About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2016
>>
[2016] ZAGPJHC 261
|
|
Pearsal - Jones v Jones and Others (28070/2015) [2016] ZAGPJHC 261 (22 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 28070/2015
In
the matter between:
JILLIAN
GLYNIS
PEARSAL-JONES
APPLICANT
and
WILLIAM
EDWIN JONES
FIRST
RESPONDENT
WILLIAM
EDWIN JONES N.O
(As
Executor of the estate late Owen
Jones)
SECOND RESPONDENT
WILLIAM
EDWIN JONES N.O
(As
Trustee of the Owen Jones Investment
Trust)
THIRD RESPONDENT
ISMAX
(PTY)
LTD
FOURTH RESPONDENT
TELHIRE
(PTY)
LTD
FIFTH RESPONDENT
RAFIA
MANUFACTURERS (PTY)
LTD
SIXTH RESPONDENT
R
HOEK & COMPANY (PTY)
LTD
SEVENTH RESPONDENT
ULTRA
BADGE & METAL (PTY)
LTD
EIGHT RESPONDENT
THE
ASSISTANT MASTER OF THE SOUTH
GAUTENG
HIGH COURT
JOHANNESBURG
NINTH RESPONDENT
THE
MASTER OF THE SOUTH GAUTENG
HIGH
COURT
JOHANNESBURG
TENTH RESPONDENT
J
U D G M E N T
COLLIS
AJ:
INTRODUCTION
[1]
The applicant and the first respondent are siblings. Their parents
are both deceased and the first respondent was appointed
the executor
in both the deceased estates. The present dispute centres on his
appointment as executor of the aforesaid estates
and the wills of the
deceased.
BACKGROUND
[2]
In the present application the applicant seeks a wide range of
different relief arising from the administration of the estate
late
Owen Jones. As against the first respondent the applicant seeks his
removal as executor of Owen’s estate and costs in
his personal
capacity (i.e. costs
de bonis propriis
).
In addition thereto, the applicant wishes to rescind two findings
dated 14 July 2015, in the directive issued by the ninth respondent,
who acted at all material times as a representative of the Master
(tenth respondent).
THE LAW
[3]
Section 54(1)(a)(v)
of the
Administration of Estates Act 66 of 1965
permits a court to remove an executor from his office. It reads as
follows:
“
54(1)
An executor may at any time be removed from his office;
(a) by the court-
(i) …………….(iv)
(v)
if for any other reason the court is satisfied that it is undesirable
that he should act as executor of the estate concerned
.”
[4]
Section 35(10)
of the same act, permits any person aggrieved by a
direction of the Master or the refusal of the Master to sustain an
objection
so lodged, to apply by motion to the court within 30
(thirty) days after the date of such direction or refusal or within
such further
period as the court may allow, for an order to set aside
the Master’s decision. The court may make such an order as it
may
think fit.
[5] As per the Notice of Motion the
following relief is sought:
“
1. That
the direction of the ninth respondent dated 14 July 2015, of which
annexure X hereto is a copy, is set aside and replaced
with this
order;
2. That it is declared that the
last will and testament of the late Owen Jones (the deceased), the
deceased bequeathed his shareholding
in Fourth to Eight Respondents
to the Applicant and the First Respondent in equal shares;
3.
That the Second Respondent,
alternatively
the
executor to be appointed in the estate late Own Jones is directed to
forthwith issue the Applicant and the First Respondent,
respectively,
with the share certificates in accordance with the aforesaid bequest;
4. That all dividends which had
in the past and which would in the future be declared by the
shareholders of the Fourth to Eight
Respondents, and to which the
Applicant and the First Respondent became, or would become entitled
to, shall accrue to the Applicant
and the First Respondent in
accordance with the rights derived from their respective shareholding
in the Fourth to Eight Respondents;
5. That the Second Respondent is
removed as executor of the estate late Owen Jones;
6. That the Tenth Respondent is
directed to forthwith appoint an executor for the administration of
the estate late Owen Jones Estates
after consultation with the
Applicant;
7. That the executor so appointed
is granted leave to take all and any steps which may be necessary to
recover any assets for and
on behalf of the estate late Owen Jones
which were disposed of, transferred or alienated during the Second
Respondent’s appointment
as executor of the said deceased
estate;
8. That the costs of the
application are to be paid by the First, Second and Third
Respondent’s jointly and severally by those
Respondent’s
opposing the relief sought herein;
9.
