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[2016] ZAFSHC 149
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Riekert v Braun and Others (3969/2014) [2016] ZAFSHC 149 (18 August 2016)
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
Reportable:
No
Of
interest to other Judges: No
Circulate
to Magistrates: No
Case
number: 3969/2014
In
the matter between:
MURIEL
ADA
RIEKERT
Applicant
and
MEV
SM
BRAUN
1st
Respondent
MNR
AJ VAN
TONDER
2nd
Respondent
MEV
MMM
STEENKAMP
3rd
Respondent
DIE
MEESTER VAN DIE Hoe HOF,
BLOEMFONTEIN
4th
Respondent
HEARD ON
: 16 MAY 2016
JUDGMENT BY
:
RAMPAI, J
DELIVERED ON
:
18 AUGUST 2016
[1]
These were essentially motion proceedingsly though they were further
amplified by oral evidence.
Lekup Prop Co No 4 (Pty) Ltd v
Wright
2012 (5) SA 246
(SCA) par [12]. The applicant
applied for a declaratory order. The principal relief she sought was
to have "anx 2" declared
as the last will and testament of
the late Phillippus Rudolph Geldenhuys. The application was opposed
by the respondents, with
the exception of the fourth respondent.
[2]
The applicant's version as set out in the founding papers was
amplified by the oral testimonies of the following six witnesses:
Ms
Muriel Ada Riekert, the applicant and a friend to the late PR
Geldenhuys; Mr Othniel Sabata Mere, the applicant's fellow employee;
Ms Anna Maria Magdalena Eksteen, the applicant's fellow employee; Mr
Walter Luco Crispin, a funeral undertaker; Mr Hendrik Stefanus
Havenga , an independent building contractor; Ms Nontutuzelo Agnes
Mjika, a domestic housekeeper in the employ of Dr Venter's parents.
[3]
The, respondents' version as set out in the answering papers was
amplified by the oral testimonies of following three witnesses:
Mr
Adolf Johannes van Tonder, Mr Christiaan Reynolds, an employee of the
Absa Bank; a relative of the late PR Geldenhuys and Mrs
Denise
Magdalena Swartz, also an employee of the same bank.
[4]
Certain undisputed facts could be extrapolated from the testimonies
of the various witnesses. There once lived a man by the
name of
Phillippus Rudolph Geldenhuys with national identity number […].
He earned his livelihood as a postmaster general
in Pretoria. He got
married to a lady by the name of Elfrieda Elisabeth X with national
identity number […]. I could not
find her maiden surname on
the papers. The couple did not have children. The couple met the
applicant in Pretoria through their
relative, Mrs S Braun, during a
social visit.
[5]
Sometime after his retirement, the couple moved to Bloemfontein. They
solicited the help of the applicant to find a residential
property.
They ultimately bought a house commonly known as […] C. Avenue
Fichardtpark in Bloemfontein. On 11 January 2012
the couple executed
a joint will in Bloemfontein - vide "anx 1" founding
affidavit. The couple jointly nominated four
of their relatives as
beneficiaries. Clause 2 of the joint will reads:
"lndien die
langslewende van ons te sterwe kom sander om 'n verdere geldige
testament na te laat, bemaak sodanige langslewende
sy of haar boedel
soos volg:
2.1.
30.00% aan suster van testateur SMMBARNARD (geboortedatum …/…/1941).
2.2.
20.00% aan suster vsn testatrise SM BRAUN (geboortedatum …/…/1937).
2.3.
30.00% aan neef van testateur AJ VANTONDER (geboortedatum …/…/1955).
2.4.
20.00% aan niggie van testateur MMM STEENKAMP (geboortedatum
…/…/1967)."
The
joint will was drawn up by Absa Trust Beperk. Ms EE Geldenhys
predeceased her husband in Bloemfontein on 9 May 2014.
[6]
Following the death of his wife, the widower instructed Absa Trust
Beperk to draw up a new will to revoke, annul and replace
the joint
will, which he and his late wife had executed on 12 January 2012.
Absa Trust Beperk made two attempts to carry out the
widower's
instructions.
[7]
As regards the first attempt clause 1 of the first draft will
provided:
"Ek bemaak my boedel
aan my neef, AJ VAN TONDER (Gebore:[…] 1955), my niggie, MMM
STEENKAMP (Gebore: […] 1967)
en my niggie MA RIEKERT (Gebore:
[…] 1955)"
Vide
p9 Eiser Se Bundle Dokumente.
The
first draft was never signed.
[8]
As regards the second attempt clause 1 of the second draft will
provided:
"Ek bemaak my boedel
soos volg:
1.1 50.% aan my neef AJ
VAN TONDER (gebore …/…/1995).
1.2 25.% aan my niggie
MMM STEENKAMP (gebore …/…/1967).
1.3 25.% aan my vriendin
MA RIEKERT (gebore …/…/1995)."
Vide
p11 Eiser se bundel dokumente.
The
second draft also was never signed.
[9]
Mr PR Geldenhuys, died of cardiac arrest in Bloemfontein on 18 July
2014. On 29 August 2014 the applicant filed the current
application.
She sought a declaratory order in the following terms:
"1. Dat 'n bevel
verleen word wat verklaar dat bylaag "2" tot die funderende
beedigde verklaring as die laaste wil
en testament van Phillippus
Rudolph Geldenhys met identeitsnommer […] verklaar word.
2. Dat die 4de Respondent
gemagtig en gelas word om die gemelde testament, bylaag "2"
as die laaste wil en testament vab
Phillippus Rudolph Geldenhuys met
identsnommer […] aanvaar word en om die boedel van voornoemde
in terme van bylaag "2"
te beredder.
3. Dat slegs sodanige
Respondente wat die aansoek opponeer gelas word om die koste van die
aansoek te betaal."
[10]
The aforesaid "anx 2" appeared to be a copy of a
testamentary document signed and witnessed in Bloemfontein on 2
June
2014. The testator appeared to be the widower, Phillippus Rudolph
Geldenhuys. It was drawn up by Mrs MA Riekert, in other
words, the
applicant. The testamentary document was at the heart of the current
dispute. The original thereof could nowhere be
found. The
circumstances of how it went missing were in dispute.
