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[2016] ZAGPJHC 221
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S and Others v V N.O and Others (28329/2015) [2016] ZAGPJHC 221 (11 August 2016)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 28329/2015
DATE:
11 AUGUST 2016
In the matter
between:
A
S
......................................................................................................................................
First
Applicant
S C
M
.............................................................................................................................
Second
Applicant
S C M
N.O
.......................................................................................................................
Third
Applicant
S C M
N.O
.....................................................................................................................
Fourth
Applicant
And
S J V
N.O
.......................................................................................................................
First
Respondent
L
S
...............................................................................................................................
Second
Respondent
M H
N.O
.......................................................................................................................
Third
Respondent
M H
N.O
.....................................................................................................................
Fourth
Respondent
P
R
..................................................................................................................................
Fifth
Respondent
THE
MASTER OF THE HIGH
COURT
..................................................................
Sixth
Respondent
SUMMARY
Succession
– wills –
section 2(3)
of the
Wills Act 7 of 1953
–
the deceased executing one will in 2011 (“
the
2011 will
”)
and another will in 2012 (“
the
2012 will
”)
– in terms of which the first respondent is appointed executor
– deceased emailing scanned copy of 2012 will
to first
respondent – however, original copy of 2012 will cannot be
found upon death of deceased – first respondent
neglecting to
properly search for 2012 will – rebuttable presumption that
deceased destroyed 2012 will
animo
revocandi
not applicable – scanned copy of 2012 will declared to be valid
and his last will – the Master of the High Court directed
to
accept 2012 will as the will of the deceased for the purposes of the
Administration of Estates Act 66 of 1965
.
J U D G M E N T
MOSHIDI, J
INTRODUCTION
[1]
In
this opposed application, the applicants seek the following relief:
“
1.
Declaring that the will executed in 2011 by the late Johan Strachan
(Identity Number 4………) (‘the deceased’)
was revoked by the deceased by virtue of the execution of the 2012
will;
2.
Declaring the copy of the will executed in 2012 by the deceased to be
the only valid and binding last will and testament of the
deceased.
3.
Ordering that the deceased’s estate with estate number:
6……., be wound up in terms of the will executed
in 2012
by the deceased.
4.
Declaring that by virtue of the sale of Erf 8…. S…….,
situated at R…… B…… C…...
8……
C…… N…… E……., M…...
G…… (‘the property’)
by the deceased and
the second respondent, two months prior to the death of the deceased,
the bequest entitling the second respondent
to a usufruct over the
property is of no force and effect; and
5.
Ordering that the proceeds of the sale of the deceased’
s 50%
share of the property be allocated to the Remainder of the estate of
the deceased and to be dealt with in accordance with clause
2.8 of
the deceased’
s 2012
will.
”
[1]
THE
FACTUAL BACKGROUND
[2]
The deceased married M A S, the mother of the first applicant (“
Marie
Aletta Strachan
”). Out of
this marriage, S C M, the second applicant, and the first applicant,
were born on 3 December 1971 and 26
August 1973, respectively.
However, the deceased and M A S were divorced on 30 March
1989. During March 2000, the deceased
and L S (“
the
second respondent
”), were
married. No children were born out of this marriage.
THE
2011 WILL
[3]
On or about 24 June 2011, the deceased executed a will, annexed to
the founding papers as annexure “FA3”, (“
the
2011 will
”).
In terms of the 2011 will, the deceased bequeathed his property,
inter
alia
,
as follows:
[2]
the deceased’s interest in Burewor CC, to the second
respondent; the deceased’s coin collection to one J A M
(“
J
”),
and one Z C M (“
Z
”);
the deceased’s firearms, and accessories, and ammunition to the
fifth respondent; the deceased motor vehicles
are to be liquidated; a
cash amount of R125 000,00 (one hundred and twenty five thousand
rand) to one B J H (“
Bradley
”);
a similar cash amount to one S M H (“
S
”);
the residue of the cash portion of the estate to the first applicant,
and second applicant; the deceased’
s 50%
share in the
residential home, which at the time of execution, was situated at 8….
