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[2015] ZAKZPHC 17
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Van Straaten v Ottman and Others (10838/11) [2015] ZAKZPHC 17 (19 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA, KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
CASE
NO.:10838/11
SUSAN
RUFINA VAN
STRAATEN
..............................................................................
Applicant
versus
BIRGIT
OTTMAN
............................................................................................
First
Respondent
HEIDI
SCHMITT
..........................................................................................
Second
Respondent
HEINER
FRISCH
JR
......................................................................................
Third
Respondent
BRUCE
McDONAL FOREST
N.O
..............................................................
Fourth
Respondent
MASTER
OF THE KWAZULU-NATAL
HIGH
COURT-DURBAN
................................................................................
Fifth
Respondent
JUDGMENT
VAN
ZӱL, J.
:
1.
This is an application wherein the
applicant seeks an order to declare a manuscript document, allegedly
in the hand of the deceased,
to be the last will and testament of the
deceased and as such to have her earlier will and codicil thereto, as
accepted by the
Master of the High Court, set aside as having been
revoked.
2.
On Sunday 26 June 2011 the late Helene
Erika Slack (born Frisch), a widow, died of natural causes at her
home at 16 Rolling Hills
Country Club, uMhlanga Rocks, KwaZulu-Natal.
She left behind in the study of her home a red plastic envelope and a
note addressed
to the applicant who lived at 134 Rolling Hills
Country Club, another unit in the same development. The note, in
manuscript and
attached to the founding affidavit as annexure “D”,
read as follows;
“
Susan,
please look after my affairs when I’m not able to anymore. If
you are not able to let Robert White handle it. Thank
you. Love
Helene Slack, 16 RHCC”
Lower
down on the same page of the note appeared a further paragraph,
apparently intended as an instruction or a request to pass
the red
envelope and its contents on to Mr Robert White, as follows:
“
The
red plastic envelope is for Robert White after you had a look at
everything first
”
3.
The Robert White referred to in the note
was a reference to Mr Robert Findlay White, an attorney of the firm
Meumann & White,
attorneys who practised
inter
alia
at uMhlanga Rocks and who the
deceased had in the past instructed with regard to her affairs,
including the preparation of a will
and a subsequent codicil thereto.
4.
According to the applicant she came upon
the note and the envelope in the deceased’s study when she went
there on Monday June
26
th
to sort out the deceased’s personal belongings. According to
her the envelope contained personal belongings of the deceased,
including a manuscript letter, a copy of which is annexed to the
founding affidavit as annexure “A” (the original having
been lodged with the Master, being the fifth respondent) which read
as follows:
“
Dear
Sue, thank you for making
my last
days so incredibly comfortable.
Mr
Rob White, Meumann & White.
Dear Rob, so
quick everything is changing. I don’t know what the future
brings but Susan van Straaten is a long time friend
of mine. I
definitely want her to have my unit at 16 Rolling Hills, my shares at
Investec, furniture, car and jewellery* to be
hers after my death.
The
car in Germany & moneys in Germany shall stay in Germany and be
divided between my 2 Nices (sic) & Neffew (sic).
*and
Investment.
Well,
I hope for the while being it’s the right thing of mine to let
you know. Depends now how long I shall be here in this
wonderful
world.
17
June 2011
Helene Erika
Slack nee Frisch
16 Rolling Hills
CC
4319
Umhlanga Rocks
Born:
24 7. 1937
”
5.
In providing background to her finding the
envelope, the applicant explained that she and the deceased had met
some fifteen years
earlier at the Rolling Hills Country Club, a gated
estate where they both resided. They became friendly and their
friendship grew
with the passage of time. During May 2011 the
deceased confided in the applicant that she had been diagnosed with
cancer and that
her condition was terminal. According to the
applicant the deceased asked to come and stay with her and for the
applicant to care
for her. She explained that this was because the
deceased, being of German extraction and having had no children of
her own, had
no family in South Africa.
6.
The applicant agreed and the deceased moved
in with her. She assisted and cared for the deceased, helped her
where necessary to
attend doctors’ appointments and for her
admission to the uMhlanga Hospital for the period 23 to 24 May 2011.
During this
period she also “ran errands” for the
deceased, such as attending to the payment of bills. The papers are
silent as
to the exact condition of the deceased during the period of
her stay with the applicant and thus the degree of assistance
required
or actually provided for her day to day care.
7.
On 21 June 2011 and at her own request the
deceased returned home to her housing unit in the estate. It was
there that she passed
away on June 26
th
,
but details of the circumstances of her passing and the actual cause
of her death are not stated. Also unclear is what assistance
the
deceased may have required or what support facilities were available
to the deceased upon her return home. Indeed, although
it was known
that her condition was terminal, it remains unclear whether her early
death was anticipated at the time when she returned
home. There is
likewise little information on what transpired or how the deceased
occupied herself from the time she returned home
and until her death.