[11]
The crutial part of "anx 2" was clause 1 which stipulated:
"1.
ERFGENAME
Ek bemaak my boedel soos
volg:
1.1 33.3% van die restant
van die boedel aan my neef AJ VAN TONDER tans woonagtig te
Bloemfontein.
1.2 33.3% van die restant
van die boedel aan my niggie MMM STEENKAMP tans woonagtig te
Pretoria.
1.3 Eiendom met inhoud
en twee voertuie en dan ook 33.3% van die restant van my boedel aan
my familie vriendin MA RIEKERT tans woonagtig
te Bloemfontein."
[12]
On 8 October 2014 the first respondent filed a notice whereby she
withdrew her opposition. The second and the third respondents
filed
an answering affidavit deposed to by the second respondent, Mr Adolf
Johannes van Tonder. He remarked that the applicant's
version was
untrue and incorrect to the extent that it differed from his. He also
pointed out that, in her founding affidavit,
the applicant did not
aver that the facts contained therein were true and correct. He
stated that the late PR Geldenhuys and the
late EE Geldenhys were his
uncle and aunt respectively as they were to the third respondent. He
also stated that there were no
familial ties between the late couple
and the applicant.
[13]
The second respondent denied the allegations or suggestions:
· that the late PR
Geldenhuys executed a will, identical to "anx 2", in
Bloemfontein on 2 June 2014;
· that the late PR
Geldenhuys was the applicant's father as the applicant suggested in
her email, "anx a" dated
7 August 2014;
· that the late PR
Geldenhuys by way of the alleged testamentary act, the original of
"anx 2", executed on 2 June
2014 drastically varied his
earlier testamentary wishes as evidenced by "anx b"
answering affidavit drawn up on 20 May
2014 by Absa Trust and "anx
f' answering affidavit drawn up on 21 May 2014 by Absa Trust Beperk
but more so by "anx 1";
· that the alleged
last · will was strongly, executed at Dr Venter's consulting
rooms in Harveyweg instead of his
place of residence in Cornforth
Avenue;
· that the
applicant handed the last will of the late PR Geldenhuys being the
original of "anx 2" to Mr Reynolds
at Absa Bank on 3 June
2014 for safekeeping;
· that the
original of "anx 2" was a true reflection of the genuine
and last wishes of the late PR Geldenhuys but
averred that such
wishes were truly reflected in "anx f";
· that the late PR
Geldenhuys personally made arrangements to have his last will
witnessed by two witnesses who were the
applicant's fellow employees;
· that Mr Reynolds
ever issued a written acknowledgment of receipt on 3 June 2014 in
respect of the alleged original and
last will that was executed on 2
June 2014;
· that the late PR
Geldenhuys ever had the alleged health problems and never personally
discussed any such problems with
Mr Reynolds.
[14]
On behalf of the respondents two confirmatory affidavits were filed -
one by Mr Christiaan Reynolds and the other by Mrs Denise
Magdalena
Swartz. The purported confirmatory affidavit by Mrs MMM Steenkamp was
unsigned and unattested. That being the case, it
did not beef up the
answering affidavit. I would, therefore, ignore it.
[15]
There was no replying affidavit filed by the applicant. By agreement
between the parties, the matter was referred to oral evidence.
An
order to this effect was made by Mia AJ on 21 July 2015. Since these
were motion proceedings the dispute had to be resolved
on the
strength of the amplified facts as averred in the founding affidavit
by the applicant, which the second respondent admitted
together with
the amplified facts as averred in the answering affidavit by the
second respondent unless the second respondent's
version is so
far-fetched or untenable as to warrant its rejection. The proposition
means that, as a general rule, the respondent's
version would be
accepted unless it is so farfetched or clearly untenable as to
warrant rejection.
PlasconEvans Paints (Pty) Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(AD) at
634H.
[16]
All in all I heard the oral testimonies of 9 witnesses to supplement
the affidavit. Of those 6 testified in support of the applicant's
version and 4 the respondent's version. The applicant and the second
respondent also testified. They were included in the figures
I have
mentioned. The third respondent did not testify.
[17]
The material aspects of the applicant's version as well as the
material aspects of the respondent's version can be logically
discerned from the summary of the respondent's denials as set out in
para 13 above. The summary of the undisputed facts as set
out in para
2 - 11 above and the summary of the disputed facts represented a
fairly accurate reflection of the evidence. Therefore,
I shall make
no attempt to summarise the individuals testimonies of the nine
witnesses. I shall, however, evaluate the witnesses
along the way.
[18]
The main issue in the declaratory application was whether the
deceased Phillippus Rudolph Geldenhuys annulled the joint will
"anx
1'', executed in Bloemfontein on 11 January 2012 and replaced it with
a single will or a last will, "anx 2'', executed
in Bloemfontein
on 2 June 2014.
[19]
On behalf of the applicant, Mr Maree submitted that the issue must be
affirmatively adjudicated. Accordingly, counsel urged
me to grant the
relief sought by the applicant.
[20]
On behalf of the respondents, Mr Coetzer submitted that the answer to
the crucial question must be negative. Accordingly, counsel
urge me
to refuse the relief sought by the applicant.
[21]
Mr Mere testified in favour of the applicant. The material aspects of
his evidence were that he knew the deceased well; that
he knew Ms
Eksteen; that he and Ms Eksteen were in the employ of Dr Venter as
was the applicant, Ms Riekert; that on 2 June 2014
Mr Geldenhuys and
the applicant arrived together at his workplace; that he was in the
reception where his workstation was located;
that they left the
reception; that Mr Geldenhuys came back alone; that he, Ms Eksteen
and Mr Geldenhuys ended up in the administration
office; that they
gathered at the request of Mr Geldenhuys; that Mr Geldenhuys was
carrying a briefcase; that he took out a document
from the briefcase;
that he informed them that the document was his will; that he
requested them to witness his will; that Mr Geldenhuys
signed the
will first in their presence; that he signed the will as the first
witness in the presence of the gentleman, Mr Geldenhuys
and the lady,
Ms Eksteen; that Ms Eksteen signed the will as the second witness in
his presence and in the presence of the testator,
Mr Geldenhuys; that
the will was signed in the morning; that once the will had been
signed, Mr Geldenhuys took it; that he put
it back in the briefcase
and that there was no-one else present in the room at the time the
will was signed other than the three
of them only. He positively
identified the signatures appended to "anx 2".