R….. B….. C…., C…..
N….. E……,
M……. (“
The
immovable property
”),
or any other residential home which is founded or purchased before
the deceased’s death, to the second respondent;
and the residue
of the deceased’s estate to the second respondent.
THE
2012 WILL
[4]
However, on 3 July 2012, the deceased executed a new and updated last
will and testament, annexure “FA4” to the
founding papers
(“
the
2012 will
”).
[3]
In terms of the 2012 will, the material bequests are,
inter
alia
,
as follows: two separate cash amounts of R125 000,00 (one
hundred and twenty five thousand rand) each to J (“
J
”)
and Z (“
Z
”),
respectively; the deceased’s firearms and all accessories
and ammunition to P R, the fifth respondent; cash
amounts of R125
000,00 (one hundred and twenty five thousand rand) each to B (“
B
”),
and S, respectively; the deceased’s motor vehicles are to be
liquidated; the deceased’
s 50%
share in the immovable property,
or any other residential home which is founded or purchased before
the deceased’s death,
to the first applicant and second
applicant, which was subject to a lifelong usufruct in favour of the
second respondent with assurance
of security; and the residue of the
estate to the first applicant and the second applicant.
THE
FOUNDING PAPERS
[5]
In the founding papers, the applicants, alleged that, the 2012 will
had the effect of,
inter
alia
,
revoking the 2011 will; bequeathing the deceased’
s 50%
share in
the immovable property to the first applicant and the second
applicant in equal shares, which was to be subject to a lifelong
usufruct in favour of the second respondent; and accounting for the
sale of the deceased’s coin collection, a major asset
of the
estate which was bequeathed to J and Z. That had the deceased
not executed the 2012 will, J and Z would no longer
be able to
inherit in terms of the 2011 will as the deceased had disposed of his
coin collection prior to his death on 28 December
2013.
[4]
The above allegations were not in dispute or seriously challenged by
the respondents. It was equally not in dispute
that both the
2011 will and the 2012 will were drafted by Schalk Jacobus Viljoen
N.O., i.e. the first respondent. Both the
wills were so drafted
on the direct instructions of the deceased, and in terms of which the
first respondent was the nominated
executor in both. It was
further not in dispute that, on 3 July 2012, and after the execution
of the 2012 will, the deceased
sent a duplicate of the original will
(an electronic scan) of the validly executed 2012 will to the first
respondent, and second
respondent and others via email
correspondence, which email, in parts, read as follows:
“
M L,
ingesluit is die getekende dokumente soos bespreek.
Groete.
Johan Strachan
Sales and
Marketing.Volvo.Trucks
Region Southern
Africa
Corner Jet Park Road
and Saligna Street,
Hughes Business
Park,
Witfield, Boksburg
Johannesburg
…”
[5]
On
28 December 2013, the deceased died suddenly and unexpectedly.
[6]
Indeed, the divergence in the contentions of the parties, as mirrored
in the first respondent’s answering papers, and
essentially
from paragraph [29] of the founding papers emerged. The first
respondent described the divergence of the assertions
as factual
disputes, which the applicants ought to have foreseen when launching
this application. For this reason, the opposing
respondents argued
that prayers 2, 3 and 5 of the notice of motion be either dismissed
or the application be referred to oral evidence.
I shall later deal
with more common cause issues and the relief not opposed. I deal with
this contention later below.
THE
SECOND RESPONDENT’S ANSWERING AFFIDAVIT
[7]
I must mention that, L S, the second respondent, has not only filed
an answering affidavit, but also a counterclaim. In
the
answering affidavit she conceded that, the 2011 will has been
lawfully revoked by the deceased’
s 2012
will; that on the
evidence contained in the papers, the presumption that the deceased
destroyed the 2012 will with the intention
to revoke it, has not been
rebutted fully; that as a consequence, the deceased died intestate
and his estate must be administered
accordingly; and that, in
accordance with the law of intestate succession, the deceased’s
three daughters, and the second
respondent, are entitled to claim on
the basis of the so-called, child’s share, i.e. one-third of
the estate. The second
respondent, also brought an application
for the joinder of M H N.O., (in her personal capacity), the third
and fourth respondents,
to be joined in these proceedings as having a
direct and substantial interest in the proceedings. M H is one of the
three daughters
of the deceased and M St, and mother of the two minor
beneficiaries, B and S. She, however, is not a beneficiary.
