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[2017] ZAECPEHC 13
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Helmie and Another v Ruiters and Others (3634/15) [2017] ZAECPEHC 13 (14 February 2017)
Not
Reportable
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
Case No: 3634/15
Date
Heard: 22/09/16
Date
Delivered: 14/02/17
In
the matter between:
ANNIE
ELEEN HELMIE
First
Applicant
DAVID
BEKAARDT
Second
Applicant
and
LINDA
RUITERS
First
Respondent
MAGDALENE
MARY UITHALER
Second
Respondent
MONA
BENTLEY
Third
Respondent
NADINE
BEKAARDT
Fourth
Respondent
HANNAH
SMITH
Fifth
Respondent
MASTER
OF THE HIGH COURT, PORT ELIZABETH
Sixth
Respondent
ANNE
SWANEPOEL
Seventh
Respondent
JUDGMENT
MALUSI
J
[1]
This is an application for a document to be declared the last will
and testament of the late David Bekaardt (the deceased) who
died aged
67 years old. The application is opposed by the first to the
fifth respondents. Whenever reference is made
to respondents in
this judgment it must be understood to refer only to first to fifth
respondents as the sixth and seventh respondents
did not participate
in the matter.
[2]
It is necessary to provide a brief background for a better
appreciation of the issues. The first applicant was a
girlfriend
of the deceased during the last few years of his life.
The second applicant was a nephew of the deceased whom the latter
raised as if the former were his own child.
[3]
The first, second and third respondents are the biological offspring
of the deceased. The fourth respondent is a child
of the third
respondent and a beneficiary in the purported will. The fifth
respondent is a child of the second applicant
and a beneficiary in
the purported will. The sixth respondent is the Master.
The seventh respondent is the nominated
executrix in the purported
will and was once a practising attorney.
[4]
The deceased lived and worked in Benoni, Gauteng. After his
retirement he relocated to Port Elizabeth during the year
2008.
Thereafter he started a relationship with the first applicant.
Towards the end of 2009 or early 2010 the first
applicant decamped to
the deceased residence with her three children.
[5]
Since his thirties the deceased had been diagnosed with diabetes.
During December 2013 he suffered kidney failure which
required that
he undergo dialysis. His health further deteorated which
necessitated treatment in various hospitals.
[6]
The first applicant avers that between February 2014 and March 2014
the deceased drafted a will in his own handwriting.
The draft
will was given to the seventh respondent to draw a valid will as she
was then a practising attorney. The will drawn
by the seventh
respondent was provided to the deceased. He amended the typed
will in his own handwriting and signed it.
He returned it to
the seventh respondent presumably for the amendments to be effected.
The first respondent avers that the
amended draft will is the final
expression of the deceased wishes and he intended it to be his will.
[7]
The deceased was apparently so seriously ill he could not sign the
final will drawn by the seventh respondent which had been
sent to him
between September 2014 and November 2014. The deceased
succumbed to his illness on 14 December 2014 without having
signed
the final will.
[8]
The first applicant is not in possession of the original amended
draft will. Both applicants are applying that a copy
be
declared to be the last will. The reason proffered for the
absence of the original is that the seventh respondent has
not
responded to any form of communication from the applicant’s
attorney. This is apparently due to the seventh respondent
having suffered the ignominy of being struck off the roll of
attorneys.
[9]
The respondents vigorously dispute the authenticity of the purported
will. They raised the preliminary point that there
has been non
joinder of an heir in the estate. They pointed out numerous
anomalies which they contend indicate the purported
will is a
forgery.
[10]
It is trite that any person who has a direct and substantial interest
in any order the Court might make should be joined as
a party.
[1]
It is generally accepted what is required is a legal interest in the
subject-matter of the action which could be prejudicially
affected by
the order of the Court and not merely a financial interest.
[2]
[11]
Ms Beneke, who appeared for the respondents, submitted that the
deceased was survived by descendants only. The deceased
late
son, Claude had a child, Gryphone who is an intestate heir in the
deceased estate. She submitted that the deceased grandson
should have been joined as a party and there has been material
non-joinder. She contends that the application should be
dismissed with costs due to this non-joinder.
[12]
I do not agree. Every heir of a deceased person has a separate
right to bring action to challenge the validity of her/his
will.
Any applicant who does not cite an intestate heir opens him/herself
up to the expense and inconvenience of a multiplicity
of
applications. The ratio was explained by Caney AJ in the
following terms:
”
But
I do not think that it by any means follows that every intestate heir
must be joined in an action to challenge the will, notwithstanding,
that a judgment against one of them who sues to attack it, would not
debar another of them from bringing action for the same relief
on the
same grounds”.
