an increase in the tumour. The
court was pointed to
the fact that the brain tumour was a small
single gyrus in the right parietal lobe and if there were a large or
increasing tumour
in that area, “
then you would expect it to
manifest in the way that these things usually manifest.”
[60]
Commenting on Dr Parker’s evidence, the witness was of the
opinion that the patient’s
(Gisela) blood results showed a
marker of infection, which he viewed as expected, as the patient was
admitted to hospital with
pneumonia.
[61]
In respect of the patient’s testamentary capacity and cognitive
function on 20 December
2021, Dr Ameen differed from Dr Parker when
looking at the same nursing notes. In his opinion, the hospital
notes indicate
that, at 2am after signing the wills, the patient was
alert and orientated. Moreover, an hour after the wills were
signed,
the patient had the capacity to make a decision about whether
she wanted to be washed or not.
[62]
Dr Ameen pointed out that the first note of her being weak and
disorientated was a note by Dr
Van der Plas on 21 December 2015. The
court was pointed to the notes by the nursing staff at 2am indicating
the opposite,
as well as her score on the GCS of 15/15 four hours
later. That same morning the patient also refused analgesia.
[63]
In respect of the size and location of the brain tumour, it was Dr
Ameen’s opinion that
the lesion was not in the substance of the
brain but only on the surface of the brain. Whether the brain
tumour could have
an impact on the cognitive abilities of the
deceased, Dr Ameen differed from Dr Parker pointing out that there
were no localising
signs, e.g. disprosity of speech, weakness of the
left arm and leg, sensory loss, ongoing seizures and an inability to
recognise
faces, since the last scan, and that it can therefore not
be said that the lesion had grown and was impairing her cognition.
[64]
The witness also differed from Dr Parker on the meaning of the
patient wearing nappies. Dr
Parker interpreted the fact that
she was wearing nappies towards the end as she was in a very frail
state. Dr Ameen, on the
contrary suggested that incontinence
pointed to a spinal cord dysfunction and not a neurological
dysfunction. Moreover, that
the fact that the patient was still
able to go to the toilet intermittently, should also be taken into
account.
[65]
It was therefore Dr Ameen’s expert opinion that the cognitive
abilities of the deceased
were intact at the time of making the
wills, and that she therefore had the necessary testamentary
capacity.
[66]
Prof
Daniel Niehaus,
a
psychiatrist, was the second expert called by the respondents. He
is the head of the Psychogeriatric Unit at Stikland Hospital.
He
currently specializes in geriatric psychiatry, focusing on patients
60 years and older. He testified that at Stikland
Hospital, one of
the first questions they ask their patients is whether they have a
will and that they use the test laid down in
Banks
v Goodfellow
[1]
.
The professor concluded after submitting two reports that,
despite the possibility of delirium and /or dementia, insufficient
evidence exits to show a lack of testamentary capacity on 20 December
2015.
[67]
The witness took issue with Dr Parker’s stigmatised view that
psychiatrists put a patient
“
on a couch and listen to your
stories
.”
[68]
He reached his conclusions after consulting the wills, all the
medical records, statement from
Mr Vassen, WhatsApp messages between
the parties and all other relevant documents, including the testimony
of Dr Hall, Sonia, Mrs
Vassen, Jakob and Jenny and Dr Parker.
[69]
He noted that Gisela did show signs of delirium but also had clear
moments.
[70]
Some of the assessments done by their unit are very
instructive. It was his
evidence that they are on the lookout
for red flags when making these assessments.
·
The fairness of the will is considered
e.g., why a testator is giving certain heirs certain assets. He gave
an example of someone
who disinherited her two children and gave all
her assets to an animal shelter because she built stronger emotional
relationships
with people at the shelter. This meant that it was
subjectively fair;
·
The value of the assets. Only large
discrepancies are considered to be of concern. It was his view that
it is not expected of patients
to know exactly what is kept in every
bank account. Where patients have a financial adviser, this is
particularly relevant.
·
Whether the patient owns a car, is still
driving, had accidents recently gives an indication of mental
ability, or impaired mental
ability.
[71]
The following are considered red flags pointing to possible undue
influence.
·
The presence of undue influence is also
assessed. A red flag would be if access to the patient is blocked
resulting in a form of
alienation.
·
Another red flag would be who is present at
the discussion of a will.
·
Should there be a want of approval by the
patient of one of the heirs, it would also be considered a red flag.
·
Inconsistency of the wishes over time is
also a red flag.
[72]
It was his evidence, that when the beneficiaries are considered, it
is also important to look
at the life history of the patient.
[73]
The witness looked at the five most important people in the
deceased’s life over the last
few years i.e. who spent the most
time, app 40% of their time with her. The court was asked to look at
the duration of contact
between the deceased and the heirs. The
witness agreed with Dr Ameen and Dr Hall that the reason for Gisela’s
admission
on 18 December 2015 was pneumonia and not her mental state.
