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[2011] ZAGPJHC 49
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Lipchick and Others v Master of the High Court and Others (41815/2009) [2011] ZAGPJHC 49 (7 June 2011)
IN THE SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
CASE No. 41815/2009
DATE:07/06/2011
REPORTABLE
(In the electronic
reports only)
In the
matter between:
GARY
LIPCHICK
...................................................
First
Applicant
CHARLENE
LIPCHICK
.......................................
Second
Applicant
DESIREE
HIRNER
................................................
Third
Applicant
and
THE
MASTER OF THE HIGH COURT
.....................
1ST
Respondent
NICOLE
LIPCHICK
...................................................
2ND
Respondent
CANDICE
LIPCHICK
..............................................
3RD
Respondent
_____________________________________________________________________
JUDGMENT
___________________________________________________________________
WILLIS
J:
[1] There has been tragic
feud among relations which has played itself out in this case. The
first respondent, who is the Master
of the High Court, has been
caught up in the middle. He has agreed to abide the decision of the
court. The second applicant is
the daughter-in-law of the testatrix.
The remaining parties are the grandchildren of the late Fay Lipchick.
I shall refer to her
as “the testatrix”. The dispute is
concerned with the validity of testamentary dispositions by the
testatrix. The testatrix
died on 1 April 2009, a few days short of
her ninety-fifth birthday.
[2] It is common cause
that the parties have made several vain attempts to settle the
matter. Unsettled, this is a dispute that
will haunt the parties for
years, regardless of what the correct legal determination of the
matter may be. The decision of the
court will determine whether the
heirs of the testatrix are the applicants only or the applicants
together with the second and
third respondents. The value of the
estate of the testatrix is approximately R3 million. At all times
material to this dispute,
the testatrix had been the widow of the
late Israel Lipchick.
[3] The testatrix and
Israel had three children. All of them were sons: Rodney, Leon and
Daryl. Rodney was murdered in a robbery
in 1992. As could be
expected, the murder of Rodney deeply affected the testatrix. The
surviving spouse of Rodney is Charlene Lipchick.
She and her two
children, born of her marriage to him, are the applicants in this
matter. Leon predeceased the testatrix on 31
December 2004, having
been terminally ill for quite some time. Leon was seriously ill at
the time of the critical events in question
in this particular case.
Leon’s children are the second and third respondents. Darryl
emigrated to Australia. He still lives
there. He never married and
has no children.
[4] The affidavit of
Harry Heinz Schwarz, which was annexed to the founding papers, is of
critical importance. The affidavit was
deposed to on 11 September,
2009. The date of the present application is 29 September 2009. The
contents of this affidavit are
not disputed. Harry Schwarz was
prominent in South Africa in political, business and professional
circles in the 1970’s and
1980’s. He had been an advocate
for some time during his career. At the time of deposing to the
affidavit he was practising
as an attorney in a consulting capacity.
Annette Schwarz, the wife of Harry was a cousin of the testatrix.
Harry Schwarz has, in
the meantime, died as well.
[5] In his affidavit,
Harry Schwarz describes how the testatrix had been distraught over
the conduct of her son, Leon in early December
2004. Sometime between
9 and 13 December, the testatrix had discussed the situation with
him. Leon had wanted the testatrix to
move into a retirement home.
She was adamantly opposed to this. He had been complicit in taking
her motor vehicle from her. Leon
had been given a power of attorney
by her to operate her banking account. She had discovered in early
December that Leon, relying
on this power of attorney, had withdrawn
some R700 000- from her bank account leaving her with a mere R300-.
She believed that
Leon had plans to sell her flat and move her out of
it.
[6] The testatrix told
Harry Schwarz that she wished to revoke her previous will dated 19
February 2004. In that will she had left
each of her four
grandchildren the sum of R50 000- and had left her flat, her motor
vehicle and the residue of her estate to Leon.
She had also provided,
in that same document, that should Leon predecease her, then her
entire estate would devolve upon her four
grandchildren in equal
shares.