Her
joinder sought by the second respondent, is based solely on the
hope that she may be entitled to a child’s share, in the event
it is found that the deceased died intestate. The second
respondent does not oppose the relief sought in prayers 1 and 4
of
the notice of motion. The applicants subsequently withdrew
their opposition to the joinder application.
[6]
[8]
I revert to the allegations in the founding papers. The
applicants contended that a meeting was held at the offices of
Wagener, Muller and Vermaak Attorneys, between the first respondent,
Mr Craig Green of Schindlers Attorneys, Ms Catherine Plit
of
Schindlers Attorneys and Ms Vermaak of Wagener Muller and Vermaak
Attorneys on 14 May 2015. At this meeting the applicants
alleged that the first respondent informed that the deceased had made
an arrangement for the first respondent to collect from him,
the
original 2012 will. However, the first respondent neglected to
do so. In this regard, the applicants attached confirmatory
affidavits of Attorneys Green and Plit who attended the meeting.
The applicants also alleged that, after the death of the
deceased,
the first respondent, even though aware that the deceased’s
intentions were contained in the 2012 will, failed
to search
diligently for such will. Neither did the first respondent and
the second respondent enquire from the first and
the second
applicants (as the daughters of the deceased) about the location of
the 2012 will. The first respondent also neglected
to look for
the 2012 will at the deceased’s place of employment, i.e. Volvo
South Africa, where the first respondent alleged
it was at the time.
In this regard, the applicants attached to the founding papers, a
confirmatory affidavit of Ms B D van
Niekerk (“
Van
Niekerk
”),
who worked with the deceased. Van Niekerk was responsible for
clearing out the deceased’s office after his
death.
Unfortunately, the original version of the 2012 will could not be
located.
[7]
[9]
In the answering papers, the first respondent, although admitting to
attending the meeting of 14 May 2015, denied that he made
an
arrangement with the deceased to collect the original of the 2012
will. He, however, admitted that he prepared the 2012
will on
instructions of the deceased, and that the will was executed by the
deceased at his workplace on 3 July 2012. The
two witnesses to
the will, co-employees of the deceased, Ms J C and Mr W J v V, have
furnished supporting affidavits to the founding
papers. In
addition, Mr J v V mentioned that the deceased appeared to be of
sound mind and sober senses and in a competent
mental state at the
time of the execution of the will. On the same day, at about
09h13, the deceased emailed a copy to the
first respondent. The
first respondent assumed that since the deceased had kept the
original of the 2011 will at home, the
deceased would do the same
with the 2012 will. The first respondent was fully aware of the
2012 will, but denied that he
failed to conduct a diligent search for
the will. He had no right to conduct such a search at either
the deceased’s
residence or place of employment, but requested
other person(s) to do so. He did not know V N.
[10]
The remaining salient allegations in the founding papers included
that: the second respondent is equally to blame for
not
searching and finding the original version of the 2012 will, since
she was the only one who would benefit if the deceased had
not
executed the 2012 will; that the applicants only found out during
October 2014 that the first respondent, a financial planner
and
executor in the estate, intended to finalise the estate in terms of
the 2011 will, instead of the validly executed 2012 will,
a scanned
copy of which was already in the possession of the first respondent;
that the Master of the High Court (sixth respondent)
erroneously
furnished to the first respondent instructions to administer the
estate in terms of the revoked 2011 will, and that
the first
respondent is now selectively using portions of both wills in the
winding-up of the estate, as reflected in the draft
Liquidation and
Distribution Account.
[8]
[11]
In the final analysis, the applicants alleged that the 2012 will,
clearly revoked the 2011 will and made the deceased’s
intentions clear; the intentions included that the first respondent
would take possession of the 2012 will and safeguard same until
his
death.