[74]
The witness agreed with Dr Ameen on the interpretation of the note
that she was “alert
and orientated”. His evidence was
that these words refer to a neurological symptom.
[75]
Yanita
testified in her capacity as executor of the South
African will as well as in her capacity as heir. She referred to
Jamuna and Gisela
Prasad as “uncle and aunty”.
Yanita is a 44-year-old Clinical Technologist of Indian heritage.
She first
worked at the Red Cross Children’s Hospital in the
Paediatric Cardiology division and currently as a clinical
technologist
in Cardiology. According to her, the Prasads were
fascinated by her work, in particular the fact that she was “putting
pacemakers in babies”.
[76]
She testified about how the Prasads met and told the court their life
story as related to her
by the two of them. The Prasad’s both
attended the La Sorbonne University in Paris where they met. They
both were undertaking
their PhDs. Uncle was working in Scotland
before this. He told her that Aunty was very beautiful and that her
family was not very
happy that she wanted to marry this “poor
Indian man” as there were many more suitable European men.
Aunty on
the other hand was not interested in any European men.
According to her, Uncle was very different to all the European men
she has
met. She loved him. She went against her family’s
wishes and married the love of her life.
[77]
The witness testified that she had a long relationship with the
Prasads, starting in 2005. It
is her version that for a very long
period, from about 2009, she was not just a family friend, but also
the person who was closest
to the Prasads.
[78]
Her evidence was in effect a chronological narrative of the intimate
nature of her relationship
with the Prasads.
[79]
The Prasads knew Yanita’ s family since the late eighties, when
her aunt, Meena Vassi,
did her PhD in geology at Cambridge
University, and chose to do her fieldwork in Lesotho. Gisela
was her supervisor.
In 2005, her aunt Meena’s
husband, who was an economics professor, came to UCT and the witness
accompanied him to the
Prasads’ house at 2[...] F[...] Road.
This was her first physical meeting with the Prasads. She
remembered this
as it was her very first time to interact with a
cat.
[80]
Many of the witness’ family members stayed over at the Prasads
house when visiting Cape
Town, as she was staying at the nursing home
at the time and did not have available accommodation for them. When
her grandmother
visited in 2006, uncle reminded her of a letter she
wrote to him in the eighties thanking them for allowing Meena her
daughter
to stay with them.
[81]
According to the witness, the Prasads were very interested in her
education and her work.
They told everyone who they met how
proud they were of her “fixing pacemakers in babies”.
[82]
She started visiting them regularly, every two weeks, as she did not
know many people in Cape
Town at the time. She also took many
of her friends to meet the Prasads, and the Prasads also invited her
when they had visitors
over, especially young people. She
remembers meeting the cousin of Pres Thabo Mbeki who lived in
Lesotho, at their house.
[83]
She remembered taking one of Gisela’s visiting students, Anil,
from India to spend time
with the Prasads. Uncle, in
particular, enjoyed spending time with him because he could speak 32
Indian dialects.
[84]
The witness started house sitting for the Prasads during 2005/2006
when they went to India for
a month. She took care of their
cat, Yogi.
[85]
During 2006 when they were back from India, uncle got sick and was
admitted to Kingsbury Hospital.
She and Gisela took turns to
visit him. The witness came to know about the Chinese children
shortly after she met the Prasads
in 2005.
[86]
She remembered that the Vassens met the Prasads for the first time in
2007 when her cousin and
her aunt stayed with the Prasads.
[87]
She testified that she met Dr Ulrich Horsemann (the second Plaintiff)
on three separate occasions
in 2007 while he visited the Prasads in
Cape Town. She remembers taking him to see luminous plankton at
Fish Hoek on his
request. She also remembered that Dr Horseman
and uncle argued a lot. Even though it was about silly stuff
most of
the time, she did sense some animosity between them.
[88]
During 2008, while she was writing exams, the Prasads invited her to
stay with them, as she did
not have a place to stay at the time.
They insisted that she focussed on her exams, and not spend time to
find a new place.
[89]
Jamuna was a vegetarian while Gisela was not fully vegetarian and
occasionally enjoyed some chicken
and fish.
[90]
The witness paid the Prasads R5000.00 for return tickets to Durban as
a thank you gift for staying
with them during that month. They
did not want to accept it but she insisted. She suggested a
trip to Durban as uncle
has never been to Durban before. The
Prasads did not take up her offer, as uncle was too old to travel at
the time.
His official age was 98-years old, but he was always
of the view that he was unofficially 10 years older, that means 108
years
old.
[91]
The witness met Sonia and her daughter Kaia for the first time in
February 2009.
[92]
During 2009, her grandfather died, and the family wanted to spread
his ashes in Ganges River.
Jamuna advised on the logistics of
doing this. During 2010, she attended a musical show with them.
It was just the three
of them. She remembered this as the artist
performed a very spiritual blessing of the crowd. The three of
them attended every
year after this. During 2011, they attended
the concert again. The artist played the Indian classical flute.
