About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 120
|
|
Van Niekerk v Van Niekerk and Others (26021/2014) [2016] ZAGPPHC 120 (18 March 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
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
18/3/2016
CASE
NO:
26021/2014
Not
reportable
Not
of interest to other judges
Revised
VAN
NIEKERK,
W
Applicant
and
VAN
NIEKERK S
N.O.
First
Respondent
VAN
NIEKERK
S
Second
Respondent
VAN
NIEKERK S
M
Third
Respondent
VAN
NIEKERK W
S
Fourth
Respondent
VAN
NIEKERK R
G
Fifth
Respondent
MASTER
OF THE HIGH COURT
NELSPRUIT
Sixth
Respondent
WYNAND
PRINSLOO & VAN EEDEN
INGELYF
Seventh
Respondent
JUDGMENT
AC
BASSON, J
[1]
The
applicant in this matter brought an application in terms of section
2(3) of the Wills Act
[1]
(hereinafter referred to as “the Act”) seeking an order
declaring that the will annexed to the papers as “Annexure
A”
(hereinafter referred to as “the contested will”) is the
last will of the deceased. The applicant further
seeks an order
declaring that the deceased’s previous will attached to the
papers as “Annexure C” and dated 11
February 2008
(hereinafter referred to as the “2008 will”) has been
revoked. Certain other ancillary relief is also
sought.
[2]
The applicant in this matter is the mother of the late Mr Gert Willem
van Niekerk (herein referred to as “the deceased”).
The
applicant is also the grandmother of the three beneficiaries (the
third, fourth and fifth respondents) named by the deceased
in the
contested will as the sole beneficiaries of his entire estate. The
three beneficiaries were born from the marriage
between the deceased
and the second respondent (Mrs S van Niekerk). The applicant is also
the nominated executrix in terms of the
contested will.
[3]
The first respondent is Mrs Sharon van Niekerk. She is the nominated
executrix in terms of the 2008 will. She is cited as such
as the
first respondent. Mrs Van Niekerk is also cited as the second
respondent in this application and is the deponent to the
affidavits
filed on behalf of the first and second respondents. (I will refer to
the first and second respondents collectively
as “the
respondents” where applicable.)
[4]
On 13 May 2013 the second respondent issued summons against the
deceased for a decree of divorce. The reasons for the irreparable
breakdown of the marriage listed in the summons are the following:
“9.1 Die partye kan nie sinvol kommunikeer nie, en breek
daar
gereeld rusies uit oor onbenullighede; 9.2 Die verweerder het ‘n
buite egtelike verhouding aangeknoop met ene Veronica
Wessels…;9.3
Die verweerder het ook gedurende die huwelik ander buite egtelike
verhoudings gehad, onder andere met die eiseres
se suster…;
9.4 Die verweerder is emosioneel onstabliel en gebruik tans medikasie
in die behandeling van bipolêre
gemoedsversteuring; 9.5 Die
verweerder tree aggresief teenoor die eiseres op en het haar
gedurende die betaan van die huwelik op
gereelde basis aangerand,
deur haar rond te ruk, te stamp, haar te verwurg, en te dreig om haar
te skiet….; 9.6 Die eiseres
het sy (sic) liefde agting en
respek vir die verweerder verloor en stel nie belang in die
voorsetting van die huwelik nie.”
[5]
During July 2013 the second respondent also obtained a protection
order against the deceased and effectively prohibited him
from seeing
his children, compelling visitation under supervision of social
workers. On the second respondent’s own version
it was a stormy
marital relationship.
[6]
The third, fourth and fifth respondents are the children born from
the marriage between the deceased and the second respondent.
The
court was informed that two of the three children are presently still
minors. They are not opposing this application.
[7]
During May 2013 the deceased moved in with the applicant, her husband
and his sister (Ms Louise Van Niekerk) and resided there
until his
death. The deceased committed suicide on 21 August 2013 by hanging
himself after the second respondent confirmed to the
deceased on 20
August 2013 that she was not interested in reconciling with him and
that she had met someone else.
