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[2012] ZAFSHC 190
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Scott and Others v Master of the High Court, Bloemfontein and Others (2582/2012) [2012] ZAFSHC 190 (11 October 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 2582/2012
In
the matter between:-
MR WESSEL JOHANNES
SCOTT
...................................
First
Applicant
ME MELANIE ANN
SCOTT
.........................................
Second
Applicant
ADV DEBUYS WESSEL
SCOTT
.....................................
Third
Applicant
ME RACHÉ DU
TOIT
.....................................................
Fourth
Applicant
ME
DESIREE BOSHOFF
..................................................
Fifth
Applicant
and
MASTER
OF THE HIGH COURT,
BLOEMFONTEIN
..........................................................
First
Respondent
MR PETRUS JACOBUS
KOTZE N.O.
.....................
Second
respondent
ME ELSIE HENDRIKS
.................................................
Third
Respondent
RUSOORD AFTREEOORD
......................................
Fourth
Respondent
JOHN
.
...........................................................................
Fifth
Respondent
STOFFEL
.....................................................................
Sixth
Respondent
MICHAEL
................................................................
Seventh
Respondent
MERJIM
.....................................................................
Eighth
Respondent
SOUTH AFRICAN
CANCER ASSOCIATION
.............
Ninth
Respondent
_____________________________________________________
HEARD ON:
20 SEPTEMBER 2012
_____________________________________________________
DELIVERED ON:
11 OCTOBER 2012
_____________________________________________________
JUDGMENT
_____________________________________________________
K.J. MOLOI, J
[1] This is an
application on notice of motion. The validity of the Last Will and
Testament (the will) of one De Buys Scott (the
deceased) made on 4
October 2011 (annexure “D”), is being challenged by his
son, Wessel Johannes Scott as the first
applicant, the latter’s
wife as second applicant and three of his children as third, fourth
and fifth applicants respectively
(the applicants).
[2] The application was
directed against the Master of the High Court, Bloemfontein, as the
first respondent; the attorney, Petrus
Jacobus Kotze, who drew up the
will and was appointed the executor of the estate by the first
respondent in terms of the said will
as the second respondent; Elsie
Hendriks, the deceased’s sister as the third respondent;
Rusoord Aftreeoord, a retirement
village in Brandfort as the fourth
respondent; and four farm workers of the deceased as the fifth,
sixth, seventh and eighth respondents,
respectively and the South
African Cancer Association as the ninth respondent.
[3] The validity of the
said will was challenged on the basis that when the deceased
(testator) made and signed it, he was mentally
incapable of doing so
and could consequently not appreciate the nature and effect of his
conduct. In support of this allegation
the applicants relied firstly,
on the first applicant’s observations at the time he visited
the deceased at the old age home
where the deceased spent the last
days of his life. According to the first applicant the deceased would
search for a light which
was not there; his speech was confused; he
kept on ringing the bell; was not able to conduct a meaningful
discussion; would make
ridiculous demands that his electric
wheelchair be placed on top of a cupboard where there was no space
for it; he would indicate
the wall on which there was no light switch
and ask that the light be switched on and in the last few months he
did not react at
all when told about his family. The first applicant
further questioned the signature of the deceased on the will in
question and
alleged it “appears to be fairly shakily and does
not really resemble the signature any more of his deceased father”.
In his previous wills which were attached to the founding papers, the
deceased said nothing about the farm Helderfontein, which
was at all
times in the name of the first applicant, but suddenly bequeathed it
to the applicant in the disputed will. Furthermore,
the applicant
accused the deceased of abusing alcoholic beverages and argued that
this might have affected his mental state as
well. He concluded that:
“
... op
daardie tydstip volgens my beste herinnering was hy nie meer in staat
om enige sinvolle gesprek te voer nie...”
How these observations
affected the mental capacity of the deceased, if at all, is not
explained. Neither is it explained under
what circumstances did these
take place, especially now that it is not stated when the
observations were made, least of all what
the deceased’s
condition was between 2 October 2011 and 4 October 2011.
