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[2015] ZAFSHC 29
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Moorcroft v Master of the Free State High Court, Bloemfontein and Others (2549/2012) [2015] ZAFSHC 29 (19 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Appeal
No.: 2549/2012
In
the matter between:
SIDNEY
HENRY MOORCROFT
….................................................................................
Plaintiff
and
THE
MASTER OF THE FREE STATE HIGH
COURT,
BLOEMFONTEIN
…..................................................................................
1
st
Defendant
MERISE
MONTEZ BUCKHAM, N.O.
…...............................................................
2
nd
Defendant
CORNELIUS
MARTINS LUBBE N.O.
…................................................................
3
rd
Defendant
GERT
FREDERIK MOORCROFT
…......................................................................
4
th
Defendant
MARIA
ELIZABETH (“MARIETJIE”) POTGIETER
….....................................
5
th
Defendant
WENA
CONRADIE
…................................................................................................
6
th
Defendant
JULIANA
MULLER
…................................................................................................
7
th
Defendant
CATHARINE
MARIA (“MOLLIE”) MOORCROFT
….........................................
8
th
Defendant
CORAM:
LEKALE, J
JUDGEMENT:
LEKALE, J
HEARD
ON:
18, 19 and 21 FEBRUARY 2014;
2
and 5
th
FEBRUARY 2015
DELIVERED
ON:
19 FEBRUARY 2015
INTRODUCTION
AND BACKGROUND
[1]
This is a defended action for a declarator, inclusive of associated
relief, to the effect that:
1.1
The 2010 testament is not valid due to the fact that the testatrix
could not understand the nature of her actions as contemplated
by
section 4 of the Wills Act No 79 of 1953 (the Act)at the time when
she signed the same;
1.2
The 2009 testament is the valid Last Will and Testament of the
testatrix.
[2]
On the 10
th
July 2008 the testatrix, the late Ms Naomie Meintjies, executed a
Will (the 2008 testament) in terms of which she,
inter
alia
, bequeathed her member’s
interest in a close corporation, livestock, farm accessories and
implements to the plaintiff as
her sister’s son. She
further appointed Absa Trust Limited (the Bank) as the executor.
A year later on the 30
th
November 2009 she executed a second Will and Testament (the 2009
testament) to the same effect as the 2008 testament in so far
as the
bequest to the plaintiff is concerned and effectively appointed the
third defendant, in his capacity as senior partner of
the firm of
attorneys NO Oelofse Inc., as the executor.
[3]
In 2007 the testatrix suffered cerebellar stroke and, as a result of
which she began showing signs of Parkinson’s disease
as well as
dementia according to her physician. Her condition deteriorated
gradually until her doctor referred her to a psychiatrist
who
evaluated her on the 20
th
January 2010 and found that, due to her medical prognosis and
condition, she was not in a position to manage her own affairs and/or
to understand the implications and consequences of her actions. The
specialist in question, further, concluded that her medical
prognosis
was not only poor but would also worsen rather than improve in the
future.
[4]
A
curator bonis
was
appointed on the 10
th
June 2010 to manage the testatrix’s affairs at the behest of
the 4
th
defendant. The testatrix eventually passed away on the 23
rd
May 2011 and the first defendant
appointed the third defendant the executor in her deceased estate in
accordance with the 2009 testament.
[5]
On the 24
th
January 2012 the first defendant notified the third defendant of the
existence of a Will and Testament signed by the testatrix
dated the
17 May 2010 (the 2010 testament). The Will in question appointed the
Bank as the executor and, further, bequeathed the
testatrix’s
member’s interest in the close corporation to the 4
th
defendant as opposed to the plaintiff. The third defendant was,
further, required to return the letters of executorship appointing
him an executor to the first defendant for cancellation and he
obliged.
[6]
The plaintiff felt aggrieved by the developments and, on the 19
th
June 2012, instituted instant proceedings on the ground that the 2010
testament is
void ab initio
alternatively invalid because the testatrix was not capable of
disposing of her estate within the contemplation of section 4 of
the
Act when she signed the same.
