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[2013] ZAFSHC 233
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M and Another v S and Others (1462/2012) [2013] ZAFSHC 233 (28 November 2013)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No. : 1462/2012
In
the matter between:-
M[…]
M[…]
...................................................................................................................
1
st
Plaintiff
M[…]
J[…] M[…]
N.O
.................................................................................................
2
nd
Plaintiff
and
J[…]
C[…] S[…]
and
J[…] C[…]
F[…]
N.N.O
.................................................................................................
1
st
Defendant
JOHANNES
STEPHANUS
HUGO
..............................................................................
2
nd
Defendant
MASTER
OF THE HIGH COURT,
BLOEMFONTEIN
..........................................................................................................
3
rd
Defendant
HEARD
ON:
17, 18 & 20 SEPTEMBER 2013
JUDGMENT
BY:
EBRAHIM, J
DELIVERED
ON:
28 NOVEMBER 2013
[1]
This trial is concerned with the validity of a Will executed on 20
August 2001 by the late C[…] M[…] S[…]
M[…]
(born O[…]), (“the testatrix”) who died on 1[…]
at an Old Age Home in Petrusburg, Free State,
aged 96 years.
She was married to A[…] F[…] M[…] who
predeceased her in 1991. They had had no
children of their own,
but chose to foster the three sons of her brother, who lived in
Bloemfontein. The eldest was W[…],
followed by M[…]
and the youngest A[…].
[2]
Both M[…] and A[…] were officially adopted by the
testatrix and her husband and changed their surname from O[…]
to M[…]. Both are at present deceased. M[…]
is the biological father of the first and second plaintiffs
and was,
during his lifetime, married to M[…] J[…] M[…],
who sues herein in her representative capacity as
mother and sole
guardian of the second plaintiff, C[…] M[…], who at the
time of the institution of this action, was
a minor but who has since
attained majority.
[3]
In terms of clause 3 of her Will, the testatrix bequeathed R20 000.00
of her Estate to her grandchildren, the children
of her son M[…]
O[…] M[…], in equal shares. In terms of clause 4
of her Will, she bequeathed the remainder
of her Estate to the first
defendant, J[…] C[…] S[…], in her capacity as
trustee of the Dennelaan Trust IT[…].
The first
defendant is married to a general medical practitioner, who treated
the testatrix prior to her admission to the Old Age
Home and who was
responsible for her admission to the home. No evidence was
placed before the court concerning the Trust
save that a copy of the
Trust Deed executed on 13 July 2001at Petrusburg was tendered as
exhibit “D” in the proceedings
by consent of the
parties. From the Trust Deed it is clear that the trust was
formed in order to benefit the members of the
S[…] Family
viz
Dr S[…], first defendant and their four children. All
the children are listed as income beneficiaries together with
their
parents, whilst the capital beneficiaries of the Trust are limited to
the children themselves and/or their direct descendants.
[4]
The plaintiffs have challenged the validity of the Will on the ground
that the testatrix did not have the required testamentary
capacity to
execute a Will at the time she signed it. They claim an order
for it to be set aside as invalid and for her estate
to devolve as on
intestacy. In an action of this nature, the history of family
dynamics and interaction assumes some relevance
and, I have no doubt,
influences the disposition of family assets. However, such
evidence has no place in deciding the present
issue and I shall
accordingly limit my summary of the evidence to the material and
relevant evidence placed before me.
[5]
W[…] O[…], the elder brother of M[…] and Al[…],
testified on behalf of the plaintiffs, that their
biological mother
passed away in December 1966 and that they then went to live with the
testatrix on her farm “D[…]”
in the Petrusburg
district. He said as a result of repeated physical and verbal
abuse upon him by the testatrix, he ran away
from the farm in 1972
and had had no contact with her until A[…]’s funeral
when she failed to recognise him even after
he was introduced to her.
[6]
M[…] J[…] M[…], the biological mother of the
first and second plaintiffs, married M[…] M[…]
in
Holland on 2[…]. She told the court that they lived in
Holland throughout the duration of their marriage and denied,
under
cross-examination, that when he died, they had already been
divorced. She readily conceded that it was A[…]
who had
throughout the years remained on the farm with the testatrix and her
husband and had managed the farm and that this continued
until his
death in April 2001.
[7]
M[…] M[…] testified to the strong physical and mental
health of the testatrix which she said was apparent to her
when she
visited her mother-in-law in South Africa in 1991. She said
that at the time her father-in-law was very ill.