[4] The applicants
support this conclusion by attaching a document that purports to be a
bed chart of the old age home where the
deceased lived and died. The
document remarks that:
On 30 September 2011
At 17:40 “Inwoner vreeslik
deurmekaar – soek lig wat daar nie is nie en praat deurmekaar.
Weier O
2
.”
At 20:30 “Nog steeds deurmekaar
– soek nog steeds die lig.”
At 21:30 “In bed gesit en ‘n
doek aan gesit – wil nog nie slaap pil drink nie – lui
klok aanhoudend.”
At 22:30 “Slaap pil gegee en
gesê hy moet slaap – praat nog deurmekaar. Wil nie O
2
op hê nie.”
At 23:50 “Slaap rustig.”
At 05:30 “Gewas, geskeer, tande
geborsel en skoon aangetrek. Is nie vanoggend so slymerig nie. O
2
opgesit.”
On 1 October 2011
At 08:10 “Tannie Elsie het
inwoner gevoed. Het glas melk en sny brood gehad. Hoesstroop 15 ml
en pille is gegee.”
On 2 October 2011
At 8:10 “Gewas, geskeer, tande
geborsel en aangetrek – is nie so benoud nie. Het goed
geslaap.”
At 12:15 “Inwoner het ½
bord kos geëet. Brood + daarna. Sê naarheid voel beter.
Het vanoggend op karretjie
in huis rondgery.”
No
entries are made thereafter for the 3
rd
,
the 4
th
and
the 5
th
October
2011. The next entry made was on the 6
th
October 2011.
At 04:45 “Gewas, geskeer, tande
geborsel, hare gewas en aangetrek. Sê hy voel goed vanoggend.”
All subsequent entries
repeat the same content. This, it was argued, showed such measure of
confusion making the deceased incapable
of making a will on the 4
th
October 2011.
[5] In further support of
the applicants’ contention a document purporting to be a report
by Dr Phoebe Nel, a medical general
practitioner that attended the
deceased over a period of six years at the old age home, was
attached. In the document Dr Nel stated
that on 08/09/2011 she
treated and examined the deceased for a cardiac failure
(hartversaking). On 4 October 2011 she was requested
by Mr Piet
Coetzee (sic), the second respondent, to compile a competency report
of the deceased. No such report was attached, but
she stated the
following in this document:
“
Ek het ‘n
mini mental ondersoek gedoen en die pasiënt het tekens van
dimensie begin toon, was ook met tye baie dilirius
ten opsigte van
ruimte, tyd en plek.
Alkohol is volgens die personeel wat
verantwoordelik was vir die versorging van die pasiënt ook op ‘n
gereelde basis
gebruik wat dan ook bydraend was tot die beïnvloeding
van die pasiënt se helderheid van verstand. Hy was dan ook ten
tyde van laasgenoemde baie slaperig en nie altyd by sy volle bewussyn
nie. Daarom is dit vir my ‘n gemaklike saak om tot die
stelling
te kom dat Mnr Scott ten tye van die skrywe van sy laaste wil en
testament nie toerekeningsvatbaar en helder van verstand
was tot die
bekragtiging en ondertekening daarvan nie.”
[6] The following
observations must be made with regards to the challenge:
(a) Save for the
allegation regarding the deceased signature, nothing further was
produced to substantiate the allegation and that
point was not
seriously addressed during argument.
(b) In the previous will,
annexure “C”, the farm Helderfontein was never mentioned.
The deceased only mentioned the
farm “Mooifontein bekend as die
Restant van Lusthof nr 185 groot 126 ha, distrik Winburg”,
which he offered for sale
to one Peter Barend Scott for an amount of
R345 000-00. The rest of his many farms, which included
Helderfontein, were disposed
of as the remainder of estate. When he
made the contested will, annexure “D”, he specifically
mentioned the farm Helderfointein,
which he bought and had registered
in the first applicant’s name and bequeathed that to him. This
was never denied by the
first applicant.