SOME
COMMON CAUSE FACTS
[12]
The following are either common cause or not seriously disputed:
the first applicant (A S), the deceased’s daughter,
born of the
marriage between the deceased and M A S (“
Marie
”),
is a beneficiary of the estate of the deceased in terms of the 2011
will and the 2012 will; the second applicant
(S C M), the
deceased’s other daughter, born of the marriage between the
deceased and M, is a beneficiary of the estate of
the deceased in
terms of the 2011 will, and the 2012 will; the third applicant
(S C M NO) is also the fourth applicant, in
her capacity as mother
and legal representative of J and Z. J, the deceased’s
grandson, also the second applicant’s
son, is a beneficiary of
the estate of the deceased in terms of the 2011 will as well as the
2012 will; and Z, the deceased’s
granddaughter, also a daughter
of the second applicant, is a beneficiary of the estate of the
deceased in terms of the 2011 will
as well as the 2012 will.
[13]
It is also not in dispute that: the first respondent (S Ja V N)
is the executor of the estate of the deceased, who was
appointed as
such in terms of the 2011 will as well as the 2012 will; the
second respondent (L S), the deceased’s widow,
whom the
deceased married after he had divorced M, is a beneficiary of the
estate of the deceased in terms of the 2011 will, as
well as a
beneficiary in terms of the 2012 will, only to a limited extent; the
third respondent (M H NO) is also the fourth respondent,
and is the
deceased’s other daughter, born of the marriage between the
deceased and M and she is also the mother and legal
representative of
B and Sienna; B is the deceased’s grandson as well as the
third and the fourth respondents’
son, and he is a beneficiary
of the estate of the deceased in terms of both the 2011 will and the
2012 will; S is the deceased’s
granddaughter and the
second and the third respondents’ daughter, and is a
beneficiary of the estate of the deceased in terms
of both the 2011
will and the 2012 will; and that the fifth respondent (P R) is a
beneficiary of the estate of the deceased in
terms of both the 2011
will and the 2012 will.
[14]
From the papers, the first respondent and the second respondent, do
not dispute that by virtue of the 2012 will, the deceased
revoked the
2011 will. To this extent, the first respondent and the second
respondent do not challenge the relief sought
by the applicants in
respect of declaring the 2011 will to have been revoked by the 2012
will. In this regard, the first
respondent, in the answering
affidavit said:
“
Ek
is geadviseer dat die 2012 testament inderdaad die 2011 testament
herroep het en bede 1 en 4 van die kennisgewing van mosie word
nie
opponeer nie.
”
[9]
The
second respondent, in her answering affidavit, also stated:
“
Derhalwe
versoek ek met eerbied dat ‘n bevel gemaak word ingevolge bedes
1 en 4 van die kennisgewing van mosie, dat bedes
2, 3 en 5 van die
hand gewys word met koste en dat ‘n bevel gemaak word
ooreenkomstig die kennisgewing van teenaansoek wat
hiermee saam
afgelewer word.
”
[10]
THE
SECOND APPLICANT’S COUNTER-APPLICATION
[15]
The counter-application in essence, seeks an order that the deceased
died intestate, and that his estate therefore must be
administered in
accordance with the law of intestate succession. The
counter-application is based on the assertion and concession
that:
“
Die
oorledene se 2011 testament is inderdaad regsgediglik herroep deur
die oorledene se 2012 testament,
”
and
as mentioned above, that on the evidence presented, the presumption
that the 2012 will executed by the deceased, was destroyed
by the
deceased with the intention to revoke it, was not rebutted.
[11]
[16]
From the opposition proffered by the first and the second
respondents, it is more than plain that they rely on the common law
presumption that: where a deceased testator is known to have
executed and possessed a will, which upon his or death cannot
be
found, a rebuttable presumption arises that the testator destroyed
the will (in this case the 2012 will), and that he or she
did so with
the intention of revoking the dispositions made therein. The
applicants, contended otherwise by countering that
the presumption is
inapplicable in the instant case. It appears to me that the
issue of the applicability of the above presumption,
with all its
ramifications, will have to be determined first as it may be
dispositive of the matter, one way or the other. It will
also be
necessary to decide the issue whether the available copy of the 2012
will before me, is acceptable and valid and compliant
with the law in
its own right. If so, whether the 2011 will was correctly and
properly revoked by such will.