[22]
Nothing of significance emerged during the cross examination of Mr
Mere. He did not contradict himself. He gave evidence in
a logical,
systematic and simple manner. He answered opposite questions in a
confident, objective, consistent and satisfactory
way. He displayed a
positive and relaxed demeanour in the witness box. He had no ulterior
motive to give false evidence for or
against any of the funding
parties. His evidence was not contradicted by any of the witnesses.
He impressed me as a truthful witness
who gave a probable credible
and reliable evidence. He repeated that the will was signed in the
morning and not at night as Ms
Riekert had stated in her email of 3
June 2014 to Mr Reynolds. Vide first email on page 5 Bundle
Documents.
[23]
Ms Eksteen materially corroborated the evidence of Mr Mere. She was
employed as the medical aid claims processor. She too was
an
impressive witness. Her evidence, like that of Mr Mere, was not
tarnished by any unfavourable features. I have no hesitation
to
accept her evidence as a true and honest account of her dealings with
the late PG Geldenhuys on 2 June 2014. She too impressed
me as a good
and truthful witness who gave a probable, credible and reliable
evidence concerning the signing and witnessing of
the will Mr
Geldenhuys signed on that particular day. She added that the
applicant, Ms Riekert, was the practice manager of the
medical
enterprise. The two ladies were not friends.
[24]
Ms Riekert's evidence was that Mr Geldenhuys no longer enjoyed good
health in 2014. His spouse died on 9 May 2014. Her death
had an
adverse impact on him. According to the witness' evidence, his
condition rapidly deteriorated after the death of his spouse.
He
became very lonely - so lonely that he started accompanying her to
work in an endeavour to avoid loneliness. Besides that she
also
preferred it that way so that she could have him nearer to her and Dr
Venter in case he required emergent medical or healthcare.
Therefore,
even before 2 June 2014, he was accustomed to wiling away time at the
applicant workplace The witness confirmed the
evidence of Mr Mere and
Ms Eksteen that Mr Geldenhuys had indeed accompanied her to her
workplace, being Dr Venter's consulting
rooms, on 2 June 2014.
[25]
Mr Van Tonder gave evidence. It emerged from his evidence that he met
Mr Mere sometime during October 2014. He asked Mr Mere
about the will
in dispute. He ascertained from Mr Mere that the late Mr Geldenhuys
signed the will at Dr Venter's consulting rooms
and that he did so in
the morning.
[26]
The second respondent's evidence bolstered Mr Mere's evidence. It
showed that he gave a consistent account of the circumstances
in
which the will was signed. His explanation to Mr van Tonder was also
consistent with the evidence of Ms Eksteen. The evidence
of Ms
Riekert was in harmony with that of her two witnesses. However, her
email to Mr Reynolds on 3 June 2014 contradicted her
evidence. In
that email she wrote that Mr Geldenhuys signed the will last night.
When she was confronted with the difference, she
said she made a
mistake in her email.
[27]
There was virtually no other reliable and credible evidence to
support the email. It's author repeatedly replied that the email
was
wrong. In my view, her testimony had to prevail. She gave evidence
that was in line with that of two credible and reliable
witness. The
discrepancy in the email was, therefore, immaterial. It could not be
persuasively contended, on the strength of such
discrepancy, that the
late Geldenhuys did not sign any will on 2 June 2014.
[28]
On the strength of the evidence as a whole, I am satisfied that the
above facts justified the conclusion that a valid will
was signed and
executed by the late PR Geldenhuys in Bloemfontein on 2 June 2014 in
the presence of two witnesses, Mr Mere and
Mrs Eksteen. I would,
therefore, decide the first issue in favour of the appellant.
[29]
The second issue was whether "anx 2" was a true copy of the
original will executed by the late PR Geldenhuys in Bloemfontein
on 2
June 2014 or not.
[30]
On behalf of the applicant it was submitted that the annexure was a
genuine copy of the missing original. On behalf of the
respondents, a
contrary submission was made. It was submitted that, on a balance of
probabilities, it could not be said that the
disputed document was in
fact a true copy of the last will of the testator.
[31]
Mr Crispin gave evidence concerning the circumstance in which "anx
2" came to his attention. On 9 October 2015, before
he testified
at the trial, he deposed to an affidavit. The material aspects of his
testimony and affidavit were the following:
He
was a funeral undertaker by occupation. He traded under the name and
style of "Avalon Funerals". By virtue of his occupational
designation, he also held an official appointment as ex officio
commissioner of Daths. He knew the late PR Geldenhuys. He first
met
him shortly after the death of his wife, Ms EE Geldenhys. He
was charged with the responsibility of making arrangements
for her
funeral and burial. After the funeral he assisted Mr PR Geldenhuys to
have the personal belongings or apparels of his deceased
spouse
donated to the under privileged members of society. As a result of
such dealings he visited the couple's home on a few occasions.
He
thus became acquainted to the widower.
[32]
On 2 June 2014 he drove to 17 Conforth Crescent Fichardtpark
Bloemfontein to collect apparels of the deceased lady from her
surviving husband, Mr PR Geldenhuys. He arrived there in the
afternoon. On that occasion, Mr PR Geldenhuys produced two documents
from his briefcase. The one document was an original will. The other
was its copy. Mr PR Geldenhuys then asked him to certify the
copy.
[33]
He took the two documents, perused them and satisfied himself that
they were identical. He then proceeded and certified the
copy as a
true copy of the original. He identified "anx 2" as the
testamentary document that he so certified.
[34]
During cross examination, Mr Crispin admitted that he did not read
any of the documents word by word. He considered it inappropriate
to
do so. The will was a two page document. When he had certified the
copy, he handed both testamentary documents back to the widower.
The
latter put both of them back in his briefcase.
