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[2015] ZAECELLC 12
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Herman and Others v Wiggill and Others (EL961/2013; ECD2161/13) [2015] ZAECELLC 12 (18 September 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, EAST LONDON
Case
no. EL 961/2013
ECD
2161/13
In the matter between:
KURT
HERMAN
First
Plaintiff
MARGARET
RICHTER
Second
Plaintiff
WAYNE
HERMAN
Third
Plaintiff
and
PETER
WIGGILL
First
Defendant
WAYNE
CHANGFOOT
Second
Defendant
THE
MASTER OF THE HIGH COURT
Third
Defendant
LISA
HERMAN
Fourth
Defendant
VERONICA
BOOI
Fifth
Defendant
RHODA
SWART
Sixth
Defendant
MBULELO
MAYEKISO
Seventh
Defendant
DUMILE
TSHALISI
Eighth
Defendant
NOMBULELA
SIYANGAPHI
Ninth
Defendant
NTOMBISE
SILWANA
Tenth
Defendant
HLENGIWE
SITYATA
Eleventh
Defendant
LISA
HERMAN
Twelfth
Defendant
MARY
LYNN
WYLDE
Thirteenth
Defendant
JUDGMENT
STRETCH
J:
[1] Margaret
Patricia Ann Wiggill (“the deceased”) died at her home in
East London shortly after midnight on 19 May
2013. She was 60 years
old.
[2] She left behind her
mother Margaret Richter, her husband Peter, her two sons Kurt and
Wayne from a previous union, and two wills
dated 8 May 2013 (with a
codicil dated 14 May 2013) and 17 May 2013 respectively.
[3] These
wills are the subject-matter of this action which has sadly resulted
in the deceased’s family and her closest friends
splitting into
two opposing camps, with the camp contending for the will of
8
May 2013
(“the first will”) consisting in the main of the
deceased’s mother (the second plaintiff), the deceased’s
son Wayne (the third plaintiff), her other son Kurt who was the
erstwhile first plaintiff having been released from these proceedings
before this trial commenced), and an attorney-friend by the name of
Lynn Wylde (the 13
th
defendant), and the camp contending for the will of
17
May 2013
(“the second will”) consisting in the main of her husband
(the first defendant) and another attorney friend by the
name of
Wayne Changfoot (the second defendant).
[4] The plaintiffs aver
that the second will is invalid for lack of compliance with
section 4
of the
Wills Act 7 of 1953
in that the deceased, at the time of
signing that will, lacked the necessary mental capacity to make a
will.
[5] The plaintiffs
contend that when the deceased signed the second will on 17 May 2013
she was mentally incapable of appreciating
the nature and effect of
her acts and was incompetent to do so in that she, at the time,
suffered from terminal cancer which had
affected her brain and had
impaired her mental ability. In their claim, the plaintiffs describe
these effects as follows:
She was not at the time
of sufficient intelligence, because of terminal disease.
She did not possess a
sufficiently sound mind and memory, because of terminal disease.
She did not understand
and appreciate the nature of the testamentary act in all its
different bearings, because of terminal disease.
Her memory was greatly
impaired by terminal disease.
She lacked a disposing
memory and was incapable of recollecting the property she was about
to bequeath, and manner of distributing
it, because of terminal
disease.
Her mind and memory were
insufficiently sound to enable her to know and to understand the
nature of the act in which she was engaged
at the time she executed
the will, because of terminal disease.
Her physical infirmity
had diminished her intellectual faculties and had confused her mind
and memory so that she no longer possessed
a disposing mind and
memory required for testamentary capacity, because of terminal
disease.
[6] In the alternative,
the plaintiffs contend that at the time of signing the will, the
deceased was subjected to undue influence
brought to bear upon her by
her husband Peter, and/or by attorney Changfoot, who:
Subjected [her] to
pressure to sign the will, despite her mental state and inability to
resist such pressure;
Because of their
relationship with [her], were able to persuade her to sign the will
against her better judgment and true intention
and to leave the
major part of her estate to First Defendant [her husband].
[7] It is accordingly
contended that the second will did not express the true intention and
the last will and testament of the deceased,
but instead that of her
surviving spouse.
[8] In the premises, the
plaintiffs seek orders declaring the second will invalid and the
first will to be the valid last will and
testament of the deceased
for purposes of the
Administration of Estates Act 66 of 1965
.
[9] The action is
defended by the deceased’s husband and attorney Changfoot who
plead that the deceased revoked the first
will (where attorney Wylde
had been appointed as executor of the estate) when she signed the
second will (appointing Changfoot
as executor). In particular, it is
denied that the second will does not comply with
section 4
of the
Wills Act, which
reads as follows:
4 Competency to make a
will
Every person of the age
of sixteen years or more may make a will unless at the time of making
the will he is mentally incapable
of appreciating the nature and
effect of his act, and the burden of proof that he was mentally
incapable at that time shall rest
on the person alleging the same.
See:
Kunz
v Swart
1924
AD 618
;
Tregea
v Godart
1939
AD 16
[10] In terms of item
19(b)(iv) of this court’s rules of practice read with item
19(d), any court hearing a matter in which
an order is sought
declaring a document to be the last will of a deceased or whether
such document is or should be regarded as
a valid will, shall consist
of a quorum of two judges, unless varied by the Judge President.
[11] The parties having
agreed that this is such a matter and that the quorum ought to be
varied to dispense with the second judge,
such variation was duly
obtained from the Judge President before the trial commenced.
[12] The third defendant,
being the Master of this court, whilst indicating that the third
defendant abides this court’s decision,
has put up a report
pointing out that:
Both wills were
registered by the Master on 10 June 2013.
The first will had been
revoked by the second one.
Accordingly, only the
second will was accepted by the Master upon registration and in
terms of
section 8
of the
Administration of Estates Act.
[13
] The deceased signed
the second will on Friday, 17 May. She died two days later. This
trial is about what happened during that
week before she died.
Sister England
[14] Sister England
testified under subpoena (to the extent that she did not volunteer to
testify) as the plaintiff’s first
witness. She was 71 years
old when she testified as a professional nursing sister who had
qualified as a general nursing sister
49 years ago. She has
extensive experience in caring for, medicating and counselling the
elderly, the infirm and terminally ill
patients. She has been
employed with CANSA (the Cancer Association of South Africa) since
1989, in particular providing palliative
care for terminally ill
cancer patients. She has a diploma in oncology.
[15] She began nursing
the deceased just short of a year before the deceased died. The
deceased was referred to her suffering from
mesothelioma which is a
type of lung cancer. At this time, the deceased had already been
exposed to chemotherapy and was taking
analgesic drugs.
[16] She testified that
from 17 January to 7 May 2013 she only had telephonic contact at
intervals with the deceased as the deceased
was living on a farm out
of town and was in any event, doing well. On 7 May 2013 the deceased
telephonically informed her that
she was not feeling well, that she
was in a great deal of pain, that her right eye was drooping and that
she was nauseas. According
to a doctor’s report the cancer had
metastasied causing adhesions to the brain.
[17] The deceased’s
oncologist had prescribed Epilum to prevent seizures, Louryka for
nerve pain, Mist-Morphine for pain,
Citlift for depression, Thyroxin
for her thyroid and Lacsit for constipation.
[18] On 10 May she spoke
to the deceased’s husband on the phone, who reported that the
deceased was “confused at times”.
[19] On
Monday,
13 May
she visited the deceased who was a “little better” on
that day. She was being administered one millilitre of mist-morphine
every four hours for pain. However on
Thursday,
16
May
the deceased was confused again and in much pain. The witness
described what she meant by “confused” as follows:
‘
When
I said that she was confused, she would tell you, start telling you
something and then ream off into something else totally
different to
what the situation was and she did not know what time of day it was
whether it was night or day … Also being
confused she did not
know if she had taken her medication or not … She was
deteriorating … Her mental abilities [were
deteriorating] …
she was becoming confused at times and also her, she could not walk
properly – she could not get
herself to the toilet … At
times she knew who I was … she did recognise people at times.
She knew her mom was there
… Are you talking about the 16
th
?