She stayed
with her for two weeks and then returned to Holland. Her two
daughters, the first and second plaintiffs. accompanied
her during
that visit. It appears that they thereafter returned to South
Africa on 2 further occasions, on holiday, once
in 1993/1994 after Mr
M[…] had died and then again in June 2001 after A[…]’s
passing when she was again accompanied
by M[…] and the
children.
[8]
According to her on each of her visits, except the last one, she
observed the testatrix to be strong and healthy, but when she
visited
her after A[…]’s death, she found that she was not well
and spent most of her time in bed, confused and unable
to recognise
her or M[…]. According to her observations, the
testatrix was refusing to eat or drink, wash and dress
herself and
had hysterical outbursts when she would shout out the names of
certain persons. She could not walk without assistance
and her
condition was such that she had to be cared for 24 hours of the day.
She was unable to think for herself at all and
it was impossible to
conduct a proper conversation with her. The witness said she
was under the medical treatment of Dr S[…],
the husband of the
first defendant and on his recommendation, the testatrix was moved
into an Old Age Home providing frail care
during July 2001.
[9]
Elena Kokororopo, the domestic helper of the testatrix, corroborated
the testimony of the testatrix’s daughter in law
as to the
testatrix’s physical condition. She told the court she
arrived on the testatrix’s farm in 1974/1975
and began working
for the testatrix; doing household cleaning, washing, ironing and
cooking. She told the court that the
testatrix was a strong and
hardworking woman. She was in the peak of good health but after
the death of A[…] M[…],
her health deteriorated and she
began to get very ill. She said she slept in the room next door
to that occupied by the testatrix
at night and that the testatrix was
not sleeping well during the day or night. She spent almost all
her time in bed.
She did not eat or drink properly and she was
mentally not fit, because she screamed all the time and only stopped
once she went
to sleep. She could not conduct a proper
conversation with anyone or engage meaningfully with people. As
a result Dr
S[…] decided to admit her to the Old Age Home.
[10]
This witness specified an incident during which she said it was clear
to everyone that the testatrix’s mind was not working
properly
(as she put it). This happened in May 2001 when she was paying
salaries. The practice was to record payments
and receipts in a
cash book and Elena said the testatrix was struggling with this
task. She was holding the book upside down
and she did not even
realise it. Eventually she was unable to cope with this task
and someone else had to do the salary payments.
Elena told the
court that the testatrix was not capable of doing anything for
herself and had to be washed, fed and clothed.
After her
admission to the Old Age Home, Elena said she visited her daily for
approximately two weeks and could see that she was
slowly getting
better and stronger and that she had started eating again.
Elena went on to add that after two weeks she stopped
visiting the
testatrix and only returned after a significant period. She did
not say how long, merely that it was after some
time and she
discovered that the testatrix was in a worse condition than she had
been before her admission to the Old Age Home.
She elaborated
by saying that whilst in the past, the testatrix could recognise her
and would shake her hand, at the home she failed
to recognise her and
could not speak to her. The witness said that the testatrix
just lay in bed, staring blankly at her
without talking.
Because of this lack of any communication between them, Elena said
she stopped visiting the testatrix at
the Home as there was no
point. On the basis of the testimony of Elena and M[…]
M[…], the plaintiffs claim
the relief mentioned.
[11]
The defendants’ case is simply based on the following testimony
of a single witness, Johannes Stephanus Hugo. He
is the M[…]
family attorney. He drafted three Wills in all for and on
behalf of the testatrix:
(a)
A joint Will of her and her husband dated 9 February 1988 in terms of
which A[…] M[…] was nominated the sole beneficiary
of
their estate.
(b)
A Will dated 2 May 2001, in terms of which M[…] M[…] or
his issue
per stirpes
was nominated the sole beneficiary of the testatrix’s Estate.
(c)
The Will dated 20 August 2001.
On
20 August 2001 in response to her request he conducted on interview
with the testatrix at the Old Age Home. She requested
him to
revoke the Will dated 2 May 2001 and draft a new Will in terms of
which the S[…] family would be made major beneficiary
of her
Estate save for a sum of R20 000.00 which should be for her
grandchildren.
[12]
Hugo advised her that South African law did not permit farm property
to be apportioned between different persons and that he
could
accommodate her wish by placing the major asset (the farm “D[…]”)
in a Trust which the Strauss family
had set up for their children as
capital beneficiaries. She agreed and so after agreeing
ancillary matters, he returned to
his office and compiled the Will.
He returned to the testatrix, who signed it in the presence of two
nursing sisters who
signed as witnesses in his and her presence after
he had gone through the contents of each clause with her and after
she had told
him she was satisfied. All this happened on the
same day – 20 August 2001. It was not disputed that the
Will
was regular on the face of it.
