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[2011] ZASCA 114
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Levin and Another v Levin and Others (644/09) [2011] ZASCA 114 (3 June 2011)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 644/09
In the matter between:
LEVIN, LARRY IVAN
...................................................................
First
Appellant
LEVENBERG, STEPHANIE
.....................................................
Second
Appellant
and
LEVIN, FREIDA
..........................................................................
First
Respondent
MILLER, NORMAN
................................................................
Second
Respondent
ZIEGLER, RAYMOND
.............................................................
Third
Respondent
ZIEGLER, LYNNE
..................................................................
Fourth
Respondent
STEINGO, LEONARD
................................................................
Fifth
Respondent
BRESS, ERNEST
.........................................................................
Sixth
Respondent
WOOD, WENDY
....................................................................
Seventh
Respondent
BERSANO, ANNA
....................................................................
Eighth
Respondent
RIASUN, PHILIP
........................................................................
Ninth
Respondent
WORTELBOER, MONIQUE
...................................................
Tenth
Respondent
WORTELBOER, MADELEINE
.........................................
Eleventh
Respondent
MASTER OF THE HIGH COURT
.......................................
Twelfth
Respondent
ZIEGLER, LEWIS
.............................................................
Thirteenth
Respondent
Neutral citation
:
Levin v Levin
(644/09)
[2011] ZASCA
114
(03 June 2011)
Coram:
HARMS DP, NUGENT, MAYA, MALAN JJA AND PLASKET AJA
Heard:
09 May 2011
Delivered:
03 June 2011
Summary:
Will – validity thereof –
whether provisions of
s 2(1)(a)
of the
Wills Act 7 of 1953
complied
with.
___________________________________________________________________
ORDER
On appeal from:
South
Gauteng High Court (Johannesburg) (Pienaar AJ sitting as court of
first instance):
The appeal is dismissed with costs including the costs of two
counsel.
_____________________________________________________________________
JUDGMENT
__________________________________________________________________
MAYA JA (HARMS DP, NUGENT, MALAN JJA AND PLASKET AJA concurring):
[1] This appeal concerns the validity of a will (the disputed will)
allegedly executed on 4 August 2002 by the late Mrs Minnie
‘Minna’
Breslawsky (born Lom) (the deceased), who died a widow on 19 October
2002 at age 107. The disputed will, in
which the second, third and
fourth respondents were nominated as the co-executors of the
deceased’s estate, was lodged with
and accepted by the Master
of the High Court.
[2] The appellants and the first, third, fourth, sixth to the
eleventh and the thirteenth respondents are all members of the
deceased’s
family. The deceased bore five children, the late
Nathan, Vera, and Molly and the first and the eight respondents. The
appellants
are the children of the first respondent who, together
with her husband Gerald Levin, worked for the deceased until her
death.
The third, fourth and thirteenth respondents are Vera’s
children. The sixth and seventh respondents are Nathan’s
surviving
children. The ninth, tenth and eleventh respondents are
Molly’s children. The second respondent, Mr Miller, is the
attorney
who prepared the disputed will and the fifth respondent was
the deceased’s cardiologist and one of the beneficiaries under
that will.
[3] On 3 March 1999 and 8 August 2001 respectively, the deceased
executed two wills which were the last in a series of at least
nineteen such documents said to have been made by her during her
lifetime. The one dated 3 March 1999 dealt with the deceased’s
assets within the State of Israel which the deceased bequeathed to
the first respondent and the appellants. The one of 8 August
2001
(the 2001 will), related to her assets situate in South Africa and
the deceased nominated the first respondent as executor
(together
with her accountant Ryan Feinberg and the Standard Bank of South
Africa Ltd) of her estate and granted the first respondent
and the
appellants further, substantial bequests. Under the disputed will, on
the other hand, in addition to appointing Mr Miller
and the third and
fourth respondents as executors, the deceased bequeathed her estate
as follows – (a) 25 per cent to the
first respondent, (b) 25
per cent to the eight respondent, (c) 25 per cent to Vera’s
three children to be shared equally
among them, (d) 25% to Molly’s
children to be shared equally among them, (e) R500 000 to each of
Nathan’s two children
and (f) R50 000 to Dr Steingo.