[7]
The second and fourth defendants (the defendants) resist the claim
and maintain that, as at the time of signing the 2010 testament,
the
testatrix was possessed of a sound and disposing mind and memory.
[8]
The other defendants filed no papers in the action and effectively
abide the decision of the court.
DISPUTE
[9]
The parties are at variance on whether or not the testatrix was
mentally incapable of executing a will when she signed the 2010
testament regard being had to available expert opinions on and
eyewitness accounts of her condition at the relevant time.
PLAINTIFF’S
VERSION
[10]
In support of his claim the plaintiff tendered the evidence of five
witnesses inclusive of himself.
10.1
KATINKA BOTHA
she is a psychiatrist and holds a MMed (Psychiatry) degree. She
was a general practitioner for 12 years before she took up
specialisation in psychiatry. She has been in private practice
since 2008 as such. She is an expert in matters of behaviour
and illnesses that cause behavioural problems in patients. In
her profession she is able to express opinions on the ability
of
people to understand the disposal of assets by way of testaments.
On the 20
th
January 2010 she consulted with the testatrix after the latter was
referred to her by her physician, one Dr Anderson. The
purpose
was to determine whether or not it was necessary to appoint a curator
for her in the light of her condition. The
testatrix’s
medical history was that she suffered a stroke which led to cognitive
impairment on her part. She had Parkinsonism
symptoms and
dementia. As at the date of consultation the testatrix
had not been taking care of her own affairs for
six months. She
was confined to a wheelchair and was hemiplegic. During
consultation the testatrix’s attention
was easily attracted and
maintained to the extent that the impression created was that she
understood what was happening.
On conducting further tests it
became apparent that she did not really understand what was
happening. There was a significant
impairment in her medium and
long-term memories. She could not remember significant dates in
her life, nor could she remember
her (the doctors) name despite
having just introduced herself. Her immediate memory was also
impaired to the extent that
after 10 minutes she could not recall
anything that was said to her. There were no abnormalities in
her speech and when she
spoke she could be understood and she herself
appeared to understand what transpired around her when that was, in
fact, not the
case. The testatrix was scored 20 out of 30 in
the Mini-Mental State Examination (MMSE) which was a significant
indicator
of dementia. She found that the testatrix was unable
to understand or manage her own affairs and was, further, unable to
comprehend the implications of certain, if not all, of her actions.
She could not plan ahead and could, further, not even
structure
simple activities of daily life and she, thus, concluded that the
testatrix needed permanent care and that a curator
be appointed for
her. According to her to a lay person or a person not as
qualified as she is the impression might be created
that a person in
the testatrix’s position knew what she was doing when, in fact,
she knew nothing. There was no possibility
that the testatrix’s
position would improve. In her view Dr Anderson was not in a
better position to express an opinion
regarding the condition of the
testatrix because one needs to do objective testing in order to
understand a patient in such a position.
Dr Anderson, as a
general practitioner, has no experience in such tests. In her
opinion, the testatrix’s appearance,
her conversation which
consisted of a normal speech and the fact that she had no
hallucinations or delusions could have led Dr
Anderson to believe
that she was lucid when, in actual fact, she was not. When her
cognition was objectively tested it was so grossly
bad that there
existed no possibility that she could have any lucid moments.
In a trail making test the testatrix did not
even have planning
ability and could not understand the consequences of anything.
The testatrix appeared lucid when she was
speaking to her but was
grossly impaired when she tested her objectively during the same time
frame. In her view when the
testatrix signed the 2010 testament
she would have known that she was signing but would not have known
what she was signing.
She emphasised that the testatrix’s
condition was permanent and could not have improved. In fact it would
have declined.
10.2
ILZE EISELEN
She
holds a MMed (psychiatry) degree and is currently a medical lecturer.
She also does forensic work at the Free State Psychiatric
Complex.