… She could understand at times yes definitely … If she
was not confused, then she could understand things…
I must
just tell you that I was not with this patient all day… When I
go and visit I was probably there for maybe half an
hour, so when I
was there she was confused. If I was not there I do not know her
condition during the day… I would ask her
if she had taken her
medication and she did not know if she had or not so in my
observation – to me she was confused. And
then when I asked her
what all these things were in her bed she did not know how they had
got there or who had put them there …
at times she knew she
was confused because I said to her do you know you have not taken
your medication and she says no I cannot
remember, I cannot remember
if I have taken it.’
[20] England said that
both of the deceased’s eyes were open but one of them was
bulging a bit. She had to “organise”
the deceased’s
medication and arrange for her mother to administer her medicine as
it appeared that the deceased was unable
to perform that function by
herself. Her four hourly dose of mist-morphine was doubled.
[21] By
Friday,
17 May
the pain was still getting worse and the mist-morphine was increased
to two and a half millilitres four hourly. According to Sr
England
this was purely to relieve pain and would not have affected the
deceased’s cognitive functioning or the fact that
she later on
failed to respond to stimuli. The deceased had stopped eating. All
her other medication was discontinued.
[22] That evening she
visited the deceased and was not happy with her condition. She
advised the deceased’s mother to keep
her comfortable and to
continue administering the mist-morphine. The deceased was unable to
communicate with her, apparently due
to the fact that the deceased
was in a deep sleep (unlike what the witness had seen with this
patient previously) and was unresponsive
to having been pinched on
the arm and to instructions to squeeze Sr England’s hand.
[23] It
is significant that during subsequent questioning the witness
testified that on this same day the deceased was confused,
but still
able to recognise her. During cross examination the witness
presented a third version and was adamant that she did not
perform
tests on the deceased on that day. In particular, she did not pinch
her as she stated previously. Thereafter she changed
her version for
the fourth time and testified that she did run her fingers across the
deceased’s feet on the 17
th
(being a basic method for testing responsiveness).
[24] She
visited the deceased again during the morning of
Saturday,
18 May
.
She looked comfortable and her pain was controlled. According to
her notes, the deceased was “not responding Saturday”.
She explained that she noted this as a result of having had no
response when she spoke to the deceased and when she pinched her.
She also lifted one of the deceased’s eyelids and the pupil was
unresponsive, whereas there would have been a literal flicker
in the
pupil of a reactive patient. When she visited that evening the
deceased was “comatosed”. She explained this
expression
as follows:
‘…
I am not
a doctor. I cannot say she was actually comatose but it is just a
word that the nursing sisters use. She was not responding
at all and
that is when you do the vital sign[s] to pinch them, and you try and
talk to them, and you lift the eyelid to see, and
there was no
response [to stimuli] at all … and also at the bottom of the
feet you bring your finger up like that and if
there is a response
their toes will move and on that day there was nothing.’
[25] She
was subsequently informed that the deceased died on
Sunday,
19 May
at one minute past one in the morning.
[26] Sr
England confirmed that she did not perform any cognitive tests on the
deceased, but confessed that she did not really know
what this term
meant. When the term was explained to her, she stated that she had
checked the deceased’s cognitive functioning
when she performed
the clinical tests (described) on the 18
th
.
[27] When questioned
about what she had told the plaintiffs’ attorneys (Mr and Ms
Wylde), she confirmed that the deceased’s
condition had
deteriorated quite rapidly during the three days prior to her death.
Significantly, she added the following:
‘
I do not know in
between, in between the times that I was not there. I was not there
the majority of the time. Maybe my visits were
from half an hour to
an hour at the most but her condition did deteriorate in the three
days.’
[28] Sr England was asked
whether she would have signed the second will as a witness. She said
no. Her reasons:
‘
Because a will is
a legal document and I am very wary of it and I do not think I would
just nilly willy (sic) sign anything that
I do not know anything
about and I had not seen the actual will at the time.’
[29] When
she was pressed for an answer about whether the condition of the
deceased on the 17
th
would have played a role in her decision not to sign the will as a
witness, she said the following:
‘
It could have
played a role as I said before. In my observations just the time I
was there that is what I found. I do not know how
her condition –
if it changed or just stayed stable for the rest of the day. I was
not there.’
Margaret Richter
[30] Margaret Richter
(aged 83 at the time of her testimony), is the deceased’s
natural mother. She is also the second plaintiff.
According to her
evidence she moved into the deceased’s home to care for her and
out of concern for her safety, a week before
she died. They shared
the same bed. The deceased and Peter had not been sharing a bed for
some time. Indeed, the deceased used
to lock Peter out of her room
at night.
[31] She described the
marriage between the deceased and her husband, Peter, as a stormy one
punctuated by allegations of Peter
having physically abused the
deceased, despite the fact that the deceased was the “dominant”
partner, that she was
“headstrong”, and that she was the
financial “instructor” in the marriage and in business.
During cross
examination she conceded however that it was like every
marriage with its “ups and downs”. She also conceded
that
one of the stressors in the marriage was the fact that Kurt had
a tendency to incur debt and that the deceased invariably succumbed
to pressure from him for financial assistance. She also agreed that
another stressor may have been the fact that the deceased
had
continued to love her sons unconditionally, despite allegations that
Wayne had stolen various items of value from his parents
(including
tools, fishing rods and jewellery) to sell in order to feed his drug
dependency. In her words “Patricia was
torn between the sons
and the husband” (I digress to mention that it is not in
dispute that Kurt had financial problems and
that Wayne had a drug
problem).
[32] Richter said that
she had confronted Peter about a bruise which the deceased had in the
area of her left lung (according to
the witness “where the
cancer was”) and his response (which seems to be common cause)
was that it was sustained when
the deceased “came for him”
during an argument, and he pushed her.
[33] Richter testified
that she had feared for the deceased’s safety because:
‘
Her husband Peter
adopted a completely different attitude when Patricia [the deceased]
was ill. He was not as attentive as what
he always was and there
[was] more bickering and arguments not only from his side but from
Patricia’s side as well …
But that is normal with cancer
patients. I mean they get very irritable and they [are] frustrated
and then they take it out on
the ones that are nearest and dearest to
them.’
[34] She said that Peter
also had no time for his step-sons Kurt and Wayne, and that the
deceased’s love for her sons caused
arguments between the
deceased and Peter. At some stage she was practically evicted by
Peter when he sold the house in which she
was living with him and the
deceased and suggested that she should find alternative accommodation
and “get a life”.
[35] When she and the
deceased spoke, the deceased would say that she intended to make
provision in her will for her sons, and for
her husband Peter. In
fact, before the deceased died she had transferred vehicles belonging
to their car wash business into Peter’s
name so that he could
run the business while she was ill. Peter would come home and
discuss with the deceased what had been happening
with the business
and would spend some time with her in her bedroom before retiring to
his.
[36] On
Tuesday,
14 May
the deceased received a call from the bank reporting that a large sum
of money had been withdrawn from the deceased’s personal
bank
account. The deceased told Richter that she had no money left and
summonsed Peter to come home immediately. Richter also
phoned
attorney Lynn Wylde (the 13
th
defendant). According to Richter the deceased trusted Wylde who was
her best friend and like a sister to her, to the extent that
the
deceased gave Wylde power of attorney with respect to her business
dealings.
[37] On this occasion
both Wylde and the deceased confronted Peter who explained that the
deceased herself had instructed him to
make the withdrawal. The
deceased apparently denied having done so. Subsequently the witness
corrected herself and said that when
Peter was confronted about the
money he just looked blank and uncomfortable. It is common cause
that Wylde then threatened Peter
that if he did not reverse the
transaction by 14h00 that same afternoon she would obtain a court
order and charge Peter with theft.
During this altercation the
deceased was initially tearful and upset. Richter said that she
clearly remembered the deceased’s
actual words to Peter as
having been:
‘
Why are you so
greedy?’
Despite having vouched
for her clarity of recollection on this aspect, the witness later on
was not sure whether the deceased had
uttered these words about the
money or about a motor-vehicle which Peter had transferred from her
name into his.
[38] According to
Richter, it was from this incident onwards that the deceased became
withdrawn and she devolved, from having been
an outgoing, talkative
woman who loved to entertain when she was well in the past, into
someone with no will to live.