[4] The appellants brought an action in the high court challenging
the disputed will on a number of grounds. By the time of the
trial
those grounds had dwindled to the following: (a) that the signature
on the will was not that of the deceased, and in the
alternative (b)
that the signature on the will was not affixed in the presence of two
witnesses who were both required to be present
at the signing and
placed their signatures on the document in the presence of each other
and the deceased.
[5] Only the second, third and fourth respondents
defended the action. It was common cause between the parties that if
the disputed
will was declared invalid, the 2001 and 1999 wills would
be accepted as the deceased’s last wills in relation to her
estates
in South Africa and Israel, respectively. After hearing
evidence, the court below (Pienaar AJ) dismissed the matter on the
finding
that the appellants had not discharged, on a preponderance of
probabilities, the onus of proving that the disputed will was not
the
deceased’s valid last testamentary disposition duly executed in
compliance with the provisions of s 2(1)(a) of the Wills
Act 7 of
1953 (the Will Act).
1
The court below further refused to order the costs
of the proceedings to be paid from the estate on the basis that the
appellants
had unreasonably instituted the proceedings at the behest
of their mother to thwart the forfeiture provisions contained in
clause
11 of the disputed will which divested a legatee or heir of
the deceased, who contested the will, of any benefit under it. Thus,
the appellants were mulcted with the costs of the suit.
[6] The only question to be determined in this appeal, which is
pursued with the leave of this court, is whether the validity of
the
disputed will has been established. (Another issue initially raised
by the appellants relating to the incidence of the onus
of proof was
abandoned before us.)
[7] Some background is required. The deceased and her husband, Mr
Solomon Max Breslawsky who died in 1966, built a very successful
property investment portfolio from a humble furniture shop which they
ran in downtown Johannesburg. Although she was illiterate
and spoke
little English (her mother tongue was Yiddish) she was a very astute
and successful businesswoman and personally managed
her business and
financial affairs until her death, this despite being extremely
frail, wheelchair-bound and blind in one eye in
the latter phase of
her life.
[8] The deceased had a particularly close relationship with the
Standard Bank, her banker for over 75 years. She latterly dealt
mainly with two of its officials, Ms Bridgette Marais (who had passed
away by the time of the trial) who assisted by Ms Melanie
Els,
managed her investment portfolio and Mr Hendrik Strydom, an attorney
enlisted by the bank to assist the deceased with her
financial and
legal affairs. All her wills but the disputed one were drawn by the
Standard Bank and she executed the last few with
the assistance of
Strydom with whom she had formed a relationship of trust.
[9] Each of the witnesses at the trial who personally knew the
deceased, including her daughters, the fourth respondent, the first
respondent’s husband, Strydom and Els described her as very
difficult, domineering, manipulative, tight-fisted and mistrustful,
especially of her family whom she believed were interested only in
her money. This included the first respondent, who, despite
attending
to her daily needs as her personal assistant, she accused of trying
to poison her. The deceased sought to control her
family with her
wealth (which caused conflict among them) and frequently changed her
will on a whim as she would increase or decrease
bequests and even
exclude beneficiaries altogether depending on who pleased or
displeased her at the time. She similarly changed
her executors and
accountants regularly.
[10] According to the Miller, he was introduced to the deceased by a
friend, the fourth respondent, and befriended her some years
before
her death. He is fluent in Hebrew and understood Yiddish in which the
deceased preferred to speak. She liked cucumber pickles
which he
would make for her and she nicknamed him the ‘cucumber man’
for that reason. He often visited her during weekend
afternoons and
the deceased would then tell him stories of her past. This friendship
was confirmed by the fourth and eight respondents.