[35]
I have combed the evidence of Mr Crispin with a fine comb. I was
looking for facts that militated against the reasonable possibility
of the disputed testamentary document ("anx 2") being the
genuine copy of the last will and testament of the deceased
widower.
Looking at his entire evidence, not in isolation but cumulatively,
and assessing it together with the total evidence in
the melting pot,
Icould find no such negative facts. There was simply nothing
unexplained. Advantage Riekert.
Smith v Arthur
1967
(3) SA 378
(AD) at 384 F-H.
Haribans NO & Another v
Haribans
(AR 227/2011) 2011 ZAKZP 46 at pars 39-1.
[36]
In the absence of evidence, contrary to Crispin's, by any trustworthy
witness, it has to accepted that the disputed testamentary
document,
"anx 2'', was a true copy of an original testamentary document
executed by the late PR Geldenhuys in Bloemfontein
on 2 June 2014 as
his last will and testament. In the circumstances, I am satisfied
that the applicant has established that the
disputed copy of the
testamentary document produced by the applicant was a true copy of
the missing original.
[37]
Mr Crispin was an excellent witness. He gave a good account of his
encounter with the late PR Geldenhuys on the day in question.
His
evidence was probable, credible and reliable. He had no motive to
give false evidence against or in favour of any of the parties.
He
testified in a confident, consistent logical and systematic manner.
He was calm and relaxed in the witness box. He did not contradict
himself at all. No sound reason existed why his evidence should not
be accepted as true.
[38]
In the light of the aforegoing evidence, I am inclined to conclude
that the evidence showed, on preponderance of probabilities,
that
"anx 2" was and authentic copy of the missing original will
and that it was certified by Mr Crispin as such in Bloemfontein
in
the afternoon of 2 June 2014. Therefore, I determine the second issue
in favour of the appellant.
[39]
The third issue is whether the copy contains the contents of the
original will which was executed by the gentleman, PR Geldenhuys
in
Bloemfontein on 2 June 2014.
[40]
The second respondent had serious reservations about it. The
following exchange between him and the appellant's legal
representative
during his cross-examination underlined his
reservations:
Mr Maree: "Mnr van
Tonder, blyk dit uit die beweerde gesertifiseerde afskrif van die
testament, dat die testament verly is
op 2 Junie 2014. U stem daarmee
sekerlik saam?"
Mr van Tonder: "Ja
ek weet nie of ek kan saamstem nie. Waar is die testament?
Dit
is 'n getekende ding. Ek kan nerens sien soos ek genoeg is.
Dit is
maklik om 'n testament te verander deesdae met die elektroniese
sagteware wat 'n mens kry.
So vir my om dit te bevestig het ek 'n
oorspronklike testament nodig.
So ek wil vir u se ek twyfel
daaroor. Dit is juis hoekom ons hier is vandag."
(my
emphasis)
[41]
The second respondent's counsel, Mr Coetzer, argued that in the
current day and age it is relatively easy to amend the contents
of a
document in order to satisfy one's needs by simply copying, scanning
and pasting documents. He then went on to articulate
the foundation
of the second respondent's concern. He then submitted that there were
sufficiently suspicious circumstances in the
instant matter, to cast
some doubt on the validity of the contents of the disputed copy or
testamentary document.
[42]
Indeed the applicant was not a member of the late PR Geldenhuys's
family. She only became involved in the elderly couple's
lives at a
fairly late stage. She first met the Geldenhuys couple in Pretoria
during the year 2000, approximately some 14 years
before the demise
of the testator. By then he was 63 years old. She was not a
beneficiary in terms of the couple's joint will.
SMM Barnard, SM
Braun, AJ van Tonder and MMM Steenkamp were the only beneficiaries
jointly nominated by the couple. The four of
them were relatives.
Save for the first beneficiary who was the late EE Geldenhuy's
sister, the other three were the late PR Geldenhuys'
sister nephew
and niece - "anx 1".
[43]
Subsequently to the death of his spouse, the widower attempted to
revoke the joint will. Absa Bank made the first attempt
on or about
20 May 2014 to carry out his testamentary instructions. The first
draft will indicated that the widower had nominate
three persons as
beneficiaries. They were AJ van Tonder, his nephew, who is the second
respondent, MMM Steenkamp, his niece and
MA Riekert, the applicant
who was described as his "niece". We know she was not. By
implication the three were supposed
to be equal beneficiaries. The
impression created was that the share of each of them was supposed to
be 33%%. The first draft will
was never executed. There
was a query. The essence of the testator's query was that
the shares were not
specified percentagewise, according to the
applicant's evidence.
[44]
Absa Bank made a second attempt on or about 21 May 2014 to carry out
the widower's testamentary instructions. According to
clause 1 of the
second draft will, the widower had nominated the same three person as
the beneficiaries but had specified the size
of each one's
inheritance. AJ van Tonder stood to inherit 50%, MMM Steenkamp 25%
and MA Riekert 25%. The applicant was described
as the widower's
friend. The second draft will, like the first, was never executed.
There was a query again. The testator's query
was the incorrect dates
of birth of two or so of the beneficiaries, according to the
applicant's evidence.
[45]
The widower persisted with his attempt to make a single will. He was
annoyed by the mistakes. Since he got no joy from Mr Reynolds
of Absa
Bank, he turned to the applicant for help, according to the
applicant's evidence. The applicant carried out the widower's
testamentary instructions, being his third attempt to annul the joint
will and to replace it with his own single will. The third
draft
will, unlike the previous two drafts, was executed in Bloemfontein on
2 June 2014.
[46]
There were substantial changes. The testator specially bequeathed to
the applicant, his residential property, the contents
thereof and the
two motor vehicles. Vide clause 1.3 "anx 2''. Apart from the
legacy awarded to the applicant, the testator
nominated the same
three persons as equal beneficiaries to the residue of his estate
· AJ van Tonder
awarded 33.3%
- vide
clause 1.1
· MMM Steenkamp
awarded 33.3%
-
vide
clause 1.2
· MA Riekert
awarded 33.3%
- vide
clause 1.3
[47]
Seemingly, the residential property is a major asset in the deceased
estate. The applicant was not a beneficiary in terms of
the previous
joint will, "anx 1". Now she is a major beneficiary in
terms of the current single will, "anx 2",
which she
drafted. The second respondent, who previously stood in line as the
possible major beneficiary, is now a minor beneficiary.
