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[2017] ZAECPEHC 21
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Assumption and Another v Reid and Others (3328/2015) [2017] ZAECPEHC 21 (22 February 2017)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION – PORT ELIZABETH
Case
No.: 3328/2015
In
the matter between:
CANDICE
GAY ASSUMPTION
First
Applicant
LILLIAN
JOAN PRIMO
Second Applicant
and
CHERYL-ANN
REID
First Respondent
THE
MASTER OF THE HIGH COURT
Second
Respondent
THE
REGISTRAR OF
DEEDS
Third Respondent
JUDGMENT
REVELAS
J
:
[1]
This matter concerns the
validity of either of two contested wills signed by the late Mr Peter
Reid
(“the
deceased”)
respectively on 5 July 2005
(“the
first will”)
and 23
February 2009
(“the
second will”)
.
The deceased died on 22 July 2012. The two applicants, the
deceased’s granddaughter and her mother, are
the sole heirs in
terms of the second will. Under the first will, the deceased’s
other granddaughter, the first respondent,
was the deceased’s
sole heir. In terms of the first will the first
respondent inherited the deceased’s
immovable and movable
property. The only immovable asset owned by the deceased was
Erf [...], Korsten Division, Port Elizabeth,
Eastern Cape also known
as [...] W. S., Schauderville, Port Elizabeth
(“the
property”).
In
terms of the first will the property was transferred to the first
respondent in 2013. The two applicants together with other
family
members occupy the property at present.
[2]
In this application, brought
on 27 August 2015, more than 3 years after the death of the deceased,
the applicants seek declaratory
orders to the effect that the second
will is the valid will of the deceased; that the first will was
revoked thereby; that
any act performed in terms of the first
will is unlawful, and accordingly that the transfer of the property
into the name of the
first respondent was unlawful. The
applicants also seek an order directing the Registrar of Deeds (the
third respondent)
to transfer the property into the name of the
applicants. In addition, they seek an interdict against
the first respondent,
preventing her from harassing and interfering
with the applicants and evicting them from the property.
[3]
After the death of the
deceased, the first will was submitted to the second respondent
(“the
Master”)
on 26 July
2012 and the first respondent was appointed as executrix of the
estate. Thereafter, on 23 August 2013, the property
was
transferred into the first respondent’s name as heir in terms
of the first will. According to the first respondent,
the first
applicant was present at the Master’s offices when this
occurred and she was well aware of the existence of the
first will.
The first applicant, who decries any knowledge of the first will,
insists that the first respondent had known
all along of the second
will. The first respondent states that she was told about
the second will by the applicants
only when they visited the Master’s
offices together, to submit the first will. As she understood the
applicants, they only
“
arranged”
for the drafting of this second will to prevent one of the family
members also living on the property (Furgl Reid), from selling
it.
They accordingly did not dispute the validity of the first will at
that point. The applicants dispute the aforesaid.
From these
allegations disputes of fact emerge which are not capable of being
resolved on the papers. However, that would not be
necessary, as
these disputed allegations themselves do not affect the determination
of the primary question in this matter, as
will become clear below.
[4]
The first respondent’s
opposition to the relief sought by the applicants is premised on her
assertion that the second will
is invalid in that it does not comply
with the requirements of section 4 of the Wills Act, 7 of 1953
(“the
Act”)
.
[5]
Section 4 of the Act, states
that “
every person …
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
vest on the person alleging the
same”.
[6]
In support of her case, the
first respondent attached the affidavits of several persons,
attesting to the deceased’s lack
of mental capacity during 2009
and prior thereto. Dr Henry J van Staaden, a medical
practitioner, deposed to one of
the affidavits. He has been in
medical practice since 1995, having obtained his MBCHB degree at the
University of Stellenbosch
in 1993. He had known the
deceased for twenty years as his friend and doctor and had treated
him for diabetes and high
blood pressure. He reports that
during 2007 the deceased had developed dementia and by December 2008
the deceased no longer
recognized him, had no real sense of time and
space, spoke incoherently and was unable to answer simple questions.
The deceased
had by then lost most of his short term memory. Dr
van Staaden was of the opinion that the mental condition of the
deceased
was permanent and progressive. He believed it to be
highly unlikely that the deceased would have experienced a clear
moment
after his last meeting with him in 2008.