SOME
APPLICABLE LEGAL PRINCIPLES
[17]
I turn to some applicable legal principles. In
Ex
Parte Warren,
[12]
although the Court concluded that it could not find whether the
presumption applied, said:
“
The
respondent relies on the presumption in law that where a deceased is
known to have executed and possessed a will, which was
on his decease
cannot be found, a rebuttable presumption arises that the testator
destroyed the will and that he did so with the
intention of revoking
the dispositions he has made therein. In order to succeed,
anyone claiming under such a will would
have to show on a balance of
probability that the deceased did not destroy the will or, if he did
destroy it, he did not do so
with the intention of rendering it
inoperative (Ex Parte Slade,
1922 T.P.D. 220).
”
See
also
Nell
v Talbot NO.
[13]
In
the latter case, the joint will of the couple could not be found
after the husband died. The wife plaintiff, believed that
the
will, which was properly executed, was in the possession of their
attorney. However, despite a thorough search in the attorney’s
office, the wife was unable to find the will or any copy thereof.
At p 208 of the judgment, the Court said:
“
The
circumstances that after the death of the deceased the ante-nuptial
contract but not the will was found in the strong-room might
prima
facie suggest that the will was at some time after it had been
deposited therein removed and handed to the plaintiff or her
husband. If that is what happened, the non-existence of the
will after the death of Mr Nell would not readily give rise to
an
inference that it had been lost or accidentally destroyed, for a
rebuttable presumption would arise that the will was not available
because it had been destroyed animo revocandi by the testator or
testators.
”
The
Master was directed to accept as valid and effective the will of the
deceased, a copy of the reconstructed will. See also
Ex
Parte Ntuli
,
[14]
and compare
Senekal
v Meyer NO en ‘n Andere
1975 (3) SA 372
(T). Interestingly, in Corbett
et
al Succession
97-98,
it is observed that the destruction of a copy of a will will not
normally constitute an effective revocation.
[18]
Based on the above principles, as well as the peculiar circumstances
of the instant matter, I am not convinced that the presumption
applies in this matter. The applicants too, in the founding
papers, do not concede that the common law presumption applies,
as
suggested by the first and the second respondents. For in the
founding affidavit, the applicants state that there is sufficient
evidence to rebut the presumption of
animus
revocandi
in
respect of the 2012 will. This, especially, in the
circumstances where no one looked for the will, and the deceased
adhered
to a strict pattern of always having a will so that his
estate would be wound up in accordance with his wishes.
[15]
Indeed, the above assertion by the applicants, namely that no one
looked for the 2012 will, is one in regard to the requirements
for
the common law presumption being applicable, i.e. that the 2012 will
must have been in the possession of the deceased at the
time of his
death, and that such will cannot now be found.
[19]
I may add that, the applicants’ case is significantly supported
by numerous other factors, both common cause and disputed.
These include the following: that it is common cause that the
first respondent drafted the 2012 will on instructions of the
deceased; and it is also common cause that the deceased executed the
will properly at his place of employment (Volvo South Africa)
on 3
July 2012. The common law presumption will therefore be
applicable, if (a) the deceased was in possession of the original
2012 will at the time of his death, and (b) if the original 2012 will
cannot be found. The first and second respondents bear
the
onus
of establishing the necessary facts in order to give rise to the
presumption; indeed the first respondent conceded that the
deceased was in possession of the original 2012 will at the time of
his death; that it is equally common cause that after executing
the
2012 will at work, the deceased emailed to the first respondent a
scanned copy of the 2012 will from his place of employment
on 3 July
2012 (the scanned copy of the 2012 will forms part of the papers
before me). More about it later below; that it
seems that the
first respondent does not know what transpired about the deceased’s
possession of the original 2012 will,
and his evidence to the effect
that the deceased was in possession of the original 2012 will at the
time of his death was highly
speculative; that the same applied to
the evidence of the second respondent; that the first respondent, as
the appointed executor
of the deceased’s estate, had the
requisite authority to look for the original 2012 will, which
authority he did not exercise;
that the alleged search for the
2012 will at the deceased’s place of work, and at his immovable
property was plainly limited;
and that it cannot be said that the
original 2012 will cannot be found in the circumstances. For all the
above reasons, the applicants
contended that the common law
presumption is not applicable here. There is merit in these
contentions.
