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[2015] ZAGPPHC 393
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Barnard v Master of the High Court Pretoria and Others (37080/2013) [2015] ZAGPPHC 393 (17 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 37080/2013
Date:
17 June 2015
In
the matter between:
MARGARET
CATHERINE
BARNARD APPLICANT
And
THE MASTER OF THE HIGH
COURT PRETORIA 1
ST
RESPONDENT
MARTHINUS
JOHANNES FERREIRA
N.O. 2
ND
RESPONDENT
SUSANNA
MARIA DE MEILLON N.O.
(as
Curator Bonis of Albert James De
Meillon) 3
RD
RESPONDENT
ANDREW
ARTHUR DE
MEILLON 4
TH
RESPONDENT
JUDGMENT
PRETORIUS
J,
[1]
In
this application the court is requested to make an order in terms of
section 2(3)
of the
Wills Act, 7 of 1953
, that the document purported
to be the will of the late Christina Gezina De Meillon, dated 15
December 2012 to be declared to be
her last will and testament.
[2]
The
applicant is the daughter of the late Mrs De Meillon, the second
respondent is the executor of the estate and the third respondent
is
the
curatrix
of the applicant’s brother, Albert James De Meillon. The
fourth respondent is Andrew Arthur De Meillon, the brother
of the
applicant.
[3]
The
application is opposed by the fourth respondent. The fourth
respondent argued that the application is premature as the
document,
purported to be the last will and testament of the deceased, had not
been lodged at the Master of the High Court before
the present
application was launched. There is also no indication that the
disputed document was refused by the Master, according
to the fourth
respondent.
[4]
In
Logue
and Another v The Master and Others 1995(1) SA 199 N
at p204 the court found:
“
By
refusing to accept documents purporting to be the will of a testator,
the Master would cause an application to be made by one
or more
interested parties, in which event all other interested parties would
have to be joined.”
[5]
It
is common cause that the deceased had executed a valid will on 3 June
2010. In terms of the will MacRobert Incorporated
was appointed
as the executor of the estate. Mr MJ Ferreira, the second
respondent, was appointed as the executor by the
Master of the High
Court on 27 February 2013. This will was accepted by the Master
as the last will and testament of the
deceased.
Background:
[6]
The
second will was signed on 15 December 2012 by the deceased in the
presence of the applicant. The second will and testament
was
drafted by Mr Voyiatzakis, an attorney, at the behest of the
deceased. This was done after he had had a consultation
with
the deceased on 12 December 2012. This consultation with the
deceased was in the presence of Ms Stroh, the caregiver
of the
deceased, who also signed the document as a witness on 15 December
2012.
[7]
The
difference between the first will and the purported will is that the
third respondent would inherit a further property, which
had
originally been bequeathed to the fourth respondent. The
applicant’s evidence, as supported by the evidence of
what the
deceased had told the psychologist, is that her mother wanted to make
adequate provision for her son, Albert James De
Meillon, as he had
been injured in a motor vehicle accident and could not take care of
himself.
[8]
On
instructions of the deceased, the attorney, Mr Voyiatzakis redrafted
the testament on 12 December 2012 and delivered it to the
deceased on
13 December 2012. This document was signed by the deceased and
two witnesses, of which one was Ms Stroh, on 15
December 2012, in the
presence of the applicant. The second witness signed the
document in the presence of the applicant
and the deceased, but was
not present when the deceased had signed the purported will.
[9]
On
12 December 2012 Mrs De Meillon, the deceased, consulted a
psychologist, Ms van Eeden. The reason for this was set out
as:
“
Mev
de Meillon wou my professionele opinie hê oor haar
geestesgesondheid en haar vermoë om rasionele besluite te neem.”
She
further indicated:
“
Mev
de Meillon het gesê dat die onlangse gebeure haar geweldig
ontstel het en sy nou met ‘n “tammeletjie”
sit:
·
Haar
vorige testament het gelui dat elkeen van haar kinders twee (2) huise
by haar afsterwe sou erf.