[39] It is not in dispute
that Peter subsequently reversed the transaction. He was apparently
very angry and had threatened to
go and see an attorney. It is
common cause that his parting words (referring to Wylde) to his
mother-in-law were:
“
That bitch will
not get the better of me”.
[40] As I have said,
according to Richter, Peter had also transferred the deceased’s
Kia motor-vehicle into his name shortly
before her death and without
her consent. She expanded on this later in her evidence when she
reminded herself that when the deceased
had confronted Peter about
this, he replied that the deceased had instructed him to do this.
During cross-examination she was handed
a manuscript and badly spelt
undated document purporting to reflect the deceased’s signature
and her consent for Peter to
transfer a Kia and a Ford motor-vehicle
into his name, for what that is worth. I say so because despite
Peter’s counsel
having cross-examined this witness at length,
putting to her in detail what Peter’s evidence would be, Peter
Wiggill at the
end of the day, stayed clear of the witness box.
[41] Richter
related that on
Wednesday,
15 May
the deceased was very ill. She was confused and she was
deteriorating, vacillating between wakefulness and sleep, and going
off
into “semi consciousness”.
[42] By
Thursday,
16 May
Peter, true to his word, had been to see attorney Changfoot (the
second defendant) whom the witness referred to by his first name,
Wayne. Peter woke the deceased early that morning with a piece of
paper dealing with costs and death duties which was from his
attorney
and differed from what Wylde had reflected on certain forms. He told
the deceased to “drop” the first will,
which Wylde had
prepared because the Wyldes were known to prey off innocent people.
He said that Changfoot (the second defendant)
would pay her a visit
and that “she was going to draw up another will”. Peter
did not want the boys to inherit anything.
He said that he was going
to make his own will and leave what he could to the boys including
“the properties and everything.”
When Richter had
remarked that there was always a possibility of Peter changing his
mind he said:
‘
I will never do
that. I am a one woman man.’
[43] When asked to
explain what she understood about the two wills the witness said that
the deceased and Peter owned two fixed
properties (Vincent Gardens
and Ascot Road) in equal shares. According to the first will, the
deceased’s half share in Vincent
Gardens was bequeathed to her
son Kurt, and her half share in Ascot Road to her other son Wayne.
In terms of the second will however,
these properties would be left
to Peter who in turn would leave them (and whatever was left of what
he had inherited from the deceased)
to her two sons in his own will.
This is of course factually incorrect. The effect of both wills is
that the deceased’s
shares in the properties were bequeathed to
Peter, the only difference being that the first will (drafted by
Wylde) reflected a
type of resolutive condition that Peter would pass
these properties on to Kurt and Wayne when he died (which, with
reference to
Richter’s fears, was no guarantee that he could
not renege from this deal by virtue of his own testamentary
disposition,
particularly as he would then have had the full use and
enjoyment of both properties during the course of his lifetime).
[44] In a nutshell it
seems to me that Richter was either naïve regarding the contents
of the first will, or she had been persuaded
that it offered better
protection for her grandchildren. In her own words, she joined as a
party to the proceedings not out of
concern about the monetary side
of things, but because she was worried that her grandchildren would
not get the properties.
[45] Returning to Peter’s
early morning visit, the deceased had apparently asked if this could
not wait as she was tired.
According to Richter, Peter managed to
make her (the witness) very angry and she was very upset but felt
that there was nothing
she could do. In her mind, the deceased had
been satisfied with the first will. She was present when Wylde had
discussed the
first will with the deceased, but not when it was drawn
up or signed as she felt that it was “private and personal”.
However, when Peter discussed this new development with the deceased,
the deceased did not respond but just lay there listening
to him as
she was still half asleep with it being so early in the morning. When
she told Peter to leave the deceased as she was
sleeping he said:
‘
You mind your own
business. You have got nothing to do with this.”
[46] In
response to this the witness telephoned Wylde and reported to her
what had transpired and that she was not happy with it.
The deceased
did not thereafter indicate to her that she intended signing another
will. Instead, and in response to an invitation
from Richter, the
deceased promised to talk to Wylde before signing anything.
According to Richter the deceased was still able
to respond to
questioning during the afternoon of the 16
th
.
[47] In the interim
Wylde had wasted no time in coming over. Peter showed her the piece
of paper which by all accounts contained
a cost comparison with
respect to the first and second wills, pointing out to Wylde that
“his way” was going to be
“much cheaper”.
According to Richter Wylde went to move her car and when she
returned, and because Peter was becoming
quite aggressive and Wylde
appeared to have thought about the proposal, she said:
‘
Look Peter I am
done. Do it your way. I do not have to put up with all this.’
Wylde left in a huff
despite Richter’s attempts to persuade her to stay. Wylde was
close to tears.
[48] It is significant
that, during cross examination, Richter initially denied having
phoned Wylde as described in her evidence
in chief. She also
deviated from her evidence in chief by stating that it was only the
day after the confrontation between Peter
and Wylde that Peter
entered the bedroom very early in the morning with two documents and
explained their contents to the deceased.
Towards the end of her
cross-examination she changed her version again and admitted having
phoned Wylde, but denied that Wylde
came to the house in response to
this call, because the altercation between Wylde and Peter had
already transpired the previous
day.
[49] At
some stage during that day Richter questioned Changfoot who had come
to see the deceased and he gave her an outline regarding
the destiny
of the properties in terms of the proposed second will. She
expressed her dissatisfaction because the deceased had
told her that
her half share of the properties was to go to her sons, Kurt and
Wayne, if anything should happen to her. She told
Changfoot that she
did not trust Peter. Changfoot also had a conversation with the
deceased on the 16
th
.
When asked whether the deceased was capable of having a conversation
at that stage, she said:
‘
Patricia
was at the stage where she was drifting in and out of consciousness
and she was answering questions and just nodding her
head. She was,
I would say, totally confused. S he was not like it was – like
she was drifting you know. S he actually did
not care what was going
on around her … Yes from the 14
th
she just came down and well, what must happen must happen. That was
her attitude.’
[50] It
is not disputed that a conversation of this nature took place between
Changfoot and Richter, but on Changfoot’s version
it took place
on the 17
th
after the deceased had signed the second will. When Changfoot’s
version was put to her, she admitted that she may have said
that she
never wants to see Peter again, but denied having said to Changfoot:
‘
I trust you
Wayne.’
[51] On
Friday,
17 May
(the
day that the second will was signed), at about midday, the deceased’s
oncologist, Dr Sithlu visited together with his
assistant, Amanda
Bessinger. According to Richter the deceased was very fond of him.
She trusted him and a friendship had developed
between the two of
them. Although she was not present all the time, she recalls that
he sat down next to the deceased’s
bed and spoke to her softly.
During cross-examination it was put to her that the deceased had
participated in a normal conversation
with both Dr Sithlu and his
assistant. Her response was that it was impossible for the deceased
to have conversed sensibly in
her state.
[52] Richter testified
that Dr Sithlu was with the deceased for about ten minutes when
Changfoot arrived for the signing of the
second will. As the two of
them passed each other, she heard Changfoot asking Dr Sithlu
whether the deceased was in a state
to be able to sign a will, to
which Dr Sithlu replied:
‘…
are you
asking me in my personal capacity or as a doctor because I have not
brought my stethoscope.’
[53] It was put to her
that Dr Sithlu would deny this.
[54] Thereafter Richter,
Peter, Changfoot, his wife Janet and his secretary all went into the
deceased’s bedroom. During
cross-examination she conceded that
Changfoot could also have been there earlier that day to discuss the
will with the deceased.
[55] Richter next
described what transpired during this important occasion which has
become the central issue of this trial. She
said that Changfoot sat
next to the bed, his wife sat behind him and his secretary stood near
the built-in cupboard. Peter stood
near the doorway. She stood near
the window. Changfoot said that he had brought the will and asked
the deceased whether she understood
what he had brought and what they
had spoken about (or words to that effect). He called the deceased
by name and asked her whether
she knew and understood what she was
doing. The deceased’s right eye was closed because it had
collapsed. Her left eye
was open but she could hardly focus with it
because she was “full of the morphine dosage”. The
deceased nodded in
response. Changfoot then held the papers for her
to sign. She took the pen. Richter could see that the deceased did
not know
what she was doing because “her signatures were not
even on the lines”. Later on she conceded that the deceased’s
signature was also not even when she signed the first will.