The second
respondent's suspicion stemmed from that radical sudden change.
On
behalf of the second respondent, Mr Coetzer argued:
"5.4 The applicant,
who was previously not a beneficiary of the estate, will benefit
substantially from a will of which the
original cannot be found. She,
unlike ABSA, has therefore a substantial interest in the outcome of
the will.
5.5
SMM Barnard, SM
Braun, AJ Van Tonder
and
MMM Steenkamp
were the only
beneficiaries and in terms of the amended will substantial changes
are proposed. All of a sudden the Applicant is
a beneficiary and
another beneficiary is removed without explanation been given for
this sudden change in (sic) heart."
[48]
It would appear that SMM Barnard, who was previously nominated in
terms of the joint will as one of the beneficiaries, died
before the
widower decided to annul and to replace the joint will. Therefore, Mr
Coetzer, had SM Braun in mind when he referred
to the "beneficiary
removed without explanation". The testator owed no explanation
to anyone as to why he chose to disinherit
anyone. Similarly (s)he he
owed nobody any explanation as to why he chose to benefit anyone as
he did. This is a salient principle
termed freedom of testation.
[49]
The evidence showed that the applicant was introduced by Ms RM Braun,
her neighbour and seemingly previous friend, to the elderly
couple
more than 16 years ago. She became a family friend. The couple
decided to move away from Pretoria. They settled in Bloemfontein
in
2005. It was to the applicant they turned for help. She helped them
in their search for a house in Bloemfontein. She helped
them sell
their house in Pretoria. She was previously an estate agent. The ties
of friendship between her and the testator grew
stronger and stronger
with the passage of time. He affectionately referred to her as "my
girl". In turn she affectionately
referred to him as her dad and
to his wife as "mummy". People regarded him and her as
father and daughter. She cared
for him a great deal. She stood by his
side during his bereavement. She helped him with the funeral
arrangements of his late wife.
[50]
He became very lonely after the death of his wife. She went out of
her way to care for him. She cooked for him. She visited
him almost
every day. She took him to the hospital for treatment. He suffered
from prostate cancer. It became malignant. She escorted
him to the
bank. They frequently ate out together at the restaurant with her
family. He erected an outside cottage on his
property. He
vacated his main house and moved into the cottage. He invited the
applicant and her family to stay with him. He let
them occupy his
main house. He needed them closer to him than anyone else. They meant
a lot to him. He accompanied the applicant
to her workplace almost
every day. There she became acquainted to her fellow employees.
[51]
His health rapidly deteriorated. He became weaker. It became
increasingly cumbersome for him to go to Absa Bank to see Mr Reynolds
or to generally attend to his own affairs. He gave his bankcard and
its secret pin number to the applicant. Given all these
circumstances,
it was probable that he asked the applicant to act as
an intermediary between him and Mr Reynolds. It was also not
improbable that
he freely decided to distribute his estate as he
eventually did without any undue influence. At long last he had a
fatal cardiac
arrest and died. She was also responsible for his
funeral arrangements. She barrowed R15 000 for that purpose. None of
his relatives,
including the second respondent, financially
contributed anything towards the funeral costs. This careful survey
of the whole history
of the relationship of the parties and of their
behaviour at all relevant times, and not an appraisal of each
suspicious incident
on its own circumscribed facts, tends to dictate
that proper resolution of this thorny issue favours the applicant.
Smith v Arthur,
infra.
[52]
The second respondent's heavy reliance on "anx f' was misplaced.
The second draft was just that - a draft. It was never
finally
executed. Because it was an unaccomplished testamentary document,
whatever and however handsome bequest or inheritance
was about to
befall the second respondent, ultimately evaporated into thin air
because it was never eventually executed. But even
if was properly
executed it was subsequently revoked by "anx 2". That being
the case, the second respondent is precluded
from relying on a will
that never was, "anx f'.
[53]
Mr Coetzer harshly criticised the conduct of the applicant. It is so
that she studied the law of succession; that she acted
as an
intermediary between the testator and Absa Bank; that she
corresponded with Absa Bank on his behalf; that two testamentary
draft wills prepared and drafted by Absa Bank were rejected; that the
third testamentary draft will she prepared was signed by
the
testator; that such draft will was witnessed by two persons who were
the applicant's co-workers; that a copy of the will was
certified by
a commissioner of Daths known to the applicant; that the applicant
had and still has in her possession the testator's
file which
contains his personal documents; and that the original will
could not be found.
[54]
I am not persuaded that there was anything untoward about the
execution of the disputed will. Although the witnesses to the
testator's signature were the applicant's co-workers, they were
independent witnesses. So was the funeral undertaker, a witness
who
certified the copy. There was virtually no evidence to suggest, let
alone to support, the insinuation that they were unduly
or improperly
influenced or manipulated by the applicant to do anything, an
objective or neutral person would not have done. None
of the three
witnesses had anything to gain. They had no reason to lie by saying
that they were called by the testator and that
they saw the original
will. Two of them witnessed the original whereas one of them
certified the copy.
[55]
We also know that the testator was a systematic, meticulous and
independent individual with a strong character, mind and will
of his
own. It appeared quite unlikely that he could have been unduly swayed
by the applicant to benefit her against his will.
I believe he was
prompted to do so by his own, genuine and abiding virtue of
gratitude. It was really not surprising that he bequeath
so much to
her. She endeared her to him through words and deeds of kindness.
[56]
It may well be so that it is easy to falsify the contents of
documents nowadays by simply copying scanning and pasting. But
it is
also equally easy to claim that a document has been falsified. It is,
therefore, of utmost importance to scrutinise the evidence
in order
to ascertain whether a sound reason exists to believe that the copy
was fake. I could find no evidence to sustain such
a finding. All I
could find was nothing more than the second respondent's suspicion
that the copy was not a genuine reflection
of the contents of the
original. The suspicion was based on the fact that none of the
witnesses had read the missing original and
the perceived sudden
change of heart. They say if you cannot change your mind, then you do
not have any to change. It is not uncommon
for a person on the verge
of dying to disinherit beneficiaries.