In July 2002, the
deceased requested to see him. They consequently met at her flat,
where he was let in by a domestic worker, on
the 14
th
of
that month. The deceased expressed her concern about the feuding
between her children and grandchildren. She told him that she
wished
to return to her Jewish roots and wanted him to draw a will for her
which would restore peace among her family.
[11] She gave him specific instructions in that regard, which he
recorded in manuscript. In the process she revealed personal
information, which he also recorded, about the characters and foibles
of each of her beneficiaries and her feelings about them.
He
occasionally had to gently chide and remind her of her objective to
treat everyone fairly when she remembered things about them
which
annoyed her and threatened to reduce their bequests. From these
notes, he drafted the disputed will which the deceased signed,
on 4
August 2002 at her flat, after he read it to her, in his presence and
in the presence of two witnesses, Mr Barry Tannenbaum,
his nephew,
and Mr Norman Aaron, his associate, whom he requested to attest the
execution of the will. The two men confirmed this
version.
[12] Relying on the evidence of the various witnesses who testified
on the appellants’ behalf, their counsel argued that
the court
below erred in not finding that the probabilities did not support Mr
Miller’s evidence. It was submitted that the
following factors
rendered the validity of the disputed will doubtful:
it was produced only after the deceased’s death and no account
had been sent by Miller for his services until then;
all the deceased’s previous wills had been prepared by the
Standard Bank, which was appointed as the executor of her estate,
and executed with the assistance of its officials whom she trusted,
a procedure which was not followed in the case of the disputed
will.
The disputed will was in a completely different format and made no
provision for the various charitable institutions and
the
maintenance of the tombstone of the deceased and her late husband as
the previous wills did;
the evidence of Mr Miller, Mr Aaron and Mr Tannenbaum differed on a
material point as they respectively estimated their visit
to the
deceased’s flat on 4 August 2002 to have occurred between
16h30 and 17h30, 16h00 and 16h30 and 15h00 and 16h00,
which was
unlikely in the light of the evidence of the first respondent and
her husband who were at the deceased’s flat
during that
afternoon and did not see them;
on 23 August 2002, after the alleged execution of the disputed will,
Ms Marais and Ms Els met the deceased to effect changes
to the
earlier will;
a handwriting expert, Mr Cecil Greenfield, testified that the
disputed will was possibly a forgery;
the first respondent, who spent a lot of time with the deceased as
her personal assistant did not know Mr Miller; and
Mr Miller, Mr Aaron and Mr Tannenbaum refused to consult with the
first respondent’s attorneys.
[13] The appellants’ attempts to refute Mr Miller’s
claims to a friendship with the deceased and the execution of the
disputed will at the deceased’s flat was premised on the
evidence of three witnesses. The first respondent said that she
did
not know him although it came to light in her cross-examination that
she had actually heard of him and knew that he had dealings
with the
third respondent who managed the deceased’s properties. She and
her husband testified that they routinely spent
every Sunday between
10h00 and 17h00 with the deceased at her flat and insisted that they
would have seen Mr Miller there on 4
August if his version was true.
But according to Ms Tholakele Ntuli, one of two of the deceased’s
care-givers at the time,
they did not adhere to a strict time
schedule and usually left anytime between 16h30 and 17h00. She
recalled that on 4 August they
left at 16h30 because the first
respondent was in a hurry to get home to make a telephone call. When
her version was put to the
first respondent and her husband they were
constrained to admit that they left earlier than they previously
stated.
[14] Ms Ntuli alleged that she was on daily day-duty in August and
worked until 18h00 even on Sundays to assist the deceased’s
live-in caregiver, Ms Emily Zikalala, as the deceased had become very
ill. She saw Mr Miller only once, on a Friday evening in
early
October 2002, when he visited the flat with the fourth respondent and
unsuccessfully tried to persuade the deceased to sign
certain
documents against her will. She was adamant that she would have seen
the second respondent if he visited or at least heard
from Ms
Zikalala, with whom she worked shifts, if he had come during her
absence. She and Ms Zikalala were both on duty on 4 August
and only
the first respondent and her husband had visited the deceased.