[7]
Ms Linda Swartz, a nurse who
obtained a BA Cur degree in Nursing Administration and Community
Health, also deposed to an affidavit.
She is
inter
alia,
a qualified
psychiatric nurse (apart from qualifications in midwifery and general
nursing). She visited the deceased in July
2009 with a social
worker to assess his health. According to her the deceased
presented with classic symptoms of dementia.
He was
disorientated and had an impaired memory. She therefore
concluded that the deceased was unable to care for himself
or to
handle his affairs.
[8]
Ms Maurishe Reid, the first
respondent’s former partner also deposed to an affidavit
wherein she also gave an account of the
deceased’s mental
deterioration since 2007 and cited examples of very peculiar
behaviour on his part which was, if true,
is a clear indication that
he was not of sound mind.
[9]
Barry Reid, the grandson of
the deceased also deposed to an affidavit. He stated that when
he visited the deceased in 2008,
the latter did not recognize him
despite the fact that the deceased regarded him as a favourite
grandson. (The first applicant,
disputed that Barry was a
favourite grandson.)
[10]
The deceased’s
neighbour, Elaine Brown, also told about the deceased’s mental
deterioration noticed since 2008, and
referred to several examples of
his conduct observed by her which amply demonstrated that the
deceased was not of sound mind and
therefore did not have the mental
capacity to make a valid will during 2009.
[11]
The applicants did not
provide sufficient proof to counter the allegations pertaining to the
deceased’s lack of mental capacity.
A photograph of
the deceased walking down the aisle with the first applicant in July
2007, twenty months prior to signing
the second will, was attached to
the first applicant’s replying affidavit. She argued that “
no
insane person”
could have given her away as a bride and walked her down the aisle.
It was not alleged by anyone that the deceased
was
insane. Also the photograph as such, is not incompatible with
Dr van Staaden’s opinion that the deceased suffered
from
advanced dementia which began developing during 2007 and had become a
permanent condition by December 2008. The first applicant’s
assertion that the deceased was of sound mind in 2009 is
unpersuasive, given the evidence of Dr van Staaden and Ms Swartz, to
the contrary, which in effect amounts to indisputable expert
evidence.
[12]
The applicants challenged the
opinion of Dr van Staaden as not being independent since he was a
friend of the family. In my
view, his friendship with the
deceased would have placed him in a more advantageous position to
assess the deceased’s mental
health. He also stood
nothing to gain from fabricating his evidence. In any event,
there are four other persons, particularly
the psychiatric nurse,
whose testimonies corroborate Dr van Staaden’s findings.
[13]
To further bolster her case,
the first applicant alleged that the second will was signed by the
deceased in the presence of his
attorney after he had requested to be
taken to this particular attorney for purposes of making a new will.
The applicants
are unable to state who this attorney was, except that
he was from the firm McWilliams and Elliot which, according to them,
was
the firm that dealt with the signing of the second will.
There is no affidavit attached to the replying affidavit, from
any
attorney of the aforesaid firm to confirm this allegation, nor to
confirm that the deceased was of apparent sound mind when
he signed
this will. Ms Robyn Zieseniss of McWilliams and Elliot
submitted the second will to the Master on 9 June 2014,
but she
appears to have had no involvement with the deceased’s will or
his estate prior to 2014. There is also
no affidavit from
her to confirm that the second will indeed emanated from the offices
of McWilliams and Elliot. The aforesaid
firm is also not the
applicants’ attorneys of record in the present matter.
McWilliams and Elliot were, in terms of the second
will, purportedly
nominated or appointed as the successive executors of the deceased’s
estate in the event that the first
applicant (who was nominated as
executor in the second will) did not take up her appointment. It
would have been a relatively easy
task to establish which attorney
from the aforesaid firm attended to the deceased and his second will,
as alleged by the first
applicant, and to have obtained an affidavit
supporting the applicants’ version. Accordingly, the
applicants have not
provided cogent evidence to support their
contention that the deceased’s mental capacity was unimpaired.
