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[2022] ZAFSHC 74
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Hamman and Another v Master of the High Court and Others (3871/2017) [2022] ZAFSHC 74 (21 January 2022)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3871/2017
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
ANDRE
HAMMAN
First
Plaintiff
MARRY
GERTRUDE HAMMAN
Second
Plaintiff
And
THE
MASTER OF THE HIGH COURT
First
Defendant
ERIC
STEPHEN DU PREEZ NO
Second
Defendant
CHARLOTTE
MATTY GOUWS
Third
Defendant
SALOME
LEONARA LAMPRECHT
Fourth
Defendant
MATHILDA
DU PREEZ
Fifth
Defendant
MELANIE
JONKER
Sixth
Defendant
HEARD
ON:
10,11,13 August &
5 October 2021
WRITTEN
HEADS OF ARGUMENT
DELIVERED
ON:
8, 11 & 13
October 2021
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This judgment was
handed down electronically by circulation to the parties'
representatives by email and by release to SAFLII. The
date and time
for hand-down is deemed to be 12H00 on 31 January 2022.
[1]
On 22 October
2015 the late Mrs. Olga Valentia Gouws ("the deceased")
executed a will ("the first will") in
which she bequeathed
her townhouse situate at number […] E[…], Brampton
road, Bloemfontein to the plaintiffs. The
rest of her estate to
devolve upon her domestic helper, niece and sisters the third to
fifth defendants.
[2]
The
deceased passed away on 9 January 2017. She was divorced and had no
children of her own. Subsequent to her death another will
drafted by
the second defendant the nominated executor and dated 6 January 2017
("the second will") was lodged with the
first defendant
("the Master") as her Last Will and Testament.
[1]
In this will the deceased bequeathed her estate her sisters and her
niece, Ms Jonker the sixth defendant.
[3]
In
this action the plaintiffs seek an order declaring that the second
will is not valid on the grounds that at the time the deceased
signed
the said will she was afflicted with dementia which impaired her
mental capacity to execute a valid will, the first will
is the Last
Will and Testament of the deceased and the Master be ordered to
accept the first will as the Last Will and Testament
of the
deceased.
[2]
[4]
The Master
abides by the decision of the court
.
[5]
The rest of
the defendants resist the plaintiff's claim. In their provisional
counterclaim they likewise dispute the validity of
the first will on
similar grounds, that the first will is also invalid because at the
time the deceased signed it she suffered
from the ailments referred
to by the plaintiffs therefore the deceased died intestate.
[6]
For the sake of
convenience the second defendant shall be referred to as the
"executor" and the rest of the defendants
as the
"deceased's relatives."
[7]
The following
facts are not in dispute. The plaintiffs were the deceased's
neighbours and associative family during her lifetime.
On 22 October
2015 the deceased executed a will in terms of which the plaintiffs,
the deceased's domestic helper Ms Nmasebolai
Thinyane, Ms Charlotte
Pietersen, Mr Ruhan Kleynhans and her sisters are named as
beneficiaries. The second will was signed on
6 January 2017 whilst
the deceased was admitted at the ICU of the Rosepark Hospital. In
this will only the deceased's relatives
are named as beneficiaries.
[8]
It
is trite that a will executed by a person who is mentally incapable
of appreciating the nature and effect of his/her act is invalid.
[3]
The
onus is on the plaintiffs to prove on a preponderance of
probabilities that at the time the deceased executed the second will
she was so ill to the extent that she was not capable of appreciating
the nature and effect of making a will.
[4]
[9]
In their quest
to prove that the second will is not an expression of the true
intentions of the deceased the plaintiffs led the
evidence of the
second plaintiff Mrs. Hamman and Dr Frederik Christopher Johannes
Bester.
[10]
Mrs Hamman relayed the events leading up to the hospitalization of
the deceased. She testified that she is
married to the first
plaintiff. They came to know the deceased in August 2007 when they
moved into a townhouse next to hers. The
deceased lived alone and for
about nine years except for two telephone calls the deceased received
from the eldest sister Charlotte
none of the deceased's relatives
visited the deceased.
[11]
The deceased
became part of her family. She treated the plaintiffs like her own
children and their two sons as her own grandchildren.
The plaintiffs
visited her daily, spent all special holidays with her, birthdays,
braais and also catered for her needs by driving
her to the shops for
grocery shopping, paying her bills, driving her to doctors'
appointments and visited her whenever she was
admitted in hospital.
[12]
She stated
that on 28 May 2016 the deceased was admitted at a hospital due to
some wounds on her leg. Although she called to inform
the deceased's
relatives about her hospital admission none of them visited. Mrs.
Hamman visited the deceased and thereafter cared
for her with the
assistance of the deceased's domestic helper Ms. Thinyane.