They were
exited to hear this, as Gisela also played this flute and
played regularly for the witness.
[93]
When the witness completed her degree, her parents came to Cape Town
for her graduation. She
invited the Prasads to her aunt Veena’
s house for the celebration. She invited them because they were
a big part of
her life.
[94]
They attended another concert during 2012 when Sonia and her daughter
accompanied them. Towards
the end of the year, she accepted the
position to move back to Red-Cross Hospital, and was then looking to
buy her own place. She
asked Gisela to help her, as she was very able
and willing to help. Gisela accompanied her to many viewings,
including the place
she is currently living in.
[95]
She moved into her place in March 2013. Her place is in walking
distance to their house, only
5 minutes by car. On 8 June 2013, the
witness spent uncle’s birthday with him as Gisela was
travelling for her work. When
aunty travelled, the witness checked in
on uncle more regularly. She would stay over for a weekend and go
grocery shopping for
them.
[96]
The Prasads made their own yogurt at home. Every few months they went
to Ryland’s to have
Jamuna’ s hair and beard cut. Aunty
was grateful for this, because it made him feel good. During
this time, Gisela
asked her to take her to a wine farm where they got
Indian running ducks to get rid of the snails in her garden. As
the witness
was now staying much closer, she started visiting more
often. Almost every weekend. They spent a lot of time together in the
garden.
During this time, the Prasads had a new cat also named
Yogi.
YANITA’S
EVIDENCE REGARDING ILLNESS DURING 2015
[97]
During October 2015, Gisela called Yanita to help with Jamuna’
s funeral preparations.
On 27 October 2015, Gisela was admitted to
hospital and was discharged on 30 October 2015. On 4 November 2015,
Gisela went to see
Dr Hall and was accompanied by Dawn, a carer.
[98]
On 10 December 2015, Gisela told Yanita that she wanted to physically
go into the bank on the
Saturday after she accidentally blocked her
on-line banking pin. The two of them went to the First National
Bank and thereafter
went to lunch where Gisela ordered steak.
Hereafter, on the same day, Mr Vassen consulted with Gisela.
[99]
The witness recalled that over the next few days Gisela met with a
student of hers, had a dentist
appointment and arranged a discussion
with her financial adviser. On 17 December Yanita spoke
to Dr Hall about a will
for the first time. She also called Gisela’s
financial adviser.
[100] On 18
December 2015, Gisela consulted with Mr Vassen once again, visited
the dentist and was admitted to the hospital.
Yanita wanted to
take Gisela to the carols by candle light on Sunday 20 December but
her doctors advised against it. That
same evening Mr and Mrs Vassen
went to the hospital and had the wills signed. On 21 December,
Mr and Mrs Vassen visited Gisela
once again. On 23 December,
the doctors informed Yanita that Gisela would probably not recover
from her illness, and that
she should inform the family. On 24
December, Yanita took Elubi, the helper, to visit Gisela in hospital,
and Mr and Mrs Vassen
visited again.
[101] On 27
December, Gisela asked Sonia and Yanita to speak to the doctors, as
she was ready to go. On 28 December,
Gisela was administered morphine
and was moved to a side room. The Vassens visited again on this day.
[102] Yanita
took Yogi to the hospital window when Gisela was very weak so that
she could see her beloved cat one last
time. Sonia and Yanita
spent time with Gisela on 30 December, the day she died. The
cremation and funeral ceremony was held
on Monday 4 January 2016.
APPLICABLE
LEGAL PRINCIPLES
a.
Interpretation of Wills
[103]
It is trite that the object of a court in interpreting a will is to
establish the intention of the testator from
the language used as far
as can be gathered from the will itself.
[2]
[104]
It is further trite that a will that is complete and regular on its
face is
presumed to be valid until the contrary is proved. Moreover,
that the burden of proving that it is invalid rests on the party who
challenges the will.
b.
Testamentary capacity
[105]
Section 2(3) Of the Wills Act 7 of 1953 (hereinafter
“the Act”)
provides that:
“
(3)
If a court is satisfied that a document or the amendment of a
document drafted or
executed by a person who has died since the drafting or execution
thereof,
was intended to be his will or an amendment of his
will, the court shall order the master to accept that
document, or that document as amended, for the
purposes of the Administration
of Estates Act, 1965 (Act 66 of 1965),
as a will, although it does not comply with all the
formalities for the execution
or amendment of wills referred
to in subsection (1).
”
[106]
In
South Africa, the capacity to make a will
is governed by
Section 4
of
the
Wills Act 7 of 1953
.
Section 4
reads as follows:
“
Every person of
the age of 16 years or more may make a will unless at the time of
making the will he is mentally incapable of appreciating
the nature
and effect of his act, and the burden of
proof that he was mentally incapable at that time
shall
rest on the person alleging the same.”