[56] Richter explained
that the deceased had to sign quite a few pages. When she reached the
last page she signed half a signature
and dropped the pen. Changfoot
retrieved it. He put it back in her hand. She finished signing the
last page. In this regard
the last page of the second will does
indeed reflect what appears to be an incomplete signature, followed
by a full one.
[57] Richter explained
that although the will was not read out she was of the opinion that
the deceased would not have understood
it in any event. She was also
not capable of reading. She knew that there were people in the room
and that there was movement
around her. According to her
recollection, Changfoot might have said a few little words here and
there to the deceased relating
to the will, but he did not traverse
the entire document. She said it was basically –
‘ …
sign
here, sign there. He was directing her.’
[58] When asked whether
she heard Changfoot speaking to the deceased in legal terminology,
she replied:
‘
You know I did not
hear anything. He might have but I could not hear anything because I
was in a state of shock if you can call
it that. I was very unhappy
and I just could not believe what was happening….She just lay
there. She was lame. She was
just lame. She never spoke to
anybody. She just looked as if she was so exhausted and tired that
she just wanted everything over
with.’
[59] Richter did not
object to what was happening because she felt despondent
(“moedeloos”) and helpless and she had
endured much
verbal abuse from Peter and did not want to get into a fight while
her daughter was lying on her deathbed.
[60] The people left.
[61] Changfoot’s
wife Janet (who was one of the deceased’s three special female
friends, the other two having been Lynn
Wylde and Marion Beukes), may
have stayed behind for a bit to pray with the deceased as she had
done so daily when the deceased
was ill. It is common cause that the
deceased had requested Janet Changfoot to arrange for her to be
buried out of the Changfoots’
church and to deliver the eulogy
at her funeral, and that these wishes were complied with.
[62] Richter testified
(and this is common cause) that the ink had barely dried on the
second will when Peter announced his intention
to get to the bank
(presumably to reverse the impugned transaction once again). This
idea was supported by Changfoot who said:
‘…
Oh yes,
you must go, go and sort that out.’
Peter left and upon his
return reported that he would check the following day whether the
transaction had been effected.
[63] That night the
deceased’s brother William arrived. The deceased was able to
recognise him and greet him. When he entered
the room she smiled,
put out her arms to him and he gave her a hug.
[64] The
next day, being
Saturday,
18 May,
Peter was very angry as the money had not been moved, the explanation
having been that it was in an “all risk account”
or
something to that effect. She said that Peter suspected that Wylde
had had a hand in this.
[65] On that day the
deceased was in and out of consciousness. She was very ill. She
probably knew that they were there, and at
Richter’s instance
Peter spent about ten minutes with his wife that day. For the rest
she said:
‘…
he was
very busy running around. I am not sure what he was doing but he
[was] registering cars and seeing that things were going
to be put
into his name. He was very busy. I cannot say what he was busy
with.’
[66] In this regard the
witness had previously testified that when she had just moved in
Peter had asked her who would sign the
deceased’s death
certificate as he had to get all his ducks in a row. When she
reported to Peter that the deceased had just
died, he stood up from
where he was watching television, stretched, and said:
‘
Ah, but she put up
a tough fight hey.’
[67] When
her version on this aspect was scrutinised she admitted that she did
not know what Peter was doing on the 18
th
as she did not leave her daughter’s bedside on that day. She
said that she assumed that he was registering cars and she
felt and
thought to herself that he was transferring the deceased’s
assets into his name, but that she did not know this
for a fact.
[68] Richter described
her daughter’s deterioration over the last five days of her
life as follows:
‘
She just wanted to
sleep. She was disinterested in her surroundings. She just seemed to
be in a state where I just wished, she just
wished that everything
was done and I do not know how to put it … she did not eat …
that made me very worried. She
stopped because she could not really
eat but she was on Ensure. But she stopped that and then she never
ate the rest of those days.’
[69] She said that she
nursed her husband and her two sons before they died of cancer. Her
granddaughter also passed away from
the same condition. From these
experiences she had learnt that before these patients go into a full
coma they drift in and out.
She said that the deceased behaved in
the same fashion and that she had to keep on calling her to see
whether she was still with
them. When she called the deceased’s
name she would answer, open one of her eyes and say “yes
mommy”. Then
she would go back to sleep again.
[70] Throughout her
evidence she referred to the first will as Pat’s will (the
deceased) and the second one as Peter’s
will. She said it was
Peter’s will because the deceased, who was “semi-conscious”
could not have read it. Later
on in her evidence she clarified this
by saying that one minute the deceased was talking sensibly, whereas
the next minute she
would be “hallucinating”.
[71] During August 2013,
after summons in this matter had been issued, Peter sent Margaret
Richter an sms which reads as follows:
‘
After all Pat and
I have done for you we are going to have our day in court. She did
not want to fight. She was trying to help every
(sic) as Pat always
did. Now I can see why she hated you so much. She always said you do
not know my mother. The truth has come
into the light now. You are
disgusting Margs. God will have his day with you. Peter.’
[72] During
cross-examination Richter denied that on the 17th she had told her
friend Marion Beukes that Changfoot had been there,
that he had
sorted matters out, that the deceased was happy and that she (the
witness) was happy particularly because Changfoot
had promised to
look after her. She said that Marion must have been mistaken. When
it was suggested to her that acceptance of
her version would mean
that Marion must have been deliberately lying, her response was:
‘
I know what I felt
and what I saw. I cannot talk for Marion …No, I am actually
very hurt about that because Marion was a
good friend of mine and we
have been in touch with each other through this whole proceeding. We
used to phone each other and she
used to phone to find out how I was
… No, I can think of no reason why she is doing what she did
now … She was a
very good friend [of the deceased]. She was
more like a sister. That is why this has got me completely baffled.’
[73] The witness was then
cross-examined in some detail regarding the plaintiff’s
alternative claim. Her version on this
aspect, inasmuch as it
relates directly to what had transpired at the time of the signing of
the second will (as pleaded) is the
following:
Peter Wiggill was silent
at the time of the signing of the will, because he had said and done
everything he wanted to do, the
day before.
She thought that Peter
(and not Changfoot) had been trying to influence the deceased to
change lawyers the day before she signed
the second will.
Peter did not influence
the deceased on the day that the will was signed but on the previous
day.
No pressure was exerted
on the deceased at the time of the signing of the will. However,
the day before she signed the will,
Peter was insensitive to her
mental state and subjected her to pressure by explaining costs and
death duties to her and telling
her what it was going to cost to
bury her.
Changfoot did not
persuade the deceased to sign the will.
Peter did a lot of
persuading the day before, but not at the time of the signing of the
will.
Her attorneys had not
approached her to obtain instructions regarding a proposal that the
alternative claim against attorney Changfoot
be withdrawn.
[74] Richter admitted to
having had a telephone conversation with Marion Beukes about her
involvement in this case but disputed
most of what was put to her
about the contents of the conversation. In particular she disputed
having told Beukes that the only
reason she became involved in the
case was because Wylde had threatened that if she did not give them
(attorneys Mike and Lynn
Wylde) a statement, they would summons her
to court whether she liked it or not. She agreed that she had told
Beukes that she
did not want to be involved in this matter, but that
her son had instructed her to do so to support her grandsons Kurt and
Wayne.
She said that Marion was a friend to both Peter and the
deceased, but that she was very much closer to the deceased than she
was
to Peter.
[75] According to
Richter she became a plaintiff after her son Kurt withdrew from these
proceedings. She said that she only saw
the first will after the
deceased had died, when Kurt approached her with it. However, the
deceased told her what was in the first
will and that she would
receive R250 000 in terms thereof. She said that it did not matter
to her that the deceased had, at some
stage reduced this amount to
R200 000 which was consistent with what was bequeathed to her in the
second will. She had no idea
why the bequest to the deceased’s
maid had been doubled in the second will, but was not adverse to this
having been Peter’s
idea. She also did not have an inkling as
to whose idea it was to leave R5 000 to each of the five car wash
employees in the second
will. This too, could have been Peter’s
idea, but she was not too concerned about these changes in the
monetary bequests.