[13]
He told the court that he had a “full” discussion with
her about what she wanted to happen to her Estate and property
and
she came across to him as someone who was in her sound and sober
senses, who fully understood what he was saying; she gave
him
specific instructions to seal and keep the Will in safe custody and
only be opened on her death. He conceded that the
S[…]
family were also his clients; that he had drafted the Trust Deed on
their behalf and that he was during that period
also involved closely
with legal matters on their behalf. Despite stringent
cross-examination he did not change his evidence
that the testatrix
understood the contents of the discussion he had had with her and
that she knew what she was doing when she
gave him instructions to
draft a new Will. He testified that according to his
observations there appeared to be nothing mentally
wrong with her at
the time of the execution of the Will. He explained that he
would have known if she was mentally incapable
due to his close
professional relationship with her over the years. He had come
to know her well and would have known if
she had behaved contrary to
the manner in which she normally conducted herself and/or exhibited
conduct indicating she was not
in a conscious state and/or not in her
sound and sober senses when she made the Will.
[14]
He told the court that he had no knowledge at all of the
circumstances and events which had necessitated the testatrix’s
admission to the Old Age Home. He also testified that he did
not enquire from the testatrix what those reasons were and more
importantly why she had decided to change her Will by disinheriting
her blood relative, M[…], her adopted son. Evidence
of
two affidavits, attested to by the two witnesses who signed the Will,
were tendered by counsel for the plaintiffs, as proof
of the making
of allegations relating to the mental capacity of the testatrix, but
not as proof of the truth of those allegations.
They are
received in that vein by this court and will be dealt with and
considered on that basis in deciding the dispute.
See:
African Organic Fertilizers and
Associated Industries Ltd v Premier Fertilizers Ltd
1948 (3) SA 233
(N) at 238;
G
onsalves
and Another v Gonsalves and Another
1985
(3) SA 507
(T) at 512G.
It
was common cause that Hugo had drafted these two affidavits at the
time he drafted the new Will and that he commissioned the
signatures
thereof himself.
[15]
The onus of proving the validity of a Will, which is regular on the
face of it, rests on the person attacking it and the standard
of
proof is that required in all civil cases
viz
proof on a preponderance of probability
See:
Kunz v Swart
1924 AD 681
at 651
Hepner
v Roodepoort-Maraisburg Town Council
1962 (4) SA 772
(AD) at 778H.
This
Common Law onus has been codified by Statute in the form of the
Wills
Act, No 7 of 1953
.
Section 4
of this Act provides:
“
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.”
Thus
both at Common Law and under the
Wills Act 1953
the onus is on he or
she who asserts invalidity to prove mental incapacity
at
the time of its execution
.
[16]
The question that arises is what test is to be employed in deciding
whether this onus has been discharged. The answer
lies simply
in deciding the further enquiry of whether the testatrix was at the
material time of sufficient intelligence, possessing
sufficiently
sound mind and memory for her to understand and appreciate the nature
of the testamentary act in all its different
bearings.
See:
Kirsten and Others v Bailey and
Others
1976 (4) SA 108
(C) at 109H
– 110.)
In
Tregea and Another v Godart and
Another
1939 AD 16
at 19 Tindall JA
held:
“…
in
cases of impaired intelligence caused by physical infirmity, though
the mental power may be reduced below the ordinary standard,
yet if
there be sufficient intelligence to understand and appreciate the
testamentary act in its different bearings, the power
to make a will
remains.”
At
page 50, relying on the test espoused by Cockburn CJ in
Banks
v Goodfellow
1870 L.R. 5 Q.B. at p
568 he went on to describe what he considered to be a sound and
disposing mind:
“’
The
testator must, in the language of the law, be possessed of sound and
disposing mind and memory. He must have memory; a man in
whom the
faculty is totally extinguished cannot be said to possess
understanding to any degree whatever, or for any purpose. But
his
memory may be very imperfect; it may be greatly impaired by age or
disease; he may not be able at all times to recollect the
names, the
persons or the families of those with whom he had been intimately
acquainted; may at times ask idle quest ions, and
repeat those which
had before been asked and answered, and yet his understanding may be
sufficiently sound for many of the ordinary
transactions of life. He
may not have sufficient strength of memory and vigour of intellect to
make and to digest all the parts
of a contract and yet be competent
to direct the distribution of his property by will. This is a subject
which he may possibly
have often thought of, and there is probably no
person who has not arranged such a disposition in his mind before he
committed
it to writing. The question is not so much what was the
degree of memory possessed by the testator, as this: Had he a
disposing
memory? Was he capable of recollecting the property he was
about to bequeath; the manner of distributing it, and the objects of
his bounty? To sum up the whole in the most simple and intelligible
form, were his mind and memory sufficiently sound to enable
him to
know and to understand the business in which he was engaged at the
time he executed his will?’”