After completion of MBChB degree in 2000 she worked as a general
practitioner, whereafter, she went to work overseas
in psychiatry for
four years before she returned to the Republic of South Africa where
she did MMed. She feels comfortable
expressing opinions on
psychiatric issues. She did not consult with the testatrix but
had the benefit of perusing and considering
the report prepared by Dr
Botha on her. She, thereafter, compiled a report on her (Botha’s)
evaluation. In the process
she had sight of other documents
such as an affidavit and handwritten notes of Dr Anderson. From
those documents she concluded
that the testatrix had vascular
dementia and that her condition was permanent in that it would have
deteriorated rather than improved.
In her view it was extremely
unlikely or impossible for her condition to improve so as to be able
to execute a Will some few months
after seeing Dr Botha. In her
experience she has never encountered a patient with dementia and
mini-mental score of around
20 improving in 5 months’ time to
be able to actually appreciate the signing of a testament. The
MMSE is a standardised
test throughout the world. A score of 20
out of 30 signifies severe dementia with severe cognitive
impairment. According
to literature dementia is a deteriorating
illness and it does not improve.
10.3
SIDNEY HENRY MOORCROFF
He
is the plaintiff and the testatrix was his mother’s sister.
In 2008 he went to stay on a farm near the testatrix’s
farm so
as to be able to look after her. He knows nothing about the
2010 testament. On the 17
th
May 2010, the day on which the testament was apparently signed, the
testatrix had her domestic worker phone him in the afternoon
to call
him over. On arrival at the testatrix’s home he was with
his wife and the testatrix was very distressed and
complained that
she signed something but did not know what she signed. She
confirmed that she was in the company of the fourth
defendant and the
latter’s wife when that happened. He phoned the fourth
defendant and let the testatrix talk to him.
The testatrix
talked to the fourth defendant in their presence and he could hear
the latter’s response when he,
inter
alia
, undertook to bring a copy of the
document which the testatrix signed. The fourth respondent
never obliged. The domestic
worker who called him could have
been Lisbet.
10.4
JOHANNA SUSANNA MOORCROFT
She
is married to the plaintiff and she knew the testatrix. She
repeated and corroborated the plaintiff’s evidence about
how
Lisbet, the testatrix’s domestic helper, called them and how
the testatrix was upset about having signed something the
nature of which she did not know. She further testified about
how her husband dialled the fourth defendant’s number
for the
testatrix, who asked the latter about what she had signed and
requested him to bring a copy of the same over. She
also
confirmed how the fourth defendant undertook to bring the relevant
document the following day but never did.
DEFENDANT’S
CASE
[11]
On their part the defendants called three witnesses.
11.1
HENRY PETER ANDERSON
He
is a general medical practitioner and obtained MBChB degree in 1986.
He further holds a MMed in Family Medicine which he
obtained in
2001. He also has a number of certificates relating to advanced
courses he attends on yearly basis in,
inter
alia
, child life support. He is
capable of ascertaining if a person is capable of making a
testament. He came to know the
testatrix as a patient at his
practice in 2006. He confirmed that the testatrix suffered a
stroke in 2007 and her condition
gradually deteriorated until he
referred her to Dr Botha, who saw her in January 2010. He
thought he saw signs of cognitive
impairment and felt that the
testatrix needed to see an expert. It was, further, necessary
to refer her in order to determine
the need for appointment of
curator bonis
as she appeared not to be able to manage her own affairs. He
prepared a handwritten note at the time indicating that the
testatrix
was,
inter alia
,
showing signs of dementia. On the 17
th
May 2010 he attested to the testatrix’s signature on the 2010
testament after assessing her and satisfying himself that she
understood that she was signing a testament. He consulted with
the testatrix and did MMSE and scored her 26 out of 30 although
he
only kept mental notes and did not write anything down.