[76] She repeatedly said,
throughout her evidence, that it was the change with respect to the
properties that she was concerned
about. With respect to the car
wash, she described the deceased as a hard taskmaster who knew what
she wanted and wouldn’t
take any nonsense.
Lynn Wylde
[77] Wylde
is, as I have mentioned, is not only the 13
th
defendant. She fills various other roles. She is one of the three
women referred to as the deceased’s best friends. She
is the
wife of, and secretary to the plaintiffs’ attorney. Although
an educator by profession she started working for her
husband 25
years ago, and to this end completed a course in the administration
of estates and the drafting of wills. She drafted
wills for the
deceased and her husband, inclusive of the first will wherein she is
also named as executor. The deceased had also
given her a general
power of attorney with respect to her bank accounts about a year
before she died. Up until then Peter Wiggill
had been nominated as
the executor of the deceased’s estate as she trusted him.
However, according to the deceased there
had been a physical
altercation and a disagreement between her and Peter about money
which the deceased wanted to leave to her
biological family. The
deceased no longer trusted Peter and nominated Wylde as the executor
of her estate instead. This more
or less coincided with the time
that the deceased was diagnosed with cancer.
[78] I must mention at
the very outset, that she was not present when the second will was
signed and accordingly cannot add value
to the plaintiffs’
claim that Peter Wiggill and/or Wayne Changfoot subjected the
deceased to undue influence at the time
of the signing of the second
will.
[79] I intend traversing
her evidence only where it is relevant to the deceased’s mental
capability of appreciating the nature
and effect of her act at the
time that she signed the second will.
[80] She described the
deceased as having been a very good business woman. This appears to
be common cause.
[81] At some stage Peter
had threatened to close banking accounts and to transfer vehicles
into his name. Wylde expressed her disapproval
of this and accused
him of prioritising financial issues over his wife’s health,
and of “knocking her about”
the day before she had had a
biopsy. According to Wylde, Peter did not deny this accusation but
said:
‘
Never mind, she
will get over it.’
[82] Peter then proceeded
to enquire from Wylde what she would charge to do the estate. She
found this absolutely despicable because
all Peter was worrying about
was the executor’s fee and the money while his wife was
suffering.
[83] More to the point,
about two weeks before the deceased died the deceased instructed her
to draft a new will. The witness referred
to this three page
document which was handed in as an exhibit. The instructions had
been written out in long-hand by the deceased.
The witness herself
wrote the date and the heading which reads “This is my Last
Will & Testament … This replaces
all other wills
previously made by me”. She did so just in case the deceased
“didn’t make it that night”
(it is not in dispute
that the deceased was terminally ill and that her passing on was
imminent). She also inserted the words
“invest for Slade”
and “R3,5 million Stanlib” on the document.
[84] The witness had no
doubt as to what the deceased’s instructions were and went home
to type a will for her. It is perhaps
necessary at this point, to
reflect on what the deceased had recorded (in her own hand), as her
assets, having been married to
Peter out of community of property:
A half share in 64A
Vincent Gardens (the matrimonial home);
A half share in 10
Ascot Road;
A car wash and laundry
with vehicles;
Motor vehicles,
furniture and effects;
R3,5 cash investment.
[85] It is clear from
the handwritten instructions and the typed will (dated 4 May 2013)
that the deceased’s instructions
had been that, with the
exception of bequests to the value of R1 250 000 (made up of R500 000
for Kurt, R500 000 for Wayne’s
daughter Slyde to be invested
with the plaintiffs’ attorneys until she reached the age of
majority, and a further R250 000
for the deceased’s mother),
the remainder of the deceased’s estate (inclusive of her half
shares in the fixed properties)
would go to her husband, Peter
Wiggill.
[86] It is also apparent
from the typed will (although not reflected in the handwritten
instructions) that Wylde was appointed as
the executor of the
deceased’s estate, that she was exempted from furnishing
security and that she would be remunerated for
her services in terms
of the relevant provisions of the schedule to the
Administration of
Estates Act (it
being common cause that this would be 3,5 per cent of
the value of the estate).
[87] I digress to mention
that counsel for the defendant objected to the admission of this
evidence on grounds of relevance. At
that point in the trial I was
of the view that there was merit in this contention. That view has
changed. The reason for that
will hopefully become apparent in what
I have to say hereinafter.
[88] In
the interim I move on to what is termed the first will dated
8
May 2013
.
According to Wylde, Peter had instructed her on that day to draft
his own separate will, leaving his entire estate (including
the
immovabl
e
properties)
to the deceased’s two sons, Kurt and Wayne. It is significant
that the deceased’s handwritten instructions
which I have
referred to clearly state, in the first paragraph, that after the
deceased’s half shares of the two immoveable
properties had
been transferred to Peter, he can dispose of them at his will, and
even “sell the properties to live in a
manner he is accustom
(
sic
)
to”. The second paragraph of the deceased’s handwritten
instructions reads as follows:
‘
Anything that
Peter Noel Wiggill has left in his name from the bank, property’s
will be left to the boys Kurt and Wayne and
this will be divided by
half and they will reap the benefits and rewards’.
[89] In my view, and
having regard to Peter’s instructions to Wylde on 8 May 2013
(the effect of which was that his own will
should reflect that he did
not intend selling the properties to live a lavish lifestyle despite
having had the deceased’s
blessing to do so) but that he
intended preserving these properties and indeed his entire estate for
her sons) creates two inescapable
inferences to which I shall
presently return:
Peter’s will of 8
May is overwhelmingly strong corroboration for the contention that,
11 days before the deceased died,
Peter was making serious
provisions for the best welfare interests of her sons and was not
conducting himself in a manner consistent
with a wicked and greedy
stepfather as suggested;
At
least 11 days before the deceased died, she and Peter were
discussing and debating their respective wills, and by all accounts
were not only
ad
idem
as
to the disposal of their respective estates, but that Peter was
prepared to go the extra mile for the deceased’s children,
which is wholly inconsistent with the relationship of mistrust and
abuse described by the plaintiffs’ witnesses.
[90] According to Wylde
she then drafted a will to this effect for Peter (which forms part of
the plaintiff’s bundle of documents)
and she also drafted what
is now referred to as the deceased’s first will, for purposes
of this trial. Wylde read out both
the deceased’s first will
and Peter’s will to the deceased that same day. Peter was
present and even went next door
to get witnesses for the signing of
their two respective wills.
[91] There are only two
differences between the deceased’s will signed on 4 May and the
one signed on 8 May (“the first
will):
The deceased’s
bequest of her half shares in the two properties to Peter are no
longer unconditional, but conditional upon
Peter leaving these
properties to Kurt and Wayne in his will (which is indeed reflected
in Peter’s will);
The bequest of R250 000
to the deceased’s mother has been struck out and substituted
with the sum of R200 000 (according
to Wylde this was done because
Peter did not want Richter to get R250 000).
[92] Wylde was confident
that as at 8 May 2013 the deceased knew and understood what she was
doing.
[93] Unhappily,
it seems that Wylde did not take kindly to Peter’s
modus
operandi
thereafter.
According to her Peter (after his and the deceased’s first
will was signed) told her (quite innocently it seems)
that he had
been transferring vehicl
es
into
his name and closing bank accounts that same week. She told him that
he should not have done so, and that it was wrong. She
was concerned
that the deceased’s children would not “get anything out
of the estate.” However, she did not
take any further steps in
response to what Peter had disclosed openly to her. Her words were:
‘
I didn’t do
anything, because I couldn’t prove it. Right. I was not sure.
I was just upset. I was worried about it.
I didn’t want to tell
Pat. I just left it because M’Lady when you get the
certificate of balance from the bank [and]
there is nothing in the
estate account, and when you confront the person – you say,
what happened to the money? – No,
she gave it to me before she
died. You cannot prove that.’
[94] On
14 May 2013 Wylde received the fatal call from Richter, by all
accounts confirming her very suspicions (that funds had been
withdrawn from the deceased’s bank account). The rest of her
evidence as to what transpired next dovetails in most material
respects with that of Richter (with the exception of her evidence
that the deceased was not slipping in and out of consciousness
on the
14
th
as suggested by Richter).