In
his classic judgment in
Banks v
Goodfellow
,
supra
,
Cockburn CJ discussed the testamentary power:
“
It
is essential to the exercise of such a power that a testator shall
understand the nature of the act and its effects; shall understand
the extent of the property of which he is disposing; shall be able to
comprehend and appreciate the claims to which he ought to
give
effect; and, with a view to the latter object, that no disorder of
the mind shall poison his affections, pervert his sense
of right or
prevent the exercise of his natural faculties – that no insane
delusion shall influence his will in disposing
of his property and
bring about a disposal of it which, if the mind had been sound, would
not have been made.”
He
added:
“
By
the term ‘a sound and disposing mind and memory’ it has
not been understood, that a testator must possess those qualities
of
the mind in the ugliest degree; otherwise very few could make
testaments at all; neither has it been understood that he must
possess them in so great a degree as he may have formerly done; for
even this would disable most men in the decline of life; the
mind may
have been in some degree enfeebled and yet there may be enough left
clearly to discern and discreetly to judge of all
those things and
all those circumstances which enter into the nature of a rational,
fair and just testament. But if they
have so far failed as that
these cannot be discerned and judged of, then he cannot be said to be
of sound and disposing mind and
memory.”
In
Battan Singh and Others v Amichand
and Others
1948 AC 161
;
1948 (1)
A.E.R. 152
the testator, whose mental state had been weakened through
illness, excluded his blood relatives from inheriting his property in
terms of his old Will and testament. In an action for a
declaration of invalidity, Lord Normond at p 170 said the following
of the test to be applied in such matters:
“
A
testator may have a clear apprehension of the meaning of a draft will
submitted to him and may approve of it and yet, if he was
at the time
through infirmity or disease so deficient in memory that he was
oblivious of the claims of the relations and if that
forgetfulness
was an inducing cause of his choosing strangers to be his legatees,
the will is invalid…”
[17]
In
Harwood v Baker
[1840] EngR 1087
;
3 MOO P.C. 282
the testator made a Will in favour of his wife to the
exclusion of other members of his family. At p 290 of the
report Erskine
J held as follows:
“…
in
order to constitute a sound disposing mind a testator must not only
understand that he is by his will giving the whole of his
property to
one object of his regard; but that he must also have capacity to
comprehend the extent of his property and the nature
of the claims of
others whom by his will he is excluding from all participation in
that property; and the protection of the law
is in no cases more
needed than it is in those where the mind has been too much enfeebled
to comprehend more objects than one,
and most especially when that
one object may be so fixed in the attention of the invalid as to shut
out all others that might require
consideration and therefore the
question ……… is not whether Mr Baker knew when
he was giving all his property
to his wife and excluding all his
other relatives from any share in it but whether he was at that time
capable of recollecting
who those relatives were, of understanding
their respective claims upon his regard and bounty, and of
deliberately forming an intelligent
purpose of excluding them from
any share in his property.”
[18]
I turn now to the application of the test for testamentary capacity
to the facts of the present case. No medical evidence
was
placed before me of the testatrix’s condition at any time
immediately before, during or after her admission to the Old
Age
Home. But one crucial aspect of her physical and mental state
is not in dispute and that is that it was the consensus
of all
concerned namely, M[…] M[…], Elena Kokororopo and Dr
S[…] that the testatrix’s physical and mental
condition
was such that she was one in need of constant care as she was
incapable of performing any act in order to take care of
herself
and/or the farm and her staff. She was unable to deal with
financial matters and had to rely on Elena to tell her
what wages
needed to be paid. She was unable to perform any of the duties
on the farm, nor wash, clothe or feed herself.
She was unable
to walk, could not sleep and behaved inappropriately by continuously
shouting and screaming. She had suffered
a complete lapse of
memory as was indicated by her calling for A[…] despite her
having buried him. She was unable
to understand anything that
was going on around her at the house or on the farm. This was
in direct contrast to her character
and personality as one who always
took charge in the house and on the farm and issued the necessary
instructions to have things
working and in place. As a result
of her complete lack of interest, a neighbour, one Grobbelaar, came
in to assist her for
a while. From this uncontested evidence it
is clear that prior to her admission to the Old Age Home the
testatrix lacked
the disposing mind and memory required for
testamentary capacity. Her memory was subnormal; this is
evident from the evidence
of the plaintiffs’ two witnesses,
which I accept without hesitation.
