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[2012] ZAGPPHC 74
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Hassan and Others v Mentor NO and Another (22960/2011) [2012] ZAGPPHC 74 (24 April 2012)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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N
OT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE NO: 22960/2011
DATE:25/04/2012
In
the matter between:
ASTRID
HASSAN
.................................................................................................
First
Applicant
BJORN
MICHELSEN
.......................................................................................
Second
Applicant
ASTRID
HASSAN N.O.
fin
her capacity as the executrix of the estate of the late HANS-PETER
MICHELSEN
(Masters
ref:
16243/2010)
...................................................................................
Third
Applicant
and
ANALISE
GLORIA MENTOR
N.O.
...................................................................
First
Respondent
THE
MASTER OF THE NORTH GAUTENG
HIGH
COURT
.............................................................................................
Second Respondent
JUDGMENT
DAVIS,
AJ
[1]
This is an application for the declaration of a certain document to
be the Last Will and Testament of the late Hans-Peter Michelsen
and
for an order directing that the devolution of his estate shall take
place in terms thereof. There is also a prayer for costs
with which I
will deal with later.
[2]
The factual matrix of the matter is as follows:
2.1
Hans-Peter Michelsen was born in Germany on 22 July ....
2.2
On an undisclosed date said Hans-Peter Michelsen married one Manuela
Adam.
2.3
Of the aforesaid marriage two children were born, being Bjorn
Michelsen born on 4 December ... and Astrid Michelsen born on
23 June
....
2.4
In 1983 the family described above emigrated from Germany and settled
in South Africa.
2.5
On 1 September 1989 Hans-Peter Michelsen and Manuela Adam were
divorced.
2.6
On 18 September 1993 said Hans-Peter Michelsen married the First
Respondent, Analise Gloria Mentor. Of this marriage a son,
A M. M was
born on 18 June 1994. At the time of the hearing he is still a minor
but will soon attain the age of majority.
2.7
On 22 December 1994 Hans-Peter Michelsen and the First Respondent
became divorced.
2.8
Hans-Peter Michelsen passed away on 29 June 2010 and he will
henceforth be referred to as "the deceased".
2.9
The deceased's daughter from his first marriage is the First
Applicant and his son from the same marriage is the Second Applicant.
The daughter is also in her capacity as executrix in terms of the
contested will the Third Applicant. The deceased's second wife
is the
mother of his child from their marriage and she acts in her capacity
as such and as guardian of her minor son as First Respondent.
2.10
The Second Respondent is the Master of this court who, apart from his
citation as such, did not feature in the papers and no
report was
received from him.
[3]
JURISDICTION:
At
the time of his passing away, the deceased was permanently resident
within the area of jurisdiction of this court and the uncontested
allegation is that all the assets owned by him, including immovable
property was situated within the same jurisdiction. The
administration
of his estate also falls under the jurisdiction of the
Second Respondent.
[4]
THE CONTESTED WILL:
4.1No
original properly attested and executed will of the deceased which
complies with the provisions of the
Wills Act, No. 7 of 1953
could be
found or was presented to this court.
4.2
In its stead, the Second Applicant who currently resides in Tanzania
and who came to South Africa during mid June 2010 at the
time when
his father was complaining of feeling unwell and who stayed with him
until he passed away, found a copy of a document
amongst the personal
documents of the deceased.
4.3
The aforesaid document is annexed to the papers as Annexure "I"
to the First Applicant's founding affidavit. On the
face of it, it is
a copy of a typewritten document which bears the heading "LAST
WILL AND TESTAMENT. This is the Last Will
and Testament of H Peter
Michelsen." The address of the testator is correctly indicated
as his address at the time of his
death.
4.4
For sake of completeness the contents of the document reads further
as follows:
"1.
I
hereby cancel, annul and revoke all previous Wills, Testaments or
other Testamentary Documentation hereto before made or executed
by
me.
2.
As
Executor of my Estate I hereby nominate DIANE SHERMAN, an Attorney of
the firm OOSTHUIZENS INC., practising in Kempton Park.
The Executor
appointed in terms of this Will shall not be required to provide
security to the Master of the High Court and I grant
to my Executor
the power of assumption as well as all other powers allowed by law.
3.
3.1
Upon my death I bequest my entire estate as follows:
3.1.1
50% of my entire estate to my daughter ASTRID VINGERHOUTS;
3.1.2
50% of my entire estate to my son BJORN MICHELSEN.
3.2
Thus meaning that my estate is to be divided equally
between my
two children as mentioned in paragraph
3.1 above.
4.