Further and/or alternative relief
.”
[6]
In respect of the relief sought in prayers 1-4 of the notice of
motion, the first respondent has made an election to abide by
the
Court’s finding. In respect of the remainder of the relief
sought, although he does not believe that there is any factual
or
legal justification for his removal as executor, he has nonetheless
agreed to step down as executor in order to bring the administration
of their father’s estate to a prompt and efficient end.
[1]
In respect of the costs order sought against him, he opposes this
portion of the relief sought.
[2]
[7] This Court in deciding whether
the first respondent should be ordered to pay the costs of this
opposed application in his personal
capacity must have regard to the
following principles:
7.1
It is unusual to order an unsuccessful litigant in a fiduciary
position to pay costs
de
bonis propriis
.
The appointment to such a fiduciary position whether it be as a
curator
ad
litem
or curator
bonis
,
or trustee, guardian, executor, administrator or even company
director usually afford
prima
facie
protection against personal liability for costs of unsuccessful
litigation.
[3]
The default judgment was not granted in error as there had been
proper service of the summons in the action on the defendants
domicilium
citandi et executandi
.
[4]
7.2
There must be good reason for ordering costs
de
bonis propriis
,
such as improper or unreasonable conduct or lack of
bona
fides
.
Before such an order is made, the Court must be satisfied that the
conduct of the officer is
mala
fide
,
negligent or unreasonable.
[5]
7.3
Costs
de
bonis propriis
is awarded where there is a material departure from the
responsibilities of office.
[6]
7.4
The mere fact that an executor has been guilty of an error of
judgment and has not taken what eventually may turn out to be
the
best course, does not warrant an order for costs
de
bonis propriis
against him.
[7]
[8]
The factual matrix are that on 19 August 2013, Owen Jones (the father
of the siblings) died of natural causes. Subsequent thereto,
his
estate was registered with the Master. Upon his death Owen Jones left
a number of shares in various companies. The relationship
between the
shareholders in these companies was governed by the terms of the
shareholders agreement, which provided that its terms
were
enforceable against their heirs and executors of the shareholders.
[8]
[9] The shareholders agreement with
reference to clause 2.2.5 provided as follows:
‘
In
the event of the death of O. Jones all his shares shall be
transferred to a Trust for the benefit of the beneficiaries contained
therein.”
[10]
In his last Will and Testament, Owen Jones bequeathed his shares in
the various companies to his children subject to a lifelong
usufruct
in favour of his wife, June Elizabeth Jones.
[9]
June Jones died on 18 February 2014, approximately 183 days after her
husband. The will of Owen created a conflict. In terms of
the
shareholders agreement all shares would vest in a trust for the
benefit of his beneficiaries and on the other hand his will
provided
that the shares were to vest in his children personally. As a result
of this, the first respondent, as executor, created
the Owen Jones
Investment Trust into which the shares bequeathed to the applicant
and the first respondent would vest.
[11]
He thereafter approached the Master for a direction and on the 14
July 2015, the Master gave a direction wherein it was confirmed
that
the shareholders agreement would take precedent over the Last Will
and Testament of Owen Jones.
[10]
[12]
The applicant in her founding affidavit describes the first
respondent’s decision amongst others to register the Owen
Jones
Investment Trust, as an irregularity.
[11]
This objection made by her against the registration of the Owen Jones
Investment Trust was overruled by the Master.
[12]
[13]
As a consequence I cannot agree that this decision taken by the first
respondent in this regard was unreasonable,
mala
fide
or negligent as a direction was
specifically sought by him from the Master.
[14]
The removal of the first respondent as executor now falls to be
determined. As mentioned in paragraph 3
supra
such removal can only be ordered by the court, if a court is
satisfied that it is undesirable for such a person to continue to
act
as executor. In this regard, the applicant contends that the first
respondent was dishonest when he acted as executor in the
following
respects:
14.1 The preparation and
signature of Annexure “FA12”
In
her founding affidavit, she alleges that this occurred shortly after
the death of her father and both she and her mother were
still in
grief and emotionally vulnerable.