[7] A copy of this will
was handed to Harry Schwarz by one Alan Steinberg, an accountant on
about 11 December 2011. This will had,
in turn, been handed to Alan
Steinberg by Leon, together with a codicil. The codicil purported to
have been signed by the testatrix
on 20 September, 2004. It provided
to an amendment to the effect that in the event that Leon predeceased
her, then her entire estate
would devolve upon Leon’s wife and
failing her, Leon’s two children, the second and third
respondents. Other than the
bequest of R50 000- to each grandchild,
the effect of the codicil would have been to exclude the first and
the third applicants
from any inheritance from their grandmother.
[8] According to Harry
Schwarz, the testatrix denied having made the codicil and on 12
December 2004 wrote across it “I revoke
this codicil”.
She signed next to these words. Her writing was given in a firm,
clear, big, bold hand. Having examined her
will of 19 February, 2004,
the testatrix told Schwarz that she wished to make a new will.
Schwarz offered to do this for her but
the testatrix said she would
do so herself. The testatrix went away, taking the will of 12
December 2009 together with the codicil
in question with her. The
testatrix wrote a new will which she later handed to Schwarz and
which he filed away in his office. He
did not witness the will but
confirms her handwriting and that it was signed by her. The new will
was dated 13 December 2004. It
was signed by the testatrix but was
not witnessed. The issue of the codicil is not dealt with anywhere in
the affidavits filed
on behalf of the respondents.
[9] The new will reads as
follows:
1. I, Fay (Fanny)
Lipchick make this my last will and revoke all previous wills and
codicils.
2. I appoint my grandson
Gary Lipchick as my executor and direct that he should not have to
furnish security.
3. I appoint as my heirs
the following:-
My daughter-in-law
Charlene Lipchick, my granddaughter Desiree Hirner (Lipchick) and my
grandson Gary Lipchick.
I have signed this will
in Johannesburg on 13th December 2004.
F. Lipchick
Alongside the reference
to her daughter-in-law, her granddaughter and her grandson as heirs
there is an asterisk with the words
“In equal shares”
next to it. The will is in her own handwriting and signed by her.
This appears not only from the
affidavit of Harry Schwarz but also
the affidavit of a handwriting expert, Cecil Greenfield. Again, as
when she revoked the purported
codicil, she has written in a firm,
clear, big, bold hand.
[10] Harry Schwarz’s
affidavit is corroborated in all material terms by his wife, Annette.
In her affidavit, Annette Schwarz
says that the testatrix was so hurt
by what she considered to be the betrayal of her by her son Leon and
his family that she, the
testatrix, had even refused to attend Leon’s
funeral.
[11] Schwarz also kept on
file a copy of a letter dated 17 December 2004 which the testatrix
wrote to Leon because, in her own written
words, “it is
difficult for us to have a discussion”. Schwarz confirms that
this latter was written and signed by the
testatrix. It is letter of
a woman who is outraged. Indeed, she uses the term “outrage”
herself. The testatrix forcefully
reproaches her son Leon that he had
withdrawn the sum of R699 998,80 and transferred this sum into her
account without her permission.
She protests that she has lost
interest of R53 504,14. She remonstrates that “without my
permission” (and underlining
these words) her motor vehicle was
removed from her garage. She protests that, as a result of Leon’s
conduct, she did not
have money to pay her staff their salaries or
their bonuses. She complains that
It was arranged without
any discussion with me to have a driver (living in Wendywood) to take
me around. This driver charges R69-50
per hour. I play Bridge once a
week, have my hair done once a week and shop once a week. This would
cost me + R210 a week. An outrage!!
I want my car returned to me!
In this letter, she
demands the return of the money taken from her and revokes the power
of attorney given to Leon. There is no
dispute that the second
respondent made arrangements for at least R300 000 – of the
money alleged to have been withdrawn
from the bank account under the
power of attorney to be repaid to the testatrix.