4.1
Should one of my children predecease the other child, then the estate
of the first dying bequest to that child's children, being
my
grandchildren subject to the same conditions as set out above.
4.2
In the event of a bequeathment as mentioned in clause 4.1 above then
a trust should be erected to control the bequeathment until
my
grandchildren has/have reached the age of 21 years.
4.3
The trust must at all times have two trustees, being the Executor and
another nominated by the Executor.
5.
None
of my beneficiaries shall require to collate.
6.
I
declare the above to be my Last Will and Testament and desire that it
shall have effect as such.
THUS
DONE AND SIGNED AT KEMPTON PARK ON
THIS THE........ DAY
OF......... IN THE YEAR OF OUR LORD TWO THOUSAND AND THREE (2003) IN
THE PRESENCE OF THE UNDERSIGNED WITNESSES,
WHO IN THE PRESENCE OF
EACH OTHER AND MYSELF, ALL BEING PRESENT AT THE SAME TIME HAVE
HEREUNTO SUBSCRIBED THEIR NAMES."
4.5
The document bears a signature in the bottom right-hand corner above
the word TESTATOR which no one has contested to be anything
else than
the signature of the deceased. To the left of his signature on each
of the three pages of the document space was provided
for witnesses
to sign and it appears that the same two witnesses signed each page,
apparently being one Lodewyks and one E Retief.
4.6
As aforestated, the document is a copy of a document and accordingly
all the signatures must have appeared on the original document
from
which the copy was made. The only original inscription on the
document is the insertion of "18th" and "November"
in the relevant spaces provided therefor as a date on the last page
of the document.
[5]
The Applicants rely on
Section 2(3)
of the
Wills Act, No. 7 of 1953
for the declaration sought in the notice of motion. This section
provides as follows:
"If
a court is satisfied that a document... drafted or executed by the
person who has died since the drafting or execution
thereof, was
intended to be his will ... the court shall order the Master to
accept that document ... for the purposes of the Administration
of
Estate Act, 1965 (Act 66 of 1965) as a will, although it does not
comply with the formalities for the execution ...of wills
referred to
in sub-section (1)"
[6]
As described above, on the face of it, said Annexure "I" to
the founding affidavit accords in all respects with the
requirements
of
Section 2
of the
Wills Act, save
for the fact that it is a copy
and that none of the signatures thereon are accordingly original.
[7]
As additional evidence in order to convince this court to accept the
aforesaid document, the following was produced:
7.1
The founding affidavit of the First Applicant. She refers to some of
the facts referred to above and in addition thereto states
that the
deceased and the First Respondent had a very short marriage. (From
the common cause facts it appears that the deceased
and the First
Respondent were married on 18 September 1993 and divorced on 22
December 1994.) The First Applicant further stated
that the divorce
settlement between the Applicant and the First Respondent provided
for maintenance for the minor child of that
marriage which provides
for maintenance and medical care.
7.2
The First Applicant further states that the "current factual
position regarding the maintenance and benefits payable by
the estate
of the deceased to the minor child is as follows:
7.2.1
A cash payment of R2 300,00 per month;
7.2.2
School fees at a private school of approximately R4 500,00 per month;
7.2.3
Stationery and books of approximately R300,00 per month;
7.2.4
Medical aid to be put in place as well as payment of shortfall
medical bills.
7.3
She further states that approximately two weeks before the death of
the deceased she and her current husband, Muhammad Yusuf
Hassan
visited her father as he was terminally ill with cancer. The deceased
explained to her that he had left a will with Oosthuizen
Attorneys in
Kempton Park in terms of which the First and Second Applicants were
the sole heirs. He also repeated this statement
to the First
Applicant's husband whose confirmatory affidavit was also presented
in this regard.
7.4
It was also indicated to the First Applicant that the deceased held a
life insurance policy "which would cover certain
of the needs of
A M M".
7.5
After the passing away of the deceased the Applicants approached
Oosthuizen Attorneys. This much is also confirmed by a separate
full
and detailed affidavit from the Second Applicant (i.e. not the
customary two paragraph so-called "confirmatory"
affidavit).
7.6
The Applicants obtained and produced an affidavit from one Dubretha
Oosthuizen who states that she is a major female of this
court
practising at Oosthuizen Attorneys Inc. in Kempton Park and that she
confirms that her firm held instructions from the deceased
to prepare
his Last Will and Testament. She states that the copy of the will
attached to the founding affidavit of the First Applicant
is the
document that was prepared in her offices by Diane Sherman, an
attorney who has subsequently left their employ, She further
states
that, despite a diligent search conducted at their offices, the
original could not be found.