According to his knowledge that score indicated that the testatrix
was normal. The testatrix was lucid and even put clarity
seeking questions to the bank branch manager, Ms Pelser who was
explaining contents of the testament to her. As a general
practitioner with some experience he knows that patients can have
lucid moments. In medical terms it cannot be said that it is
hundred percent “merely impossible” for the condition
of
a patient with dementia to improve as Dr Eiselen testified. In
medicine nothing is ever hundred percent certain.
He diagnoses
patients as and when he sees them and not on the basis of previous
diagnosis. He has seen patients improve cognitively.
The
testatrix understood the nature of her actions and had the capacity
to make a Will on the day in question. Alzheimer’s
disease as cause of dementia is not a real disease. It goes on
and off. Patients suffering from it get worse and worse
but
there are times when they are better in the prognosis of the
condition.
11.2
MINNIE PELSER
She
was the branch manager of Absa Bank in Senekal when the impugned Will
was executed. The testatrix approached her at the
bank with a
request to amend her 2008 testament by substituting the name of the
fourth defendant for that of the plaintiff.
She did the
necessary and forwarded the draft to Bethlehem for the alterations to
be effected. When the altered Will came
back she discussed the
same with the testatrix but the latter was not happy because she
wanted only the member’s interest
in the close corporation to
go to the fourth defendant and not the farm implements and other
loose assets. She remembered
that the aforegoing was,
in fact, the testatrix’s desire when she first gave her the
instruction and that it
was, as such, her mistake. She
did the necessary and forwarded the instruction to Bethlehem for
drafting. When
the altered draft came back for signing she and
another branch official attended at Dr Anderson’s surgery for
the testatrix
to sign. It was necessary for the testatrix to sign
before a doctor because a
curator bonis
was in the process of being appointed for her due to her condition.
The testatrix had the necessary capacity to execute the
Will in that
she understood the contents and the meaning thereof. She even
put questions to her regarding the meaning of
terms such as
beneficiaries and what would happen to their bequests in the event of
them predeceasing her.
11.3
LISBET MAFA
She
was the testatrix’s domestic worker during 2010 and the only
times the latter used to instruct her to call the plaintiff
and his
wife was when she needed food. She was never instructed to call
the plaintiff when the testatrix was upset or crying.
Neither
was she ever instructed to call the plaintiff to just make a turn on
the farm.
SUBMISSIONS
BY THE PARTIES
[12]
In argument Mr Snyman, for the plaintiff, submits that it is clear
from the evidence of the two experts that the testatrix
could not
reasonably possibly have had the requisite testamentary capacity when
she signed the 2010 testament because she was afflicted
by dementia
which, as a medical condition, cannot improve but can only
deteriorate. Dr Anderson contradicted his earlier
deposition in
favour of the appointment of a
curator
bonis
in so far as he effectively
testified in court that the testatrix’s condition had improved
as at the date of the 2010 testament
whereas in his affidavit he
stated that the testatrix’s condition was permanent and would
rather deteriorate than improve.
[13]
For and on behalf of the defendants Mr Els retorts that under
cross-examination the two psychiatrists did not completely rule
out
the possibility of a person with the same diagnoses as the testatrix
making a Will when they gave certain examples to the court.
In
his view the circumstances leading to the signing of the Will and the
evidence of Dr Anderson, as the only practitioner who
assessed the
testatrix on the 17 May 2010, indicate that she was able to make a
Will when she signed the 2010 testament.
The impugned Will is,
according to him, straightforward as opposed to being complex and
this fact should play a role in determining
whether or not a person
was able to make a Will. The action should, thus, be dismissed with
costs in his view.
APPLICABLE
LEGAL PRINCIPLES
[14]
The parties are correctly and effectively in agreement that the test
in determining testamentary capacity is whether or not
the person
whose Will and Testament is in question was, at the time of executing
the same, of sufficient intelligence, possessing
of sufficiently
sound mind and memory for her to understand and appreciate the nature
of the testamentary act in all its different
bearings. (See
Naidoo NO and Another v Crowhurst NO
and Others
[2010] 2 ALL SA 279
at
para [16].
