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[2021] ZAGPJHC 443
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Crossman v The Master of the High Court, Johannesburg and Others (2020/7625) [2021] ZAGPJHC 443 (26 August 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NUMBER:
2020/7625
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED: YES
25 AUGUST 2021
In the matter between:
CZOYE
CROSSMAN
Applicant
and
THE
MASTER OF THE HIGH COURT, JOHANNESBURG
First
Respondent
GARETH
BEZUIDENHOUT
Second
Respondent
TREVOR
BOUWER
N.O.
Third
Respondent
SUSAN
STEPHNY PERINGUEY
Fourth
Respondent
STEVEN
BEZUIDENHOUT
Fifth
Respondent
JUDGMENT
DE WET AJ:
1.
Trevor Bouwer, N.O. is referred to as the
third respondent in the notice of motion whilst in the founding
affidavit he is referred
to as the second respondent. Gareth
Bezuidenhout is referred to as the second respondent in the notice of
motion whilst in the
founding affidavit he is referred to as the
third respondent. In this judgment, Trevor Bouwer, N.O. will be
referred to as the
second respondent and Gareth Bezuidenhout will be
referred to as the third respondent.
2.
In this application the applicant
approaches the court for an order that:
2.1
the first respondent be ordered to accept
the document purporting to be the last Will and Testament of the late
Gregory Bezuidenhout
(identity number: [....]), who died on 6 July
2019 (“the deceased”), and which was signed on 24 January
2014, of which
a copy is annexed to the founding affidavit as “FA2”,
as his will for purposes of the Administration of Estates Act,
66 of
1965 (“the
Administration of Estates Act&rdquo
;), although it
does not comply with all the prescripts of section 4(1) of the Wills
Act, 7 of 1953 (“the
Wills Act&rdquo
;);
2.2
in terms of
section 4A(2)
of the
Wills Act,
the
applicant is declared competent to receive a benefit from the
will of the deceased;
2.3
the second respondent be removed as
executor of the deceased’s estate;
2.4
certain relief in respect of the costs of
the application.
3.
The third respondent is the deceased’s
brother, the fourth respondent his mother and the fifth respondent
his father.
FACTUAL
BACKGROUND
4.
The applicant was the deceased’s life
partner who permanently resided with him from 2009 until the time of
his passing on
6 July 2019.
5.
The deceased executed a will on or about 24
January 2014.
6.
On the day following the deceased’s
passing the applicant produced a document headed “LAST WILL AND
TESTAMENT OF Gregory
Bezuidenhout”, which document consisted of
two numbered pages and which is signed on the second page by the
deceased,
qua
testator, the third respondent, Mr Roger William Crossman (“Mr
Crossman”), the applicant’s father, and the applicant
as
witnesses. The first page of this document is not signed by any of
the persons who signed the second page. A copy of this document
is
annexed to the founding affidavit as “FA1”.
7.
On 15 September 2019, the first respondent
rejected “FA1” as a consequence of the absence of the
required signatures
on page 1 thereof, as he was entitled to do, as
the document did not comply with the provisions of
section 4(1)
the
Wills Act. I
shall refer to “FA1” as the rejected will.
8.
On 18 December 2019, the second respondent
was appointed as executor of the deceased’s estate in terms of
Letters of Executorship
issued to him under
sections 13
and
14
of the
Administration of Estates Act.
9.
The
following issues are to be determined:
9.1
Did the deceased intend the rejected
will to be his Last Will and Testament;
9.2
In the event that the court finds that the
deceased intended the rejected will to be his Last Will and
Testament, is the applicant
competent to receive benefit from such
will;
9.3
Should the second respondent be removed as
executor in the estate of the deceased;
9.4
Which party/parties should be liable for
the costs of the application.
10.
The third to fifth respondents gave notice
of their intention to oppose the application and filed answering
affidavits in support
of such opposition. The second respondent
delivered a notice to abide by the decision of the court.
11.
The third to fifth respondents raised two
points
in limine
:
11.1
The first point
in
limine
being that the applicant’s
founding affidavit did not comply with statutory requirements for a
valid affidavit. This
point
in
limine
was not proceeded with as
inter
alia
the applicant delivered a New
Signed Founding Affidavit dated 26 August 2020, which cured any
possible non-compliance by the applicant
of the statutory
requirements.