[8]
On 7 October 2013 the first respondent was appointed as the executrix
of the deceased’s estate in terms of the 2008 will.
[9]
The contested will was discovered in a box under the deceased’s
bed on or about 1 September 2013 by the deceased’s
sister. The
applicant explains in her affidavit that she had requested the
deceased’s sister (her daughter) to pack up the
deceased’s
belongings in his room. It was then that she discovered the box with
documentation including the contested will.
[10]
The contested will dated 10 August 2013 reads as follows:
“
Hiermee verklaar
ek, die ondergetekende, Gert Willem van Niekerk, op die […]
Augustus 2013, Identiteits Nr: […] dat
ek my 3 kinders,
Sherise Michell van Niekerk, Wilichia Sharlize van Niekerk en Reynard
Gerrie van Niekerk, benoem as my enigste
erfgename.
Ek herroep hiermee my
vorige testament en verklaar hierdie as my laaste en enigste
testament.
Ek benoem my Ma, Wilma
van Niekerk as Ekekteur van my boedel, besigheid: Gencoal, al my
vaste bates en persoonlilke besittings.
Ek bepaal hiermee dat die
Meester van die Hooggeregshof nie sal aandring op die lewering an
sekuriteit deur my genoemde Eksekuteur
nie.
(Signed)
Gert Willem van Niekerk
10.08.2013”
[11]
Section 2 of the Act sets out the formalities required in the
execution of a will. In this instance the contested will was
signed
by the deceased. The will was, however, not signed by or in the
presence of two or more competent witnesses present at the
time of
signature as required by the Act. A handwriting expert, Mr J Bester
(“Bester”) confirmed his report under oath
and concluded
that the signature appearing on the contested will is the same as the
signature of the deceased on other documents
handed to him for his
consideration. (I will revert to the dispute regarding the
authenticity of the signature hereinbelow.)
Allegations
of fraudulent conduct.
[12]
The second respondent vehemently disputes the validity of the
contested will and has gone as far as to suggest that the contested
will is a fraudulent document and that the signature of the deceased
has been forged. In fact, council on behalf of the respondents
went
as far as to accuse the deceased’s mother (the applicant), the
deceased’s sister and a one Ms Lowe in court of
being
collaborators in the forging of the (contested) will in circumstances
where not one of these individuals stands to inherent
even one cent
in terms of the contested will. The respondents also deposed to a
supplementary affidavit accusing the sister of
the deceased and the
aforementioned Lowe of forging cheques torn from the deceased’s
check book a day after the deceased’s
passing and effecting
payment in the amount of R 200 000.00 to an entity identified as
Easy Flow Diesel CC. In her affidavit
Lowe denies that she was party
to any forgery and states that the amounts paid out was paid in
respect of real expenses incurred
by the deceased’s closed
corporation.
[13]
When confronted by these allegations, which is strongly denied by the
applicant, she declined her nomination as executrix of
her late son’s
estate and proposed that an independent third person be appointed. I
will return to this point herein below
and my reasons for appointing
an independent third person as the executor of the deceased’s
estate.
[14]
I repeatedly pointed out to counsel on behalf of the respondents that
these allegations of fraud are not pertinent to the question
before
this court. The issue before the court is the validity of the
contested will. Moreover, it is clear from the papers that
the
alleged fraud was perpetrated (on the respondents’ own version)
after the death of the deceased. I should, however, make
it clear
that this court is not dismissing the allegations regarding the
cheques as without any foundation whatsoever. These allegations
should be investigated by the executor of the deceased’s estate
and it is for this reason that I intend making it part of
my order
that the executor/executrix of the decease’s estate be
furnished with a copy of the court file in order to make
an informed
decision regarding the allegations of fraud allegedly perpetrated
after the death of the deceased. I gained the impression
from a
reading of the papers that the sole purpose of presenting these
allegations pertaining to alleged fraud to the court is
to attempt to
discredit the deceased’s sister and the applicant and to invite
this court to draw a negative inference from
the alleged fraud and to
conclude that the signature of the deceased was forged by (at least)
the sister of the deceased.