[15] Ms Ntuli’s evidence was contradicted in material respects
by a number of witnesses, including the first respondent,
according
to whom Ms Ntuli was on duty alone and not with Ms Zikalala as she
testified, on Sunday 4 August. Contrary to Ms Ntuli’s
version
that the deceased was too ill to receive callers during that month,
Ms Els had written records of meetings which she and
Ms Marais had
with the deceased on 4 and 23 August 2002 and testified about the
discussions they had with her at those meetings.
Surprisingly, the
first respondent, to whom Ms Ntuli said she reported, the second and
fourth respondents’ October visit
was not mentioned in her
evidence as would be expected. The eighth respondent who was visiting
the deceased and staying with her
at the time denied the alleged
visit, as did the fourth respondent who, it turned out, was
travelling overseas during that month.
Even if one accepts that the
visit occurred as alleged, it is difficult to imagine what
‘documents’ Mr Miller would
have tried to influence the
deceased to sign at that stage when the disputed will had been
executed some weeks before.
[16] Interestingly, three days after the deceased’s death, the
first respondent took Ms Ntuli to the police station to sign
an
affidavit which she had prepared for her, stating that no one had
visited the deceased and caused her to sign any documents
on 4 August
2002. Curiously, on 11 December 2002 the first respondent took Ms
Ntuli back to the police station to depose to yet
another affidavit
prepared by her, ostensibly to confirm what Ms Ntuli had said in the
first statement. Ms Ntuli barely spoke English
and had worked for the
deceased for only a few months before the latter died, apparently
having been hired merely to assist Ms
Zikalala as she worked only day
shifts and lived in separate quarters, on another floor of the
deceased’s building. But Ms
Zikalala, the permanent caregiver
and a fluent English speaker who actually lived with the deceased and
would, logically, have
been a better source of the goings-on in the
deceased’s lodgings, was puzzlingly not called to testify. I
find it most surprising
that Ms Ntuli would unerringly remember the
fine detail of the events of 4 August 2002 four years later when, by
her own account,
there was nothing remarkable about the day to jog
her memory. These discrepancies and improbabilities in her evidence,
in my view,
cast serious doubt on her credibility and it seems to me
that the court below rightly rejected her evidence.
[17] It was not disputed that both Mr Tannenbaum
and Mr Aaron obtained no benefit from witnessing the execution of the
disputed
will. It is difficult to conceive why these men who knew
neither the deceased nor any member of her family would conspire in
the
forgery of her will and perjure themselves in court as the
appellants would have it. This applies equally to Mr Miller, despite
his friendship with the fourth respondent, because he refused to
accept his nomination as an executor and arranged for another
attorney to administer the deceased’s estate. Unfairly, no
imputation that these witnesses conspired to forge the will and
were
lying in court was put to them when they testified to afford them an
opportunity to deal with those imputations.
2
And, not unexpectedly, the appellants’
counsel could advance no reason before us why any finding of
dishonesty should be made
against them.
[18] Other than the contradiction relating to the precise moment of
the execution of the disputed will during the afternoon of
4 August
2002, no other flaw was identified in the corroborative versions of
the second respondent and his two witnesses. To my
mind, this
difference is not unexpected considering that these witnesses were
testifying about events which had occurred some years
earlier which
they had not recorded. The time frames they gave were merely
estimates but the tenor of their evidence was that their
meeting with
the deceased took place in the middle to late afternoon. It can
safely be accepted on this evidence, in view of the
Levins’
concession regarding the time of their departure from the deceased’s
flat, that the disputed will was executed
after 16h30.
[19] The first respondent conceded that the intimate details about
the deceased’s children and grandchildren and her personal
views about them which are contained in the notes which the Mr Miller
said he took during his consultation with the deceased were
accurate.