11.2
As second point
in
limine
the respondent raised that the
applicant brought the application prematurely as the applicant was
obliged to take the first respondent’s
decision to reject the
will on review, the first respondent having committed a reviewable
irregularity. The respondents did
not in their heads of
argument nor in argument persist with such point
in
limine
. It is accordingly not necessary
to consider or decide the second point
in
limine
. In any event, it seems unlikely
that the first respondent’s decision, which seems to have been
arrived at by a simple and
correct application of the
Wills Act,
amounted
to a reviewable irregularity.
12.
The first issue should be determined with
reference to the provisions of the
Wills Act. I
replicate the
relevant sections of the act:
“
2
Formalities
required in the execution of a will
(1)
Subject
to the provisions of
section 3bis
-
(a)
no will executed on or after the first day of January, 1954,
shall be valid unless-
(i)
the will is signed at the end thereof by the testator or by some
other person in his presence and by his direction;
and
(ii)
suc
h
signature is made by the testator or by such other person or is
acknowledged by the testator and, if made by such other person,
also
by such other person, in the presence of two or more competent
witnesses present at the same time; and
(iii)
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
(iv)
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;
…
..
(3)
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 Estates Act, 1965
(
Act
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)
.”
(own
underlining)
13.
The applicant contends in her founding
affidavit that the deceased informed her that he had decided to
prepare a will. She testifies
that the deceased came to such decision
after the passing of the fourth respondent’s life partner
during December 2013.
14.
The deceased and the applicant had a brief
debate about the deceased’s proposed will during which he
enquired whether she
would have any objection should he, the
deceased, leave his motorcycle and motorcycling related goods to his
brother, the third
respondent, who shared his passion for motor
cycling. The deceased informed the applicant that the remainder of
his estate will
be left to her. He further informed that, as he
trusted her father, Mr Crossman, he wished to appoint him as the
executor of his
estate.
15.
The deceased told Mr Crossman that he
wished him, Mr Crossman, to be the executor of his estate, whereupon
it was arranged that
the deceased and the applicant would visit her
parents’ home in Krugersdorp on Friday 24 January 2014 in order
to sign the
deceased’s will.
16.
Shortly thereafter the deceased prepared
the will, by typing it on his computer. The applicant contended that
neither she nor the
deceased have formal legal training and that they
at the time did not know of or understand the formalities that are
required for
a will. She suspects that the deceased may have obtained
a template of a will from the internet, hence the unusual format of
the
will.
17.
On 24 January 2014, the deceased and the
applicant attended at her parents’ home. He presented the
rejected will, which he
had brought with him and requested the
applicant and her father to sign it.
18.
The applicant and her father signed as
witnesses on page 2 of the rejected will in the presence of each
other and in the presence
of the deceased. These events pertaining to
the creation and signing of the rejected will were confirmed by Mr
Crossman and not
disputed by the respondents.
19.
It is common cause that the third
respondent appended his signature to page 2 of the rejected will. The
applicant cannot recall
whether the third respondent was present on
24 January 2014 when she and her father attested to the
rejected will or when
he appended his signature to the rejected will.
The third respondent, notwithstanding having delivered an answering
affidavit,
inexplicably fails to address this aspect. Nothing turns
on it as
section 2(1)
of the
Wills Act requires
the signature of the
testator and at least two competent witnesses.
20.
On page 1 of the rejected will, in
paragraph 4 (headed article iii), the deceased bequeaths his motor
cycles, motor cycle equipment,
tools, protective clothing and other
paraphernalia to the third respondent. In paragraph 5 on page 1
(headed article iv) the following
appears:
“
I
devise, bequeath and give all the rest and remainder of my residuary
estate as follows:
a
100% to Czoye Crossman.”
21.
On the day following the deceased’s
death, the applicant produced the original rejected will, which was
handed to the second
respondent on 16 July 2021, and submitted by him
to the first respondent who is still in possession thereof.
22.
As a consequence of the will being rejected
by the first respondent, the applicant approaches this court for the
relief sought in
paragraph 2 above.
23.