[13]
She told the
court that she started to realize that something was amiss about the
deceased's mental state on 19 October 2016 when
she visited her and
found her confused and hallucinating about her husband. The deceased
told her that her husband was there whereas
he was not. Her
observations
that the
deceased was not of sound mind were later confirmed by Dr Bester when
the deceased was required to sign and submit Pension
Fund documents.
[14]
On 23 October
2016 the deceased fell ill again and her doctor arranged that she
must be hospitalized. Her relatives were again informed,
the only
reaction which came from Charlotte was merely to enquire whether
everything had been prepared for the deceased's impending
hospital
admission. She also mentioned that she had been informed that the
plaintiffs would be inheriting from the deceased's estate.
At that
stage the plaintiffs were not aware that the deceased had bequeathed
her townhouse to them in her first will.
[15]
Pursuant
to the deceased's admission the affected leg was amputated and upon
discharge the deceased was admitted at an Old Age Home
where the
plaintiffs continued to pay her visits regularly. During that time
Mrs. Hamman received a series of emails from the executor.
In the
emails dated 27 October 2016, 25 November 2016 and 5 December 2016
[5]
the
executor essentially informed Mrs Hamman that the deceased's
relatives were far away they could not drive to Bloemfontein to
visit
the deceased. He later informed her that they had ultimately visited
the deceased and found her in a worse condition. Her
medical
condition had become so serious that she would no longer be able to
take
care
of her own finances
a
curator
should
be
appointed
to
manage
her
affairs.
[16]
She told the
court that a power of attorney in terms of which the executor was
appointed to manage the affairs of the deceased was
apparently signed
on 21 December 2016.
[17]
Dr Bester is a
specialist physician with more than 20 years speciality in internal
medicine and complicated diagnosis involving
seriously ill patients
admitted in the ICU. He testified in relation to the mental state of
the deceased at the time she signed
the second will.
[18]
It was his testimony that on 6 January 2017 at approximately 8am he
attended to the deceased at the ICU in
Rosepark hospital. She had
been admitted earlier at about 01h05 presenting with fever,
confusion, hypertension, respiratory distress.
These symptoms are
indicative of advanced dementia, lung infection and the worst kind of
diabetes.
[19]
He found her out of breath, her lungs were wheezing and her oxygen
readings were below 80% requiring 20%
oxygen supplementation with an
oxygen mask.
[20]
The deceased
was his patient for quite some time before her admission
.
She was
diabetic and constantly suffered from lung infections. He diagnosed
her with dementia on 9 November 2016.
[21]
He told the
court that diabetes can and it had caused extensive damage to the
deceased's brain and lower extremities by restricting
blood supply to
the skin and this resulted in her skin breaking out with sores, open
wounds and one of her leg being amputated.
The deceased was also
suspected of having bone marrow cancer.
[22]
As regards dementia, it is a chronic condition of the brain it
affects cortical brain
functions
such
as
memory,
learning
capacity
and
judgement.
The
deceased's
confusion was as a result of respiratory distress
caused
by low
oxygen
levels.
[6]
[23]
It was his
evidence that the memory effect is so serious that although a person
can remember people that he/she knows and properties
that he/she owns
the short term memory is extensively
affected to an
extent that the person in this state cannot even remember the room
he/she was a few minutes ago.
[24]
He stated that
due to these ailments the deceased's cognitive function in the sense
of the capability to make good, proper and informed
decisions was
lost and the situation was exacerbated by medication. On their own,
antibiotics and antipsychotic drugs that were
prescribed to the
deceased cause confusion and drowsiness.
[25]
Dr Bester
disputed the defendants' version that when the deceased was presented
with the second will to sign at about 10am of the
same morning she
was admitted she was of sound mind. He stated that it is impossible
that the deceased would have recouped her
cortical functions senses
at that time because dementia is a
progressive
condition it does not improve but worsens.
[26]
He
stated that the executor was aware of this fact as he had requested a
report on the prognosis of the deceased's condition about
a month
before the deceased executed the second will.
[7]
[27]
In
cross-examination he was told that at the time the deceased signed
the second will she was mentally capable to do so because
she was
conscious, she signed the admission documents, ordered a meal from a
hospital menu, she understood when the will was read
out to her, she
confirmed the contents, was able to recognize Mrs Jonker and could
also remember her assets.
[28]
In response,
Dr Bester was adamant that notwithstanding the fact that the deceased
recognized the faces of the people around her
and conversed with them
she could not have been of sound mind to have made such "executive"
decisions like signing a
will.
[29]
At the conclusion of the plaintiffs' evidence counsel for the
defendants argued that the defendants ought
to be absolved from the
instance as no sufficient or
prima facie
evidence had been
proffered by the plaintiffs to establish every element of the
plaintiffs' cause of action.
