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[2021] ZAKZPHC 93
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Van Heerden v Picton and Others (3793/2020) [2021] ZAKZPHC 93 (19 November 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 3793/2020
In
the matter between:
BRITTANY
VAN
HEERDEN APPLICANT
and
BRIDGET
ALEXA
PICTON
FIRST
RESPONDENT
BARRY
MARK PICTON N.O. SECOND
RESPONDENT
(in
his capacity as executor of the late estate
LEONARD
ERNEST VAN HEERDEN)
GARETH
JOSEPH VAN HEERDEN THIRD
RESPONDENT
THE
MASTER OF THE HIGH COURT FOURTH
RESPONDENT
PIETERMARITZBURG
ORDER
(a)
It
is declared that:
(i)
the
first respondent is a person who would have been entitled to inherit
from the late Leonard Ernest van Heerden had he died intestate;
(ii)
the
first respondent is only entitled to receive a benefit from the
estate of the late Leonard Ernest van Heerden that does not
exceed
the value of the share to which she would have been entitled in terms
of the law relating to intestate succession;
(iii)
the
second respondent may not receive a benefit from the will of the late
Leonard Ernest van Heerden; and
(b)
The
first and second respondents are
directed
to pay the costs of the application jointly and severally, the one
paying the other to be absolved.
JUDGMENT
MOSSOP
AJ:
[1] Mr
Leonard Ernest van Heerden (the deceased) was married on three
occasions during his lifetime. From his first
marriage, the first and
third respondents were born. From his second marriage, the applicant
was born. The applicant is accordingly
the first and third
respondent’s half-sister. From the third marriage, no children
were born. That marriage was still extant
when the deceased died, but
he and his third wife were no longer living together as she had left
South Africa amid allegations
of fraud perpetrated by her on the
deceased.
[2] Prior
to his passing, the deceased had been in poor physical health. He did
not have a will but recognised
that he needed one. He ultimately
called upon a friend of his, Mr Nathaniel Tarr (Mr Tarr), to draw his
will. Mr Tarr was not ordinarily
a person who would be called upon to
draw a will but, remarkably, it appears that he had some experience
in doing so. The will
that he drew was typed and fills five pages. It
is slightly unusual in that it contains a narration of the
difficulties that the
deceased experienced with his third wife, and
it details the deceased’s view of the circumstances under which
she left South
Africa. Other than that, the will contained clauses
that would be expected to be found in a document of that nature.
[3] In
terms of the will, the second respondent, who is the husband of the
first respondent, was appointed as the
deceased’s executor,
failing whom, the first respondent was to be so appointed. The
deceased stipulated that upon his death,
his estate was to be equally
divided between his three children. The will also contained the
following clause:
‘
I attach hereto a
schedule of various items of my belongings on which schedule I have
recorded the names of parties to whom the
items specified in the
Schedule will be distributed upon my death and I authorise and direct
my EXECUTOR to do all such things
as may be necessary to give effect
to the distribution of such items.’
[4] A
schedule was attached to the will (the final schedule). Despite what
the deceased stated in his will, he
did not personally record the
names of the beneficiaries to inherit the assets described in the
final schedule, nor did the drafter
of the will, Mr Tarr do so. The
final schedule, like the will, was typed by Mr Tarr. It was four
pages long and it grouped the
deceased’s moveable assets into
categories based on where in his house they were to be located, for
example, ‘Garden/Other’,
‘Garage’,
‘House/Lounge’, ‘Guest Bedroom 1 (next to lounge)’
etc. In all, there were nine such
categories that dealt with 69
moveable assets of the deceased. Each asset was numbered in the
category in which it was placed and
had a line next to the
description of each asset. The line was intended to receive the name
of the beneficiary who was to acquire
the specific asset. When the
final schedule was typed, the lines did not bear the names of any
beneficiaries.
[5] The
will and final schedule was signed by the deceased on 9 March 2018.