The third, fourth and fifth respondents
contend that:
23.1
The deceased did not draft the rejected
will, particularly page 1 thereof, and neither did he intend it to be
his last will and
testament. The respondents allege that the
first page of the rejected will, being the unsigned page, does not
reflect the
deceased’s wishes and that it was created by the
applicant after the deceased had passed away;
23.2
The applicant deleted “SB1”
from the deceased’s computer with the intention to suppress the
deceased’s last
wishes and in so doing unlawfully benefit from
the rejected will thereby defrauding and depriving the third
respondent (and ultimately
the fourth respondent) of the benefit to
which he, and or she, was entitled. “SB1” is the first
annexure to the fifth
respondent’s answering affidavit, a
document in terms whereof the deceased bequeathed 100% of the
remainder of his estate
to the third respondent and which document
the third to the fifth respondents contend contains the last wishes
of the deceased.
24.
As a consequence of the above, the third to
fifth respondents argue, the court cannot be satisfied that the
rejected will was
drafted
or executed by the deceased and according the applicant cannot
succeed with the relief claimed.
25.
The third to fifth respondents, in their
answering affidavits, as well as Mr Pottas in argument, relied
heavily on
inter alia
the
undermentioned facts in support of their contentions that the
rejected will does not contain the deceased’s last wishes
and
is not his Last Will and Testament:
25.1
The deceased confided in
inter
alia
the fifth respondent and expressed
his intense unhappiness at the state of the relationship with the
applicant;
25.2
The relationship between the applicant and
the deceased was fractious and had deteriorated long before the
deceased’s passing;
25.3
The applicant’s relationship with the
deceased could not have been as serious or as committed, as was
contended by the applicant,
in that:
25.3.1
the applicant was not aware that the
deceased and the fourth respondent were the registered owners of the
Little Falls property
in which they, the applicant and the deceased,
resided;
25.3.2
the deceased, contrary to the contentions
by the applicant, had no intention of marrying the applicant as he
had been disillusioned
by the institution of marriage when his
marriage failed;
25.4
The deceased informed the fourth respondent
during April 2015 that the applicant wished death upon him while
racing his motorbike;
25.5
The deceased often voiced to the third to
fifth respondents, his wish to leave the applicant;
25.6
The deceased changed the nominated
beneficiaries on his Old Mutual Retirement Annuity during January
2019 and his Capital Alliance
life insurance policy as well as his
Sanlam Provident Fund during approximately May 2020.
26.
The deceased, during January 2014 had
appointed the applicant as his beneficiary on all three the
forementioned. The deceased however
did not change the beneficiaries
on all his policies and the applicant remained his beneficiary in
terms of the Capital Alliance
insurance policy, an Old Mutual life
policy and 50% of the proceeds of the Old Mutual retirement annuity.
27.
In substantiation of the allegations upon
which the third to fifth respondents found their opposition, the
fifth respondent presented
expert evidence to the court in the form
of an affidavit by Mr Craig du Plooy (“Mr Du Plooy”), a
computer expert.
28.
Mr Du Plooy’s evidence is as follows:
28.1
On or about 30 August 2019 the fifth
respondent handed the deceased’s computer to Mr Du Plooy,
whereafter he conducted a forensic
search of the deceased’s
desktop computer;
28.2
Two relevant documents in Microsoft Word
format were found on the computer namely:
28.2.1
The rejected will;
28.2.2
a document headed “LAST WILL AND
TESTAMENT OF Gregory Bezuidenhout”, of which a copy was annexed
as annexure “SB1”
to the fifth respondent’s
affidavit;
28.3
“
SB1” has essentially the same
format as the rejected will and is similar in many respects save as
set out hereunder. It further
runs over to a third page on which
provision has been made for the signatures of the deceased
qua
testator and the third respondent, the applicant and Mr Crossman as
witnesses. It is not dated. On page 1 in paragraph 4 (headed
article
iii), the deceased bequeaths his motor cycles, motor cycle equipment,
tools, protective clothing and other paraphernalia
to the third
respondent. However, in paragraph 5 on page 1 (headed article iv) the
following appears:
“
I
devise, bequeath and give all the rest and remainder of my residuary
estate as follows:
a
100% to Gareth Bezuidenhout.
b
In the event that Gareth Bezuidenhout refuses any of the above, the
refused items will be
distributed to Czoye Crossman.”