[107]
Whether
someone has testamentary capacity is a factual question. The
dictum in
Naidoo
NO & Another v Crowhurst NO & Others
[3]
illustrates which factors should be taken into account as follows:
“…
the
main elements of the test for deciding the question of testamentary
capacity that emerge are the following: at the time of making
the
will the testator must have been capable of comprehending the nature
and extent of his property, of recollecting and understanding
the
claims of relations and others upon his favour and upon his property
and of forming the intention of granting each of them
the share in
the property set out in the will or excluding them from any share of
his property, as the case may be.
”
[108]
In
the oft-quoted case of
Tregea
v Godart and Another
[4]
the court relied on the test laid down in
Banks
v Goodfellow
[5]
:
"The testator
must, in the language of the law, be possessed of sound and disposing
mind and memory. He must have memory; a
man in whom the faculty is
totally extinguished cannot be said to possess understanding to any
degree whatever, or for any purpose.
But his memory may be very
imperfect; it may be greatly impaired by age or disease; he may not
be able at all times to recollect
the names, the persons or the
families of those with whom he had been intimately acquainted; may at
times ask idle questions, and
repeat those which had before been
asked and answered, and yet his understanding may be sufficiently
sound for many of the ordinary
transactions of life. He may not have
sufficient strength of memory and vigour of intellect to make and to
digest all the parts
of a contract and yet be competent to direct the
distribution of his property by will. This is a subject which he may
possibly
have often thought of, and there is probably no person who
has not arranged such a disposition in his mind before he committed
it to writing. The question is not so much what was the degree of
memory possessed by the testator, as this: Had he a disposing
memory?
Was he capable of recollecting the property he was about to bequeath;
the manner of distributing it, and the objects of
his bounty? To sum
up the whole in the most simple and intelligible form, were his mind
and memory sufficiently sound to enable
him to know and to understand
the business in which he was engaged at the time he executed his
will?"
c.
Undue influence
[109]
A testator should be free to make his or her will. This principle was
emphasized in the matter of
Thirion
v Die Meester en Andere
[6]
as
follows:
“
'n
Gebied waar spanning so dikwels voorkom, dat dit die verhaalkuns
stimuleer en tot populêre spreekwoorde aanleiding gee
is die
erfreg. Aan die een kant het sekere reëls uitgekristaliseer oor
wat objektief moreel en logies korrek is. Derhalwe
bepaal die
intestate erfreg 'n sekere rangorde van persone aan wie 'n oorledene
se boedel nagelaat word, soos die oorlewende eggenoot,
kinders,
ouers, broers en susters en so meer. Tog respekteer ons die wense van
'n persoon wat nie meer met ons is nie soveel, dat
die reg 'n mens in
beginsel toelaat om al jou eiendom te bemaak aan jou spreekwoordelike
gunsteling kroegman, of die dierebeskermingsvereniging,
selfs ten
koste van jou eggenoot en kinders, mits ons maar seker is dat
dit wel die bedoeling van die erflater is. Die reg
eer die begeerte
van 'n dooie, selfs tot die punt waar dit haat en nyd onder
oorlewende naasbestaandes veroorsaak, of so onbillik
voorkom dat dit
ten hemele skree. Slegs waar bewys kan word dat 'n testatêre
aanwysing deur 'n gestorwe persoon die gevolg
is van dwang of
onbehoorlike beïnvloeding word dit nie deur die reg erken nie.
Die oënskynlike onbillikheid of immoraliteit
van 'n persoon wat
sy lewenslange getroue eggenoot behoeftig agterlaat ten einde sy
gunsteling prostituut luuks te laat lewe, weeg
nie op teen die reg se
respek vir die wens van die dooie nie. Die rede hiervoor godsdienstig
of andersins geestelik gegronde agting
wees vir die dood, of dalk vir
die hiernamaals, of dit mag 'n kapitalisties gedrewe respek vir
eiendomsreg wees: Wat aan jou behoort,
mag in beginsel slegs jy oor
beskik, volgens jou goeddunke, ongeag die wyse waarop jy moontlik
daaraan gekom het en wie dit die
meeste verdien.”
[110] This
means that the law honours the wishes of the deceased even if it
results in envy among the next of kin.
This is the position
unless it is proven that a provision(s) is the result of fraud or
duress or undue influence. The principle
applies even where a
testator included absurd provisions in a will.
[111] The
plaintiff, in the alternative claimed that the testator was unduly
influenced by Mr Vassen. It is their case
that the conduct of Mr
Vassen and Yanita points to their undue influence over her at a time
when she did not have the necessary
testamentary capacity.
d.
Expert Evidence
[112]
Both sides called expert witnesses to give an opinion on the issues
that this court are to decide. Plaintiffs
referred the court to the
trite principles, principles which this court applied when
considering all the evidence in this matter.
The court was referred
to the basic principles of evidence in
Schwickkard
and Van Der Merwe
and
the oft-quoted decisions in
Naidoo
NO & Another v Crowhurst NO & Others
[7]
.
e.