8.
The applicant contends that in writing the
letters, respectively annexures “D” and “A”
referred to above,
the deceased intended the latter as her final
will, to the exclusion of and thus revoking her previous testamentary
dispositions.
9.
The first and second respondents, being the
nieces of the deceased, together with her nephew the third
respondent, deny these allegations.
The fourth respondent is the
executor in the estate of the deceased who has not actively opposed
the relief sought and the Master,
as the fifth respondent, has abided
the decision of the Court.
10.
The first, second and third respondents are
siblings and the children of the brother of the deceased. They all
reside in the Federal
Republic of Germany so that they are unable, of
their own knowledge, to dispute the averments made by the applicant
regarding her
relationship with the deceased or the events preceding
her death. They questioned, however, whether the deceased was the
author
of the two letters (annexures “A” and “D”)
or, if she were then whether she had the necessary mental competency
to validly make a testamentary disposition so shortly before her
death.
11.
Insofar as the applicant however alleged
that there was an estrangement between the deceased and her family in
Germany, the first
three respondents denied that this was so. Having
been castigated by the applicant in reply for their alleged failure
to provide
supporting evidence for their claims of continued contact
with the deceased, the first respondent delivered a further answering
affidavit wherein she provided copies of some of the correspondence
which originated from the deceased and explained that many
other
letters were destroyed because it was not foreseen that they might be
required in the future. For the same reason no records
were kept of
telephonic conversations involving the deceased and her relatives in
Germany.
12.
The first respondent agreed that the
deceased had visited Germany in 2009 when her family had contact with
her. They are unaware
that she again did so in 2010, as claimed by
the applicant. They were also unaware of the terminal illness with
which the deceased
had been diagnosed and speculated that she may not
have told them in order to avoid upsetting them because they were far
away and
prevented by distance from rendering any effective
assistance.
13.
Insofar as the applicant suggested that the
deceased was motivated to change her existing will in order to
disinherit her brothers’
children by reason of a dispute with
her brother regarding their mother’s estate, the first
respondent pointed out that her
grandmother had died as far back as
1978. Accordingly, so she said, her grandmother’s death could
not have motivated a change
in the deceased’s will during 2011.
Since she said that the deceased used her inheritance from her mother
to purchase a flat
in Chieming in Germany which she used when
visiting Germany and in later years sold again, the suggestion is
that her mother’s
estate must have been settled many years
prior to her own death.
14.
The documentation put up by the first
respondent is also of some significance. If accepted, they establish
that the applicant cannot
be correct in her claim that the
relationship between the deceased and her brother had soured to the
extent where they no longer
communicated with each other.
15.
By way of a letter dated 8 April 2008 the
deceased purported to forward to her brother their father’s
diary of the latter’s
early years and prior to his marriage to
their mother. The letter is friendly and addressed (in translated
form) to “Dear
Heiner, Traudel and all your young people”.
16.
The envelope of another of the letters has
the particulars of both the deceased’s brother and his wife as
the addressees and
the sender is reflected as the deceased. It is
postmarked 28 December 2010, some six months prior to the death of
the deceased.
The accompanying letter is again addressed to “Dear
Traudel, dear Heiner & young people!”, thanked them for
their
Xmas card, wished them well for the new year and pointed out
that the reason their birthday card to her had been returned
undelivered
was because of the different ways the numerals “1”
and “7” are depicted in German and English. In the
concluding
paragraph the deceased extended her regards also to her
brother’s children and calling them by their first names. This
was
clearly a reference to the first, second and third respondents.
17.
None of this suggests an estrangement of
long standing as between the deceased and her family in Germany, with
the exception of
“Gaby”, with whom she said in her letter
that she had lost contact. This, presumably, is a reference to
Gabriele Reich,
the person who in terms of the codicil to the earlier
will of the deceased, was removed as a beneficiary.
18.
The deceased had during her working
lifetime been a secretary and was alleged to have been orderly in the
manner in which she conducted
her affairs. She had earlier signed a
will prepared by ABSA Trust Limited on 14 January 2006 and wherein
she had named the first,
second and third respondents as
beneficiaries together with Ms Reich.
19.
Subsequently she signed a will on 10
January 2008. This will appears to have been prepared for her by Mr
Attorney White of the firm
Meumann & White and the same
beneficiaries appeared therein. By codicil signed on 7 October 2009
the deceased removed Ms Reich
as a beneficiary, thus leaving as sole
beneficiaries the first, second and third respondents to whom she
referred as her family
members.
20.
Mr Attorney White deposed to an affidavit
wherein he confirmed that he prepared the will of 10 January 2008 as
well as the codicil
of 7 October 2009 on the instructions of the
deceased and that the deceased on each occasion attended at his
firm’s uMhlanga
offices to sign.