[30]
I exercised my discretion and refused absolution because mental
incapacity may arise due to the fact that
the testator is of unsound
mind or as a result of a disease. In this matter the evidence
tendered by the plaintiffs' medical expert
that at the time that the
deceased purportedly signed the second will she was suffering from
dementia as a result she could not
appreciate the nature and effect
of making a will was uncontroverted. It is also trite that the fact
that a testator may have been
conscious and approved the contents of
a will does not necessarily mean she was of sound mind she may have
still lacked the mental
capability necessary for the execution of a
valid will. See
Harlow
v Becker NO and Others
1998
(4)
SA 639
(D) at
644A.
[31]
Mr. Gerrie De Lange and Mrs. Melanie Jonker testified for the
defendants' case on the circumstances surrounding
the signing of the
second will.
[32]
Mr. De Lange
testified that on 6 January 2017 he was on duty at Rosepark hospital
where he worked as a supervisor for Federal Parking
Services. He was
responsible for managing the parking pay points at the hospital's
premises. Mrs. Jonker approached him and asked
him to sign a will as
a witness, he agreed. They went to the deceased's ward and found her
lying on the bed with an oxygen mask
over her face. She greeted him
as usual and she could also remember his name
.
She did not
look confused at all.
[33]
It was his evidence that in the deceased's ward there was also
another lady present.
She read the
will to the deceased
who responded
by saying
"that's
what
I wanted." He then signed the will and left before witnessing
either the deceased or the other witness signing the will.
[34]
It was Mr. De
Lange's testimony that it was the first time that he met Mrs Jonker
on that day. After she had asked whether he would
be willing to sign
a will as a witness he told her he would, provided he won't get into
trouble as he had previously signed his
uncle's will under similar
circumstances and the validity of that will was later disputed.
[35]
He said Mrs.
Jonker informed him that the doctors and the nurses had refused to
witness the will and that he must first speak to
the deceased to
certify that she was able to understand and speak normally.
[36]
He stated that
when he observed that the deceased was in ICU he thought that could
have been the reason why the nurses and doctors
refused to sign the
will and if he had been aware that the deceased had been diagnosed
with dementia he would not have signed the
will.
[37]
Mrs. Jonker is
the deceased's niece. During October to November 2016 she received a
call from an aunt who lives in Mpumalanga informing
her that the
deceased was very ill she must try and go see her.
[38]
She went to
see the deceased a day after her leg was amputated thereafter she
visited her daily until she passed away. She said
at all the times
that she visited the deceased was able to recognize her, she had a
good memory and regaled her with family stories
and she was also able
to give her instructions regarding her assets by telling her which
assets she wanted to keep at the Old Age
Home and which assets could
be sold
.
[39]
After the
deceased was discharged from the hospital the family took a decision
that she must be accommodated at the
Ons
Tuiste Old Age Home
as
she still needed care.
[40]
She confirmed
that there was indeed an incident when she noticed that the deceased
was confused and could not recognize her. She
took her to hospital
where it was discovered that she had high fever.
[41]
The executor
is her uncle and the drafter of the second will on the instructions
of the deceased. On the day the second will was
executed she went to
the hospital and found the deceased sleeping. She could see that she
was critically ill. She woke her up with
a touch the deceased asked
her what was she doing there. She responded by informing the deceased
that she was in possession of
the will that had been drafted by the
executor enquired whether the deceased was willing to sign the will.
The deceased asked for
her eye glasses in order to read but was
unable to because of the face mask. Mrs Reeder then read it to her
after that, the deceased
confirmed the contents and signed the will.
The deceased signed first followed by Mrs. Reeder then lastly by Mr.
De Lange.
[42]
When asked by
counsel for the plaintiffs why she insisted on having the deceased
sign the will despite the fact that she was critically
ill and in ICU
she said she worked long hours and the executor had said if while she
visited the deceased she found her to be in
a good state she must get
her to sign the will.
[43]
She admitted
that she was aware that the deceased had been diagnosed with dementia
though she had no knowledge of what the condition
entailed. According
to her, the deceased was lucid and not confused at all.
[44]
As regards the
counterclaim, Mrs Jonker stated that she did not see the deceased in
2015 therefore she could not allege that at
the time the deceased
signed the first will she was not mentally fit to execute the will.
She was not even aware that there was
a counterclaim instituted on
the defendants' behalf and on that basis.
[45]
It was her
testimony that she knows Dr Bester very well as she is also his
patient. She holds him in high regard as far as his expertise
are
concerned.