[57]
The witnesses were not required by law to have read the original
will. They were only required to satisfy themselves about
the
identity of the person signing as the testator and that he signed it
in the presence of both witness and that the signing was
done by all
three of them being together at the same time. There was no
suggestion that those formalities were not complied with.
The mere
fact that the two who witnesses did not read the original will cannot
by itself justify the conclusion that its contents
were different
from those of the copy. Likewise, I hold the same view as regards the
certifying witness. His evidence that the
testator presented two
documents to him; that he perused both of them; and that he satisfied
himself that the document he was asked
to certify was a true copy of
the original - was not destroyed or substantially dented by intense
cross examination.
[58]
The applicant's conduct was fairly criticised. It is undesirable for
anyone to be so intimately involved in the drafting of
a testamentary
instrument whereby s(he) is nominated as a beneficiary. Such
involvement is incompatible with the sacred principle,
of freedom of
testation. On the facts, however, I am not persuaded that the
applicant could have exercised undue influence on the
testator.
Firstly, the testator was not a docile or timid man. He was a
principled man with a strong character and independent
mind. He was
an unlikely candidate to be manipulated. He was not a vulnerable old
man.
[59]
Secondly, because he was a meticulous individual, he probably read
the missing original before it was signed. He probably made
a copy
thereof on his own. He probably read the copy before it was
certified or satisfied himself that it was a true copy
of the
original before he caused it to be certified. In saying so I am
forfeited by the evidence that on 20 May 2014 he queried
the first
draft because the inheritance shares were not expressed in the form
of percentage. Similarly, on 21 May 2014. He queried
the second draft
because the dates of birth were incorrect. In the light of all these
considerations I am not persuaded that the
applicant could, even if
she wanted to, have cheated the testator by falsifying the contents
of the copy for her own selfish gain
to the detriment of the
testator's relatives, in particular the second respondent.
[60]
Thirdly, the applicant did not struck me as a dishonest or
untrustworthy character notwithstanding some lamentable features
of
her conduct. She displayed positive demeanour in the witness box.
There were no material contradictions in her evidence. She
generally
acquitted herself well as witness. She impressed me as trustworthy
witness. She gave credible and reliable evidence in
my view.
[61]
The primary purpose of a will is to provide a reliable and authentic
record of the testator's last wishes. I am not called
upon to find
whether the disputed testamentary document was falsified or not. The
onus is on the applicant, the person who avers
that the disputed will
is valid, to prove such as averment.
Haribans v Haribans,
supra.
[62]
At best for the second respondent there were some suspicious features
relative to the conduct of the applicant. In my
view she gave a
satisfactory explanation for her lamentable involvement.
Notwithstanding such unfavourable features or suspicious
circumstances, as the second respondent prefers to call them, I am
satisfied that the applicant has discharged the onus. In my
view she
has proved, on a balance of probabilities, that the disputed
testamentary document contained the true wishes of the deceased
testator. The second respondent's version on this point lacked
factual foundation. It was chiefly based on suspicion. It will be
a
sad day in our law of succession if a
prima facie
genuine copy
of a will can be nullified by a court merely because, nowadays, it
has become relatively easy to falsify a document
by scanning, copying
and pasting. In the instant matter there was no evidence, other than
mere suspicion, to beef up the contention
that the disputed copy
contained distorted contents of the original. Such a version
warranted outright rejection on the ground
that it was untenable. It
has been held that even if there is no contention or suggestion that
the disputed copy of the will does
not, comply with all the statutory
formalities, the applicant nonetheless bares the onus of
establishing, on a balance of probabilities,
that the disputed
document is a genuine copy of the will executed by the testator. It
follows, therefore, that the disputed copy
is a genuine and valid
will in my view. The submission that it was a fake, and, therefore,
an invalid testamentary document failed
to impress me.
[63]
In the circumstances I am inclined to conclude that the disputed copy
contains the true contents or wishes of the original
will which the
testator executed. This disposes of the third issue or leg of the
dispute. Advantage Ms Riekert.
[64]
In the fourth place, I proceed to examine the evidence in the
affidavits as supplemented by the evidence in the oral testimonies
in
an attempt to ascertain the circumstances in which the original will
probably went missing.
The
practice and indeed the law is clear. In a case where there is no
original will or duplicate will but rather a copy in existence,
as in
this instance - it becomes imperative to seek an order of the court
whereby that available copy, if found to be genuine,
is declared to
be the true will of the deceased testator and the provincial master
is authorised to accept it as such.
Smith v Sampson
(15741/2012)
2013 ZAWCHC 11
at par 12.
"Where there is no
dispute as to the facts they may usually be proved by affidavit but
the court may require oral testimony.
Naturally, the decree.of proof
required in respect of any of the
above
allegations will
depend on the circumstances of each particular case.
The
existence or non-existence of a will is of great importance and the
court will scrutinise closely the evidence tendered.
"
Compare:
The Law and Practice
of Administration of Estate and Estate
Duty, p 3-4
[65]
Now i proceed to take a closer look at the evidence tendered. There
are thorny questions to be answered. Was the missing original
will
innocently lost? If so, has a diligent and sufficient search been
made to trace it? This is the one scenario - innocent loss.
Was the
missing original will deliberately destroyed? If so, was it destroyed
on purpose by the testator as an act of
revocation
or mischievously spirited away by a
disgruntled potential beneficiary as an
act of dishonesty or
spitefully shredded by a third party with an ulterior motive? This is
the other scenario - purposeful destruction.
Compare:
Revoked, Missing or Last Will,
http://www.Australia
probate.com/lost. htmI.
[66]
These and many other vexed questions arose in the instant matter. In
every case dealing with all such situations, the end result
or the
final outcome depends on the overall evidence presented to the court
by the claimant who must, on a balance of probabilities,
prove the
case in order to be awarded judgment.
[67]
As regards the question whether the missing original will had been
deliberately destroyed by the testator, there are two presumptions
operative against the acceptance of the disputed copy.