Each page of the will, including the
final schedule, recorded the
name and signature of the witnesses to the will and also bore the
signature of the deceased. The deceased
died five days later, on 14
March 2018. The will, including the final schedule, was lodged with,
and accepted by, the fourth respondent,
the Master of the High Court.
[6] The
focal point of this matter is not the will or the manner of its
drafting, but the final schedule. The initials
and full surnames of
the beneficiaries who were to receive the assets described therein
were inserted on the first page of the
final schedule. On the other
pages, only the initials of the beneficiaries were inserted. All of
the insertions were in manuscript.
Of the 69 identified moveable
assets, the final schedule provided that 36 assets were awarded to
the applicant, 31 assets were
awarded to the first respondent and 2
were awarded to the third respondent.
[7] The
applicant asserts that the manuscript insertion of the identity of
each beneficiary appearing on the final
schedule is the handwriting
of the first respondent. She contends therefore that the provisions
of section 4A of the Wills Act
7 of 1953 (the ‘Act’) are
of application. The notice of motion consequently claims the
following relief
‘
1. The
First Respondent and the Second Respondent be disqualified from
receiving any benefit from the
will of the late LEONARD ERNEST VAN
HEERDEN;
2. Cost
of the application against First Respondent and the Second
Respondent, jointly and severally,
the one paying, the other to be
absolved;
3. In
the alternative to Prayer 1 above, that the First Respondent and the
Second Respondent
be limited to inheriting their intestate portion of
the Estate of the Late LEONARD ERNEST VAN HEERDEN only.’
[8]
Section
4A of the Act provides as follows
‘
(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;
(
b
) a
person or his spouse who in terms of the law relating to intestate
succession would have been entitled
to inherit from the testator if
that testator has died intestate shall not be thus disqualified to
receive a benefit from that
will: Provided that the value of the
benefit which the person concerned or his spouse receives, shall not
exceed the value of the
share to which that person or his spouse
would have been entitled in terms of the law relating to intestate
succession;
(
c
) a
person or his spouse who attested and signed a will as a witness
shall not be thus disqualified from
receiving a benefit from that
will if the will concerned has been attested and signed by at least
two other competent witnesses
who will not receive any benefit from
the will concerned.
(3) For
the purposes of subsections (1), and (2) (
a
) and (
c
),
the nomination in a will of a person as executor, trustee or guardian
shall be regarded as a benefit to be received by such person
from
that will.
’
[9]
Section
4A(1) of the Act sets out the general rule and disqualifies a
particular class of persons, namely those who attest, sign
(as a
witness or in the presence of and by the direction of the testator)
or write the will, from benefitting under that will,
unless they are
exempted by either section 4A(2)
(a)
or
(b)
.
This disqualification exists in order to prevent falsity and fraud,
and to prevent ‘the exertion of undue influence over
people in
bad health or in feeble state of mind’.
[1]
This is because the fact that someone who stands to benefit from the
death of a testator in terms of a will, and who is involved
in the
drawing of the very will in which that benefit is declared,
ineluctably invites speculation that he or she may have improperly
influenced the testator in the framing of his final testament, more
particularly so where the will is executed at a moment of crisis
in
the testator’s life.
[10]
In
Blom v
Brown
,
[2]
the Supreme Court of Appeal stated the following:
‘
That
general principle set out in subsection 1 is subject to the
qualification and exceptions set out in subsection 2. To answer
the
question posed by counsel: Section 4A(1), which encapsulates the
general rule, operates without more to disqualify a particular
class
of persons, namely those who attest, sign (as a witness or in the
presence of and by the direction of the testator) or write
the will,
from benefitting under that will, unless they are exempted by either
subsections (
a
)
or (
b
) of
section 4A(2). Subsection 2(
a
)
empowers a court to declare any such person who may be disqualified
by the operation of subsection 1 to be competent to receive
a benefit
from the will if it is satisfied that such person (or such person’s
spouse) did not defraud or unduly influence
the testator in the
execution of the will. Unlike subsection 2(
a
),
subsection 2(
b
)
applies automatically – that is without the necessity for an
order of court to be obtained. But like subsection 2(
a
),
it too serves to exempt those who fall within the ambit of its scope
from the operation of the general rule envisaged in subsection
1.’