[12] After the death of
Leon, but before the death of the testatrix, there were disputes over
jewellery of the testatrix which had
been taken from her and were in
the possession of Leon when he died. The applicants allege that some
of this jewellery but not
all of it was returned. As at March 2005,
attorneys for the testatrix were, during her lifetime demanding the
return of certain
jewellery to her or payment of the sum of slightly
more than R120 000- in lieu thereof.
[13] The broad outline of
these facts has been confirmed in two affidavits signed by Daphne
Zwirn, a neighbour of the testatrix
who knew both testatrix and her
husband, Israel, well. Daphne Zwirn said that she saw the testatrix
on the day before she died
and although she was then very frail, she
was “up to the time of her death, mentally stable, mentally
alert, had complete
clarity of mind and showed no sign whatsoever of
mental deterioration”. She described the testatrix as always
having been
“very intelligent” and “able to discuss
–with great clarity and insight- anything from politics to
environmental
matters”. Another friend of the testatrix, Julie
Krossynski says that the testatrix had always appeared mentally alert
to
her.
[14] Hector North, an
attorney who advised her on various matters from December 2004 to
November 2005 pours cold water on the notion
that the testatrix was
of unsound mind at the time when he had dealings with her. A Dr Fred
Sievers has said that the testatrix
was a patient of his for many
years for routine attendances and that at all times, including
December 2004 she was “compos
mentis and well able to handle
her affairs”.
[15] In her answering
affirmation, the second respondent says that “after the death
of my father, my grandmother, the testatrix,
was left to deal with
her affairs by herself”. The second respondent, who is an
attorney, describes how the testatrix fell
in mid-2008 and it became
apparent that she required assistance. According to the second
respondent, the testatrix had given cash
cheques to her gardener who
had told the testatrix’s domestic worker and the caretaker of
the building where the testatrix
lived that he had won the lotto.
[16] Initially, when I
came into the case, it seemed that the dispute was mainly concerned
with whether the applicants had discharged
the onus in terms of
section 2 (3) of the Wills Act, No. 7 of 1953 (“the
Wills
Act&rdquo
;), to satisfy the court that the will of 13 December 2004
was indeed written by the testatrix and intended by her to be her
last.
[17]
Section 2
(3) of the
Wills Act reads
as follows:
If a court is satisfied
that the 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, 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) .
As a result of a series
of recent decisions in the Supreme Court of Appeal (“the SCA”),
it has become quite clear that
the essential question, when
considering this section, is whether the deceased intended the
document to be her will and, if this
is the case, then the court has
no discretion in the matter – it must make the order that the
Master is to accept it as a
will for the purposes of the
Administration of Estates Act even though it may be deficient in
respect of certain formal requirements
relating to its execution.
1
During the course of argument, it became clear that there can be no
real dispute that the document in question was indeed written
and
signed by the testatrix on 13 December 2004 as her will.
[18] As the argument
gathered momentum, it emerged that the second and third respondents’
main contention is that, at the
time when the testatrix signed that
document on 13 December 2004, she was mentally incapable of
appreciating the nature and effect
of her act and that the court
ought to declare the document invalid as a will in terms of
section 4
of the
Wills Act. This
issue was not raised by the second or third
respondents in their answering affidavits. It was raised for the
first time in November,
2010.
[19]
Section 4
of the
Wills Act reads
as follows:
Every person of the age
of 16 years 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 upon the person
alleging the same.
Mr Hollander, who
appeared for the second and third respondents, accepted correctly
that, upon a plain reading of this section (which,
in any event, is a
restatement of the common law), his clients bore the onus to show
that the testatrix was mentally incapable
of appreciating the nature
and effect of the will which she signed.
2
[20] Mr Hollander
submitted that, as there were disputes of fact as to the soundness of
the testatrix’s state of mind at the
time when she signed the
document on 13 December 2004, I should refer the matter to oral
evidence. Even if this were the correct
order to make on the basis of
there being a dispute of fact, there would be practical difficulties.