[20]
In addition to the above, and in the alternative, the applicants
contended that, even if the presumption is applicable, it
is however
rebutted, having regard to the following facts from which the
intention of the deceased can be inferred: the first
respondent
drafted the 2011 will, in terms of which the first respondent was
appointed as executor; the first respondent had been
the deceased’s
financial planner since about February 2011, and had discussions with
the deceased concerning the deceased’s
family, and that the
first respondent, as mentioned before, drafted the 2012 will, in
terms of which the first respondent was also
appointed as executor,
on the instructions of the deceased.
[21]
Indeed, in
Piennaar
and Another v Master
,
[16]
it was held that, where a testator has made two consecutive wills
dealing with his entire estate that differ from one another,
the one
will, if it lacks a revocation clause, impliedly revoke the earlier
one in so far as it is inconsistent with it.
Furthermore, and
for what is relevant to the instant matter, at paragraph [14] of the
judgment, the Court said:
“
The
golden rule for the interpretation of wills is to ascertain the
wishes of the testator from the language used. Once the wishes
of the
testator have been ascertained a court is bound to give effect to
them.
”
[22]
The evidence in the present matter, show that the conduct of the
deceased by keeping the original 2012 will, and providing
the scanned
copy thereof to the first respondent was consistent with the
deceased’s conduct with respect to the 2011 will.
(The
deceased had also kept the original 2011 will and provided the first
respondent with a copy thereof.)
[17]
Also in regard to the 2011 will, the deceased, instead of destroying
the will when he wished to revoke it, instructed the
first
respondent, his financial planner, to draft a new will (the 2012
will). The deceased never instructed the first respondent
to
destroy a will. The deceased did not inform the first respondent that
he had change of intention in regard to the 2012 will.
So too,
is the fact that the deceased, prior to his death, did not inform
anyone about a change of intention and wish in regard
to the 2012
will. In my view, it can be inferred from all the above facts
and legal principles that the intention of the
deceased was not to
revoke the 2012 will, and that he in fact intended that the 2012 will
be his will. This is the more probable
inference to be drawn
from any other inference. It follows that the presumption
relied on by the first and the second respondents,
even if
applicable, is rebutted. (
cf
Opperman v Opperman and Others.
)
[18]
It also follows that the 2012 will is valid. The contentions of
the opposing respondents are without merit. The
same applies to
the second respondent’s counter-application. In the
circumstances of the matter, I also find it unnecessary
to make a
comparison of the various dispositions made by the deceased in the
two wills.
COPY OF
THE 2012 WILL
[23]
I deal with the acceptance of the copy only of the 2012 will which is
before me, for the sake of completeness. It is
by now settled
law that the court has the requisite discretion to order the
acceptance of a copy by the Master. Section 2(3)
of the Wills
Act 7 of 1953 (“
the Act
”)
provides that:
“
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 No 66 of 1995) (‘the
Act’) as a
will, although it does not comply with all formalities for the
execution or amendment of wills referred to in
subsection (1).
”
See
also
Van
der Merwe v Master of the High Court and Another
.
[19]
In the present matter, there can be little doubt that the 2012 will
does comply with the formalities prescribed by the Act.
It was
drafted by the first respondent on instructions of the deceased.