[11]
What
section 4A(2) of the Act
‘
seeks to achieve,
consistent with the common law, however, is to permit a beneficiary,
who would otherwise be disqualified from
inheriting, [the
opportunity] to satisfy the court that he or she (or his or her
spouse) did not defraud or unduly influence the
testator in the
execution of the will.’
[3]
[12]
The
first issue to be determined is whether the provisions of section 4A
of the Act apply to the facts of this matter. This is not
the subject
of any controversy. The first respondent does not deny that the
manuscript insertions on the final schedule are hers.
She claims to
have completed the final schedule on the instructions of the
deceased. The completion of the final schedule by the
first
respondent is sufficient to allow the provisions of section 4A to
apply. See for example
in
Ex
Parte Searle
[4]
where an heir was requested by the testator to insert his own name
into a pre-printed will. As a consequence, he was prevented
from
inheriting. The involvement of the first respondent in populating the
final schedule with names goes beyond the single act
of insertion in
Searle
.
The disqualification imposed by the Act consequently applies.
[13]
The
provisions of section 4A(2)
(a)
of the Act countenances a court permitting a disqualified beneficiary
from being able to inherit if it is satisfied that there
is no
evidence of fraud or undue influence. Ms Coetzee, who appeared for
the applicant, submitted that the onus of establishing
that there was
no fraud or undue influence rested on the first and second
respondents. I think that she is correct in that submission.
Section
103(1) of the Firearms Control Act 60 of 2000 (the ‘FCA’)
utilises similar wording to that employed in the
Act. In the FCA and
in the Act, the default position is a disqualification, in the former
of the right to possess a firearm and
in the latter of the right to
inherit. In the FCA that disqualification applies unless a court
determined otherwise. In
S
v Mkhonza
,
[5]
which dealt with the FCA, Wallis J held that the onus of satisfying
the court on a balance of probabilities that it should determine
otherwise rests on the accused person.
[6]
I
can discern no reason why the same approach should not apply in this
matter. It is therefore for the first and second respondents
to place
sufficient information before the court to satisfy the court on a
balance of probabilities that they did not defraud or
unduly
influence the deceased. If this is not done, the disqualification
must stand.
[14]
The
applicant alleges that before the final schedule was signed, there
was an earlier schedule (the ‘original schedule’).
This
was completed in manuscript by the second respondent, apparently at
the behest of the deceased. The layout of the original
schedule was
similar, if not identical, to the layout of the final schedule. U
pon
the original schedule being drawn up, the first respondent invited
the applicant and the third respondent to indicate on it
which
particular assets they would like to inherit on the passing of the
deceased.
A copy of the original schedule is
attached to the applicant’s founding affidavit. It is a
poor-quality photocopy but it is
capable of being read. None of these
allegations made by the applicant are disputed.
[15]
When
the original schedule was exhibited to the applicant, she noted that
some of the assets identified therein were marked with
an asterisk.
This was apparently done, so she was told by the first respondent, to
identify the asset so marked as being a high
value asset. The
applicant was also informed by the first respondent that these high
value assets would be sold to pay for the
deceased’s medical
expenses upon his passing and that, as a consequence, those assets
could not be selected by the applicant
as she would not receive them.
Included in the original schedule, and marked with an asterisk, was a
Peugeot motor vehicle (the
‘Peugeot’). Apart from the
allegation that the applicant was told that she could not select an
asset marked with an
asterisk, none of these allegations are in
dispute either.
[16]
The
applicant made her election first. Included in her selection of
assets was the Peugeot, which she selected, notwithstanding
that it
was marked with an asterisk. She inserted her name next to the
vehicle, together with a question mark. Her explanation
for adding
the question mark is that she was querying why the Peugeot was even
mentioned in the original schedule as she believed
that the deceased
had given her the vehicle during his lifetime.