A number of the critically
important dramatis personae are dead: the
testatrix, her son, Leon and Harry Schwarz.
[21]
In
general terms, the principles applicable to resolving disputes of
fact in motion proceedings are well known: the facts as stated
in the
respondents’ affidavits together with the admitted or
undisputed facts in the applicants’ affidavits form the
basis
for application and where the application cannot properly be decided
on affidavit, then it should, in terms of Rule 6 (5)
(g) of the
Uniform Rules of Court, be referred either to oral evidence or to
trial, whichever is more appropriate.
3
Where, however, there is no real, genuine or bona fide dispute of
fact, different considerations apply.
4
Where the allegations or denials of the respondents are far-fetched
or untenable, the court may reject them merely on the papers.
5
I accept the argument of Ms Woodward, who appeared for the
applicants, that if one looks carefully through the various sets of
affidavits filed by or on behalf of the second and third respondents,
there is no dispute of fact about the critical events that
took place
in December 2004: all that has been given are belated, bald
expressions of opinion by the second respondent on matters
which she
is not qualified definitively to assert. In effect, Ms Woodward
politely, but deftly, admonished the court to “keep
an eye on
the ball”.
[22] I accept that, on
the papers before me, there may be a genuine or bona fide dispute of
fact as to the testatrix’s state
of mind from mid-year 2008 to
the time of her death in April 2009. Nevertheless it is clear that
there is no dispute as to what
Harry Schwarz or Daphne Zwirn, said
about her in December 2004, the time when she wrote the will in
question. There is no dispute
that she wrote the letter to her son,
Leon in the same month, December 2004, remonstrating with him in her
clear, strong hand.
In that letter she records details of withdrawals
from her account to the last cent. She played bridge once a week at
this time.
Bridge playing is incompatible with being non compos
mentis.
[23] It is nonsense to
suppose that when she wrote her will in December 2004, the testatrix
was not of sound mind. Moreover, it
is the second respondent’s
own version of events that after her father’s death (which
occurred approximately two weeks
after she wrote her will), the
testatrix “was left to deal with her affairs by herself”.
At no stage after December
2004 up until the time of the testatrix’s
death in April 2009 did the second respondent, an attorney, bring an
application
for the appointment of a curator in terms of Rule 57 of
the Uniform Rules of Court. The second respondent’s protests
that
the signs of the testatrix’s mental incapacity are to be
found in her “paranoia” about the way in which she had
been treated by her son, Leon are dashed on the rocks of hard fact:
it is incontestable that the testatrix was justifiably incensed
with
Leon in December 2004.
[24] It is salutary to
bear in mind that in Tregea and Another v Godart and Another
6
Tindall JA, adopted the following test for testamentary capacity
referred to by Cockburn CJ in Banks v Goodfellow
7
:
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 has been intimately acquainted; he may at times
ask idle questions, and
repeat those which have 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 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 the will?
[25] Mindful moreover of
the onus which rests on the second and third respondents to show that
their grandmother was of sound mind
when she wrote her will, I am
satisfied that there is no dispute of fact which should be referred
either to oral evidence or to
trial. The respondents’
contention that the testatrix was not of sound mind when she wrote
her will in December, 2004 is
so far-fetched and untenable that it
may be rejected on the papers. The applicants are entitled to the
substantive relief which
they seek.
[26] Counsel for the
applicants has asked that the court order the second and third
respondents to pay the applicants’ costs
of the application on
an attorney and client scale, after the filing of the founding
papers. Counsel has done so by reason of the
second and third
respondents’ attempts to secure the Master’s acceptance
of the testatrix’s previous will, well
knowing, however, that
this dispute awaited resolution in the court. I have been tempted to
make such an order. As I have said,
this has been a family feud. Leon
Lipchick’s conduct was primarily responsible for his mother,
the testatrix, deciding to
disinherit not only him but also his
children, the second and third respondents, who are the grandchildren
of the testatrix. Leon
has long been dead and buried. A punitive
costs order will, in my view, serve only to deepen the bitterness
which has ensued among
the grandchildren of the testatrix. A wise
exercise of a discretion, it seems to me, is to overlook, in all the
circumstances,
the conduct of the second and third respondents when
it comes to the question of costs.