"There are, however,
two rebuttable presumptions relating to the destruction of a will
which was in the possession of the testator
at the time of his death,
namely, that if a will has been destroyed by the testator it is
presumed that he destroyed the will with
the intention to revoke it.
Similarly, if the will, having been in his possession, cannot be
traced amongst his other documents
following his death, it is also
presumed that he destroyed it
animo revocandi.
These
presumptions can be rebutted with the onus of proof resting on the
person who claims that the will has not been revoked."
Compare:
Willis and Trust p36(7).
[68]
In this matter, there was no evidence that the original will was in
the testator's possession at the time of his death. The
undisputed
evidence showed that the joint will (vide anx 1) which the Geldenhuys
couple jointly executed was held in the safekeeping
by Absa Trust. At
the time the testatrix died, the testator did not have the joint will
in his possession. After the death of the
testatrix, the testator
manifested an intention to revoke the joint will. He made two
attempts through Absa Trust not only to revoke
but also to replace
the joint will. He made one attempt through the applicant to achieve
the same objective. All those actions
by the testator manifested his
intention to die testate. He was determined not to die intestate.
Moreover, he would probably also
have preferred to have his original
sole will held in a secure safekeeping facility provided by the same
agency he trusted, Absa
Trust, just like the joint will. This
militated against the contention that he would have kept it in his
briefcase at home among
his other valuable personal documents.
[69]
I could find nothing to support the suggestion that he had a change
of heart which change prompted him to destroy
cum animo revocandi
the original will he individually executed in 2014 and thereby
revived the joint will previously executed in 2012. By the time the
testator died, one of the beneficiaries appointed in terms of clause
1 of the joint will, namely: SMM Barnard, had already predeceased
him. That event alone was a material consideration among those which
probably prompted him to make a new will. Moreover, it must
also be
borne in mind that the second respondent was the testator's
occasional visitor. The frequency of his visits was about once
a
month. He obviously played no vital role in the testator's life. He
made no financial contribution towards the costs of his funeral
and
burial, as did the applicant, who was not his relative.
[70]
On the contrary, the applicant was a daily caregiver to the testator.
She stood by him and his spouse through thick and thin.
That is one
of the material consideration. It seemed unlikely, given all these
considerations and many more, that the testator
would have
deliberately destroyed the original of the disputed copy with the
intention of revoking it. He would have been mindful
that doing so
would boil down to completely disinheriting and removing the
applicant, "his girl", from his estate.
[71]
About the significance of the relationship between the parties and
the cumulative impact of all the relevant factors was articulated
in
Smit v Arthur
1967
(3) SA 378
(A) at 384F-H per
Miller AJA:
"But the proper
resolution of the issues in this case must be sought not by
appraising each incident simply on its own circumscribed
facts, but
by a careful survey of the whole of the history of the relationship
of the parties and of their behaviour at all relevant
times. All the
relevant facts must necessarily go into the melting pot and the
essence must finally be extracted therefrom."
[72]
In follows, as a matter if logic, therefore that in the absence of
evidence that the original will was in the possession of
the testator
and that he destroyed it shortly before his death - the presumption
that the destruction of the original will was
an act of revocation
cannot operate against the claimant. It being the case, i find that
the applicant has rebutted the presumption
that the missing original
will has been destroyed by the testator
cum animo revocandi.
[73]
The second presumption is, if the missing original will which had
been in the testator's possession all along, cannot be traced
among
his other personal documents following his death, it is also presumed
that he destroyed it
cum animo revocandi.
Compare:
LAWSA
Volume 31 pars 270, 298 and 303
Wills & Trusts,
page 36(6) at par 16.1
Davis v Steel &
Eriksen
1949 (3) SA 177
(W)
Ex Parte Warren
1955
(4) SA 326
(W)
Theart v Scheibert &
Others
[2012] 4 All SA 278
(SCA).
[74]
The applicant gave evidence to the effect that shortly after the
testator had executed the missing original will, he had its
copy
certified. She added that, having done so, the testator caused the
original will to be delivered to Absa Bank. She alleged
that she
personally delivered the original will to Mr Reynolds by hand. At the
testator's special request she obtained a written
acknowledgement of
receipt from Reynolds. She added that Ms Swartz witnessed the issuing
of the receipt. She further mentioned
that, after the testator's
death the second respondent had access to the testator's briefcase
which contained the testator's personal
document. Among them, was the
acknowledgement of the receipt, in other words proof that the sole
will was at Absa Bank.
[75]
The second respondent denied the allegations. He called Reynolds to
support his version. He categorically denied the allegation
that he
ever received the alleged original of the disputed copy. Absa Trust
is a business entity. Financial considerations fuel
its business
operations. For instance, can Absa Trust, nominated as an executor by
a millionaire testator, refuse to secure his
will in its safekeeping
facility merely because the will was drafted by someone not employed
by itself? I doubt it. The evidence
that it was contrary to the
policy of Absa Trust to acknowledge receipt of a will struck me as
odd. If a customer is not furnished
with any written proof that (s)he
has deposited a will with a particular bank for safekeeping, how
would the family of the deceased
testator trace the will if the
testator was never issued with any written proof that the bank has
his will in its possession?
[76]
The essence of Mr Reynolds evidence was that he did not receive the
alleged original of the disputed copy. He also denied the
allegation
that he even issued a written acknowledgment of its receipt to the
applicant. He later produced a letter from Absa Bank
stating that it
does not accept wills for safekeeping unless they had been drafted
and prepared by Absa Trust itself. When counsel
for the second
responded confronted the applicant about the alleged policy of Absa
Trust - her reply was that she had never heard
about such a policy
before. She persisted with her steadfast evidence that Mr Reynolds
did receive the testator's sole will and
that he even acknowledged
such receipt in writing.
[77]
Commonsens tends to indicate that banks would probably acknowledge
receipt of any valuable article deposited by
a customer
for safekeeping. From experience, know my bank does. Since it a
service rendered to customers, banks charge a fee for
rendering it.
The letter from Absa Bank dated 10 May 2016 signed by Mr Du Toit was
of no probative value. It was written
ex post facto
Mr
Reynold's testimony that had already been placed on record.