28.4
The meta data pertaining to the rejected
will, meta data being information about a particular set of data
which can include technical
information which is normally hidden from
a common computer user, and may include when a document was
“Created”, “Last
Written” and “Last
Accessed”, indicates:
28.4.1
The rejected will was found in the recycle
bin, which means that the rejected will was deleted;
28.4.2
The rejected will was Created in the
recycle bin on 10/07/2019 being 7 October 2019 at 11h50 AM. The
Created date indicates
the date upon which the rejected will was
deleted;
28.4.3
The rejected will was Last Accessed (or
when the document was last opened) on 10/29/2019 being 29 October
2019 at 10:51 AM;
28.4.4
The rejected will was Last Written (or when
the document was last amended or changed) on 7/11/2018 being 11 July
2018 21:30 PM.
28.5
The document path for the rejected will is
“D:\$RECYCLE.BIN\S-1-5-21-2894948493-1492537945-3481837875-1003\$RDZ9W7X.docx”.
28.6
The meta data pertaining to “SB1”,
indicates:
28.6.1
“
SB1” was found in the Recycle
Bin, which means that “SB1” had been deleted;
28.6.2
“
SB1” was Created in the
recycle bin on 06/21/2019 being 21 June 2019 at 19h51 PM. The
Created date in this instance
records the date upon which “SB1”
was deleted. However, on a proper reading of the printout of the meta
data which
was attached to Mr Du Plooy’s affidavit, the date is
14 June 2019 and not 21 June 2019. Nothing turns on this discrepancy;
28.6.3
“
SB1” was Last Accessed (or
when the document was last opened) on 06/10/2019 being 10 June 2019
at 11:38 AM;
28.6.4
“
SB1” was Last Written (or when
the document was last amended or changed) on 06/10/2019 being 10 June
2019 at 11:38 AM.
28.7
The document path for “SB1” is
“C:\$RECYCLE.BIN\S-1-5-21-2894948493-1492537945-3481837875-1003\Greg\Last
Will
and Testament.docx”.
29.
Mr Du Plooy records that there was an
attempt to permanently delete the files from the recycle bin between
08:38 am and 10:53 am
on 29 October 2019, being one day prior to the
fifth respondent collecting the deceased’s computer from the
applicant.
30.
The fifth respondent, in his answering
affidavit contends that the first page of the rejected will does not
reflect the deceased’s
last wishes, it was not drafted by the
deceased and neither signed by him.
31.
It is common cause that the deceased did
not sign the first page of the rejected will. As a consequence of the
deceased’s
failure to sign page 1 of the rejected will the
first respondent rejected the will on 15 September 2020 and the
applicant approached
the court for the relief herein.
32.
However, the evidence of the fifth
respondent goes further and contends that the first page of the
rejected will was fraudulently
created by the applicant on 10 July
2019, after the deceased passed away. He is supported in this
contention by the third and fourth
respondents.
33.
This contention is not supported by the
evidence of Mr Du Plooy or any other evidence. On a correct
reading and understanding
of the expert’s evidence, and
particularly the manner in which he noted the relevant dates in his
report, the rejected will
was Last Accessed, meaning last opened on
29 October 2019, Last Written, thus amended, on 11 July 2018, being
almost a year prior
to the deceased’s death, and was Created in
the recycle bin, thus deleted, on 7 October 2019. I pause to state
that a document
that has been created in the recycle bin, thus
deleted, may notwithstanding it having been deleted, still be opened
in the recycle
bin.
34.
The finding of Mr Du Plooy that the second
copy of the will, to wit Appendix _B to his report was last amended
on 11 July 2018,
almost a year prior to the deceased’s passing,
and deleted on 7 October 2019, after the passing of the deceased, is
significant.
Appendix _B is identical to the rejected will save
for the spacing of the words SELF-PROVING AFFIDAVIT. On the rejected
will the
words appear at the top of the second page whilst on
Appendix _B the words appear at the foot of the first page. The
uncontested
evidence of Mr Du Plooy thus confirms that the rejected
will appeared on the deceased’s computer and was last amended
almost
a year prior to his passing.
35.