(c) The document by Dr
Nel referred to above was dated 10 May 2012 and the mini mental
examination was clearly not conducted on
the 4
th
October
2012, but some time thereafter so that the findings made, do not
relate the mental condition of the deceased as on 4 October
2012.
Moreover, the report of the competency determination that was
commissioned, were never made available on 10 May 2012 or on
the date
of the hearing nor explanation given for this failure.
[7] The second respondent
stated that he visited the deceased at the old age home approximately
six months prior to the signing
of the disputed will. During this
visit the deceased indicated to him that he was not satisfied with
him in that he (second respondent)
had discussed the contents of his
previous will (annexure “C”) with the first applicant. He
even thought the attorney/client
relationship between himself and the
deceased was terminated. On 2 October 2011 he suddenly received a
telephone call from the
third respondent, the deceased’s
sister, informing him the deceased wanted him (second respondent) to
help him with the amendment
of his will. On Monday 3 October 2011, he
attended the deceased at the old age home. The deceased told him
which amendments he
wanted to effect to his will (annexure “C”).
They were:
(a) He, second
respondent, was to be the executor of his estate instead of the first
applicant.
(b) Anna, one of his farm
workers, had passed away and another farm worker, Klein John, had
left the farm. The two were to be removed
from the list of
beneficiaries.
(c) The deceased wanted
to benefit the fourth respondent because of the good care he received
from the employees of the fourth respondent
and that he was disgusted
with the conduct of the first respondent who neglected him and was
more concerned about his business
than the deceased, as a consequence
the remainder of his estate was to go to the fourth respondent.
(d) Upon a question by
the second respondent whether the first applicant would get nothing
as a result, the deceased responded that
the first applicant could
get the farm Helderfontein, which was bought by the deceased, but
registered in the name of the first
applicant.
(e) The other farms
belonging to the deceased were to be sold and the proceeds be paid to
the fourth respondent, because all the
first respondent was
interested in, was the deceased’s farms and could buy them at
the auction since he had made him (first
respondent) a wealthy man.
(f) The remaining workers
were each to receive an amount of R50 000,00 instead of R25 000,00 as
per previous will. The increased
amount was provision for
retrenchment packages now that he had decided to have everything
sold.
(g) His great
grandchildren who were not provided for in the previous will
(annexure “C”) were to be benefitted as provided
for in
paragraph 6.2 of annexure “D”.
(h) The first applicant
was to receive R100 000,00.
[8] The second respondent
declared that when he received the above instructions, the deceased
was clear headed, knew and understood
what he conveyed to him, as he
had made up his mind and could motivate the rationale for his
decisions. He was equally in his sound
and clear senses when he
checked each amendment before he signed annexure “D”. In
support hereof the third respondent,
the deceased’s sister, who
called the second respondent on 2 October 2011, confirmed the
troubled relationship between the
deceased and the first applicant,
primarily because of the pressure the first applicant placed on the
deceased to benefit him substantially
in his inheritance. The third
respondent further confirmed that in exceptional circumstances, like
when the deceased was sick and
under medication, he would not be
fully in control of his faculties. She stressed, however, that he was
otherwise a normal person
and had exceptional understanding and
appreciation of what he did for a person of his age. She had no doubt
that leading up to
the preparation and signing of the disputed will
the deceased was clear in his thoughts and conduct.
[9] Retired Reverend
Petrus Gerhardus Smith had experience in dealing with elderly people
whose mental faculties had deteriorated
to an extent that they could
not control their business and people that were clearheaded despite
their advanced age. Since September
2010 he was acting as a part-time
reverend of Brandfort East NG Kerk and he served as a member of the
management board of the fourth
respondent. He made contact with the
deceased whom he later considered as a friend and shared precious
moments and conversations
with him. At no stage did it appear to him
that the deceased was incapable of engaging in a sensible
conversation nor could take
well thought decisions. It never appeared
to him that the deceased was incoherent nor confused or
disorientated. There were no
signs of dementia present with the
deceased. He had a lot to do with the deceased particularly before
his death and his thoughts
were clear, well thought and logical.