[15]
It is, further, correct as the parties submit that, where
testamentary capacity on,
inter alia,
the basis of mental incapacity is an
issue the onus lies on the party asserting the same. (See
Section 4
of the
Wills Act No. 7 of 1953
and
Geldenhuys
v Borman NO and Others
1990 (1) SA
161
(E) at 164D – E.
[16]
As Mr Els correctly reminds the court, such an onus of proving
testamentary incapacity must be discharged in the clearest manner.
(See
Kunz v Swartz
1924 AD 618
at 692.)
APPLICATION
OF PRINCIPLES AND FINDINGS
[17]
The parties are effectively
ad idem
that as at the 20
th
January 2010, when the testatrix consulted Dr Botha she was afflicted
by dementia after suffering cerebellar stroke in 2007. They
are,
further, in agreement that the condition in question rendered her
long and medium term memories dysfunctional and was regarded
by both
her general medical practitioner and the psychiatrist who saw her as
being permanent and liable to deteriorate rather than
improve.
[18]
Dr Anderson, in effect, does not dispute that in medical circles
dementia is generally regarded as a permanent irreversible
condition
but holds the view that it is not 100% permanent because
he has seen patients improve cognitively.
[19]
The question in the instant matter is whether or not between the 20
th
January 2010, when the testatrix
consulted Dr Botha and the 17
th
May 2010, when she signed the 2010 testament her condition improved
to such an extent that she was mentally capable of appreciating
the
nature and effect of the act of disposing of her estate through a
testament when she signed such a Will.
[20]
Only Dr Anderson and Ms Pelser saw and had contact with the
testatrix when she signed the impugned testament. They both
testified that she had the requisite capacity. Pelser’s
conclusions are based on the testatrix’s physical appearance
and her interaction with the testatrix when the latter,
inter
alia
, sought clarity on certain terms
in the testament. Dr Anderson’s opinion is also based on
the testatrix’s physical
appearance and his interaction with
her when he did the informal Mini-Mental State Examination with a
view to assessing her orientation,
attention, calculation, immediate
and short term memory, language and her ability to follow simple
commands.
[21]
Dr Botha, however, warned against subjective impressions and pointed
out that deeper objective tests needed to be conducted
in order to
fully appreciate the condition affecting the testatrix. She
further pointed out that the relevant condition could
mask itself
with the testatrix appearing to the ordinary eye to have good mental
functionality when that was, in fact, not the
case. The
evidence of Pelser, as a lay person, can, thus, be discounted as not
reliable in so far as Dr Botha’s evidence
in this regard was
not disputed. The defendants’ position in this regard is
simply
and
effectively
that Dr Anderson, as a
physician with substantial experience in dealing with patients such
as the testatrix, is an expert and can,
as such, determine if a
person is capable of understanding the nature and effect of his
actions and can even conduct the MMSE.
The issue is, therefore,
whether or not his evidence on the testatrix’s condition at the
relevant time is reliable.
I must hasten to point out
that
the evidentiary burden was
effectiveness on the defendants to refute the plaintiff’s claim
that the testatrix lacked testamentary
capacity at the relevant time
due to her known impaired cognitive functionality. The reason
why the testatrix had to sign
the relevant Will before her physician
was effectively because of such a known condition. Dr Anderson
knew that he was required
to evaluate her capacity to engage in a
testamentary exercise and it was, as such, expected of him to do all
that was necessary
to carry out his task properly and appropriately.
[22]
Dr Anderson’s testimony is to the effect that he conducted an
informal MMSE by only keeping mental notes and scoring
the testatrix
accordingly. In fact he asked her questions that he normally
ask when conducting the relevant test viz MMSE.
The preceding
testimony was not contained in the summary of his evidence as an
expert as set out in
Rule 36(9)(b)
notice. Even if it is
accepted that he conducted the relevant test, Dr Botha’s
evidence is to the effect that such
a test was not adequate in the
case of the testatrix. Deeper objective tests known to and understood
by trained psychiatrists are
necessary to appreciate such a condition
better and properly according to her.