[15]
What the respondents, however, overlook in making these allegations
is the evidence of Bezuidenhout (a family friend of the
deceased) who
clearly confirms in her affidavit that she had discussions with the
deceased prior to him drafting the contested
will. She also confirms
that she had personally seen the signed (contested) will a day before
the deceased had passed away. (I
will return to her evidence in more
detail herein below.)
Authenticity
of the signature.
[16]
I have already referred to the report of the Forensic Document
Examiner confirming that he had been placed in possession of
several
documents and that after examination thereof, he is of the opinion
that the signature appearing on the contested will is
indeed the
signature of the deceased. I have also already referred to the fact
that the respondents strongly dispute the authenticity
of the
signature of the deceased on the contested will.
[17]
There is no merit in these allegations. These allegations should be
seen in light of the following: Although the respondents
complain
that they have never seen the original contested will, counsel on
behalf of the respondents was unable to refer the court
to a single
letter demanding to be granted access to the contested will.
Furthermore, although a formal tender was made in the
replying
affidavit as far back as June 2014, no attempts have been made by the
respondents to arrange for an inspection of the
contested will nor to
appoint their own forensic examiner. Moreover, as will be pointed out
hereinbelow, Bezuidenhout’s clear
evidence is that the deceased
had personally shown her the signed (contested) will a day prior to
his death.
State
of mind of the deceased.
[18]
The respondents also attempted to persuade the court that the
deceased was emotionally unstable at the time of his death and
that
as a result thereof contended that he could never have formed the
intention that the document (herein identified as the contested
will)
was intended to be his last will. In this regard a letter was written
by the attorneys acting on behalf of the respondents
recording the
following:
“
Ons opdrag is
verder dat die oorledene ten tye van die sogenaamde ondertekening van
die document by u skrywe aangeheg [the contested
will]
geestesongesteld en onstabiel was en selfmoord gepleeg het.
Ons is van mening dat die
oorledene se optrede vandat die partye uitmekaar is, en kort voor hy
selfmoord gepleeg het duidelik dui
dat hy nie (sic) nooit die
bedoeling kon gehad het dat die document bedoel was om ‘n
testament te wees nie.”
[19]
I have also referred to the divorce summons wherein similar
allegations are made regarding the mental stability of the deceased.
In fact, the allegation that the deceased suffered from a bipolar
mood disorder is specifically made in the summons.
[20]
The applicant also confirms that the second respondent regularly
accused the deceased of being bipolar. She states that the
deceased
had tried his utmost to persuade the second respondent that he was
not unstable and to this end voluntary admitted himself
into the
Denmar Clinic for psychological evaluation. In a clinical report
dated 4 July 2013 (which is little more than a month
before the
deceased’s death) Mr Beck (a psychologist) recorded that the
deceased was “depressed, sad and gloomy”
but that his
emotional profile was within normal parameters. He concluded that
there was no indication of the deceased was an unfit
caregiver for
his children. The deceased was again psychologically evaluated on 24
July 2013, 1 August 2013 and 6 August 2013 by
Ms Lusane du Plessis
(Clinical Psychologist). In her report dated 8 August 2013 (two days
before the contested will was signed
and 13 days before the death of
the deceased), she concluded as follows:
“
In light of the
above Gerrie would not be considered a danger for his children. He is
currently emotional stable. There are no signs
of pathology. Negative
emotions present would be considered normal for the situation. Gerrie
is willing to continue with therapy
to help him come to terms with
the loss of his marriage and to adjust to a new lifestyle.