But she suggested that Mr Miller probably got the information from
the fourth respondent. I find that possibility most
unlikely merely
from the nature and tone of Mr Miller’s recordal which depicted
an emotional and deeply personal running
commentary. But that apart,
it was not put to Mr Miller that his notes were a fabrication.
Neither was there any hint that the
fourth respondent had been
present at or was even aware of the meeting of 14 July 2002.
[20] It is clear from the Standard Bank officials’ manner
towards the deceased (the daily telephone calls to check on her
health, the constant social visits, the gifts she was given etc.
patently went far beyond the call of normal business relations)
that
they did not trust that she would not change the bank as her executor
and needed to constantly keep her happy. This attitude
is, in fact,
borne out by Ms Els’ evidence that at their meeting of 23
August 2002, Ms Marais pertinently asked the deceased
if she had
signed another will. That question could only have been prompted by
suspicion.
[21] It is not at all odd in view of the deceased’s impulsive
and distrustful nature that she could have asked Mr Miller
to draw a
secret will on her behalf. It is plain from the evidence particularly
that of the first respondent’s husband, Mr
Miller and Mr
Strydom regarding their relationships with the deceased that she
trusted people who understood her home language
with whom she could
reminisce.
[22] The object of the disputed will was to divide the deceased’s
estate fairly among her children and end the conflict in
her family.
It had nothing to do with her previous wills and there is no reason
why Mr Miller would have adopted the Standard Bank
format which does
not appear to have been brought to his attention and from which the
deceased wanted to depart in any case. Mr
Miller’s evidence
that the deceased specifically instructed him not to send him a
statement of account or a copy of the will
until she requested it and
that he had gained the impression that she wanted to keep its
existence a secret tallies with her character.
And I see no reason to
draw an adverse inference from his and the other witnesses’
refusal to consult with the appellants’
attorneys, as we were
urged to do, when it was not disputed that they were advised against
such a meeting by their attorney who
had already been notified by the
Standard Bank that it was contemplating challenging the disputed
will.
[23] Regarding the evidence of the handwriting
expert, Mr Greenfield, the court below found that it was trumped by
the direct testimony
given by Mr Miller, Mr Tannenbaum and Mr Aaron
and the evidence of the deceased’s ophthalmologist, Dr Mark
Deist. In reaching
this conclusion, the court relied on the judgments
of this court in
Kunz v Swart
3
and
Annama v Chetty
4
which enjoined courts to apply caution before
accepting handwriting expert evidence. I respectfully agree with the
finding of the
court below in this regard.
[24] In the first of two reports on the authenticity of the
testator’s signature in the disputed will prepared by Mr
Greenfield,
he expressed the following view:
‘
If on 4
th
August 2002, the late Ms
Breslawsky’s general health had markedly improved –
compared with the state of her muscular
control and eyesight,
demonstrated in the signatures in the Will written some twelve months
earlier, it is my view, that she was,
in all probability, the writer
of the disputed signatures. If however, it can be proved that her
eyesight and muscular control
had dramatically deteriorated during
the intervening period between the pen-ultimate and the questioned
Will; right up to the time
of signing, then there is, in my view, a
strong possibility that the disputed signatures are very good
freehand simulated forgeries.’
[25] What Mr Greenfield had not been told when he prepared his final
report (after being furnished with further signatures of the
deceased), which concluded that the disputed will was most probably a
forgery, was that the deceased had in fact undergone an eye
cataract
operation after signing the 2001 will. According to Dr Deist,
corroborated by the first respondent, this procedure had
significantly improved the deceased’s vision and hand-eye
coordination. Dr Deist opined that it was reasonable in the light
of
this improvement to expect the deceased’s handwriting to be
neater. Mr Greenfield conceded that in addition to this operation
he
was not aware that the deceased was blind in one eye and did not
consider the deceased’s position when she signed the
documents
and that all these factors were relevant to his enquiry. Whilst he
still nursed some misgivings about the genuineness
of the signature
in the disputed will, he fairly conceded that he would yield to
direct evidence to the effect that the signature
was that of the
deceased. If the evidence of Mr Miller and his witnesses that the
disputed will was signed by the deceased is accepted,
as I think it
must, then Mr Greenfield’s opinion must be rejected.