Inferential reasoning
[113]
It
is well-established that, as this is a civil matter to be determined
on the balance of probabilities, when considering whether
to draw a
particular inference the Court need not be satisfied that it is the
only possible inference available, but rather that
it is
the
most readily apparent and acceptable one. This approach (and
its application) was recently confirmed by the Supreme Court
of
Appeal
in
Meyers
v MEC, Department of Health, EC
(emphasis added)
[8]
:
“
In
my view, at the close of Ms. Meyers' case, after both she and Dr
Pienaar had testified, there was sufficient evidence which gave
rise
to an inference of negligence on the part of Dr Vogel. In that regard
it is important to bear in
mind that in a civil case it is not necessary for a plaintiff to
prove that the inference that she asks
the court to draw is the only
reasonable inference; it suffices for her to convince the court that
the inference that she advocates
is the most readily apparent and
acceptable inference from a number of possible inferences
.
”
f.
Revocation
[114]
Section 2A
of the
Wills Act 7 of 1953
provides:
“
2A
Power of court to declare a will to be revoked
If a court is
satisfied that a testator has-
(a)
made a written indication on his will or before his death
caused such indication to be made;
(b)
performed any other act with regard to his will or before his
death caused such act to be performed which is apparent from the face
of the will; or
(c)
drafted another document or before his death caused such
document to be drafted,
by which he intended
to revoke his will or a part of his will, the court shall declare the
will or the part concerned, as the case
may be, to be revoked.”
[115]
It
is trite that a will may be revoked by a
subsequent valid will which
indicates an intention to revoke.
g.
Costs
[116] The law
in respect of costs in cases where a will is challenged is trite. In
the absence of fraud,
mala fides
, etc., the costs of all
parties where the testamentary capacity of a testator is challenged
are usually ordered to be paid out
of the estate.
[117]
The issue of costs in a matter where a will is challenged, was at the
centre of many decisions. It is trite that
it is the duty of an
executor to defend a will until such time as it is set aside by a
court. In this regard, see
Lewin
v Lewin
[9]
:
“
Questions
of testamentary capacity are notoriously difficult, and the defendant
was able to put before the Court a number of medical,
as well as lay,
witnesses who seem to me to have formed an honest, if mistaken, view
as to the rationality of the deceased. Opinions
might well have
differed upon the point, and I have found it by no means easy to
arrive at the conclusion which I have reached.
In Dunn v Estate Dunn
(14 C.T.R. 132) DE VILLIERS, C.J., expressed the opinion that it was
the duty of an appointed executor to
defend the will until it is set
aside by the Court, and in Boughton v Knight
(L.R. 3 P.D. 64)
the
view was taken that the executor, though he had failed to prove the
testamentary capacity of the deceased, was entitled in
the
circumstances of the case to take the opinion of the Court upon the
state of the testator's mind. In questions of testamentary
capacity
as well as of interpretation the Courts often act upon the principle
that where the litigation has been brought about
by the conduct of
the testator, the costs of the parties should come out of the estate
…”
[118]
The opposite view was held in the matter of
Spies
NO v Smith en Andere
[10]
.
It was held that where the litigation is not as a result of the
vagueness of the testator’s words, the estate should
not be
responsible for the costs.
G.
DISCUSSION
[119]
Considering the trite principles in respect of expert witnesses, in
particular those principles referred to by
the plaintiffs’
counsel, I would like to make the following remarks about the expert
witnesses in this matter. Drs
Parker and Ameen’s, and
Prof Nieuhaus’ evidence was extremely helpful to the court.
Their vast experience and expertise
was very informative and
enlightening.
[120] All
three of these witnesses, however, had the tendency to draw
conclusions applicable to this matter. In
line with the trite
principles in respect of expert witnesses, this court considered
their theoretical expert opinions, but disregarded
the conclusions
drawn by them in respect of this matter.
[121] The
court is concerned about Dr Parker’s tendency to speculate
about the diligence with which other professionals
were performing
their functions. I found it very disturbing that Dr Parker explained
to the court e.g. what the universally used
test for determining the
level of consciousness in a person was, i.e. the Glasgow Coma Scale
(GCS) and immediately thereafter asked
the court to disregard the
results of this test in this matter. It was also his evidence
that the court should disregard
the nurses’ notes at Vincent
Pallotti Hospital, because these notes are made “…
by
nurses who are just not worth their salt
.”
[122] In both
instances, i.e. the GCS test and the nurses’ general notes, the
effect of accepting it as is, would
be a conclusion that the patient
was not cognitively impaired. This court finds it concerning that Dr
Parker was willing to disregard
these notes, which are the only
source that courts traditionally use to establish the state of health
of patients. Moreover, this
court finds Dr Parker’s comments on
the general competence of nurses or the lack thereof, as insulting to
members of a humble,
selfless and hardworking profession.