The deceased properly executed the will at his place
of employment,
and emailed a scanned copy to the first respondent. There is no
evidence at all that the contents of the available
copy of the 2012
will differ from the original thereof. I conclude therefore
that the copy of the 2012 ought to be accepted
as valid. The
applicants are entitled to the relief sought in the notice of
motion. The assertions of the first and the second
respondents
that there are, on the papers, factual disputes, which warrant that
the application be referred to oral evidence on
the question as to
whether the common law presumption has been rebutted, are also
without merit. As argued by the applicants,
regardless of who
has the
onus
to show that the common law presumption is or is not applicable, the
question here remains whether, having regard to the contents
of the
first and the second respondents’ answering papers, as read
with the applicants’ founding papers, the presumption
is or is
not applicable. See
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
.
[20]
The first and the second respondents have not raised a real, genuine
or
bona
fide
factual dispute. I have already found that the common law
presumption does not apply.
COSTS
[24]
I deal with the question of costs, which is a discretionary matter.
The applicants argued that the second respondent
should pay the
applicants’ costs of the application. In regard to the first
respondent, the applicants argued that he ought
to pay the costs
de
bonis propriis
. I have had regard
to the opposing contentions on the costs issue. I am not
persuaded, however, that a costs order
de
bonis propriis
against the first
respondent will be justified in the circumstances of this matter.
He is acting in a fiduciary capacity.
I cannot find
conclusively that his conduct in these proceedings is
mala
fide
. However, his opposition to
the application was clearly completely unnecessary and contrary to
the interests of the deceased’s
estate and the beneficiaries.
The same applies to the second respondent. It will be just and
equitable that they pay
the costs in their personal capacities.
The estate ought not to be burdened with the costs of this
unmeritorious application.
ORDER
[25] In the result I make the following order:
25.1
An order is granted in terms of prayers 1, 2, 3, 4 and 5 of the
notice of motion dated 6 August 2015.
25.2
The second respondent’s counter-application is dismissed with
costs.
25.3 The
first respondent and the second respondent shall pay the costs of the
application in their personal capacities, jointly
and severally, the
one paying the other to be absolved.
25.4
In essence, the sixth respondent is directed to accept the 2012 will
executed by the deceased on 3 July 2012 as the will of
the deceased
for the purposes of the
Administration of Estates Act 66 of 1965
.
D
S S MOSHIDI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR THE APPLICANTS L HOLLANDER
INSTRUCTED
BY SHINDLERS ATTORNEYS
COUNSEL
FOR THE FIRST AND
SECOND
RESPONDENTSJ P VORSTER SC
INSTRUCTED
BY COUZYN HERTZOG AND
HORAK
ATTORNEYS
DATE
OF HEARING 26 MAY 2016
DATE
OF JUDGMENT 11 AUGUST 2016
[1]
See
prayers 1 to 5, notice of motion, Index 1, pp 1 to 3.
[2]
See
2011 will, annexure “FA3”, Index 1, pp 22 to 26.
[3]
See
2012 will, annexure “FA4”, Index 1, pp 27 to 31.
[4]
See
notice of motion, paragraph 25, Index 1, p 11.
[5]
See
annexure “FA5”, notice of motion, Index 1, p 32.
[6]
See
notice of withdrawal of opposition, Index 1, pp 227 to 228.
[7]
See
paras 29 to 34 of the founding affidavit, Index 1, pp 11 to 12.
[8]
See
annexure “FA8” founding papers, Index 1, pp 39 to 47.
[9]
See
first respondent’s answering affidavit, paragraph 18.2, p 85,
Index 1 paginated papers.
[10]
See
second respondent’s answering affidavit, paragraph 18, p 215,
Index 3, paginated papers.
[11]
See
notice of counter-application, paragraph 2, p 207 to 208, Index 3,
paginated papers.
[12]
1955
(4) SA 326
(W) at 326F-H.
[13]
1972
(1) SA 207
(D) at 208.
[14]
1970
(2) SA 278
(W).
[15]
See
founding affidavit, paragraph 84 p 19.
[16]
2011
(6) SA 338
(SCA).
[17]
See
answering affidavit of first respondent, paragraphs 5.3 and 5.4 p
72.
[18]
(3659/2015)
[2016] ZAFSHC 26
(3 March 2016) para [13].
[19]
[2011]
1 All SA 298
(SCA).
[20]
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C.