[10] Dr Frieda Pienaar, a
specialist physician with MBChB and M.Med (Intern) from the
University of the Free State checked all the
available medical
records pertaining to the deceased with a view to expressing her
opinion relating to the mental state of the
deceased when he made his
will that is being contested. She concluded that:
“
... Ek kon
niks vind uit Dr Nel se pasiënte lêer van die oorledene
wat toon dat die oorledene nie die wilsvermoeë
gehad het om ‘n
behoorlike testament te verlei (sic) nie. Op die gegewens wat ek
bekom het en op die bewerings gemaak deur
Dr Nel kan ek nie ‘n
bevinding maak dat die oorledene nie toerekeningsvatbaar was toe hy
sy laaste testament verlei (sic)
het nie.”
Contrary to what Dr Nel
said in paragraph 5 hereof on 30 May 2012 she (Dr Nel) wrote the
following regarding her examination of
the deceased on 4 October
2011:
“
Op daardie
oomblik en tyd het ek aan Mnre Coetzee (sic) mondelings gesê
dat sover my kennis op daardie oomblik en tyd strek
die pasiënt
Mnr Scott wel kompentent (sic) is ter die verandering en bekragtiging
van sy testament.”
She confirmed further
that she never submitted the competency report she was commissioned
to compile and still failed to do so on
30 May 2012.
[11]
To succeed with a challenge against the validity of a will one must
prove on a balance of probabilities that a person so making
a will
was “... mentally incapable of appreciating the nature and
effect of his act...” -
section 4A(1)
of the
Wills Act, No 7 of
1953
. The onus of proof that the testator was mentally incapable is
on the person alleging the mental incapacity –
ESSOP
v MUSTAPHA AND ESSOP NNO AND OTHERS
1988 (4) SA 213
(D&CLD)
at 220
et
seq. The proof required is that the person making
the will must have been mentally incapable
as at the time
the
will was made:
Sec 4A(1)
of the
Wills Act, No 7 of 1953
.
[12] There is a clear
dispute of fact in this application. This dispute of fact was not
hidden but known to all the parties, particularly
the first applicant
and the second respondent even before the application was launched.
The correspondence preceding the launch
of the application and other
communication bears testimony to this fact. Nonetheless the
applicants approached the court for a
final relief by way of notice
of motion. This being so the principles enunciated in
PLASCON-EVANS
PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 – 635 find application. The long and the short of
the principle is that the application be decided on the version
of
the respondent, taking into account those aspects that are common
course between the parties.
[13] The factual dispute
in this matter is substantial. The first respondent’s version
read with that which is common cause
between him and the first
applicant can only be rejected outright if it is not setting out the
true factual dispute or is “
far-fetched or is clearly
untenable”
:
NAIDOO NO AND ANOTHER v CROWHURST NO AND
OTHERS
[2010] 2 ALL SA 379
(WCC) at 383 (a) – (d). See
also
WIGHTMAN t/a JW CONSTRUCTION v HEADFOUR (PTY) LTD AND
ANOTHER
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) par [12] and the
PLASCON-EVANS
-case above at 634 E – 636.
[14] The second
respondent’s case is that the deceased was possessed of
sufficient mental capacity to appreciate the content
and extent of
the disputed will when he made and signed it. The relationship
between the deceased and the first applicant had deteriorated
to such
an extent that the deceased wanted to completely change the regime he
had set in place in his previous will, annexure “C”.
The
deceased was aware of the farm workers that had died or left his
farm. The deceased wanted to change the bequest to the remaining
farm
workers to provide for their retrenchment benefits for them now that
he had decided to estrange his farms. The deceased could
logically
motivate each and every bequest he made and could remember that he
bought the farm Helderfontein and had it registered
in the name of
the first applicant. The first applicant did not dispute this fact.