[14]
The evidence advanced by the
first respondent overwhelmingly indicates that the deceased could not
have been of sound mind in February
2009, and therefore it has to be
accepted that the second will was signed by the deceased when he was
mentally incapable of appreciating
the nature “
and
effect of his act
”
(signing the will) as envisaged in section 4 of the Act. He was
therefore incapable “
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 a share in the property set out in the will
or excluding them
from any share…., as the case may be.”
[1]
The first respondent had
clearly discharged the burden of proof referred to in the same
section of the Act. Consequently,
in terms of the provisions of
that section, the second will is invalid and a nullity.
[15]
There is another aspect which
raises concerns regarding the validity of the second will, and that
is the extraordinary late stage
at which that will was submitted to
the Master, i.e. two years after the death of the deceased (9 June
2014). According to
the first applicant, she and her mother
simply continued to live on the property after the death of the
deceased and did not submit
the second will to the Master. The
applicants failed to deal with the deceased’s estate in terms
of the second will.
This is not the kind of conduct one would
reasonably expect from the two sole heirs nominated in the will.
[16]
The relationship between the
parties hereto soured considerably when, during 2014, the applicants
refused to sign any lease agreement
presented to them by the first
respondent, who threatened to exercise her rights as owner of the
property and to evict the applicants
if they remained on the
property. Only when faced with the threat of eviction,
did the applicants produce the second
will, and submit it to the
Master. The first applicant also brought an application for a
protection order against the first
respondent. The application
was eventually dismissed, but the cause of all the acrimony between
the parties, namely the applicants’
continued occupation of the
first respondent’s property, remained unresolved.
[17]
The first respondent argued
that the applicants were estopped, as envisaged in
Van
Der Byl and Haupt v Scholtz,
[2]
from challenging the first will, because of their apparent
acquiescence in its existence, as demonstrated by their lethargy in
pursuing their rights in terms of the second will. In my view,
acquiescence on the part of the applicants was not clearly
established on the facts, some of which are in dispute. I have
referred to these previously herein, in paragraph [3]. It
is, however, not necessary to decide this aspect, as the second will
has been found to be invalid on other sound grounds.
[18]
Since the second will is
invalid, it follows that the first will was not validly revoked and
therefore remains the deceased’s
last valid will and testament.
Accordingly, the transfer of the property to the first respondent was
lawful. As the lawful
owner of the property she may deal with
it as she deems fit, provided that she exercises her property rights
within lawful parameters.
The consequences of the invalidity of
the second will is that the first applicant’s appointment as
executrix was unlawful.
The applicants are therefore not
entitled to any of the relief sought by them in their notice of
motion and their application falls
to be dismissed.
[19]
Pursuant to the submission of
the second will the first applicant was appointed by the Master as
executrix of the deceased’s
estate on 23 January 2015, in terms
of the second will. It was argued on the applicants’ behalf
that the first applicant
ought to remain as the executrix of the
deceased’s estate, even if the first will is held to be the
valid will of the deceased,
because the first respondent did not seek
appropriate relief, such as orders declaring the second will invalid,
and setting aside
the first applicant’s appointment.
[20]
The applicants’
argument is, with respect, misplaced. A finding that the second
will is invalid, and thus that the first
will was not revoked,
ipso
facto
means that the
first will is the valid will of the deceased. It
logically follows further, that the appointment of
the first
applicant as executrix is also unlawful. The Master has acted
bona fide
in this matter. In view of the findings in this judgment, if
brought to his attention, he will undoubtedly not expect the
first
applicant to continue to act, or permit her to act as executrix of
the deceased’s estate.
[21]
In the circumstances, I make
the following order:
1.
The application is dismissed
with costs.
2.
A copy of this order may be
served on the Master by the first respondent by way of hand delivery.
____________________
E
REVELAS
Judge
of the High Court
ROBERSON
J
:
I
agree.
____________________
J
M ROBERSON
Judge
of the High Court
Appearances
:
For
the applicants: Adv M W Nobotana instructed by Andile
Ngqakayi Inc, Port Elizabeth
For
the first respondent: Adv D S Bands instructed by Swarts
Attorneys, Port Elizabeth
Date
heard: 02 February 2017
Date
delivered: 22 February 2017
[1]
Per Breitenbach AJ in
Naidoo
NO and Another v Crowhurst NO and Others
[2010]
2 All SA 379
(WCC) at para 17.
[2]
(1897) 14 SC 483