Consequently it gave no credence to his evidence. A pre-existing
practical manual or policy guide by Absa Trust that had been used
over the years prior to 3 June 2014 would have been a more reliable,
objective and independent document with a high probative value than
the letter relied upon. In my view, letter was something short
of
self-corroboration by Mr Reynolds, something the law does not
counternance.
[78]
The second respondent also called Ms Swartz. To a certain extent, she
corroborated her colleague, Mr Reynolds. She emphatically
denied the
allegation by the applicant that she was present when Mr Reynolds
handed the alleged acknowledgement of receipt to her
as written proof
that he had received the original will from Ms Riekert, on 3 June
2014.
[79]
After the testator's death, the applicant approached Absa Trust as
the nominated executor to report his death. She discovered
that the
original will could not be found. She also perused the testator's
briefcase and discovered, to her great dismay, that
the written
acknowledgement of receipt that was issued by Mr Reynolds was also
missing. She then turned to Ms Swartz to give her
a statement to
confirm that Mr Reynolds did give her a written proof showing that he
did receive the original will. Ms Swartz
obliged but asked her
colleague to help prepare the statement. The statement was drafted as
follows:
"I Denise Magdalena
Swartz […] hereby state under Dath the following. That on the
3 June 2014 Mrs Riekert was in my
office with other clients Mr
Reynolds flung is signed acknowledgement receipt of the original
updated testament of Mr PR Geldenhuys
to Mrs M Riekert. The original
updated testament was handed to Mr Reynolds which he signed
acknowledgement for is now lost in transit."
(vide "exi y")
[80]
Ms Swart's oral evidence was irreconcilable with her previous
statement. So was her confirmatory affidavit which she had made
in
support of the second respondents' answering affidavit. She found it
difficult to give satisfactory answers to a few questions
during
cross examination. When the applicant could not find Mr Reynolds'
note, she turned to Ms Swartz in a desperate
effort
to combat
Mr Reynold's denial. Firstly, i found it improbable that she would
have picked on Ms Swartz, who was not really her friend,
among all
the bank officials, to falsely confirm an incident which she, in
actual fact, never witnessed. Secondly, i found it improbable,
that
the applicant would have knowingly dictated an untrue statement to Ms
Swartz colleague and hoped that Ms Swartz would confirm
her lies.
Thirdly, the applicant would not have done so with the remote hope
that Ms Swartz would blindly sign the false statement
without first
reading it. Therefore, she would not have caused lies to be put in
the statement knowing that Ms Swartz would not
confirm them. All
these probabilities strongly militated against Ms Swartz evidence.
[81]
In my view, Ms Swartz, evidence that she did not read the statement
before she signed it and that she would not have signed
it if she had
read it because its contents were factually untrue was unconvincing.
Her unsatisfactory evidence could not explain
away the material
inconsistency. It failed to impress. The magnitude of the discord
between her oral evidence and her previous
written statement was
disturbingly huge. Such material inconsistency was telling against
the veracity of her oral evidence. A witness
is not allowed to
somersault in such a remarkable manner. If a witness does, as did Ms
Swartz, then s(he) is held to her or his
earlier version. Her later
version in court was, in my view, not only improbable but also
far-fetched evidence. She was a poor
witness. Accordingly I repudiate
her. I accept her averments as contained in "exi y" as
true.
[82]
If the previous statement of Ms Swartz is accepted, and I think it
has to, then there is material corroboration of the applicant's
version on the one hand. On the other hand, the same previous
statement constitutes a drastic destruction of the second
respondent's
version as given by Mr Reynolds. The denials of this
witness were, therefore, untenable. Wherever his evidence deflected
from that
of the applicant's, the latter's must be preferred. He
failed to answer some important questions during cross examination.
On a
few occasions he became evasive. In my view he was not an
impressive witness. The evidence he gave was not credible and
reliable.
[83]
I am, therefore, satisfied that the deceased testator did not have
the original of the disputed will in his possession immediately
before his death which was why it could not be traced among his other
personal documents following his death. It could not be traced
at
home subsequent to his death because shortly before his death he did
not have it in his possession and under his direct control.
apply.
Seeing that it was not, the second presumption does not In my view
the applicant has rebutted the second presumption as
well. Therefore,
he cannot be presumed to have destroyed his last with the intention
of revoking it.
[84]
Consequently I have come to the conclusion that the original of the
disputed copy of the will, was probably mislaid or innocently
lost.
All the indications tended to point in one direction, the direction
of Absa Bank. Mr Reynolds probably neglected to load
it onto the
system. The possibility that it was deliberately destroyed cannot be
entirely ruled out. However, I believe, and it
is a firm belief, that
neither the deceased testator nor the applicant had anything to do
with such an act of destruction, if there
was any. Because the
original will went missing, the applicant could not rely upon the
presumption
omnia praesumuntur rite
esse
acta donec
probetur
in
contrarious.
Instead the applicant, as the
claimant or proponent of the assertion that the dispute testamentary
document is a true copy of the
original but missing will, had to
persuade me, on a balance of probabilities, that the will was
lawfully executed; that it was
lost or destroyed; that the deceased
testator had no intention to revoke the will; that the disputed
testamentary document is a
true copy of the missing original will and
that it contains true wishes of the last will so executed. In my view
the applicant
has discharged that onus. I am, therefore, inclined to
grant the relief sought.
[85]
According I make the following order:
85.1. That anx 2 to the
founding affidavit is hereby declared to be the last will and
testament of the late Phillippus Rudolph Geldenhuys
whose national
identity number is […];
85.2. That the fourth
respondent is ordered and authorized to accept the aforesaid
testamentary document, "anx 2", as
the last will and
testament of the aforesaid deceased testator and to administer his
estate in accordance with its provisions;
85.3. That the costs of
this application must be borne and paid by the second respondent;
________________________
MH
RAMPAI, J
On
behalf of applicant: Attorney JJ
Maree
Instructed by:
Schoeman Maree Inc.
Bloemfontein
On
behalf of 2nd respondent: Adv. JC Coetzer
Instructed by:
Lovius Block
Bloemfontein