21.
According to the witness he received a
telephone call from an unspecified person shortly after the death of
the deceased informing
him that the deceased had left instructions
“
to change her will
”.
The deceased never mentioned the applicant to him. Whilst he was
careful not to express any opinion on whether the deceased
understood
the formalities associated with the making of a will, he was clear
that he would on each of the occasions have explained
such
formalities to her.
22.
As regards the manner in which the deceased
gave him instructions to prepare the will and the codicil Mr White
indicated that he
was unable to say in what manner he was instructed
to prepare the will of the deceased which she signed on 10 January
2008. However,
as regards the codicil he said that she instructed him
by email, a copy of which he attached to his affidavit.
23.
The attached copy of the email indicates
the sender as the deceased, the addressee as Mr White, the date of
sending as 5 October
2009 and an instruction under the subject
heading of “
Change of Will
”
and the heading of the note itself was “
re:
Adjustment to my will.
”. In the
body of the email Mr White was requested to change the will of the
deceased by deleting the name of Ms Gabriele
Reich nee Goeke born 24
May 1959. She also provided some details of changes to her assets in
Germany.
24.
Importantly, in this email the deceased
demonstrated an awareness for the formalities required with regard to
testamentary documents
and suggested that, once the documentation had
been processed, that she attend at the uMhlanga offices of Meumann &
White in
order to sign.
25.
Clearly the document (annexure “A”
to the founding affidavit and fully set out above), does not comply
with the formalities
required in terms of
s2(1)(a)
of the
Wills Act 7
of 1953
. According to the report of the Master it was for this reason
that he rejected the document when it was tendered to him. It
therefore
falls to the provisions of
s2(3)
to determine whether the
document could be rendered acceptable and the Master directed by this
Court to accept it for purposes
thereof.
S2(3)
provides as follows:
“
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 66 of 1965
, as a will, although it does not comply with
all the formalities for the execution or amendment of will referred
to in ss(1)
”
26.
The section requires that it be shown that
the deceased drafted or executed the document in question and has
since died. In particular,
however, it needs to be shown that the
deceased intended, at the time of so drafting or executing the
document, for it to be his
or her will (De Reszke v Maras and Others
2006 (2) SA 277
(SCA) at 281 H-I).
27.
However, there is a difference between the
formalities for the making a will and the capacity to do so. As
Thirion J pointed out
in Harlow v Becker NO and Others
1998 (4) SA
639
(D) at page 646 B-E, the Master in terms of
s2(3)
only
administratively accepts the document for the purposes of the
Administration of Estates Act but
does not thereby give validity to
the document as a will.
28.
In the present matter the first, second and
third respondents sought to cast doubt upon the fact that the
disputed document was
written in the hand of the deceased. However,
they failed to counter the evidence of Mr M J Irving, a Forensic
Document Examiner
of many years standing and who concluded that the
deceased had written the document in question. The said respondents
further sought
to question the capacity of the deceased to have
validly drafted or executed the disputed document. But their
challenge in this
regard also falls short of the mark. There is no
evidence that the deceased was mentally enfeebled on 17 June 2011
when the document
was apparently prepared. The onus of establishing
that a person who executed a testamentary document did not at that
time have
the requisite testamentary capacity to do so rests upon the
party contesting the validity of the document (Harlow v Becker NO
(supra)
at page 647D). Therefore no material factual disputes emerge
in this regard.
29.
However, it is clear that the party who
seeks an order in terms of
s2(3)
of the
Wills Act 7 of 1953
bears the
onus of satisfying the court that the person who drafted or executed
the disputed document intended it as his or her
will, or an amendment
of his or her will (Harlow v Becker NO (supra) at page 647C-D). In
the present matter the applicant therefore
bears the onus of
demonstrating that the deceased intended the disputed document
(annexure “A”) as her will.
30.
In Van Wetten and Ano v Bosch and Ors
2004
(1) SA 348
(SCA) Lewis JA in para 16 at page 354 I expressed the view
that;
“…
,
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 of necessity entails an examination of the
document itself and also of the document in the context of
the
surrounding circumstances.
”
31.
Objectively the deceased had no reason to
change her longstanding nomination of her nieces and nephew as her
heirs. The probabilities
weigh against the severe estrangement
between the deceased and her brother and his children contended for
by the applicant. It
is also interesting to note that the letter to
Attorney White (annexure “A”) bears the date 17 June
2011. That is,
at a time before the deceased relinquished the
applicant’s hospitality and returned home on 21 June 2011.
32.
The first respondent in her answering
affidavit drew attention to the state of mind of the deceased at the
time she decided to return
to her own home. According to the first
respondent the contents of the note to the applicant (annexure “D”)
suggest
that the deceased had in mind further assistance from the
applicant once her condition had deteriorated to the extent where she
was no longer able to take care of her own affairs by herself, but
not after her death. This suggests that the two documents (annexures
“A” and “D”) were not prepared for
publication only after the death of the deceased.