[19]
The question is whether, despite Hugo’s uncontested evidence,
that she was in her “sound and sober” senses
when he
responded to her request to see him and that she “fully
understood” his advice and gave specific instructions,
the risk
of mental enfeeblement due to sickness and old age was not an
inducing cause of her having preferred strangers (the S[…]
family) rather than blood relatives (her grandchildren) to be the
major beneficiaries of her estate. Was she capable of
recollecting who her blood relations were at the time of the
execution of the Will, of understanding that they would have claims
to her Estate and of deliberately forming the intention to exclude
them in favour of the S[…] family? That is the
moot
question. Elena Kokororopo is a completely independent witness
who had no claim at all to any of the testatrix’s
possessions.
She was just a care giver with no motive to fabricate or embellish
upon evidence. Her evidence which I
accept unreservedly is that
when she visited the testatrix in hospital after a period of some
time had lapsed after her admission,
she found the testatrix’s
condition to have worsened. She could no longer recognise Elena
and she was unable to talk.
Whilst it is not clear on the
evidence precisely when with reference to the execution of the Will
in question, she made these observations,
to my mind one thing is
clear and that is whatever the reasons were for the testatrix’s
sudden improvement immediately after
admission, her condition had not
stabilised completely. Whilst she may well have been in her
sound and sober senses and fully
understood what Hugo conveyed to
her, that is not the test of testamentary capacity. Elena’s
evidence was that Dr S[…]
was the testatrix’s doctor.
He undoubtedly carried on treating her at the Old Age Home.
This is borne out by
Hugo’s evidence that she had told him she
wanted the S[…] family to inherit her property, because “they”
had been looking after her. Under these circumstances with the
attention of Dr and Mrs S[…]’ (first defendant)
thrust
upon her, and her only surviving family (her grandchildren) out of
the country being overseas in Holland, and given her
history of
mental and physical enfeeblement and infirmity, the testatrix was, in
my view, no longer capable on 20 August 2001,
of fully and properly
comprehending the extent of her Estate; of recollecting and
understanding the claims of her relatives thereon
and of deliberately
excluding them from any share in her property. There is ample
evidence that in addition to difficulties
of speech and mobility (as
testified to by Elena) there were other signs and indications of
deterioration, which must, undoubtedly,
have had a bearing on the
testatrix’s memory and powers of comprehension.
Such facts as were elicited in the
witness box do not show the
probability of a lack of mental deterioration, but rather the
opposite is true. I am satisfied
that forgetfulness and a
dullness of memory was an inducing cause of the testatrix appointing
the Dennelaan Trust as the major
beneficiary of her Estate.
[20]
I accordingly conclude that the motives, which led the testatrix to
disinherit the two plaintiffs, were such as would probably
not have
had that result, were it not for the mental impairment she suffered
as a result of physical infirmity due to old age and
emotional
disturbance associated with the passing of her son A[…], who
took care of her and the farm prior to his death.
The
probabilities were overwhelming in my view that in these
circumstances, the testatrix was mentally incapable of executing a
Will on 20 August 2001. This Will is accordingly set aside.
[21]
One further aspect needs mentioning and this is the point taken by Mr
Van Rooyen that the plaintiffs ought to be unsuited because
no notice
to substitute the second plaintiff, who is now a major, was given by
the plaintiffs prior to judgment. During oral
argument, Mr
Duvenhage asked for such a substitution. As no prejudice would
be occasioned to the defendants, the request
for such a substitution
is granted. There will accordingly be judgment for the
plaintiffs as follows:
1.
The Will of
the testatrix C[…] M[…] S[…] M[…] (born
O[…]) is hereby declared null and void and
is set aside.
2.
It is declared
that the said C[…] M[…] S[…] M[…] (born
O[…]) died intestate.
3.
First and
second defendants are ordered to pay the costs of this action jointly
and severally, the one paying the other to be absolved.
S.
EBRAHIM, J
On
behalf of plaintiffs: Adv N. De V. Duvenhage SC
Instructed
by:
Eugene
Attorneys
Durbanville
BLOEMFONTEIN
On
behalf of first and
Second
defendants: Adv P.C.F. van Rooyen SC
Instructed
by:
Phatshoane
Henney Attorneys
BLOEMFONTEIN