[123]
Dr Parker also speculated that Dr Van der Plas probably only asked
the patient to lift her arms when examining
her and made her notes
based thereon. Once again, the witness assumed the worst of the
medical professional because the notes did
not square up with his
opinion. This court evaluated the evidence objectively and was not
persuaded by the conclusions drawn by
all the expert witnesses.
Refer to
Naidoo
NO and Another v Crowhurst NO and Others
.
[11]
[124] Dr
Parker also did not give much credit to psychiatrists’ ability
to give evidence of a medical nature,
and was quite condescending to
that profession as well.
[125]
Considering the evidence relevant to Gisela’s mental state, I
also took into account that it is undisputed
that she was admitted to
hospital because she was suffering from pneumonia and not because
there was any concern about her mental
state. Moreover, she was able
to provide Sonia’s London telephone number on her admission to
hospital without any assistance.
[126] On
behalf of the plaintiffs, the court was asked to consider many of the
actions by parties to this dispute as
“red flags”. One of
these was the fact that Gisela delayed her decision on what to do
with her assets. In my view,
her delay in deciding what to do with
her assets in discussions with her family points to her continuously
applying her mind to
the issue, and not to her being unduly
influenced.
[127]
Moreover, I find that her wishes were consistent all through her
discussions with her family. As an example of
this consistency, the
WhatsApp messages identified two beneficiaries, i.e. Yanita and
Sonia. This was in a discussion between the
biological family, the
non–biological child and Yanita. The biological family probably
expected that they would inherit as
her biological heirs, Sonia as
the non-biological Chinese child, and Yanita in some other capacity.
At that point, following from
the above, it is clear that the
plaintiffs expected Yanita to inherit. It seems though as if the size
of the inheritance is currently
at issue. It is, however, trite that
the decision as to how assets are distributed amongst heirs is the
decision of the testator
only. In this regard see
Thirion
v Die Meester & andere
.
[12]
[128] I also
do not consider the short period between the discussion of the will
and the signing of the will a red flag,
as submitted on behalf of the
plaintiffs.
[129] In
considering whether Gisela understood what it meant to make a will or
what a will was, I could not ignore the
fact that when she was
discussing her and Jamuna’ s joint will, she indicated that his
stepfamily should not benefit. This
discussion took place during the
relevant period shortly before she fell ill. I find this to be an
indication that she knew what
a will was and what it meant to make a
will.
[130] In
interrogating what Gisela’s motivation was in how her estate
should be divided, the court had Mr Vassen’
s notes, which the
plaintiffs want the court to disregard, the WhatsApp messages and Ms
Vassen’ s evidence. I mention the
following notes of Mr Vassen
briefly, i.e. that Sonia should inherit because she studied, became
qualified, bought her own apartment,
worked hard and has always been
there for them. Even if the court disregards these notes, I am faced
with the WhatsApp messages
pointing to Sonia, and not any other
member of the Chinese family, inheriting. The exclusion of the
Chinese children is also evident
from the Prasads’ joint will.
[131]
Moreover, I am faced with the overwhelming evidence from both the
plaintiffs and the defendants that Gisela valued
hard work, education
and those expressing a caring nature. Therefore, even in the absence
of Mr Vassen’ s notes, on the plaintiffs’
own version,
Sonia’s inheritance was expected. This is also to be deducted
from Gisela listing Sonia as her daughter on admission
to Vincent
Pallotti on 18 December 2015.
[132] In
considering Yanita’ s inheritance, the plaintiffs in effect
asked the court to ignore Gisela’s
character and values.
Once again, on the plaintiffs’ own version, they expected
Yanita to inherit. This
is evidenced by Jenny’s
WhatsApp messages shortly before Gisela died. Moreover, Dr Hall
called Yanita the “predominant
person here”. In
addition, the inclusion of Yanita in the will was not strange as it
is common cause that the
Prasads always supported non-biological
children in the past.
[133] I also
took account of the plaintiffs’ version of Yanita’ s
closeness with the biological family,
e.g. Jakob asking about an
internship for his daughter, Jenny telling Yanita that “so you
are family too”, and Sonia
testifying that “Yanita even
got along with my daughter who was probably about 7 at the time”.
Yet another indication
that Yanita was not just a girl who
lived around the corner from Gisela and only became close when Gisela
became ill during 2015,
as alleged by the plaintiffs.
[134] The court was
also referred to Jenny’s comment in the WhatsApp group that
Yanita and Sonia would “do what
she wants”. In my
view, this means that the two of them knew what the deceased wanted,
i.e. a reading of her mind.
This meant that they were the
closest people to Gisela. I find that this also pointed to a
motivation for the selection of
these heirs.
[135] The
court was asked to decide whether the deceased’s lack of
knowledge of the exact amount of money in her
UK bank accounts
pointed to cognitive impairment or, to a particular financial
management style. In my view, this did not
point to cognitive
impairment. Here we are faced with an obviously eccentric individual
whose serious financial decisions were
left to a financial adviser.