7.7
Diane Sherman declined to make an affidavit and merely produced a
letter in which she declined the appointment of executorship.
7.8
A separate affidavit was produced by one Denise Watts who stated that
she was a general assistant employed by the Respondent
until 2009.
She remembers him having mentioned that he was consulting Oosthuizen
Attorneys with regard to the preparation of his
will. She never
actually saw the will which was prepared but was informed by the
deceased prior to his death that he was dividing
everything in his
estate between the Applicants and "... had provided separately
in a policy for his son of his second marriage
who he referred to as
Alex".
7.9
Yet another affidavit from another attorney was presented, being one
Aletta Johanna Smit. She stated that she practised under
the name
Etha Smit Attorneys in Kempton Park and that she acted with regard to
personal matters and business affairs on behalf
or the deceased from
approximately 2008 until 2010. She confirms however that at no stage
during that period had she received any
instructions to prepare any
will on his behalf. What is further produced is a death notice, a
draft liquidation and distribution
account and the indication that a
"tertiary policy" in favour of the minor child A was in
existence.
[8]
Against the abovementioned summary of evidence produced by the
Applicants, the First Respondent stated the following:
8.1
That the deceased and the minor son A were close to each other.
8.2
That the deceased always provided for maintenance for A.
8.3
That, in terms of the divorce settlement between the First Respondent
and the deceased, he had been obliged to act as aforesaid
and to
further provide for an insurance policy which were to "provide
specifically for the minor child's tertiary education".
8.4
She furthermore repeatedly states that she "could not believe"
that the deceased would exclude A from his will.
8.5
She disputed the authenticity of the copy of the will produced and
made the point that the document had no distinguishing features
by
which any of the Applicants' witnesses, in particular attorney
Oosthuizen could identify the copy.
8.6
She lastly denied that the First Applicant was the daughter of the
deceased and his first wife.
[9]
In reply the issue of the birth of the First Applicant has being the
daughter of the deceased and his first wife was sufficiently
put
beyond doubt by way of the production of a birth certificate in
German together with a sworn translation thereof. The First
Applicant
also in reply confirmed that the estate would be liable for the
maintenance of the minor child A in accordance with the
settlement
agreement which was made an order of court at the time of the divorce
of the deceased from the First Respondent.
[10]
She also disputes the allegation that the deceased was very close to
the minor son A. She states that the deceased and the
First
Respondent were separated very shortly after their marriage and even
before the birth of the minor child A. (I interpose
here to mention
that the Second Applicant makes the allegation that the First
Respondent and the deceased had never even lived
together as husband
and wife. This allegation was not disputed by the First Respondent in
her answering affidavit.) The First Applicant
proceeded to state that
the deceased had very little contact with the minor child A who lived
in Cape Town and who was not even
visited on the last occasion when
the deceased was in Cape Town on the last few occasions that he was
there prior to his passing
away. She further states that, in going
through her father's personal effects, she found correspondence
between him and the Second
Applicant but no correspondence with the
minor child A.
[11]
So far the evidence.
[12]
Apart from her belief and from her expressing doubts as to the
authenticity of the documents produced by the Applicants, the
First
Respondent could produce no contradictory evidence or even make a
direct allegation of fact. If one were to view the scales
of justice,
the scale containing the allegations and evidence produced by the
Respondents
overwhelmingly weigh heavier than that of the scale of the First
Respondent. Even if one bears in mind that, due to
the circumstances
it would be difficult or impossible for the First Respondent to
produce any other evidence and even if one were
to entertain the
theoretical notion of a possible falsification of a document, none of
the surrounding circumstances or circumstantial
evidence or even the
nature of the copy of the document as I have described above indicate
sufficient probabilities that this might
have happened.
[13]
I have considered whether this matter should be referred to the
hearing of oral evidence but, on the evidence produced, there
is
insufficient indication that the overwhelming probabilities which are
in favour of the Applicants as matters now stand, might
be disturbed.
[14]
In the premises and on the documents presented to court in this
application, I make an order corresponding with the terms as
claimed
by the Applicants in their notice of motion as follows:
14.1
It is declared that the document attached to the First Applicant's
founding affidavit as Annexure "I" thereto is
the Last Will
and Testament of the late Hans-Peter Michelsen (identity number …...)
and I direct that the devolution of
his estate shall take place in
terms thereof.
14.2
The costs of this application shall be costs in the winding-up of the
estate of the said late Hans-Peter Michelsen.
N
DAVIS AJ
ACTING
JUDGE OF THE HIGH COURT