The evidence of his sister, the third respondent
and that of the
retired reverend corroborated this unequivocally. This fact was also
corroborated by Dr Nel herself on the 4
th
October 2011
long before she had a change of heart.
[15] The test to be
applied in determining the capacity of the testator in making a will
has been set out in
SMITH AND OTHERS v STRYDOM AND OTHERS
1953 (2) SA 799
(TPD) at 801 A – C quoting from
TREGEA
AND ANOTHER v GODART AND ANOTHER
1939 AD 16
at 49 – 50.
In
KIRSTEN AND OTHERS v BAILEY AND OTHERS
1976 (4) SA
108
(C) at 109 – 110 the following was stated:
“
The test to
be applied in deciding the question the testatrix was at the time of
sufficient intelligence, possessing a sufficiently
sound mind and
memory for her to understand and appreciate the nature of the
testamentary act in all different bearings.”
This approach was
reiterated in
NAIDOO NO AND ANOTHER v CROWHURST NO AND OTHERS
,
supra
. What is also relevant here is that there is absolutely
no record of the condition of the deceased on the relevant days
leading
to the making and the signing of the will. The first
applicant did not see the deceased to determine his mental capacity
when the
will was made; the records of the old age home show nothing
on those dates,
viz
the 3
rd
and the 4
th
October 2011. On the contrary the record show that the last entry on
2 October 2011 he was normal, “he washed himself, shaved,
brushed his teeth, dressed himself up – is nie so benoud nie.
Het goed geslaap. Sê naarheid voel beter. Het vanoggend
op
karretjie in huis rondgery”. The trend of the entries
thereafter is the same. Dr Nel herself confirmed the deceased was
normal on 4 October 2011. All these factors substantiate the
contention of the second respondent regarding the testamentary
capacity
of the deceased.
[16] When the deceased
made the disputed will (annexure “D”) he was 85 years
old. His general health was deteriorating.
His attitude towards his
son, the first applicant, had changed drastically because he realised
the first applicant was more interested
in the inheritance than him.
The first applicant neglected the deceased and traumatised him. The
evidence of the deceased’s
sister, which was uncontested, was
that the first applicant was putting pressure on the deceased to
bequeath almost everything
to him and he was rude towards the
deceased. The deceased had made two wills before annexure “D”:
one on 21 October
2005 (annexure “B”) and one on 17 May
2010. The provisions of those two wills were different except for the
appointment
of the first applicant as the executor. This is
indicative of the deceased’s resolve to change his mind as and
when the circumstances
dictated. He could appreciate the changed
circumstances and resolved to act the way he did.
[17] From the above and
bearing in mind the principles of the
PLASCON-EVANS
decision the court cannot find that the second respondent’s
version is “fat-fetched or clearly untenable”. There
is
no evidence adduced by the applicants that, at the time the will was
made, the deceased was incapable of making a testamentary
disposition
of his property nor could he appreciated the consequences thereof.
[18] In this application
the provisions of the will were clear and unequivocal. The challenge
was not directed against the confusion
caused by the will itself that
could lead to reasonable litigation. The challenge was against the
validity of the will in circumstances
that unavoidably result in a
factual dispute with no prospects of success at all.
[19] In the result the
following order is made:
19.1 The application is
dismissed.
19.2 The applicants are
ordered to pay the costs jointly and severally, the one paying, the
others to be absolved.
____________
K.J. MOLOI, J
On
behalf of applicants: Adv S J Reinders
Instructed
by:
Rossouws
Attorneys
BLOEMFONTEIN
(Ref J H CONRADIE (SCO27/0001
(JHC/ED))
On
behalf of second respondent: Adv P C F van Rooyen SC
Instructed
by:
Symington
& De Kok
BLOEMFONTEIN
(Ref
Mr Strating)
/sp