T
he
third respondent, who had lived in the United Kingdom for a number of
years, showed no interest in acquiring any of the moveable
assets as
transporting them to the United Kingdom would be impractical and
costly.
[17]
Ultimately
,
not all of the assets identified in the original schedule had a
claimant. The assets with asterisks had no takers, save for the
Peugeot.
In addition,
according to the
applicant, the original schedule was incomplete in that it did not
contain all the moveable assets owned by the
deceased: for example,
certain kitchen equipment was not included.
T
he
original schedule also included items that had already been given
away by the deceased. The applicant refers in this regard to
a drum
kit which she believed had already been given by the deceased to her
sister. None of these allegations by the applicant
are disputed
either.
[18]
The
complaint of the applicant is that the final schedule did not reflect
what was contained in the original schedule. All the assets
that
no-one had staked a claim to were awarded to the first arespondent.
The assets marked with an asterisk were, likewise, all
awarded to the
first respondent, save for a bicycle that was awarded to the
applicant. This included the Peugeot. An asset described
as a Ducati
motorbike, which was included in the original schedule was no longer
included in the final schedule. These facts, too,
are common cause.
[19]
The
applicant contends that the final schedule represents the wishes of
the first and second respondents and not those of the deceased.
This,
so she submits, arises through either a fraud being perpetrated on
the deceased or by virtue of the fact that he was unduly
influenced
by the first respondent. By making reference to the final liquidation
and distribution account, the applicant in her
heads of argument
demonstrates that the moveable assets had a combined value of R323
800. Of those assets, the first respondent
was awarded assets to the
value of R266 413, which equates to 82 percent of the total
value of all the moveable assets.
[20]
The
first respondent was intimately involved with the care of the
deceased in the final days of his life. As regards the issue of
the
original schedule, the first respondent admits that her husband, the
second respondent, drew it up at the request of the deceased.
The
first respondent admits that certain assets were marked with
asterisks. The second respondent, who drew the original schedule,
denied marking any assets with an asterisk. That they were marked is
not in doubt: the markings may be observed on the poor-quality
photocopy of the original schedule that is attached to the founding
affidavit. The only person who could conceivably have marked
the
assets in that fashion, if it was not the second respondent, was the
first respondent: the applicant did not have the original
schedule,
the third respondent was in the United Kingdom and the deceased was
not involved in the process of identifying his own
assets.
[21]
Once
everyone had signified their preferences on the original schedule,
images of the original schedule with the selections indicated
thereon
were sent by the first respondent, utilising the social media
platform WhatsApp, to Ms Heather Tarr (Ms Tarr), the daughter
of Mr
Tarr, for her father to prepare the final schedule for attachment to
the will. Once the will had been typed, the first respondent
uplifted
it from Mr Tarr and proceeded to the deceased’s home.
Concerning the manuscript insertions to the final schedule,
the first
respondent states that
‘
At
his home on that day the Deceased asked me to write the
names/identity of the respective beneficiaries alongside the items
listed
in the Schedule as per his instructions.’
She did so. She denies
ever attempting to defraud or unduly influence the deceased or any of
the other beneficiaries for that matter.
[22]
The
first respondent further submits that the deceased wanted her, and
not the applicant, to have the Peugeot because the applicant
allegedly failed to maintain the vehicle when it was in her custody.
Where no interest was shown in respect of certain of the deceased’s
assets, the first respondent explains that she indicated her interest
in them
‘
.
. . by virtue of the omission of interest by Applicant and 3rd
respondent and further to prevent the Deceased’s third wife
from stating an interest therein if she should have appeared on the
scene.’
[23]
It
is apparent that the first respondent was the only person with the
deceased when the final schedule was completed. The Tarrs,
ultimately, were the witnesses to signing of the will by the
deceased, which occurred at Mr Tarr’s residence. However, the
final schedule was not completed there. Ms Tarr states that the first
respondent went to her father’s residence on the morning
of the
signature of the will and uplifted the unsigned will from Mr Tarr.