[136] I find
Gisela’s ability to remember where her accounts were held and
the fact that she knew that Sonia would
be able to give more details
on those accounts, as a clear indication that she was not cognitively
impaired. To the contrary, I
find this to be an indication of someone
who knew exactly where her assets were. She did not, for the purpose
of the inheritance,
need to know how much is held where, as she
planned to leave everything she owned in the UK to Sonia. The value
of that inheritance
was not important. What was important was the
fact that she wanted Sonia to inherit everything held in the UK bank
accounts.
It is common cause that Sonia is a charted accountant
and would surely be in a better position to grasp the extent of
Gisela’s
financial accounts there.
[137] Another
possible red flag raised by the plaintiffs was that she failed to pay
an account. I am satisfied
that her failure to pay this account
was not an indication of her deteriorating mental state, but that
there was in fact a logical
explanation for this failure, i.e. that
the account was sent to the wrong e-mail address.
[138]
The plaintiffs also pointed to her forgetting her online banking pin
a red flag. I do not consider this as her
being cognitively
impaired, as she decided thereafter to not use her online banking
services, but rather go into the bank physically,
i.e. she was able
to decide on the most obvious alternative.
[139] From
the evidence led in this court, I am satisfied that the deceased was
eccentric, non-materialistic, frugal
and valued the deeper things in
life like education, music, gardening and the South African
liberation struggle when she lived
in Lesotho, etc. In
addition, I find that her driving such an old vehicle when she
clearly could afford a more expensive
car, illustrates her humble
life style.
[140] On
behalf of the plaintiffs, it was submitted that the fact that Gisela
ate steak during December 2015, should
be considered a red flag, i.e.
that she was cognitively impaired at the time. I do not agree with
this conclusion. The evidence
in this court was that Jamuna was a
true vegetarian, but that Gisela was not a true vegetarian as she
enjoyed chicken and fish.
I do not find it strange that a
person who was experiencing so many traumatic events, such as being
diagnosed with cancer,
and burying the love of her life, chose to eat
something that she would not normally eat. I find the
submission that this
points to cognitive impairment extremely
farfetched and I do not consider this a red flag. In fact, from
the evidence it
is clear that this was a once off occasion and that
she, when admitted to hospital, resumed her normal diet.
[141] The
fact that the deceased decided on her own immune suppression
treatment and personally arranged for the payment
thereof, is, in my
view, also an indication of her will to fight her illness and her
cognitive ability to make these decisions.
[142] On
Jenny’s version, her own contact with Gisela increased after
she left Cape Town in November 2015, i.e.
after Gisela fell ill.
Before this, she contacted Gisela telephonically only once every two
or three weeks. She, however,
frowned on Yanita’ s
increased contact with Gisela over the same period. Once again,
the court is asked to assume
mala fides
on Yanita’ s
part without any proof.
[143] I was
also, indirectly asked to assume that a young person, Yanita, who
spent many valuable hours with the Prasads
over many years, would
want to influence Gisela unduly to benefit from her estate. The
evidence on these interactions between Yanita
and the Prasads were
never disputed. A submission was, however, made that the interactions
increased during 2015, in particular
between 10 and 15 December 2015
and that many significant events occurred during this time. I am in
agreement with this submission.
The evidence in this regard is clear.
It is, however, the innuendo that the interactions that intensified
towards the end of Gisela’s
life was aimed at influencing her
to bequeath a big portion of her estate to Yanita that I find
difficult to associate with the
evidence.
[144] From
the evidence, it is clear that the interactions between the German
family and Gisela also increased during
2015. It follows
therefore that they would have more contact with Yanita during this
time. Their increased time with
Gisela during 2015, does not
automatically mean that Yanita’ s contact with the Prasads
increased only during 2015, as alleged
by them. From the
evidence it is also clear that members of the biological family
contacted Gisela at most once or twice
every two or three weeks
before she fell ill.
[145] The
Prasads and Yanita had a relationship since 2005. Yanita met
the second plaintiff in 2007. This was
not placed before the court by
the plaintiffs. On their version, Sonia met Yanita in 2013. The
length of the relationship was not
disputed, nor the role played by
Yanita in the Prasads’ lives. This is therefore not a
relationship that intensified in the
months immediately preceding
December 2015. The plaintiffs questioned certain actions taken just
before Gisela died i.e. the power
of attorney and the wills.
[146] In my
view, it is understandable that no power of attorney was given to
anyone during 2005 or thereafter, nor
was any instruction to draft a
will provided, as Gisela was perfectly healthy at the time. There was
therefore no need to do this.
From the evidence before me, the
appropriate time to give a power of attorney and to draft and sign a
will, was after Jamuna died
and Gisela became ill. As there
were no family members around, Yanita was accordingly the closest
person to Gisela at the
time. I, therefore, do not consider
this a red flag.