[3]
[13]
Section 2
(3) of the
Wills Act 7 of 1953
, “the Act” (as
inserted in the Act by
section 3
(g) of Act 43 of 1992) provides:
“
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
Estate Act, 1965 (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)”.
[14]
It is settled law that two requirements need to be satisfied before a
document may be accepted as a will of the deceased as
provided in the
Act:
(a)
The document must have been drafted or executed by a person who has
subsequently died.
(b)
The document must have been intended by the deceased to have been his
or her will.
[4]
[15]
The provisions of section 2 (3) are peremptory once the
jurisdictional requirements have been satisfied. This means the
Court has no discretion whether or not to grant an order as envisaged
once the requirements are satisfied.
[5]
[16]
The issue for decision is whether the deceased is the author of the
contested document. It may be convenient to start
that enquiry
by examining the draft on which the contested document is based.
[17]
The purported draft is a four page document in manuscript. The
first page is written in block letters. It is a
list of names
of some of the deceased relatives. The last three pages are
written in cursive. The first applicant makes
the bald
allegation that the deceased wrote it “
in
his own hand
”.
[18]
The respondents aver that two different people must have written the
draft. None of these two people was the deceased
as either
handwriting is different from that of the known handwriting of the
deceased. Various specimens of documents written
by the
deceased were annexed to the answering affidavit. The
respondents point out that the deceased was well educated and
would
not refer to himself alternating between first and third person.
Likewise the deceased would never misspell his own
name.
[19]
I am unable to accept that the deceased was the author of the draft.
The applicants have not explained the strikingly
different
handwriting on the draft. Either handwriting appears to be
different from the specimen of the deceased known handwriting
provided by the respondents.
[20]
The first applicant makes the bald allegation that the draft was
written sometime in a period of a month during 2014.
She does
not state that she personally saw the deceased writing the draft.
This is crucial in light of the fact that the
draft is undated.
She does not allege that she is familiar with the deceased
handwriting and vouch that all the handwriting
in the draft belongs
to the deceased. The draft has no signature or identifying mark
that distinguished it as that of the
deceased.
[21]
The purported will suffers from the same defects as the draft.
The purported will is signed on the last page under the
space
provided for witnesses. That is the only signature on the
document. That signature is strikingly different from
the known
signature of the deceased. The same is true of the handwriting
that effected amendments and additions on the purported
will.
[22]
I find it strange that the amended will provides for an “executrix”
to sign on the last page. If the deceased
directly instructed
the seventh respondent as alleged by the first applicant it is odd
the latter used the female description for
the former who was a
male. There could be an innocent explanation for this but none
has been provided. It only compounds
the problems with the
purported will.
[23]
The first applicant has not disclosed whether she was present when
the deceased allegedly amended the will. She contends
herself
with the bald allegation that the deceased amended the purported will
“
in
his own writing, signed it and returned it to the seventh
respondent”.
The
statement is unexplained and unsubstantiated.
[24]
The striking feature of the first applicant’s affidavit is her
failure to state who had made the copy of the purported
will; whether
it is a true copy of the original without alteration by anyone; how
did she obtain the copy. The last issue
arises from her
allegation that the deceased himself returned the purported will to
the seventh respondent.
[25]
In my view the probability of the purported will being a forgery is
too great for it to be accepted as the will of the deceased.
The applicants have failed to satisfy the first requirement.
[26]
In the result the following order is made.
(a)
The application is dismissed with costs.
_________________
T
MALUSI
Judge
of the High Court
Beshe
J: I agree.
___________________
NG
BESHE
Judge
of the High Court
Appearances
On
behalf of the Applicants:
First applicant in person
On
behalf of the Respondents:
Adv M Beneke
Port
Elizabeth
Instructed
by:
Gregory Van Vught Attorneys
Port
Elizabeth
Date
Heard:
22 September 2016
Date
Delivered:
14 February 2017
[1]
Amalgamated Engineering Union v Minister of
Labour
1949 (3) SA 637
(A) at 657.
[2]
United Watch & Diamond Co (Pty) Ltd and
Others v Disa Hotels Ltd and Another i1972 (4) SA 409 (CPD) at 415
E-H and the authorities
cited therein.
[3]
Angath
Mothari NO & Others
1954 (4) SA
285
N at 289 G.
[4]
Van Weften & Another v Bosch & Others
2004 (1) SA 348
(SCA) at paragraph 14;
Van de Merwe v Master
[2011]
1 ALL SA 298
(SCA) at paragraph 15;
Ex
parte Maurice
1995 (2) SA 713
(C) at
713G.
[5]
Van de Merwe ibid at paragraph 13.