[27] The following is the
order of the court:
The Master of the High
Court is directed to accept the handwritten will dated 13 December
2004, a copy of which was annexed to
the applicants’ founding
affidavit as Annexure “GL1”, as the last will signed by
Fay Lipchick for the purposes
of the
Administration of Estates Act,
No 66 of 1965
, even though it does not comply with all the
formalities for the execution of wills referred to in
Section 2
(1)
of the
Wills Act, No.7 of 1953
;
The document which
appears to have been a codicil dated 20 September 2004 signed by the
aforesaid Fay Lipchick is declared to
have been revoked;
The second and third
respondents are jointly and severally liable, the one paying, the
other to be absolved, to pay the applicants’
costs in this
application.
DATED AT JOHANNESBURG
THIS 7th DAY OF JUNE, 2011
N.P.WILLIS
JUDGE OF THE HIGH COURT
Counsel for the
Applicants: Adv. J.A Woodward SC
Counsel for the 2nd and
3rd Respondents: Adv. L. Hollander
No appearance for the 1st
Respondent
Attorneys for the
Applicants: Trevor Swartz
Attorneys for 2nd and 3rd
Respondents: Kampel Kaufmann Rakitzis
Date of hearing: 25th
May, 2011
Date of judgment: 7th
June, 2011
1
Van
Der Merwe v The Master and Another
2010
(6) SA 5144
(SCA) at paragraphs [11] to [16];
Smith
v Parsons NO and Others
2010
(4) SA 378
(SCA) at paragraphs [5] to [8];
De
Reszke v Maras
2006
(2) SA 277
(SCA) at paragraph [11] and
Van
Wetten v Bosch
2004
(1) SA 348
(SCA) at paragraphs [14] to [16].
2
Grotius,
Inleiding
,
2.15.4;
Tregea
and Another v Godart and Another
1939
AD 16
at 51: “The decision in
Kunz
v Swart
shows
that according to our common law the
onus
lies on a party
attacking a will valid on the face of it.”;
Kuntz
v Swart and Others
1924
AD 618
at 681-2: “The presumption is, therefore, in favour of
the will”;
Harlow
v Becker NO and Others
1998
(4) SA 639
(D&CLD) at 647 D: “On discharge of that
onus
the person who
contests the validity of the document as a will on the ground that
the person who executed it did not have the
requisite testamentary
capacity then bears the
onus
to prove the absence
of testamentary capacity on the part of such person.”;
Geldenhuys
v Borman NO and Others
1990
(1) SA 161
(E) at 164 D: “Thus both under the
Wills Act and
under common law the
onus
is on him who asserts
invalidity to prove mental incapacity
at
the time
of
making the will.”;
Essop
v Mustapha and Essop NNO and Others
1988
(4) SA 213
at 221;
Kirsten
and Others v Bailey and Others
1976
(4) SA 108
(C) at 109 G: “The
onus
of proving the
invalidity of a will which is regular on the face of it rests on the
challenger.”
3
S
ee,
for example,
Stellenbosch
Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd
1957
(4) SA 234
(C),
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634I
and
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA)
.
4
See,
for example,
Petersen
v Cuthbert & Co. Ltd
1945
AD 420
at 428
,
Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T) at 1163-5
,
Da
Mata v Otto NO
1972
(3) SA 858
(A) at 882D-H
,
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
(
supra
)
at 635A-C
.
5
See,
for example,
Associated
South African Bakeries (Pty) Ltd v Oryx and Verenigde Bäckereien
(pty) Ltd en Andere
1982
(3) SA 893
(A) at 923G-924D,
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
(
supra
)
at 635A-C
.
6
1939
AD 16
at p 49
7
1970
L.R. 5 Q.B. 549
at p578