[95] In particular she
testified that on Tuesday, 14 May the deceased knew what she was
doing, she understood what was going on
and they spoke. The deceased
had instructed her (in Peter’s absence) to draft a codicil to
the first will to include an
employee at the car wash by the name of
Rhoda Swart, as a beneficiary of the sum of R10 000.
[96] To
my mind this disclosure is of particular significance in establishing
what the deceased’s state of mind was when she
made the second
will. I say so because the codicil to that will accurately reflects
this very instruction which the deceased had
given to Wylde three
days previously during the course of a private conversation. For
this to have happened, the deceased in my
view, must have been
sufficiently alert on 16 May 2013 to have repeated the instruction to
Changfoot. If this is to be accepted,
then Wylde’s evidence
(that on the morning of the 16
th
the deceased did not know that she was there, that she could not
think for herself and was unable to communicate with her at all),
is
either an exaggeration of the true position, or it must be accepted
that the deceased was vascilating between states of full
appreciation
and reduced appreciation of the nature and effect of her acts. I say
this because Wylde candidly conceded that she
was only at the
deceased’s house for about 20 minutes on that day.
[97] Wylde’s
evidence was that on the 16
th
Peter had challenged her about executors fees and that she was
fortunate to have been called away. According to her Peter had
said
that if things were done his way R3,5 million would be taken out of
the estate, and that he implied that the reason she refused
to change
the will was because such a reduction of the cash asset would
adversely affect her executor’s fees.
[98] During
cross-examination the witness was constrained to agree that the
scenario which Peter had proposed to her (that if the
estate was
reduced to the value of the fixed properties only there would be more
available to the beneficiaries due to a substantial
reduction in
executor’s fees and the elimination of estate duty. However,
she remained adamant that this type of estate
planning should not be
done when the testator is dying.
[99] When it was put to
her that the R3,5 million was withdrawn from the Stanlib account in
response to a signed instruction from
the deceased her response was
that this was not what the deceased had told her. In her view it was
in any event illegal the withdraw
cash from the deceased’s
estate before she died.
[100] Before Wylde
stepped out of the witness stand she became extremely emotional (as
she had done on a number of occasions throughout
her evidence) and
her parting words were the following:
‘
M’Lady this
is really wrong. She was – would never have signed that will if
she knew what she was doing.’
[101] I
have some difficulty in understanding this statement but assume, in
Wylde’s favour, that what she meant was that the
deceased
(albeit an astute and shrewd businesswoman) would not have been party
to something illegal. Any other argument would
fly in the face of
the deceased’s manuscript instructions which she had given to
Wylde two weeks before (the upshot of which
was, on a simple
calculation, that the deceased was comfortable with Peter being the
beneficiary of some R3 750 000 (being
the balance of her
R5-million estate after R1 250 000 had been bequeathed to her mother
and her children). Coincidentally, this
generous award bestowed upon
Peter (which on Wylde’s version the deceased was certain she
wanted to make) is practically
equivalent to what Peter would have
received in terms of the second will. This is so because in terms of
the second will the asset
value available for distribution would have
been reduced by Peter’s withdrawal of the R3,5 to the value of
the shares in
the fixed properties only, being in the region of R1,5
million. The net estate having been reduced to below R3,5 million
the estate
would not only have been exempt from estate duty but it
was the evidence of Changfoot that executor’s fees had been
waived
(this is also evident
ex
facie
the second will). Assuming that the fixed properties would have
remained preserved to give effect to Peter’s will signed
on 4
May 2013, Peter would have been left with an inheritance to the value
of R3 778 400 calculated as follows:
Fixed assets and cash R5
000 000
Advertising 1 000
Master’s fees
600
Margaret Richter
200 000
Veronica
20 000
Rhoda 10 000
Car wash employees
25 000
Kurt 500 000
Wayne 250 000
Slayd
250 000
Balance R3 743 400
Lynette Wilhelm
[102] Wilhelm
was the last witness called by the plaintiffs. She testified that
she lived down the road from the deceased and that
they knew each
other since their early teens. She visited the deceased on the
Monday, Tuesday and Wednesday
directly
preceding her death. On Tuesday, 14 May the deceased told her
that she knew that she (the deceased) was hallucinating
because she
was talking to people who were not there, but that she could not help
it and was worried about what her granddaughter
must think. The
deceased was able to recognise people but one could not converse with
her. The witness imagined that she just
lay there listening.
[103] On Wednesday, 14
May the deceased was complaining of terrible pain on her side. She
did not think that the deceased would
have been able to sign anything
that day.
[104] She described the
deceased as having been a buxom, vibrant woman, a lovely girl, a
goer, a fighter, an extrovert and a businesswoman
who did not let the
grass grow under her feet. This was before she took ill. She did
not like what her sons did, but she loved
them anyway.
[105] That then concluded
the case for the plaintiffs whereafter the defendants’ counsel
successfully applied for absolution
from the instance with respect to
the alternative claim of undue influence.
[106] In my view the
reason for that ruling is obvious. The portion of the plaintiffs’
particulars dealing with this claim
reads as follows:
21.
At
the time of signing the said Will
(my underlining), the said MARGARET PATRICIA ANN WIGGILL was
subjected to undue influence exerted upon her by First Defendant
and/or Second Defendant:-
21.1 Who subjected
MARGARET PATRICIA ANN WIGGILL to pressure to sign the Will, despite
her mental state and inability to resist
such pressure.
21.2 Who because of their
relationship with MARGARET PATRICIA ANN WIGGILL, were able to
persuade her to sign the Will against her
better judgment and true
intention and to leave the major part of her estate to First
Defendant.
21.3 Accordingly, the
said Will did not express the true intention and last Will and
Testament of MARGARET PATRICIA ANN WIGGILL,
but the desires of the
First Defendant and was obtained as a result of actions and influence
on the part of the First and Second
Defendants, which in Law amounts
to undue influence.
[107] Margaret Richter
was the only witness called by the plaintiffs who could comment on
what transpired “at the time of
signing of the said will.”
[108] There is nothing in
her evidence to even remotely suggest that the deceased was subjected
to undue influence at the time of
the signing of the will on Friday,
17 May. On the contrary, her clear and unequivocal evidence was, as
I have already mentioned
in this judgment, that none of this happened
at the time of the signing of the will. She said that Peter had
subjected the deceased
to pressure to change attorneys the day
before, and in her opinion he was insensitive to her condition by
discussing estate duty
and burial costs with her the day before.
Changfoot she exonerated completely.
[109] In the premises I
had no alternative but to grant absolution to the first and the
second defendant.
[110] The only remaining
issue then, is whether the deceased was competent to make the second
will.
[111] The first
defendant, Peter Wiggill, did not testify.
Wayne Changfoot
[112] Wayne Changfoot
(the second defendant) was 67 years old when he testified. He was
admitted as an attorney in 1974 and is
a partner in the local firm of
Changfoot Van Breda. He intends retiring at the end of October 2015.
He specialises in litigation,
estate planning, the drafting of
agreements and conveyancing.
[113] On
Tuesday,
14 May 2015
Peter (who had signing powers with respects to the deceased’s
bank account), reported to him about withdrawing the deceased’s
money with her consent, and about Wylde’s threats. He warned
Peter that despite the fact that this is a donation between
spouses,
the Wyldes would not hesitate to litigate. He suggested that the
money should be returned and that they should try and
convince “them”
to allow them to free up the money. He also did an estate planning
calculation for Peter on excel
about what executor’s fees and
transfer duties would amount to if the cash money was left in the
estate, and if it was drawn
out. He also explained to Peter about
wills and trusts, and that the money could go back into the
proverbial pot after the deceased
had died. It was also discussed
that the deceased’s son Kurt would not inherit if he was
insolvent (which he apparently
was at that time).
[114] Peter expressed a
keen interest in planning the deceased’s estate according to
what Changfoot had told him, but Changfoot
told him “it’s
not what you want, it’s what Pat [the deceased] wants”.
They decided to speak to the deceased.
Later that day Peter reported
to him that he had returned the funds, and presented him with a copy
of the deceased’s first
will and his own.
[115] On
Wednesday,
15 May
he
was told that Wylde was not interested in this plan.