She and her father were informed by the first respondent
that
‘
.
. . the items on the schedule would be finalized that afternoon by
writing the names of intended recipients onto the schedule
with “LVH”
[the deceased] present and that “LVH” would return to
sign the finalized Will with the schedule
appended, later that
afternoon.’
[24]
The
second respondent confirms that the deceased requested him to compile
the original schedule. He did so in manuscript. He has
no idea what
became of the original schedule (neither does the first respondent).
He has no recollection of marking any of the
assets with an asterisk
but confirms that the assets so marked seem to carry a higher value.
He confirms informing the intended
beneficiaries that if the estate
of the deceased was burdened with medical expenses, some of the
assets would have to be sold and
that the items sold would therefore
not be capable of being inherited. He did not inform the proposed
beneficiaries that they could
not select certain of the assets and he
does not believe the first respondent did so either. He, however,
indicates that if the
applicant was told this, he does not comprehend
why she nonetheless selected the Peugeot but not any of the other
asterisked items.
He confirmed that the deceased was allegedly
dissatisfied with the fact that the applicant did not maintain the
Peugeot when the
vehicle was in her possession. Generally, the
answering affidavit of the second respondent conforms with the views
of his wife,
the first respondent, expressed in her answering
affidavit. The third respondent’s affidavit supports the first
respondent’s
averments.
[25]
There
are aspects of the first and second respondent’s version that
need to be considered. Before doing so, it is worthwhile
reiterating
that virtually everything stated by the applicant is not disputed by
the first and second respondents. I am inclined
therefore to consider
the applicant to be correct and truthful in what she has claimed and
narrated. I turn now to consider those
aspects that necessitate
consideration:
(a)
A
significant consideration is that neither the first nor the second
respondent state that the original schedule, with the preferences
inserted, was ever exhibited to the deceased or was ever seen by him.
It would have been expected that mention of this would have
been made
by one or both of them but this was not done. All that is stated by
the first respondent is that the original schedule
was sent
electronically to Ms Tarr. If the deceased did see the original
schedule, why did he not simply instruct Mr Tarr to type
up the
original schedule with the names of the beneficiaries as set out
therein? If he did not agree with the expressions of interest
by his
beneficiaries, why did he then not make the changes that he desired
and then instruct Mr Tarr to type up the amended original
schedule?
When the final schedule was filled in by the first respondent, she
makes no mention of the deceased referencing the original
schedule.
It seems probable, especially from the silence of the first and
second respondents on this issue, that the deceased did
not see the
original schedule;
(b)
The
next consideration is why could the names of the beneficiaries not
have been inserted in the presence of Mr and Ms Tarr when
the will
was signed? If the deceased had the original schedule with the
preferences expressed thereon, he could have instructed
the first
respondent to insert the names in the presence of the witnesses which
would have rendered it certain that there was no
undue influence
being applied. Instead, the secrecy of the completion of the final
schedule raises the very spectre of undue influence;
(c)
The
first respondent’s explanation that she claimed certain
unclaimed assets to prevent the deceased’s third wife from
stating an interest in those asset is a troubling statement. The
will, including the final schedule, has to be the expression of
the
deceased’s wishes and not those of the first respondent. At no
stage does the first respondent indicate that she disclosed
her
reasoning to the deceased or that the deceased instructed her to
claim those assets. That creates the impression that she was
able to
claim them independently of whether the deceased desired this or not.
Furthermore, it is not clear how the deceased’s
third wife
could have participated in a will in which she was not named as a
beneficiary. This is even more so given the introductory
narration
contained in the will that set out why the deceased believed she had
left South Africa. Thirdly, even if the deceased’s
third wife
had arrived on the scene and somehow demanded a share of his estate,
of what concern was that to the first respondent?