33.
On the available facts the deceased was
clearly aware that her condition was terminal. What is not clear is
when she believed that
her death would ensue and whether her decline
would be rapid or gradual. The content of the letter to the applicant
(annexure “D”)
is inconsistent with her view that it
accompanied her “new” will to be given effect to only
after her death. It more
probably suggests that she envisaged a
gradual decline into a state where she would no longer be able to
attend to her own affairs
and then wished to rely upon the assistance
of the applicant, until her death eventually came about.
34.
The actual mechanism of death is also
unclear. On the facts the deceased died some five days after leaving
the applicant and returning
home. We do not know whether she expected
her death to occur after such a short period. We also do not know how
physically mobile
the deceased was at the time of returning home. For
all we know she may have believed that she still had weeks, or even
months,
as opposed to mere days to live. There is no suggestion that,
for instance, she no longer at that stage had access or the ability
to operate her email facility or telephone.
35.
The fact is that she did not advise the
applicant of the existence of the two letters (annexures “A”
and “D”)
prior to her death and that these documents and
the red plastic envelope were co-incidentally located by the
applicant the day
following the death of the deceased, when the
applicant went to her home to sort out the personal belongings of the
deceased.
36.
If the deceased wished, in the ordinary
course, to change or replace her will, she would presumably have
transmitted instructions
to her attorney Mr White, whether orally
over the telephone or via email, as she had previously done on 5
October 2009 with regard
to the codicil to her will. She was known as
a woman who throughout her life was particular and precise in
managing her affairs.
In addition the affidavit of Mr White suggests
quite strongly that at least on the two occasions when the deceased
executed testamentary
writings prepared by him, he would have
explained the required formalities to her. She would therefore have
been aware of these
formalities at the time of writing out the
documents in question.
37.
The disputed document (annexure “A”)
itself is also not prepared in the form of a definite decision which
the deceased
had taken with regard to the devolution of her estate
and a direction to give effect to the decision after her death. It is
strangely
ambivalent and addressed to Mr White at his firm. It
commences with the lament that things have changed and the deceased
does not
know what the future holds. It then sets out directions for
the distribution of assets which she owned before concluding that she
hoped “
for the time being it’s
the right thing
” to let him know,
but depending upon how long she would (still) be in the world.
38.
Stressing that it was clear from the
provisions of
s2(3)
of the
Wills Act that
the disputed document must
have been intended to be the testator’s will (Ex parte Maurice
1995 (2) SA 713
(CPD), Selikowitz J at page 716 H-J), the Court
remarked further that had the Legislature intended to empower the
courts to treat
as wills documents merely expressing wishes for the
distribution of the author’s estate, then it would have said
so. In such
a case the Legislature would have focussed upon the
document having to reflect the testator’s distribution
intentions, as
opposed to it reflecting the intention with regard to
the status as a will and the need for testamentary formalities would
have
become unnecessary.
39.
In the present matter the focus of the
disputed document (annexure “A”) appeared to have been
upon the deceased’s
future intentions with regard to
distribution of her named assets, as opposed to executing there and
then a will in final and effective
form. The document seems to import
doubt that it represented, at that time, the correct approach.
Instead it was framed along the
lines of the deceased’s wishes
for the time being, but dependant upon how much remained of her
lifetime.
40.
Counsel for the respondents submitted that,
properly construed against the background of events, the disputed
letter to Mr White
at best represented an instruction to prepare
another codicil, this time appointing the applicant as a beneficiary
to receive specially
identified assets, or alternatively a fresh
will. In either event there was no intention that this document would
forthwith serve
as the deceased’s new will and accordingly the
application should fail.
41.
In my judgment and against the background
of all the factors involved, I am unpersuaded that the applicant has
discharged the burden
of proof showing that the deceased had intended
the disputed document as her will.
42.
It follows that the application must fail.
Each of the parties sought costs orders adverse to the other. I had
given serious consideration
to a costs order which followed the
result. However, this being a court of first instance it is
appropriate in my view to direct
that the costs of the application be
paid out of the estate of the deceased (De Reszke vs Maras (supra) at
page 283D).
43.
In the result the application is dismissed.
The costs of the application will be paid by the estate of the
deceased on the scale
as between party and party.
______________
VAN
ZYL, J.
Case
information:
Judgment
reserved on: 12 June 2013
Judgment
handed down: 19 March 2015
Counsel
for Applicant: Adv. L E Combrink
Instructed by
Tomlinson Mnguni James
Counsel
for 1
st
and 2
nd
Responden: Adv. D Van Reenen
Instructed by
Hildebrand Attorneys