[13]
The applicant further contends that the purpose of this
agreement must have been intended by the first respondent to assert
full control over the finances of June and the affairs of the
companies. In respect of Annexure “FA12”, the first
respondent contends, that this document was produced from notes
prepared by the applicant at the bedside of Owen Jones and which
she
in the presence of their deceased father and mother had agreed to
implement. This the applicant denies in her replying affidavit.
[14]
It is not in dispute that the first respondent has never sought to
implement the terms of “FA12” or to provide for
its terms
in the Liquidation and Distribution account of Owen Jones.
[15]
Moreover, the events relating to the signature of Annexure “FA12”
do not establish a basis for the removal of
the first respondent as
executor nor can it give rise to a conclusion that the first
respondent has abused his trust or that he
has sought to exercise his
duties as executor contrary to the terms of the will of the late Owen
Jones.
14.2 Death Certificate of Owen
Jones
The
applicant contends that the first respondent had a hand in recording
Owen Jones’ date of death as 20 August 2013. She
later had it
rectified to reflect the date of death as 19 August 2013. The
applicant contends that because the first respondent
at the time of
Owen’s death had a general power of attorney to manage the
affairs of Owen, this gave him full access and
control to the bank
accounts of Owen. The applicant contends that upon closer inspection
of the accounts of the first respondent,
it transpired that on 19
August 2013, two deposits were made from the accounts held by Owen
into the account of the first respondent
and as such the reason to
record his date of death as 20 August 2013. In her founding affidavit
at paragraph 87, she alleges that
the first respondent’s
unauthorised appropriation of Owen’s money in itself
demonstrates a willingness to only serve
his own interests. In
response thereto, the first respondent admitted that the death
certificate reflected an incorrect date as
the date of death.
[16]
He
went on to stipulate that the recordal on the death certificate was
an error which must have occurred when the notice of death
form was
completed by either the funeral parlour or the medical staff employed
at the Elphin Lodge. The applicant save to persist
with her
contention that it was the first respondent who provided the
incorrect date on the death certificate, provided no objective
facts
in support of her contention. In her replying affidavit, she merely
insists that it was the first respondent who provided
the incorrect
date, with no supporting objective facts.
[17]
In respect of the transfer of the funds from the accounts of Owen to
his accounts, the first respondent avers that this was done
in order
to make provision for the maintenance of June Owen and that the money
so transferred was included in the Liquidation and
Distribution
account and that there was simply no appropriation of funds made by
him. The applicant, in her replying affidavit,
does not deny that the
moneys so transferred were indeed reflected in the Liquidation and
Distribution account. In fact in her
replying affidavit she points
out that had it not been for her pointing it out, the moneys would
not have been corrected.
[18]
In relation to the applicant’s contention of the appropriation
of funds, and given the fact that these funds were properly
accounted
for in the Liquidation and Distribution account, I could find no
basis to show any wrongdoing on the part of the first
respondent.
14.3 Fraudulent Drafting of a
Codicil
In
paragraph 94 of her founding affidavit, the applicant states that she
suspects that the codicil is a fraudulent document.
[19]
In this regard she alleged that the signature reflected on page 1 of
the document, does not reflect the signature of her late father
and
that such signature had been forged with the first respondent having
a hand in it.
[20]
In reply hereto, the first respondent denies that the codicil was a
fraudulent document and confirmed that his late father signed
the
document whilst in bed.
[21]
As confirmation of his father’s signature, the first respondent
obtained a forensic report marked annexure ‘AA2’
confirming his late father’s signature on the codicil. Albeit,
that the applicant in her replying affidavit, obtained her
own
handwriting expert report, her handwriting expert could merely
confirm that the signature as it appears on the codicil was
probably
not that of the late Owen.
[22]
As far as the signatures thus are concerned this court is confronted
with two expert reports rendering conflicting opinions.
It is not
necessary to make a finding in this regard. However, the said
codicil does not change the beneficiaries in the
deceased estate. All
that it served to do, was to provide for the formation of a company
in which shares would vest as opposed
to the shareholders agreement
which provided for the formation of a trust.
[23]
The first respondent went on to state that given the circumstances,
the shareholders agreement would take preference and that he
never
sought to enforce the codicil contrary to the wishes of the
applicant.