·
Sy
voel nou egter dat Cliffie as gevolg van sy gebrek meer versorging en
finansiële ondersteuning as the ander kinders nodig
het.
·
Margaret
is alleenlopend en moet ook versorg word.
·
Andrew
is werkloos, betaal nie sy huur aan haar nie en hou ook nie die plek
in stand nie. Ten spyte daarvan wil hy beheer
neem van haar en
haar bates.
·
Dit
het haar tot nadenke gestem en sy wil nou ‘n verandering aan
haar testament maak.
·
Sy
weet egter dat Andrew nie gelukkig met die verandering sal wees nie
en wil seker maak dat haar kinders moet weet dat sy goed
oor die saak
nagedink het en dat sy by haar volle positiewe is toe sy haar besluit
geneem het om veranderings aan haar testament
te maak.
”
(Court’s
emphasis)
[10]
It
is important to note that Mrs De Meillon went to Ms van Eeden, the
psychologist, of her own volition and had requested Mr Erasmus
to
take her to Ms van Eeden’s office. None of her children
had taken her to Ms van Eeden, neither were any of them
present at
this consultation.
[11]
Ms
van Eeden had an in-depth consultation with Mrs De Meillon for sixty
minutes and she noted that her observations and conclusions
were
based on her professional opinion and experience as a psychologist
who had been in practice for twenty-eight years.
[12]
Mrs
van Eeden’s conclusions were:
·
“
Mev
de Mellion was onder geen dwang om met my te praat nie – sy was
hier uit haar eie vrye wil.
·
Sy
het my kom sien om ‘n professionele opinie oor haar
geestesgesondheid te kry.
·
Sy
wou haar voorneme om haar testament te verander met ‘n
onpartydige, buitestander bespreek en ‘n onpartydige opinie
hê.
·
Ek
het haar op geen manier na enige kant beinvloed nie. Sy is met
die wete hier weg dat dit haar keuse is om te maak.
·
In
my professionele opinie was sy by haar volle positiewe, het sy
samehangend gepraat en geredeneer, het sy logiese denke getoon
en kon
sy na my mening haar eie opinies formuleer, haar eie gevolgtrekkings
maak en haar eie besluite neem. Sy het geen ooglopende
tekens
van diffuse gedrag getoon nie. Sy het goeie oriëntasie ten
opsigte van tyd en plek getoon en het logies en beredenereerd
opgetree.
·
Na
my mening was daar geen ooglopende tekens van delirium, demensia of
amnesia sigbaar wat op ernstige kognitiewe disfunksie gedui
het en
dus verdere ondersoek genoodsaak het nie.”
[13]
On
15 December 2012 Mrs De Meillon took ill. She had to be
admitted to hospital, but insisted on signing the new will and
testament before leaving for the hospital. Ms Stroh was present
and signed the will after Mrs De Meillon had signed it in
her
presence. Ms D Matjida, the domestic worker, arrived at the
house and was requested by the applicant and Mrs De Meillon
to sign
the will as a witness, which she did in the presence of the applicant
and the deceased. Mrs De Meillon passed away
on 31 December
2012.
[14]
The
applicant was present throughout this time and saw Mrs De Meillon and
the two witnesses sign the purported will as set out above.
The
document was not signed on the first two pages, but the third and
last page was properly dated and signed as set out.
[15]
The
fourth respondent does not deny that the deceased had instructed Mr
Voyiatzakis, her attorney, to draw up a new will and that
it was
signed in the presence of the applicant and Ms Stroh, her caregiver
and thereafter signed, in the presence of the applicant
and the
deceased by Ms Matjida. There is no indication from the fourth
respondent that the will is fraudulent. The
opposition is based
on the contention by the fourth respondent that the deceased was not
in a mental position to execute a will.
The contents of the
purported will is not in dispute.
[16]
Mr
Voyiatzakis, the attorney who drafted the document on instructions
from the deceased set out in his supporting affidavit:
“
I
specifically confirm that the late Ms De Meillon, the Testatrix
signed Annexure “B” at a time when she was fully capable
to make a valid will. She gave clear instructions to me in
regard to the drafting of the will and I thereafter delivered
it to
her, left it there for her own consideration and subsequently she
signed the will. She was obviously satisfied with
the content
of the will as the will was in accordance with what we discussed and
in accordance with her instructions to me.”