Save for the allegations of the third to
fifth respondents, which are not supported by their expert witness,
there is no evidence
before the court on which it could be found that
the applicant had fraudulently created page 1 of the rejected will as
contended
by the third to fifth respondents.
36.
It is common cause that “SB1”
was Last Accessed, meaning last opened, on 10 June 2019, Last
Written, being last amended,
on 10 June 2019, almost four full weeks
prior to the deceased’s death, and shortly thereafter deleted.
37.
Mr
Pottas, for the third to fifth respondents, argued that the
application should fail as a consequence of the numerous disputes
of
fact. Relying on the principles enunciated in Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd and Airports Company
South
Africa Ltd v Airport Book Shops t/a Exclusive Books
[1]
he
submitted that the court should accept the third to fifth
respondents’ versions insofar as a dispute of fact exists, and
determine the application on the admitted facts placed before the
court by the third to fifth respondents; provided that such versions
are not farfetched, not credible or implausible, which he contended
was not the case.
38.
Mindful of the dicta in the authorities
referred to above, the issues herein are determined by taking into
account the facts that
are common cause on the papers.
39.
Mr Pottas urged the court to find that
“SB1” contained the last wishes of the deceased. He
submitted that the deceased
had saved “SB1” in such a
manner as to enable any person who would, upon his death, access his
computer to readily
find the document by following a very clear
document path that in itself guided such person to “SB1”.
The document
path was, as appears from the printout of the meta data,
annexed to Mr Du Plooy’s report as follows:
“
C:\Users\Office\OneDrive\Documents\Greg\Personal Details
in Case of Death\Greg\Last Will and Testament.docx
”.
40.
Mr Pottas argued that it was accordingly
clear that the “SB1” records the deceased’s last
wishes, it having at
some stage been saved on his computer in a file
named “Personal Details in Case of Death”.
41.
This contention, however, is not supported
by the evidence of Mr Du Plooy. It is undisputed that “SB1”
was deleted from
the computer during June 2019, irrespective of
whether it was deleted on 14 June 2019 or 21 June 2019, as both dates
predate the
passing of the deceased by a couple of weeks.
42.
The applicant denies the third to fifth
respondents’ allegations of wrongdoing. The applicant in reply
admits that she had
deleted documents from the deceased’s
computer and explains that she did so in an attempt to better
organise the contents
thereof, as files, which were lost as a
consequence of a virus, were restored by a computer expert, one
Brett, resulting in duplication
of numerous such files. The applicant
further admits that she deleted “SB1” on 29 October 2020.
43.
Mr Vorster, for the applicant, submitted
that it is clear from the uncontested evidence that the deceased
created a will during
January 2014, which he printed, signed on page
2 and presented to the applicant and her father to sign as witnesses
in his presence,
which they did whist together at Mr Crossman’s
home.
44.
Mr Vorster further submitted that the
conduct of the deceased in January 2014 regarding his will is in
stark contrast with his conduct
in relation to “SB1”. The
deceased, having previously made and executed a will, albeit not in
full compliance with
all the formal requirements of
section 2(1)
of
the
Wills Act, created
a document, “SB1”, on his
computer, failed to print such document and further failed to sign it
and have his signature
witnessed by two witnesses in his presence and
the simultaneous presence of the witnesses. On 14 June 2019, the
deceased deleted
the document. There is no acceptable evidence before
the court to suggest any person other than the deceased deleted
“SB1”.
45.
The third to fifth respondents urged the
court to find that the conduct of the deceased in changing the
beneficiary on his life
policy, his Provident Fund and his retirement
annuity during January 2019 and May 2019, unequivocally demonstrates
that the deceased
had the intention to amend his will, disinherit the
applicant and nominate the third respondent as his sole heir.
The third
respondent stated that to his knowledge, the deceased
wished to leave his entire estate to him, the third respondent, so as
to
enable him to look after their mother, the fourth respondent.
He disclosed that the deceased intended to do so rather than
to
appoint the fourth respondent as sole beneficiary of his estate as
she has a son from a subsequent marriage who is a drug addict.
In so doing, the deceased would protect the fourth respondent from
being deceived into giving this son funds. There is no
explanation in the papers before court to suggest why the deceased
implemented the changes to his life policy, Provident Fund and
retirement annuity, but failed to execute “SB1” as his
Last Will and Testament, had it been his intention to do so.