[147]
In essence it is submitted on behalf of the plaintiffs that Gisela’s
physical state at the time affected
her cognitive abilities, making
her susceptible to undue influence. I cannot disagree more. The fact
that someone
inter
alia
wears a nappy does not imply that her cognitive abilities were
impaired. Gisela’s cognitive abilities were measured at the
relevant time against internationally accepted standards and were
found to be intact. The experts may differ on this point, but
I am
satisfied that the evidence, on the probabilities, point to this
conclusion, as it is the “
most
readily apparent and acceptable inference from a number of possible
inferences
”.
Refer to
Meyers
v MEC, Department of Health
[13]
in this regard.
[148] I am
satisfied that Gisela had the necessary testamentary capacity when
giving instructions to Mr Vassen on 18
December 2015 and the period
leading up thereto, as well as on the 20 December 2015 when she
signed the wills.
[149] I am
further satisfied that Gisela was not unduly influenced by her
relationship with Yanita, nor was she influenced
unduly by Mr Vassen,
who in fact did not receive any benefit from the challenged will. The
court was requested to assume
mala fides
on the part of Mr
Vassen because he was removed from the roll of attorneys during the
90’s for using money from his trust
account. No evidence was
led as to why Mr Vassen would want to deprive Gisela of her assets
after assisting her with the estate
of her late husband, ostensibly
to her satisfaction, and after they clearly had a long-standing
relationship. No proof was provided
of fraud committed by Mr Vassen.
[150]
Finally, I would like to comment on Gisela’s personality. As
stated before, it is clear from the evidence
that she was an
eccentric person. As a young woman she got married against the wishes
of her family to an older Indian man who
clearly was as eccentric as
she was; She travelled throughout the African Continent when it was
not common or even acceptable to
do so; She lived in Lesotho at a
time when it was not common to do so; She assisted political refugees
when it was not common to
do so; She took Chinese children into her
house to live with them and taught them English when it was not
common to do so; She
swam in a two-piece bathing costume when it was
not common or acceptable to do so. In her later life, she supported
and encouraged
a stranger in Cape Town while she was studying when it
was not common to do so; She drove an old car when she could afford
to buy
a better one when it was not common to do so; She made her own
yogurt at home instead of buying it when it was not common to do
so;
She used new medical technology for her cancer when it was not common
to do so; She worked as a lecturer and her contract
with UCT
was renewed until shortly before her death at the age of 74, when it
was not common to do so. This, in my view,
points to her being
an eccentric person doing uncommon things even when she made the
wills. Moreover, in my view, this points
to her not being
cognitively impaired at the time.
[151] This
court is asked to interpret these “illogical, unusual and
unfair” wills of this eccentric person,
and to question why her
assets were divided in the way that they were. I am satisfied
that, considering the person who Gisela
was, an estate divided in the
usual way, would be “unusual” for her. In my view,
the wills of Gisela were not
illogical, unusual or unfair. In
fact, it was subjectively logical, usual and fair.
H.
CONCLUSION
[152] After
considering all the evidence, I find, on a balance of probabilities,
that the most readily, apparent and
acceptable inference is that
Gisela possessed the necessary testamentary capacity when she made
and signed the wills. Moreover,
the wills reflect her intention
and I find that she was not unduly influenced by Mr Vassen, nor by
Yanita. In addition, it
is my view that the London will, on the
face of it, does not show any intension by Gisela to revoke the
German and South African
wills, as it does not deal with any German
or South African assets. Accordingly, I am therefore not
satisfied that there
was compliance with
section 2A
of the
Wills Act.
[153
]
In the
result, I find that all three wills are valid.
I.
ORDER
[154]
In
the circumstances, I make the following
order:
154.1
The plaintiffs’ case is
dismissed with costs on a party and party scale, such costs to
include the qualifying fees and expenses
of the two experts, Dr Ameen
and Prof Niehaus.
154.2
Costs are not to be recovered from
the estate.
FORTUIN, J
Dates
of hearing:
25
& 27 & 28 November 2019
2
– 3 December 2019
9,
10, 11 &12 November 2020
Date
of judgment:
30
November 2021
Counsel
for plaintiffs:
Adv
A Morrisey
Adv
T Steyn
Instructed
by:
Attorneys
Zumpt
Ms
A Walsh
Counsel
for Defendants:
Adv
J de Vries
Instructed
by:
Moosa,
Waglay & Petersen
Mr
E Petersen
[1]
[1870]
LR 5 QB 549.
[2]
See
Hofmeyer
and Kahn, Succession
(2001) 447 et seq.
[3]
[2010]
2 All SA 379
(WCC) at para [17].
[4]
1939
AD 16 50.
[5]
Supra
.
[6]
2001
(4) SA 1078
(T) at 1083.
[7]
[2010]
2 All SA 379
(WCC) at para [33].
[8]
EC
2020
(3) SA 337
(SCA) at para [82].
[9]
1949
(4) SA 241 (T).
[10]
1957
(1) SA 539 (A).
[11]
Supra
.
[12]
Supra
.
[13]
Supra
.