He is currently staying
with his parents. He reports them to be supported. They would also
mostly be present if the children to
visit. The children are reported
to have a good relationship with their grandparents and especially
with their grandmother.”
[21]
The second respondent, on the other hand, was unable to refer this
court to any evidence which gainsays the two reports from
the
psychologists. I am therefore in light of the detailed psychiatric
reports satisfied that the deceased was emotionally stable
when he
drafted and signed the contested will and that he was therefore able
to form the intention to revoke the 2008 will.
The
contested will dated 10 August 2013
[22]
In terms of the will dated 11
th
August 2008, the second
respondent was the beneficiary of a substantial portion of the
deceased’s estate: She was the beneficiary
of all his fixed
assets (buildings and houses) as well as of 70% of all cash in his
estate. The remainder of 30% cash was bequeathed
to his three
children. The second respondent was also the beneficiary of all the
deceased’s moving assets as well as his
personal belongings. As
already pointed out she was also appointed as the executrix in terms
of the 2008 will. In terms of the
contested will the applicant is
appointed as the executrix of the deceased’s estate and the
three children of the deceased
are named as the sole beneficiaries of
his entire estate.
[23]
I have
already referred to section 2(1) of the Wills Act
[2]
where the formalities required for a valid will are set out. In terms
of section 2(3) of the Act, a court has the power to direct
the
Master to accept a document as the will of a person who has died
although it does not comply with all the formalities as set
out in
section 2(1) of the Act in the following circumstances:
“
(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
,
[3]
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
No. 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).”
Further
in terms of
section 2A
of the Act a court has the power, if it is
satisfied that the testator has “drafted another document or
before his death
caused such document to be drafted, by which he
intended to revoke his will or a part of his will, the court shall
declare the
will or the part concerned, as the case may be, to be
revoked”.
[24]
It
is therefore necessary to determine what the true intention of the
deceased was when he drafted and signed the contested will
or put
differently whether it was his intention to revoke the 2008 will,
disinherit the second respondent and bequeath his entire
estate to
his three children. The legal position is succinctly summarised in
Smith
v Parsons NO and others
:
[4]
“
[8]
In order to ascertain whether the deceased intended the suicide note
to be an amendment to his will, the document itself must
be examined
and the surrounding circumstances must be taken into account –
see
Van Wetten
paragraphs
15–16.”
[25]
I have already referred to the fact that the contested will was
discovered in a box in the deceased’s room. The applicant
states that during 2013 the deceased obtained a pro forma will from
Nedbank with the intention of drafting a new will. She states
that
the deceased had requested her to assist him. The applicant was
unable to assist him as she had no knowledge of the deceased’s
business affairs. This form was found by the deceased’s sister
together with the contested will.
[26]
Bezuidenhout confirms that the deceased visited her on 9 August 2013
and that he told her that he suspected that the second
respondent had
probably met someone else. Bezuidenhout asked the deceased whether he
had amended his will to which he responded
that he did obtain
documentation from the bank in order to draft a new will. She
confirmed that the deceased went to his car and
that he returned with
a paper ostensibly torn from the form that he had obtained from
Nedbank. On this document the deceased had
scribbled the following in
his own handwriting:
“
Ek Gert Willem van
Niekerk beteken my alles wat ek besit property huis in die UK laat ek
in my seun Reynard Gerrie van Niekerk en
Sherise van Niekerk,
Willicha plus Property + besigheid in hull.
Gencoal Ma + Pa die
kuraator (sic) vir dit”.
Upon
seeing this document Bezuidenhout informed the deceased that this
document would not suffice as a valid will. She then handed
the
deceased an example of a will that she had in her possession.
[27]
On 10 August 2013 the deceased again visited Bezuidenhout. The
deceased then showed her the contested will (attached to the
papers
as Annexure “A”). The document had already been drafted
and had already been signed by the deceased. The applicant
confirms
that Bezuidenhout had told her that the deceased had shown her
(Bezuidenhout) the contested will.