[116] On
Friday, 17 May
Peter
told him that the deceased wanted him to draft a new will. He went
to see her that morning. She was very ill. Her condition
came as no
surprise to him. His wife and their minister had been to see her the
previous week to plan her funeral.
[117] He put to her that
he understood that she wanted to change her will. She confirmed
this. Changfoot explained that he had
drafted many wills before but
refused to do so if he could not get clear instructions from the
testator. She said Kurt was in
debt and she did not want his
creditors or SARS to get hold of his inheritance. He explained to
her that if Kurt was insolvent,
the R500 000 which she had left to
him in terms of the first will would go to the children. She
insisted that she wanted Kurt
to have the money. He explained that
they could get around this by creating a testamentary trust. She
took to this idea and said
that the trust should last until Kurt is
debt free.
[118] He also discussed
with her the fact that Kurt had previously borrowed R50 000 from her.
Her instructions were that he must
keep that.
[119] They discussed the
fact that in terms of the first will Wayne’s daughter Slade
would get R500 000 but Wayne would not
get anything. Her instructions
were that they should get R250 000 each, but that she did not want
Wayne to “snort”
the money (referring to his drug
problem). He explained to her that this money could also be put into
a trust. She agreed and
said that Wayne had to be drug free for two
years before he could get the money, and that Slade’s money
should remain in
the trust until she was 21.
[120] With respect to
Richter’s inheritance, she confirmed that it should remain R200
000 with no conditions attached. Thereafter
she gave the following
instructions: R20 000 must go to Veronica the maid, R10 000 to Rhoda
the car wash manager, and R5 000 to
each of the other five car wash
employees. She could not remember their names. He assured her that
if there were five, they would
be easily identifiable.
[121] Changfoot was not
sure whether they discussed the issue of estate duty then as he was
under the impression that she already
understood that point from what
Peter had told her. She did say that “Peter must move the
money”. According to Changfoot
the deceased knew that she had
to get the money out. I digress to mention that the deceased died
before the money could be moved
and her estate has accordingly been
frozen.
[122] Her further
instructions were that the properties must go to Peter. He advised
her that Peter’s will would be dealt
with later on. The
intention was to execute Peter’s will that day.
[123] Changfoot said that
both Richter and Peter were present when he discussed the deceased’s
will with her, but not all
the time. He recalled in particular that
Peter too, could not remember the names of the car wash employees.
[124] Once he had
completed the consultation he returned to his office to draft the
will and to get the names of the five employees.
He asked his wife
and his secretary to witness the signing of the will. It is common
cause that his wife and the deceased were
close and had been friends
for over 30 years.
[125] Between 13h00 and
14h00 he returned with the second will. Dr Sithlu and a social
worker had just visited the deceased.
The doctor said: “She
recognised us and we spoke with her but if you want me to test her I
can.” Changfoot replied
that this would not be necessary
because her instructions to him were quite clear. The social worker
nodded in response to this.
[126] When he entered the
deceased’s room she was lying down. He went through the
salient points of the will with her including
the bequests. He asked
her if she understood what was in the will. When it came to
Veronica, Peter said “Shouldn’t
it be R10 000” to
which Richter responded “Pat said it should be R20 000”.
As I mentioned before, the first
will left R10 000 to Veronica and
the second will reflected R20 000. Changfoot was satisfied that this
change reflected the instructions
which the deceased had given him
earlier on that day and was of the opinion that Richter must have
been present when the deceased
gave him this instruction.
[127] He explained the
contents of the document to her and showed her where to sign. He was
unable to say why she appears to have
signed twice on the last page.
He was of the opinion that she was probably not satisfied with the
first signature. He did not
recall her dropping the pen. He did not
know whether she was able to read as she was looking at him while he
explained the contents
of the document to her. Peter signed his own
will, drafted by Changfoot, that same afternoon.
[128] As the executor of
the second will, he reported the estate to the Master and received
letters of executorship.
[129] During cross
examination Changfoot conceded that the will contained spelling
errors and that it had been “sloppily”
typed. He had
typed it himself in a hurry from a precedent using a cutting and
pasting method. It was easier for him to do it
himself as he knew
exactly what had to be said. The will was urgent because the
deceased was dying, and she knew that.
[130] He did explain to
her that if Peter withdrew the cash it did not mean that the boys
would not get their share. He was constrained
to do so because she
was worried that Peter would steal the money. Her response was an
“Oh” and then she agreed that
the money could be
withdrawn. Afterwards he also saw the withdrawal form which she had
signed and which was handed in as an exhibit.
This form is dated 17
May 2013.
[131] Changfoot testified
that he gave the deceased the assurance that all the beneficiaries
would get what was due to them, even
if the properties which she had
left to Peter had to be sold in the event of him not paying the R3,5
million back. He explained
that the executor could take legal action
against Peter if necessary.
[132] He
did not read the portion of the second will dealing with his powers
as trustee out to her
verbatim
.
However he explained to her that it gave him the power to handle the
trust money as he deemed fit. His evidence was that people
do not
want to hear all the detail.
[133] It was suggested to
him that if the deceased was mentally capable of appreciating all
this, she would not have signed the
will. Changfoot disagreed with
this statement and explained that a verbal agreement existed that
Peter would make good any shortfall
with respect to the payment of
the beneficiaries. He said that even Richter had said to him
afterwards: “I trust you Wayne”.
However she also
mentioned that when everything was over she wanted nothing to do with
Peter.
[134] Although
he had taken instructions from the deceased that very morning, he
nevertheless asked Dr Sithlu whether she was “
compos
mentis”.
He,
quite candidly in my view, admitted that he did so because he was
worried as to what had brought about a home visit from her
doctor.
[135] When it was put to
the witness that the deceased was not compos mentis that morning when
he took instructions from her, the
witness began to weep and said:
“No, she was dying. How many people do you know dying in front
of you?”
[136] The witness
remained adamant that the deceased, when she gave him instructions
and when she signed the will, did not have
diminished capacity and
that she “knew what she wanted”. He also said that he
had no doubt that he would ensure that
her wishes were complied with,
as they had been friends for many years.
[137] When it was
suggested to Changfoot that the only reason he wanted his wife to
witness the will was to corroborate his version,
he disagreed and
became very angry.
[138] The witness was
also cross-examined on the actual notes which he took during his
consultation with the deceased, and these
too became an exhibit at
this trial. According to these notes, Veronica Booi was to receive
R10 000 (as in the first will). The
witness recalled however that
Pat had given him instructions that morning to change this to R20
000. He also recalled that during
the signing of the will Peter had
said: “Shouldn’t it be R10 000?” in response to
which Richter had said: “That’s
what Pat wants”.
[139] As previously
mentioned this is significant as to the state of mind of the deceased
on that day. To double Veronica’s
inheritance was clearly not
an instruction that emanated from either Peter or Richter. There is
no evidence to suggest that it
was Changfoot’s idea. The
instruction could only have come from the deceased that same morning.
[140] The witness made it
plain that he was in any event testifying about a hypothetical
situation, in that the deceased had died
before the Stanlib funds (R3
582 000) could be moved to avoid estate duty. At the time of his
testimony, the cash funds remained
available for distribution in
terms of the second will.
Mariaan Beukes
[141] Beukes
testified with an air of confidence. She said that she had known the
deceased for many years. On
Friday,
17 May 2013
she
spoke to the deceased telephonically. The deceased invited her for
tea. She visited the deceased at about lunch time. The
deceased
instructed Veronica to make her a cup of tea and to give her some
cake. She declined the cake so the deceased instructed
Veronica to
wrap the cake up for her to take home.
[142] The deceased seemed
fine and she was able to converse sensibly. They chatted in general.
The deceased told Beukes to sit
next to her and held her hand. She
also told Beukes that she was feeling very happy, that everything had
been sorted out, and
that she was at peace. She felt that because
Veronica had been her maid for many years she wanted to leave her R20
000, and that
“Wayne and Janet” had been there and
everything had been sorted out in connection with her will.
[143] She spent about one
and a half hours with the deceased and they “conversed to and
fro”. She was lucid, She spoke
about her two sons and again
mentioned that she was at peace and that she “trusts Wayne and
Janet”. During the visit
Margaret Richter was “in and
out”.