The Law:
[17]
The
formalities required in the execution of a will are set out in
Section 2(1)
of the
Wills
Act, 7 of 1953
which provides, inter alia:
“
(a)
no will executed on or after the first day of January, 1954, shall be
valid unless—
(i)
the
will is signed at the end thereof by the testator or by some other
person in his presence and by his direction; and
(ii)
such
signature is made by the testator or by such other person or is
acknowledged by the testator and, if made by such other
person,
also by such other person, in the presence of two or more competent
witnesses present at the time; and
(iii)
such
witnesses attest and sign the will in the presence of the testator
and of each other and, if the will is signed by such other
person, in
the presence also of such other person.”
Section 2(3)
provides:
“
If
a court is satisfied that a document or the amendment of a document
drafted or executed by a person who has died since the drafting
or
execution thereof, was intended to be his will or an amendment of his
will, the court shall order the Master to accept that
document, or
that document as amended, for the purposes of the Administration of
Estates Act, 1965 (Act 66 of 1965), as a will,
although it does not
comply with all the formalities for the execution or amendment of
wills referred to in subsection (1)
.”
(Court’s
emphasis)
[18]
In
Van der Merwe v The Master 2010(6) SA 544 (SCA)
Navsa JA
held at paragraph 14:
“
By
enacting s 2(3) of the Act, the legislator was intent on ensuring
that failure to comply with the formalities prescribed by the
Act
should not frustrate or defeat the genuine intention of testators.
It has rightly and repeatedly been said, that, once
a court is
satisfied that the document concerned meets the requirements of the
subsection,
a
court has no discretion whether or not to grant an order as envisaged
therein. In other words, the provisions of s 2(3) are peremptory
once
the jurisdictional requirements have been satisfied
.”
(Court’s
emphasis)
[19] In
Olivier v Die
Meester en Andere: in re boedel wyle Olivier 1997(1) SA 836 (TPA)
it was found that there must be a document which the deceased had
compiled or executed. In the present matter it is common cause
that
the attorney had compiled the document on instructions from the
deceased, when according to him she was fully capable at the
time to
do so. The deceased had executed the disputed document.
[20] This court has to
establish whether the deceased had the requisite intention when
drafting and signing the document that the
document would be her
final will and testament.
[21]
In
De
Reszke v Marais and Others 2006(2) SA 277 (SCA)
Mlambo JA explained the legal position:
“
Section
2(3) lays down the requirements which a document which does not
comply with the formalities for the execution of a will
has to meet
before a court will order the Master to accept it as a will. The
effect of an order under s 2(3) is that a document
which is not a
will for want of compliance with certain prescribed formalities but
purports to be a will is given effect to if
the requirements of the
section have been met.
For
the grant of relief under s 2(3) a court must be satisfied that the
deceased person who drafted or executed the document intended
it to
be his will.
”
(Court’s
emphasis)
[22]
In
Van
Wetten and Another v Boch and Others 2004(1) SA 348(SCA)
Lewis JA held at paragraph 16
“
In
my view, however, the real question to be addressed at this stage is
not what the document means,
but
whether the deceased intended it to be his will at all
.
That enquiry if necessity entails an examination of the document
itself and also of the document in the context of the surrounding
circumstances.”
(Court’s
emphasis)
[23]
The
court has to be satisfied that the disputed document was drafted by
the deceased and that it was the deceased’s intent
that it was
to be her last will and testament. The surrounding
circumstances in this instance have to be examined and considered
for
this court to make a decision.
[24]
It
is clear that the applicant will not benefit if the disputed document
is declared the last will and testament of the deceased.
Her
intention in launching the application was to give effect to her
mother, Ms De Meillon’s, intention by having this document
executed on 15 December 2012 declared her mother’s last will
and testament.
