About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2014
>>
[2014] ZAFSHC 103
|
|
S and Another v M and Another (1462/2012) [2014] ZAFSHC 103 (19 June 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : 1462/2012
In the
matter between:-
J[…]
C[…] S[…]
AND
.................................................................................
1
st
Applicant/1
st
Defendant
J[…]
C[…] F[…]
S[…]
NNO
(in
their representative capacities as trustees of the D[...] Trust)
JOHANNES
STEPHANUS
HUGO
............................................................
2
nd
Applicant/2
nd
Defendant
and
M[…]
M[…]
..................................................................................................
1
st
Respondent/1
st
Plaintiff
C[…]
M[…]
..................................................................................................
2
nd
Respondent/2
nd
Plaintiff
(Formerly
M[...] J[...] M[...] NO)
HEARD
ON:
13 JUNE 2014
JUDGMENT
BY:
KRUGER, J
DELIVERED
ON:
19 JUNE 2014
JUDGMENT
ON LEAVE TO APPEAL
[1]
This is an application for leave to appeal against the judgment of
Ebrahim J of 28 November 2013. The acting judge president
requested me to deal with this application at 09:00 on 13 June 2014,
the date and time for which the application was set down for
hearing,
because the judge who gave the judgment was not available.
[2] The
judgment was given after a trial which took place on 17, 18 and 20
September 2013. The application for leave to appeal
was filed
on 3 December 2013.
[3] In
the trial the plaintiffs contested the validity of the will of the
deceased dated 20 August 2001 wherein the deceased left
R20 000 to
the children of her son, M[…] and C[…] M[…], the
two plaintiffs and the remainder of her estate,
comprising farms, to
the first plaintiff in her capacity as trustee of the D[…]
Trust. At the trial the second plaintiff
(second respondent
herein) testified, as well as W[…] O[…], whose brother
had been married to the second plaintiff.
Lena Kokoropo, the
person who took care of the testatrix on the farm before she went to
the old age home also testified for
the plaintiff. On behalf of
the defendants only the second defendant, attorney Hugo, testified.
He had been practising
as an attorney for 20 years at that
time. He testified that he was called to the old age home by
the testatrix about two
months after she had been admitted there.
She told him that she wanted to change her will. He had
an interview with
her and explained to her that farm property could
not be subdivided and would therefore have to be left to a trust if
she wanted
various persons to benefit. He was satisfied that
she was capable of making a will.
[4] The
test at this stage is whether the applicants can satisfy the court
that they have a reasonable prospect of success on appeal
(
Afrikaanse
Pers Beperk v Olivier
1949 (2) SA 890
(O) at 892 – 893;
Capital Building Society v De Jager and Others. De Jager and
Others v Capital Building Society
1964 (1) SA 247
(A).
[4] The
trial court took the view that the probabilities were overwhelming
that the testatrix was mentally incapable of executing
a will on 20
August 2001. Mr Van Rooyen, for the applicant points out that
the evidence was that the condition of the testatrix
deteriorated
while she was on the farm, but after she went to the old age home,
and got her medication regularly and was cared
for properly, her
condition improved, as was confirmed by Kokoropo. He says
another court can reasonably find that the testatrix
made the will
during that period of improvement. The court did not find
attorney Hugo an untrustworthy or unreliable witness.
Mr Van
Rooyen says that there are reasonable prospects that another court
can find in favour of the defendants that the will
was valid.
[5] Mr
Duvenhage for the respondents conceded that the declaration in the
judgment that the deceased died intestate was incorrect,
because if
the will of 20 August 2001 is set aside, the will of 2 May 2001
revives. In the judgment the trial court ordered
the costs to
be paid jointly and severally by the first and second defendants.
The second defendant is the attorney who drew
up the will, and
the plaintiffs sought no costs order against him in the particulars
of claim.
[6]
There was sufficient evidence to give rise to a reasonable
possibility that another court can come to a different conclusion
and
find in favour of the applicants. There are reasonable
prospects of success on appeal.
ORDER
1. Leave to appeal is granted to the applicants to
appeal to the full court of this division against the judgment and
order made.
2. Cost of this application to be costs in the appeal.
_____________
A. KRUGER,
J
On
behalf of applicants: Adv P.C.F. van Rooyen SC
Instructed by:
Phatsoane Henny Attorneys
BLOEMFONTEIN
On
behalf of respondents: Adv N. de V. Duvenhage SC
Instructed
by:
Eugene
Attorneys
BLOEMFONTEIN