[144] She returned later
that evening (about 17h00) and the deceased had become quieter. She
still wanted Beukes to sit next to
her but they spoke very little.
When Beukes told her that she had popped in to say goodnight, the
deceased just squeezed her hand
and said “okay”.
[145] She said that the
deceased was not slipping in and out of consciousness during her
visits.
[146] She
visited again on the Saturday and the deceased did not talk
.
[147] In response to my
questions, she said that during that period she would phone the
deceased on her cellular phone, and that
the deceased would answer
the phone herself. According to Beukes the deceased had told her
that she had drawn money out of a money
market account to save fees
for the estate. Beukes said that this would have been a few days
before 17 May. They spoke about
various things. The deceased said
that she wanted to leave Veronica R20 000. She said this during the
same week that she died.
The deceased had also said that her biggest
concern was that Wayne was addicted to drugs and she did not want him
to have money
until he could prove that he was drug free.
[148] Beukes testified
that Kurt was her god-child. Of Kurt the deceased had said that he
had been accumulating a lot of debt and
that she was concerned that
his money would be “absorbed in all the debt”. The
deceased told her that she wanted Kurt
to be debt free before he
inherited money from her.
[149] During questioning
arising from what I had put to the witness, she told by the
plaintiffs’ counsel that there had been
evidence that the
deceased had told Peter to pay back the money which he had withdrawn
from her account. In response, Beukes said
the following:
‘
I heard that. She
[the deceased] said to her mother “please phone Lynn –
you know what she’s like”. Pat
(via Lynn Wylde) told him
to bring the money back as it had been said that Peter would spend
all this money.’
Dr Sithlu
[150] As
mentioned, Dr Sithlu was the deceased’s oncologist. He
testified that on the morning of
Friday,
17 May 2013
Peter
had told him that the deceased wished to see him and the social
worker to say thank-you. They paid a home visit to the deceased.
They greeted her and she acknowledged them. It was a normal social
visit with “friendly banter”. It was not a medical
talk.
The deceased offered them tea which they declined. They spent about
ten to 15 minutes with the deceased. He recalled that
they asked her
about the photo above her bed. She said that it was a photo of her
son who had passed away in a motor-vehicle accident
(it is not in
dispute that the deceased and Peter had a son who had met his death
in this fashion).
[151] He had a normal
conversation with the deceased. She recognised both him and Amanda
his assistant. He described it as being
like “a comfortable
visit with a sick relative”.
[152] During
cross-examination he described it as a “non-confused”
discussion on social terms. She appeared well, She
answered in full
sentences. On the clinical aspects, his opinion as an oncologist was
that in cancer patients it was entirely possible
to have a full
conversation and to be dead or confused “four hours later”.
He repeated that it was entirely possible
for patients at the end
stages of their lives to have different levels of conversation,
meaning that if different witnesses experienced
the deceased in
different ways, it did not necessarily mean that some of them were
being dishonest. His words were: “I was
there and she didn’t
appear to be confused, but I didn’t do a medical assessment (in
the sense of performing a physical
and a neurological examination to
establish whether she was compos mentis).
[153] He said that it was
not uncommon for terminally ill patients (the deceased having died of
advanced cancer) to behave like
this and to have fluctuating levels
of consciousness. The deceased did not have brain cancer. Cancer
patients can be administered
high doses of morphine of up to six
milligrams and would still be sufficiently compos mentis to make
decisions, drive cars or to
consent to treatment.
[154] That then concluded
the case for the defendants.
Analysis
[155] As I have said, the
only issue left for me to determine is whether the deceased was
competent to make the second will when
she did so on 17 May 2013. n
terms of the common law and
section 4
of the
Wills Act, the
burden of
proof that she was mentally incapable at that time, rests on the
persons alleging this. In this case, the remaining
plaintiffs
Margaret Richter and Wayne Herman.
[156] This lengthy
judgment consists in the main of rather detailed summaries of what
the witnesses have had to say, sometimes exceeding
the limitations of
relevance. This is deliberately so. Matters such as these are, by
their very nature, sensitive. In this particular
matter more so, in
that even the executors of the various wills (who for all intents and
purposes ought to have been independent),
are emotionally involved
and as a result of their intimate friendship with the deceased and
her family, are naturally at times
inclined to be subjective and
excitable.
[157] In my search for
independent witnesses who are able to give evidence which is as close
as possible to clinical neurological
evidence regarding the
deceased’s state of mind, I have been constrained to settle on
the plaintiffs’ witness Sr England,
and the defendants’
witness, Dr Sithlu, both of whom have had many years of experience
working with and observing terminally
ill cancer patients, and
neither of whom appear to have had any hidden agendas or bias
favouring one party above the other. Indeed,
there is no evidence
before me to suggest that that they even really knew much about the
dispute concerning the first and the second
will. Having said this,
I am somewhat baffled by the fact that there is a dispute in the
first place. I say so because the cash
asset in the estate has been
preserved and by all accounts, if I rule in favour of the second
will, the estate will at least not
be mulcted in executor’s
fees. Over and above that, the education of the deceased’s
granddaughter will be catered for,
and both her sons (but for a
healthy touch of gratification delay) will get their money.
[158] It seems to me at
the end of the day that this largely academic fued has been fuelled
by foolhardy issues of principle instead
of practicality and common
sense.
[159] Returning to the
facts of the case, I am of the view that a consideration of the
evidence of Sr England in conjunction with
that of Dr Sithlu,
must, of needs be, lead to a finding that the plaintiffs have not
discharged their burden of proof on a
balance of probabilities. I
say so for the following reasons:
Sr
England has candidly conceded that she was not with the deceased all
of the time. At best she spent half an hour to an hour
with her on
Monday the 13
th
,
Thursday the 16
th
,
on the evening of Friday the 17
th
after the will had been signed, and on Saturday the 18
th
.
Although she was of the
opinion that the deceased was confused at times (and I have no
reason to doubt this), she could not speak
for the times when she
was not there.
Her evidence was not,
that because the deceased was confused or unresponsive in her
presence, the deceased was necessarily so
all or most of the time.
Significantly, when she
was asked the somewhat inappropriate question as to whether she
would have been happy to sign the deceased’s
will as a
witness, it would have been extremely easy for her to say that in
her opinion the deceased was not mentally capable
of deposing to a
will. Yet she did not.
It is common cause that
Dr Sithlu had actually visited the deceased just before she signed
the second will.
He described his
interaction with her as having been “non-confused”. She
was conversant and able to speak sensibly
and describe things which
were objectively found to have been correctly described.
His evidence dovetails
in a sense with that of Sr England to the extent that her
observations when she was with the deceased,
were not necessarily
the same as his observations. This type of fluctuation, he said (and
I have no doubt that he is qualified
as an oncologist to say this)
is not uncommon in terminally ill cancer patients. They are able to
have perfectly lucid conversations
at times, and at other times not.
[160] In my view, a
reasonable possibility exists that the deceased was indeed mentally
capable of appreciating the nature and the
effect of her actions.
This view is fortified by inter alia, the following:
That she had full and
detailed conversations with Beukes at the time about how she had
changed her will and how comfortable she
was with the changes;
That Changfoot could not
have known that she wanted to leave money to the manager of the car
wash unless that instruction came
from her;
That Veronica’s
inheritance was increased as a result of an instruction from her,
which instruction she repeated to Beukes
after she had signed the
will;
That the second will is
consistent with the type of will I would have expected an astute and
confident business woman with a genuine
concern for the best welfare
interests of her children to have signed.
Differently put, if the
deceased had signed a second will which was inconsistent with the
first one so as to deprive in particular
her mother and her sons of
the quantum of what she intended them to enjoy in the first will,
having heard the evidence of the
witnesses who knew her well, I
would have been concerned about her capacity at the time. But she
did not.
[161] For these reasons I
make the following order:
“
The claim of the
second and the third plaintiffs is dismissed with costs.”
_________________
I T STRETCH 18
September 2015
JUDGE OF THE HIGH
COURT
Appearance for the
Plaintiffs: Mr R Smith
Instructed by: Wylde &
Runchman Incorporated
East London
Appearance for the
Defendants: Mr R Quinn SC
Instructed by: MA
Fredericks & Associates
East London