[25]
The
fourth respondent relied in his opposing papers on a doctor’s
report which set out the deceased’s condition during
July and
August 2012. However, this report cannot be regarded as
evidence as it was not under oath, neither is a confirmatory
affidavit attached. The report is not dated.
[26]
The
further report by SU Wright, a clinical psychologist, dated 7
September 2012, is similarly not under oath and the court cannot
regard this report as evidence. In any event, the report by SU
Wright is only a note consisting of four lines giving an opinion
on
the deceased’s cognitive condition at the time.
[27]
Mrs
De Meillon was aware that the fourth respondent and his daughter had
her mandate to take care of her affairs whilst she had
been
hospitalized in September 2012. This mandate she withdrew at
the end of November 2012 due to the fourth respondent’s
conduct
as told to Ms van Eeden by the deceased. She then decided to
consult with a psychologist regarding her mental capacity.
Ms
van Eeden’s report, which was confirmed under oath, was the
result of this consultation.
[28]
The
fourth respondent did not submit any evidence to counter Ms van
Eeden’s evidence.
[29]
The
court has, in addition, the evidence of the applicant and Mr
Voyiatzakis, the attorney, confirming that the deceased knew exactly
what she was doing when she signed the second document, the purported
will and that it was her intention on 15 December 2012 that
this
document would be her last will and testament.
[30]
The
only defence the fourth respondent has is that the fourth respondent
is not inheriting the house that he has been living in
for many
years, but will inherit a different house. He requests the
court to draw the inference that this behaviour of the
deceased
should be regarded as proof that she was not mentally able at the
time to execute a new will.
[31]
I
cannot find that the deceased did not have the mental capacity to
deal with her property in her last will and testament as she
saw fit.
[32]
The
point
in
limine
that the will was not lodged at the Master of the High Court and
therefor this application is premature is cured by the report
from
the Master dated 18 September 2013 which sets out:
“
Although
the Master is bound to register every will properly lodged with him
in terms of section 8 of the Act, the said will in
question as
mentioned in the Notice of Motion was never brought to the attention
of the Master for consideration.
Even
if the will has been lodged the master is going to reject it based on
the fact that it does not comply with section 2[1][a][IV]
of the Will
Act.
”
(Court’s
emphasis)
The
Master indicated in the report that the Master will abide by the
decision of the court.
[33]
I
have considered the document itself and the surrounding
circumstances, including Ms van Eeden’s report, as well as all
the arguments. It is quite clear that the deceased wanted to
favour Albert James De Meillon and she supplied good and cogent
reasons to Ms van Eeden for doing so. She had indicated her
reasons for not favouring the fourth respondent in a similar
manner
to Ms van Eeden. I can find no fault with her decision in this
regard, as the houses belonged to her. She could
deal with the
properties as she saw fit. In this instance where not only the
applicant, but the attorney, Mr Voyiatzakis,
and the psychologist, Ms
van Eeden, testified that the deceased had intended the document
signed on 15 December 2012 to be her
last will and testament, I find
that the document is the valid last will and testament of the
deceased. I find that she was
compos
mentis
when
she executed the will on 15 December 2012.
[34]
I
have applied the principles set out in the abovementioned authorities
and I find that Mrs De Meillon, the deceased, intended this
document
to be her last will and testament.
[35]
In
these circumstances I make the following order:
1.
It
is declared that the document attached as annexure “A” to
the Notice of Motion, signed on 15 December 2012 is the
last will and
testament of Mrs Christina Gezina De Meillon (hereinafter the
Testator);
2.
The
first respondent is ordered to accept the 15 December 2012 will as
the testator’s will for the purposes of the
Administration of
Estates Act, Act
66 of 1965.
3.
The
costs of this application to be paid from the estate of the late CG
De Meillon.
_____________________
Judge C Pretorius
Case
number
: 37080/2013
Appeal heard on
: 2 June 2015
For the
Applicant
:
Adv. AJH Bosman SC
Instructed
by
: WF BOUWER ATTORNEYS
For the
Respondent
: Adv. E Janse van Rensburg
Instructed
by
: BAARTMAN & DU PLESSIS
Date of
Judgment
: 17 June 2015