The assets were not
hers;
(d)
The
applicant was instructed not to claim those assets marked with an
asterisk as they were to be sold to cover the deceased’s
medical expenses. As a matter of fact, none of those assets were sold
as the deceased’s employers paid some of the deceased’s
medical expenses. All the assets marked with an asterisk, being 17 in
all, were awarded to the first respondent, bar one, the bicycle;
(e)
The
applicant selected the Peugeot despite it being marked with an
asterisk. It was, however, awarded to the first respondent. The
first
respondent asserts that this was the wish of the deceased, who
complained that the applicant did not maintain the Peugeot
when she
had the use of it. I have serious misgivings over whether this was,
indeed, the deceased’s complaint. The applicant
was at the
relevant time a student and dependent upon her parents for her
maintenance. The deceased paid maintenance to the applicant’s
mother at the rate of R4 000 per month. He could hardly have expected
her to clothe, feed, educate herself and repair the motor
vehicle on
this amount. The deceased appears to have had a close bond with the
applicant and his alleged views on the maintenance
of the Peugeot by
her seem unlikely;
(f)
By
virtue of the fact that the applicant used the Peugeot, the deceased
must have been aware that she had a need for a motor vehicle.
Notwithstanding this knowledge, the first respondent was also awarded
a Nissan Qashqai motor vehicle. She thus received two motor
vehicles
and the applicant none. I do not suggest thereby that the applicant
has been unfairly treated, but the award of the two
motor vehicles to
the first respondent seems contrary to the deceased’s expressed
intention that his children were to benefit
from his will in equal
shares;
(g)
After
the death of the deceased, the first respondent sent the applicant a
WhatsApp voice note. A transcript of the voice note has
been put up.
In that voice note the following is stated:
‘
Just
because I put my name next to the stuff, you were right my name is
next to the Peugeot I didn’t realise I had done that,
I thought
you had put your name next to it, but I don’t want the Peugeot,
so we need to sit down and we are happy for you
to take whatever you
want…’
The applicant had put her
name next to the Peugeot. However, that was on the original schedule.
The first respondent has never stated
that she also put her name next
to that vehicle on the original schedule. The only place where the
first respondent and the Peugeot
were linked was in the final
schedule. The words, ‘I didn’t realise I had done that’
therefore seems to indicate
that the first respondent had unwittingly
made an error. Of course, the error could not have been hers, it
could only have been
the deceased’s because he, on the first
respondent’s version, determined who was allocated each asset.
This would tend
to indicate that the first respondent, and not the
deceased, allocated the assets to the beneficiaries;
(h)
The
first respondent’s generosity of spirit as reflected in the
voice note was short-lived because she retracted her offer
to give
the Peugeot to the applicant, ostensibly because the applicant
brought this application. The deceased died on 14 March
2018 and this
application was only brought on 18 June 2020. Had the first
respondent sincerely wished the applicant to have the
vehicle, she
had ample opportunity to formally indicate this fact. She did not do
so. The reason behind the change of heart appears
to be contrived.
[26]
Allied
to these facts is a further complaint of the applicant that the first
and second respondents improperly utilised estate funds
to modify the
deceased’s home after his death, ostensibly to make it capable
of receiving tenants for the benefit of the
estate. After a single
tenant had been in occupation, the first and second respondents then
purchased the home without having to
pay for the modifications. I
acknowledge that this conduct does not relate to the execution of the
will but it shows a course of
conduct that commenced with the
original schedule.
[27]
In
Spies v
Smith
,
[7]
undue influence in a testamentary context was considered:
‘
A last will can be
declared invalid where the testator is moved by artifices of a nature
such as to justify their being equated,
by reason of their effect, to
the exercise of coercion or fraud, to make a bequest which he would
otherwise not have made and which,
therefore, would express another
person's will rather than his own. In such a case we are dealing, not
with the genuine wishes
of the testator, but with the substitution of
the wishes of another person, and the will is not maintainable.’