[46]
Thus is in short the summary of the facts before this court. On the
facts germane to this matter it has been
established that the
deceased had executed two wills the first one on 22 October 2015. The
other will was executed on 06 January
2017. The validity of the first
will is no longer in dispute. The only issue that I have to determine
is whether the deceased was
mentally competent to execute the second
will.
[47]
I have found no reason not to accept Mrs. Hamman's evidence. The
significance of her testimony is that during
her lifetime the
deceased enjoyed a meaningful and close relationship with the
plaintiffs. She regarded them as her family. In
my view, this is a
strong indicator that the first will expresses her true wishes,
namely, to bequeath part of her estate to the
plaintiffs.
[48]
As regards Dr
Bester's testimony, I have found no evidence to gainsay his evidence
that he is qualified to express an opinion on
the medical condition
of the deceased. His expertise as a specialist physician in the field
of internal medicine and complicated
diagnosis of critically ill
patients is uncontroverted and in fact confirmed by Mrs Jonker who is
also one of his patients.
[49]
My conclusion that his opinion is not merely premised on pure theory
or general knowledge is fortified by the fact that
he had examined
the deceased approximately two hours before she signed the purported
second will, he had been her physician for
quite some time before her
confinement and he is the one diagnosed her with dementia a month
before her confinement. I'm satisfied
that he provided an unbiased
and valuable opinion in this regard.
[50]
On the other side the defendants had sought to rely on the evidence
of Mr De Lange and Mrs Jonker to prove
that when the deceased signed
the second will there was nothing untoward about her mental
capabilities.
[51]
Given the
contradictions between Mr De Lange and Mrs Bester's evidence with
regard to the circumstances under which the second will
was signed I
was asked by counsel for the defendants to disregard Mr De Lange's
evidence.
[52]
I'm in
agreement with the submissions by the defendants' counsel however,
Mrs Jonker's evidence also does not take the defendants'
case any
further in that besides the fact that she is not a medical doctor to
have been able to assess the deceased's mental capabilities
to
execute a will her conclusion that the deceased was mentally capable
because she was not confused and was able to respond when
spoken to
is refuted by medical evidence which its effect is that due to being
afflicted with dementia and other chronic mind dilapidating
conditions the deceased was not mentally cable to execute a will.
[53]
As I have
already pointed out in paragraph [30] above, the fact that the
deceased was conscious and lucid does not necessarily mean
she was of
sound mind.
[54]
It is also
important to note that on the available evidence the deceased could
not read the will as she was unable to see without
her eye glasses
and she could not wear the eye glasses due to the mask covering her
face. Someone else read it to her. Therefore,
it cannot be said that
when she signed the will she knew what she was signing and that she
appreciated the nature and effect of
her actions.
[55]
I am satisfied
that the plaintiffs have proved on a balance of probabilities that at
the time the deceased signed the second will
she was mentally
incapable of appreciating the nature and effect of her actions.
Costs
[56]
On the facts
of this matter nothing militates against the general rule that costs
should follow the result.
[57]
In the
premises, I hereby make the following order:
1.
The will
signed by the deceased on 06 January 2017 is invalid.
2.
The will
signed by the deceased on 22 October 2015 is declared valid.
3.
The first
defendant is ordered to accept the deceased's will dated the
22
nd
October
2015 as the Last Will and Testament
of the
deceased
.
4.
The second,
third, fourth, fifth and sixth defendants to pay the costs of this
action jointly and severally one paying the other
to be absolved.
5.
The
counterclaim is dismissed with costs.
NS
DANISO, J
APPEARANCES:
Counsel
on behalf of Plaintiff:
Adv.
SJ Reinders
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
Counsel
on behalf of 2
nd
to 6
th
Defendants
Adv.
HJ Booysen
Instructed
by:
Patrick
Stilwell Attorneys
C/O
Stiglitz-Botes Attorneys
BLOEMFONTEIN
[1]
Annexure
"B" and
"C"
of
the plaintiff's particulars of claim
.
[2]
Paragraph
14 to 17 of
the
plaintiffs'
particulars of claim.
[3]
Section
4
of the
Wills Act 7 of 1953
.
[4]
Kunz
v Swartz
1924 AD 618
at 692
.
[5]
Trial
Bundle constituting of Pleadings, Notices, deceased's medical
records and correspondences between the parties.
[6]
Pages
271 to 272 of Exhibit "C" are copies of the admission
clinical records in that regard.
[7]
Exhibit
"B"'
is
Dr Bester's report dated 14 November
2016
and states thus:
"Geliewe
kennis
te neem dat bogenoemde gevorderde kognitiewe
inkorting
her
en nie maar haar persoonlike sake kan behartig nie.
Sy
is
voorts ook fisies afhanklik en bonidig
institusionele
versorging."