46.
Significantly, the third to fifth
respondents do not seek to have “SB1” declared the Last
Will and Testament of the
deceased. On the evidence before me, this
is not surprising.
47.
“
SB1”
provides for the signature of the document by the deceased,
qua
testator, as well as the witnesses, still identified as the
applicant, Mr Crossman and the third respondent. “SB1”,
in the format in which it was on the computer prior to it being
deleted during June 2019, was nothing other than a document on
a
computer which had not been finalised, printed, signed or attested to
as is required by
section 2(1)
of the
Wills Act.
[2
]
It
is not suggested that the deceased had a full understanding of all
the requirements of the
Wills Act, but
the deceased had created the
rejected will during 2014 and he thus knew, as is demonstrated by his
conduct at the time, that a
will must be signed by the testator and
witnesses.
48.
The
third to fifth respondents submit that the applicant bears the onus
to satisfy the court on a balance of probabilities that
the deceased
intended the rejected will to be his last wishes. For this submission
Mr Pottas relies on the Full Bench decision
in Ex Parte Williams: In
re Williams’ Estate
[3]
.
In that matter the court held that section
2(3)
of the
Wills Act was
promulgated to ameliorate the hardships and
injustice occasioned when there was not compliance with all the
requirements of
section 2(1)
of the
Wills Act. The
court reaffirmed
the sanctity of the testator's last wishes. It held that this purpose
had to be served within the framework of
three requirements of
section 2(3)
of the
Wills Act, being
the existence of a document,
drafted or executed by a person who had died since the drafting or
execution of the document and that
the deceased intended the document
to be his will.
49.
This
test was confirmed by the Supreme Court of Appeal in Van Wetten &
Another v Bosch & Others.
[4]
50.
Both parties referred to and relied on the
principles enunciated in Van Wetten
supra
in support of their respective cases. In that matter the Supreme
Court of Appeal held:
“
Section
2(3)
of the
Wills Act is
clear: the court must direct the Master to
accept the document in issue as a will once certain requirements are
satisfied.
First, the
document
must have been
drafted or executed by a person who has subsequently died
.
Second,
the document must have
been intended by the deceased to have been his or her will
.
”
51.
The
court herein must determine whether the rejected will was the Last
Will and Testament of the deceased. It is not called upon
to make any
determination on the status of the deleted “SB1”.
Accordingly, the authority upon which the third to fifth
respondents
rely, being Macdonald and Others v The Master and Others
[5]
does
not find application, notwithstanding that “SB1” is a
document found on the deceased’s computer.
52.
The third to fifth respondents in referring
to the existence and contents of the deleted “SB1” to
persuade the court
that the rejected will was not the deceased Last
Will and Testament, are not mindful of the test clarified by the
Supreme Court
of Appeal in paragraph [21] of the Van Wetten
judgement.
53.
In order to determine the question as to
whether the rejected will was the deceased’s Last Will and
Testament the following
two requirements need to be met:
53.1
The document must have been drafted or
executed by the deceased;
53.2
The document must have been intended by the
deceased to be his will at the time when it was drafted.
54.
The evidence of the applicant is that the
parties started to cohabit in 2009 and during or about October 2009
they moved into a
home which was purchased by the deceased
inter
alia
with the financial assistance of
the applicant’s father.
55.
The applicant’s uncontested evidence
is that the deceased decided to execute a will subsequent to the life
partner of the
fourth respondent passing away during December 2013,
that she and the deceased debated the intended will, whereafter the
deceased
prepared the rejected will by typing it on his computer,
probably by using a template from the internet, which explains the
format
of both the rejected will and “SB1”. On 24 January
2014, the deceased and the applicant attended at the home of her
parents with the purpose of having the rejected will signed. The
applicant’s version of the events is confirmed by Mr Crossman.
56.
In accepting the evidence of Mr Du Plooy I
find that the allegations of fraud by the third to fifth respondents
are unfounded and
that the rejected will was not created by the
applicant, as contended by them, on 10 July 2019, some four days
after the passing
of the deceased.
57.