[28]
The applicant further confirms that Bezuidenhout had perused the
contested will in her presence and that she had confirmed
that
Annexure “A” was the will that the deceased had showed
her on 10 August 2013.
[29]
The contested will in the present case was typed and signed by
the deceased. He only did so after Bezuidenhout had given him an
example of a will that she had in her possession. After the deceased
had drafted and signed will he showed it to Bezuidenhout.
[30]
The contents of the will are clear and unambiguous as far as
the intentions of the deceased went. The deceased clearly and
unequivocally
revoked his previous will and named his three children
as the sole beneficiaries of his entire estate. The deceased
therefore also
had the clear intention to disinherit the second
respondent who was the main beneficiary in terms of the 2008 will.
[31]
It is in my view clear from the document and the surrounding
circumstances that the deceased intended to change his will and
that
he intended to bequeath his entire estate to his three children and
to appoint his mother as the executrix of his estate.
The deceased
had signed his will and if regard is had to the report of the
handwriting expert (Mr Bester), there is no doubt that
the signature
appearing on the contested will is that of the deceased. Furthermore,
if regard is had to the surrounding circumstances
and the wording of
the will, it is clear that it was the intention of the deceased to
revoke his previous will and to replace it
with the document attached
to the papers as “Annexure A”.
[32]
Bezuidenhout has no interest in the contested will and has no reason
to lie. The same can also be said about the mother of
the deceased.
It is therefore the conclusion that it was the deceased’s clear
and unambiguous intention to revoke his previous
will, to disinherit
the second respondent and to nominate his three minor children as the
sole beneficiaries of his estate.
[33]
Lastly, I have already referred to the fact that the applicant has
declined her nomination as executrix in light of the serious
allegations levelled against her (and others) by the respondents. I
indicated to counsel on behalf of the applicant that I am in
agreement with the suggestion that an independent third party be
appointed as the executor/executrix of the estate in light of
these
serious allegations. The executor/executrix must be placed in
possession of all the documents contained in the court file
in this
application in order to decide whether there exists any reason to
investigate the allegations of fraud allegedly perpetrated
against
the estate of the deceased. There is also a further reason for
appointing an independent third person as executor/ executrix
and
that is the fact that two of the three beneficiaries of the will are
still minors. I have therefore made it part of my order
that the Law
Society of the Northern Provinces nominate a suitable person for
consideration by the Master of the High Court for
appointment as
executor/executrix.
[34]
In the event the following order is made:
1. The Master of the High
Court is directed to accept the document annexed to the Notice of
Motion as “Annexure A” to
be the will of the late Gert
Willem van Niekerk (Identity number […]) for the purposes of
the
Administration of Estates Act 66 of 1965
.
2. The Master of the High
Court is directed to withdraw the Letter of Executorship dated 7
October 2013 appointing the first respondent
as the executrix of the
estate of the late Gert Willem van Niekerk in terms of the will dated
11 February 2008.
3. The Law Society of the
Northern Provinces is directed to nominate a suitable person to act
as the executor/executrix of the estate
of the late Gert Willem van
Niekerk and to forward the said nomination to the Master of the High
Court for consideration for appointment
as the executor/executrix of
the estate of the late Gert Willem van Niekerk.
4. The applicant is
ordered to furnish the appointed executor/executrix with a copy of
all the documents that served before this
court in this application.
5. The first and second
respondents are ordered to pay the cost, jointly and severally the
one paying the other to be absolved.
_________________________
AC
BASSON
JUDGE
OF THE HIGH COURT
Appearances:
For
the applicant: Adv JJ Greeff
Instructed
by: Brauckmann Auret
For
the Respondent: Adv JC Prinsloo
Instructed
by: Wynand Prinsloo & Van Eeden Inc.
[1]
Act 7 of 1953.
[2]
No. 7 of 1953.
[3]
The court’s emphasis.
[4]
[2010]
4 All SA 74
(SCA).