[23]
As Dr Anderson correctly conceded under cross-examination, it would
have been advisable and he, in fact, would have referred
the
testatrix to a psychiatrist before she could sign the impugned Will
but for the fact that such specialists were in Bloemfontein
and she
was in Senekal. In my view it is strange that he never referred
the testatrix to a psychiatrist after noting the
fluctuations in her
condition. The fact that, according to his evidence, the
testatrix was sometimes lucid, should, in my
view, have triggered a
desire on his part to secure clarity on her condition, as a good
practice, especially in the light of the
fact that her dementia was
associated with a stroke. Although he refers to the relevant
condition as Alzheimer’s dementia
in his evidence, the hand
written notes he sent to Dr Botha associated the dementia with a
stroke. Dr Eiselen, on her part,
concluded that it was vascular
dementia after evaluating the findings of Dr Botha as well as the
notes in question. According
to medical authorities, unlike
other dementing conditions such as vascular dementia or dementia due
to strokes, there are stable
periods or plateaus when the
destructive, path of Alzheimer’s disease seems to slow down or
improve only for the deterioration
to inevitably set in again.
(See
The Complete South African
Health Guide
, op cit 394;
Southern
Book Publishers
– June
Engel.)
[24]
Dr Anderson’s evidence in this regard is, with respect, not
reliable regard being had to Dr Botha’s
explanation of the relevant condition and the fact that the parties
are in agreement that as at the 20
th
January 2010 the testatrix’s cognitive dysfunction was
permanent and could only deteriorate rather than improve.
[25]
On the question as to whether or not the testatrix caused a domestic
worker, one Lisbet, to summon the Moorcrofts to the farm
at the time
when she was upset following the signing of the 2010 testament, the
Moorcrofts and Lisbet are in dispute with the latter
maintaining that
she was always only required to call the former when the testatrix
needed food and never called them when the
testatrix was upset or
angry. I am inclined to reject the Moorcrofts’ version as
false to the extent that it is in
conflict or inconsistent with that
of Lisbet because the latter is independent and has no interest
whatsoever in the matter while
the Moorcrofts, on the other hand,
have direct interest in the same and, in fact, stand to benefit if
the impugned Will is eventually
rejected. Nothing, therefore,
turns on the evidence in question.
[26]
It may be true, as submitted by Mr Els, that the complex nature or
otherwise of a testament may be relevant to the question
whether or
not the testatrix was capable of appreciating its nature and effect.
Such an issue, however, does not arise for consideration
in the
instant matter because the same concerns cognitive impairment with
the testatrix effectively found by the experts to lack
mental
capacity to appreciate the consequences of her actions. The effect of
Dr Botha’s evidence is that she would only have
known that she
was signing and not why, what and where she was signing.
COSTS
[27]
Mr Snyman submits that the fact that the second defendant defended
the action when she is actually cited in her official and
representative capacity constitutes good cause for an order saddling
her with costs
de bonis propriis
.
Mr Els, on behalf of the second defendant, maintains that there
exists no such cause.
[28]
I am not persuaded that there exists cause to award any costs in the
matter, let alone special costs, regard being had to the
evidence of
Dr Anderson, as seen in the light of the evidence of Dr Botha to the
effect that the testatrix’s appearance and
how she spoke could
convince a lay person that she had the requisite capacity in that she
understood the nature, extent and effect
of her actions when that
was, in fact, not the case. There, therefore, existed reason for the
defendants to defend the action.
ORDER
[29]
In the result an order in terms of prayers 1, 2, 3, 4 and the main
part of prayer 5 is granted.
______________
L.
J. LEKALE, J
On
behalf of the plaintiff: Adv. C Snyman
Instructed
by:
Bezuidenhouts
Attorneys
BLOEMFONTEIN
On
behalf of the 2
nd
& 4
th
defendants: Adv. J
Els
Instructed
by:
Phatshoane
Henney Attorneys
BLOEMFONTEIN