The third to fifth respondents counsel
submitted that on considering the facts and circumstances that
existed towards the latter
part of the deceased’s life, much of
which is disputed, and which include
inter
alia
the fractious and unhappy
relationship between the applicant and the deceased, the fact that
the deceased during 2019 changed the
beneficiary on his life policy,
retirement annuity and Provident Fund, the specific layout and
wording of the rejected will and
the existence of “SB1”
it is clear that the deceased had changed his mind and that he
intended leaving his entire estate
to the third respondent.
58.
In
Van Wetten
supra,
the Supreme Court of Appeal held that such factors as those upon
which the third to fifth respondents seek to rely for the submission
that the deceased had changed his mind and intended, as is recorded
in “SB1”, that the third respondent should be the
sole
beneficiary of his estate are not relevant in determining what the
deceased’s intention was at the time of writing the
rejected
will. Subsequent conduct, such as what is relied upon by the
respondents herein is only relevant in so far as it throws
light on
what was in the mind of the deceased at the time of writing the
rejected will.
[6]
59.
I am accordingly not persuaded that the
events and facts which took place a considerable time after the
rejected will was executed,
as well as the existence of “SB1”
on the deceased’s computer, have any relevance in determining
whether the deceased,
during January 2014 when he created the
rejected will, intended the rejected will to be his will.
60.
The test as enunciated by the Supreme Court
of Appeal in matters of this nature is clear and is twofold:
60.1
The document must have been drafted or
executed by the deceased;
60.2
the document must have been intended by the
deceased to have been his will.
61.
The
court in Van Wetten
supra
confirmed the meaning of the phrase “
drafted
or executed
”
as clarified in Bekker v Naude & Andere
[7]
in
which the court held that the document must have been created by the
deceased personally.
62.
I
am, on having examined the rejected will and its contents, and in
taking all the evidence into account, satisfied that the rejected
will, both pages 1 and 2, was created by the deceased during January
2014 and that he in doing so intended the rejected will to
be his
will
.
[8]
63.
The second issue that must be determined is
whether the applicant, having attested to and signed the rejected
will as witness, is
competent to receive any benefit from the will.
64.
In this regard,
section 4A
of the
Wills Act
is
relevant:
“
4A.
Competency of persons involved in execution of will
(1)
Any person who attests and signs a will as a witness, or
who signs
a will in the presence and by direction of the testator
, or who
writes out the will or any part thereof in his own handwriting, and
the person who is the spouse of such person at the
time of the
execution of the will,
shall be disqualified from receiving any
benefit from that will
.”
(2)
Notwithstanding the provisions of subsection (1)—
(a)
a
court may declare a person or his spouse referred to in
subsection
(1) to be competent to receive a benefit from a will
if
the court is satisfied that that person or his spouse did not defraud
or unduly influence the testator in the execution of the
will
;
”
(own underlining)
65.
There is, considering the evidence of Mr Du
Plooy, no merit in the contention of the third to fifth respondents
that the applicant
committed fraud by creating the first page of the
contested will after the deceased passed away.
66.
There
is further no evidence of any nature before the court, and neither is
it the third to fifth respondents’ case, that
the deceased was
unduly influenced by the applicant when he created the rejected will
during January 2014.
[9]
67.
The evidence of the applicant is that the
rejected will was created by the deceased after debate between them.
The deceased then
contacted Mr Crossman and informed his that he
wanted him, Mr Crossman, to be the executor of his estate. Thereafter
he, the deceased,
typed the rejected will on his computer. The
deceased, in accordance with an arrangement with the applicant’s
parents attended
at their home where the rejected will was signed.
There is nothing before the court to suggest that the applicant
unduly influenced
the deceased when he, the deceased, created the
rejected will.
68.
The court is accordingly satisfied that the
applicant did not defraud or unduly influence the deceased in the
execution of the rejected
will.
69.
The final issue to be considered is the
applicant’s quest to remove the second respondent as executor.
In terms of
section 54(1)(a)
of the
Administration of Estates Act, an
executor may at any time be removed from his office for any reason
other than the reasons contained in
section 51(1)(a)(i)
to
51
(1)(a)(iii), if the court is satisfied that it is undesirable that
the executor should act as such in the estate concerned.
70.
The applicant will, in terms of the
rejected will, be the principle beneficiary in the estate of the
deceased.
71.