[15]
Given the totality of the evidence presented and the cases referred
to in paragraph 7
supra,
I am not convinced that the applicant has succeeded in demonstrating
that the conduct of the first respondent, given his fiduciary
position, was either
mala fide
,
negligent or unreasonable.
Costs
[16]
The first respondent as mentioned in para 6
supra
did not oppose his removal as executor and has tendered same.
But he has opposed the granting of a costs order against him
de
bonis propriis
. Having regard of the
facts already alluded to in this judgment, it is my considered view,
that the applicant should be ordered
to pay all costs associated with
the application after the date of delivery of the answering
affidavit.
ORDER
[17] In the result the following
order is made:
1. The direction of the Ninth
Respondent dated 14 July 2015, is set aside and replaced with this
order;
2. It is declared that in the last
will and testament of the late Owen Jones (“the deceased”)
the deceased bequeathed
his shareholding in the Fourth to Eight
Respondents to the Applicant and the First Respondents in equal
shares;
3. The executor to be appointed in
the estate late Owen Jones is directed to forthwith issue the
Applicant and the First Respondent
respectively with the share
certificates in accordance with the aforesaid bequest;
4. That all dividends which were in
the past, and which would in the future be declared by the
shareholders of the Fourth to Eight
Respondents, and to which the
Applicant and the First Respondent became, or would become entitled
to, shall accrue to the Applicant
and the First Respondent in
accordance with the rights derived from their respective shareholding
in the Fourth to Eight Respondents;
5. The Second Respondent, as agreed,
is to step down as executor of the estate late Owen Jones;
6. The Tenth Respondent is directed
to forthwith appoint an executor for the administration of the estate
late Owen Jones after
consultation with the Applicant and the First
Respondent;
7. That the executor so appointed is
granted leave to take all reasonable steps to recover any assets for
and on behalf of the estate
late Owen Jones which were disposed of,
transferred or alienated during the Second Respondent’s
appointment as executor of
the said deceased estates;
8.
The Applicant is ordered to pay all costs associated with the
application after the date of delivery of the Answering Affidavit,
such costs to include the costs for the filing of Heads of Argument
and the hearing of the application.
_________________________
C. J. COLLIS
ACTING JUDGE GAUTENG LOCAL DIVISION
JOHANNESBURG
APPEARANCES:
FOR APPLICANT:
Adv
H.H.Cowley
INSTRUCTED BY:
Van
Rensburg
Schoon Inc
FOR FIRST RESPONDENT: Adv
W.B. Pye
INSTRUCTED BY:
Edward
Nathan Sonnenbergs Inc
DATE OF HEARING:
01 August 2016
DATE
OF JUDGMENT: 22
September 2016
[1]
Answering
Affidavit para 6-9 pages 158-160
[2]
Answering
Affidavit para10-11 page 160
[3]
Grobbelaar
v Grobbelaar
1959 (4) SA 719
at 725
[4]
Answering
Affidavit page 80 paragraph 7 and page 88 paragraph 14.7
[5]
Vermaak
Executor v Vermaak Heirs 1909 (TS) 679 at 691
[6]
Blou
v Lampert & Chipkin NN.O and Others 1973 (1) SA 1 (A) 14
[7]
Wilkinson
v Estate Steyn 1947 (2) SA 740 (C)
[8]
Founding
Affidavit page 59-60 (para D)
[9]
[9]
Founding
Affidavit page 76, Clause 4.4
[10]
Founding
Affidavit page 9, para 2
[11]
Founding
Affidavit page 27 para 39
[12]
Founding
Affidavit page 10 para 1
[13]
Founding
Affidavit page 130-131
[14]
Replying
Affidavit page 208-209 para 22
[15]
Answering
Affidavit page 165 para 24.7
[16]
Answering
Affidavit page 166-167 para 26
[17]
Replying
Affidavit page 211 para 25.2
[18]
Replying
Affidavit page 212 para 26.4
[19]
Founding
Affidavit page 48 para 94
[20]
Founding
Affidavit page 48-50 para 94
[21]
Answering
Affidavit page 169 para 32
[22]
Replying
Affidavit page 215 para 32.5
[23]
Answering
Affidavit page 171 para 36