[28]
In
my view, the explanations proffered by the first respondent are not
satisfactory. By conducting herself as she did, she gained
an unfair
advantage over the other beneficiaries. If the deceased was given the
original schedule, which I have already found to
be improbable, then
it was falsely represented to him that the original schedule
exhibited the true interests of the beneficiaries
in his moveable
assets. In truth it did not, because the applicant was told that the
assets marked with an asterisk could not be
claimed. Those assets
were all subsequently awarded to the first respondent and were not
later sold to defray the deceased’s
medical expenses. This gave
the first respondent an unfair advantage. If the first respondent did
not give the original schedule
to the deceased, then based on what
was previously stated in this judgment, it appears that the first
respondent played a determinative
role in concluding which
beneficiary received which asset. The applicant in such circumstances
would be correct in asserting that
the final schedule reflected more
the wishes of the first respondent than those of the deceased.
[29]
There
is no counter application to the applicant’s application. There
are, however, supplementary affidavits in the court
file by the first
and second respondents. Both are dated 28 October 2021. There was no
application for a fourth set of affidavits
to be delivered by the
first and second respondents. Both affidavits are virtually identical
in content and seek an order that
the first and second respondents be
declared competent to receive benefits under the deceased’s
will. No reference was made
to these affidavits at the hearing and no
application for their reception by the court was made. In the
circumstances, I am not
disposed to receive or consider them.
[30]
After
careful consideration, I am not persuaded that the applicant’s
allegations are without merit or that the first respondent
and second
respondents have demonstrated that there was no fraud on, or undue
influence of, the deceased in the execution of his
will. It follows
that but for the provisions of section 4A(2)
(b)
of the Act, the first and second respondents would be disqualified
from benefitting under the deceased’s will. However, the
first
respondent would on the intestacy of the deceased have been an
intestate heir of his, being the child of the deceased. The
second
respondent would not. By virtue of the provisions of section 4A(2)
(b)
and the judgment of the Supreme Court of Appeal in
Blom
,
I am bound to find that section of the Act automatically exempts the
first respondent from the operation of the general rule articulated
in section 4A(1) of the Act. The first respondent is thus entitled to
receive a benefit from the estate of the late Leonard Ernest
van
Heerden that does not exceed the value of the share to which she
would have been entitled in terms of the law relating to intestate
succession. The second respondent, who is not an intestate heir of
the deceased may not benefit from the deceased’s will
given the
finding of fraud or undue influence. Section 4A(3) decrees that
appointment as an executor constitutes a benefit.
[31]
I
accordingly make the following order:
(a)
It
is declared that:
(i)
the
first respondent is a person who would have been entitled to inherit
from the late Leonard Ernest van Heerden had he died intestate;
(ii)
the
first respondent is only entitled to receive a benefit from the
estate of the late Leonard Ernest van Heerden that does not
exceed
the value of the share to which she would have been entitled in terms
of the law relating to intestate succession;
(iii)
the
second respondent may not receive a benefit from the will of the late
Leonard Ernest van Heerden; and
(b)
The
first and second respondents are
directed
to pay the costs of the application jointly and severally, the one
paying the other to be absolved.
MOSSOP
AJ
APPEARANCES
Counsel
for the appellant: Ms
A. R. Coetsee
Instructed
by:
Desmond
Mayne and Company
56
Kitchener Road
Pietermaritzburg
Counsel
for the respondent: Mr
R. S. Frost SC
Instructed
by:
MacArthur
and Venniker Incorporated
25B
Old Main Road
Gillits
Date
of Hearing: 9
November 2021
Date
of Judgment: 19
November 2021
[1]
In Re
Estate Barrable
1913
CPD 364
at 368.
[2]
Blom
and another v Brown and others
[2011] ZASCA 54
;
[2011] 3 All SA 223
(SCA) para 19.
[3]
Ibid para 22.
[4]
Ex
Parte Searle
1941
SR 92.
[5]
S v
Mkhonza
2010 (1) SACR 602
(KZP).
[6]
Ibid
para
35.
[7]
Spies,
NO v Smith en andere
1957
(1) SA 539
(A) at 539 (as per the English translation in the
headnote).