Subsequent to the deceased’s passing
away his family nominated the second respondent to assist with the
deceased’s estate
and arranged a consultation for such purpose.
The consultation was held on 16 July 2019 and was
inter
alia
attended by the second respondent,
the applicant, Mr Crossman and the third to fifth respondents. Mr
Crossman handed the original
rejected will to the second respondent
during this consultation. The applicant understood, at the time, that
the second respondent
would assist Mr Crossman in administering the
estate of the deceased.
72.
A second meeting was held between the
second respondent and Mr Crossman on 25 July 2020 during which
meeting information and certain
documents were handed to the second
respondent.
73.
A third meeting was held on 20 September
2019, which meeting was attended by the second respondent, the
applicant and Mr Crossman.
The second respondent informed the
applicant and Mr Crossman that, as a consequence of the rejected will
being invalid, the estate
was intestate and the family could nominate
an executor.
74.
The second respondent provided guidance and
advice to the applicant during the meetings on 16 July 2019, 25 July
2019 and 20 September
2019. The applicant feels aggrieved that the
second applicant at no stage advised her that she could approach the
court for an
order declaring the rejected will valid.
75.
The second respondent further only informed
the applicant of his appointment as executor on 17 February 2021
after two letters had
been addressed to him by the applicant’s
former attorney, seeking information and clarity on matters
pertaining to the administration
of the deceased’s estate
76.
The applicant states that she has no trust
in the second respondent. The applicant’s distrust of the
second respondent is
understandable.
77.
The applicant brought this application for
the relief herein on or about 4 March 2020. The third to fifth
respondents appointed
Bouwer Cardona Incorporated as their attorneys
of record, in which firm the second respondent has a direct interest.
78.
On 26 March 2021 Bouwer Cardona
Incorporated delivered the second respondent’s notice to abide.
There is no opposition from
the second respondent to the relief
sought in respect of his removal as executor in the estate of the
deceased.
79.
The third to fifth respondents oppose the
removal of the second respondent as executor.
80.
On considering the development of the
matter and the fact that the third to fifth respondents are
represented herein by Bouwer Cardona
Incorporated, the court is
satisfied that it is undesirable that the second respondent should
act as executor in the estate of
the deceased.
81.
Consequently, I make the following order:
1.
The Master of the High Court, Johannesburg
is ordered to accept the document, headed the “Last Will and
Testament of the Late
Gregory Bezuidenhout (Identity number: [....])
who died on 6 July 2019, and which was signed on 24 January 2014, of
which a copy
is annexed to the founding affidavit as “FA1”,
as his will for the purpose of the
Administration of Estates Act, 66
of 1965
, estate number [....] with the Master of the High Court,
Johannesburg;
2.
The applicant is declared, in terms of
section 4A(2)
of the
Wills Act, 7 of 1953
, to be competent to receive
a benefit from the will of the late Gregory Bezuidenhout;
3.
Trevor Bouwer is removed as executor of the
deceased estate of Gregory Bezuidenhout;
4.
The third respondent, fourth respondent and
fifth respondent shall pay the costs of the application, jointly and
severally with
the deceased estate of Gregory Bezuidenhout.
A. DE WET
Acting Judge of the
High Court
Gauteng Local
Division, Johannesburg
Heard:
17 August 2021
Judgment:
26 August 2021
Applicant’s
Counsel:
Adv. J Vorster
Instructed
by:
Magda Kets Attorneys
Respondent’s
Counsel:
Adv.
R Pottas
Instructed
by:
Bouwer Cardona Incorporated Attorneys
[1]
1984
(3) SA 624
(A) and
2017 (3) SA 128
(SCA) respectively
[2]
See
Kotze
v Die Meester & Andere
1998 (3) SA 523
(NC) at p 319
[3]
2000(4)
SA 168 (T) at 179 A
[4]
2004
(1) SA 348 (SCA)
[5]
2002
(5) SA 64 (O)
[6]
Van
Wetten
supra
at
par 21 and the authorities referred to therein.
[7]
2003
(5) SA 173
(SCA)
[8]
See
Westerhuis and Another v Westerhuis and Others
2018 ZAWCHC 84
at
[50]
.
[9]
Blom
& Another v Brown & others
2011 (3) All SA 223
(SCA)