[26] What is most striking about this case, in my view, is the nature
of the disputed will which distributes the deceased’s
assets
among her family far more equitably than any of her previous wills.
This is indeed consonant with Mr Miller’s account
that she
wanted peace among her offspring in her final days. I reiterate that
it seems to me most unlikely that three individuals,
unrelated to the
protagonists, would conspire to forge a will which treated the
beneficiaries fairly and from which they stand
to gain nothing and to
perjure themselves in a bid to uphold it.
[27] I have found no reason to doubt Mr Miller’s evidence
regarding the making of the disputed will. The incidence of the
onus
does not, therefore, arise. His evidence and that of the witnesses to
the signing of the will establishes that it complied
with the
formalities required by
s 2(1)(a)
of the
Wills Act. The
appeal must,
therefore, fail.
[28] There remains the question of costs. It was
contended on the appellants’ behalf that if the appeal failed
the costs of
all the parties both on appeal and in the court below
should nonetheless be paid from the deceased’s estate because
there
was a reasonable basis to doubt and challenge the authenticity
of the disputed will. I do not agree. An order that the costs in
a
suit must be paid from the estate is not a general rule, even in
matters involving the determination of the true meaning of an
ambiguous will,
5
which is hardly the issue here.
[29] The manner in which the appellants conducted the litigation left
much to be desired. They knew all too well that the deceased
remained
mentally sound and strong-willed despite her advanced age. But,
despite this knowledge, some of the grounds they pleaded
as a basis
for challenging the disputed will disingenuously sought to cast doubt
on her mental capacity and ability to make independent
decisions. The
appellants also knew of the deceased’s mistrustful and
impulsive nature and cannot have been surprised by
the existence of
an undisclosed will. They persisted with the litigation in total
disregard of the evidence that her cataract operation
had favourably
impacted her handwriting.
[30] The submission that if Mr Tannenbaum, Mr Aaron and
Mr Miller had not refused to consult with the appellants’
attorney
the appellants would probably not have launched the action
has no merit in view of the fact that the appellants persisted with
their claim even after they had testified. I see no reason in these
circumstances to burden the deceased’s estate with the
costs of
ill-conceived litigation and hold that they should follow the result.
[31] Accordingly, the appeal is dismissed with costs
including the costs of two counsel.
____________________
MML MAYA
Judge of Appeal
APPEARANCES
APPELLANTS:
K.R.
Lavine
Instructed by Cranko Karp & Associates,
Johannesburg;
Lovius Block Attorneys, Bloemfontein.
RESPONDENT:
H.
Epstein SC
(Ms) K Schneid
Louis H Garb and Raymond
Joffe Attorneys, Johannesburg;
Claude Reid Inc, Bloemfontein.
1
Section
2(1)(a)
of the
Wills Act 7 of 1953
reads as follows:
‘
2 Formalities required in the
execution of a will
(1) Subject to the provisions of
section 3bis
–
no will executed on or after the first day of January,
1954, shall be valid unless –
the will is signed at the end thereof by the testator
or by some other person in his presence and by his direction; and
such signature is made by the testator … in the
presence of two or more competent witnesses present at the same
time;
and
such witnesses attest and sign the will in the
presence of the testator and of each other and, if the will is
signed by such
other person, in the presence also of such other
person; and
if the will consists of more than one page, each page
other than the page on which it ends, is also so signed by the
testator
or by such other person anywhere on the page;’
2
President
of the Republic of South Africa v South African Rugby Football Union
2000 (1) SA 1 (CC).
3
Kunz
v Swart
1924 AD 618.
4
4
Annama v Chetty
1946 AD 142.
5
Cuming
v Cuming
1945 AD 201
at 216.