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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION,
CAPE TOWN

Case No: 16626 /2023

In the matter between:

DONOVAN DENNIS JOHNSON Applicant

and

CARLO JOHNSON First Respondent

BRADLEY JOHNSON N. O Second Respondent

BRADLEY JOHNSON Third Respondent

CAROL KRITZINGER Fourth Respondent

URSULA MOSTERT Fifth Respondent

ROBERT MOSTERT Sixth Respondent

SHARIFA MOSTERT Seventh Respondent

TREVOR MOSTERT Eighth Respondent

GERALD MOSTERT Ninth Responden t

MASTER OF THE HIGH COURT, CAPE TOWN Tenth Respondent

REGISTRAR OF DEEDS Eleventh Respondent


JUDGMENT
___________________________________________________________________
ANDREWS, AJ

Introduction

[1] This is an opposed application in terms of which the Appli cant seeks t o inter
alia, declare the purported Will executed by Marion Johnson (“the deceased”),
allegedly executed on 9 February 2016 (“the impugned Will”) null and void due to the
mental incapacity of the deceased . The Applicant furthermore seeks orders to s et
aside the transfer of Erf 1 […], Cape Town to the First Respondent (“the property”) ;
remove the Second Respondent as Executor of the deceased’s estate and direct the
Master of the High Court to appoint a new Executor .

[2] The Applicant is the biological father of the First Respondent. The Second
Respondent is the Executor of the impugned Will. The Applicant, as well as the
Second to Ninth Respondents are the biological children of the deceased. The First
to Third Respondent s opposed the application on the basis that the deceased was
mentally capable to execute the impugned Will. Fourth to Ninth Respondents each
filed confirmatory affidavits in terms of which it was stated that they do not intend to
oppose the application and will abide by the decision of the Court. The Eleventh
Respondent filed a report confirming it had no objections to the order being granted
as prayed.

[3] For ease of references, t he First, Second and Third Respondents are
collectively referred to as “the Respondents” unless specifically referred t o otherwise
in this judgment.

Factual Background

[4] The deceased , who is the Applicant’s mother, executed a Joint Will on 4
September 2014 with her late husband Granville Johnson , who predeceased her on
23 October 2014. In terms of the Joint Will, they bequeathed their entire estate to the
survivor of each of them. Furthermore, t he Joint Will effectively provide that if they
were to die simultaneously, the Applicant would inherit the property situated at 3 […]
H[…] N[…] Street, Cafda, (“the property”), which is essentially the main subject
matter of the underlying dispute between the parties.

[5] In, during or about September 2015, the deceased was seen by a Specialist
Neurologist, Dr P M Thomas (“Dr Thomas”) , following concerns pertaining to the
deceased’s memory loss. The neurologic examination revealed that she scored
13/30 on the Montreal Cognitive Assessment (“MOCA”) . On 4 December 2015 the
deceased was seen by Dr Ahmed Parker who in his referral note, to one “Carol”,
stated that the deceased presented with cognitive decline. During or about January
2016, the deceased was seen by Psychologist, Dr Chris George (“Dr George ”) who
opined that the deceased was suffering from Alzheimer’s dementia, which was
moderately advanced. His prognosis was that the condition would progress and not
recover. He concluded that due to the mental condition of the deceased she was
unable to manage her own affairs and recommended the appointment of a curator
bonis .

[6] Rehana Khan Parker (“Mrs Parker ”), an admitted attorney , was appointed as
curatrix bonis to the deceased on 22 June 2016, under case number 3438/2016 . It
came to the Applicant’s attention that the deceased ha d signed a Deed of Sale on or
about 20 November 2017 . An application was launched on 9 April 2019, under case
number 20533/2018 in terms of which the agreement of sale of the property
purportedly entered into betwe en the First and Second Respondents was declared
null and void and set aside. The Registrar of Deeds was furthermore directed to take
the necessary steps to de -register the property by removing the name of the First
Respondent, such that the registration o f the property and ownership thereof revert
to the name of the deceased.

[7] After the passing of the deceased, on 3 March 2020, the Third Respondent
lodged a Will with the Master, which was purportedly executed by the deceased on 9
February 2016 (“the 2016 W ill”). In terms of the 2016 Will, t he Second Respondent
was nominated as the Executor . Upon his appointment, the Second Respondent
proceeded to have the property transferred to the First Respondent. The Eleventh
Respondent filed a report confirming that the property is, as at 13 October 2023,
registered in the name of the First Respondent.

[8] The Applicant challenge d the 2016 Will on the basis that the deceased lacked
testamentary capacity. The Respondents ’ counter argument in broad terms is that
the deceased’s mental capabilities were intact. A further Will attested to by the
deceased on 7 January 2015 (“the 2015 Will”) surfaced approximately 5 months prior
to the hearing of the matter, the validity of which required determination as per the
order taken by agreement between the parties on 22 May 2024, granted by the
Acting Judge President Goliath .

Preliminary Issues

[9] In terms of the agreed order on 22 May 2024, t he matter was postponed to
the semi -urgent roll for the hearing of viva voce evidence. The issues as recorded to
be resolved at the hearing included inter alia :

(a) The authenticity of the alleged 2015 and 2016 Wills; and

(b) The mental capacity of the deceased to execute the said Wills.

[10] At the commencement of th is hearing it was recorded that the Respondents
admitted that a MOCA test was performed on the deceased by Dr Thomas and that
she scored 13/30. The parties agreed that it would be unnecessary to call Dr
Thomas to give evidence in order to curtail the litigation costs.

The evidence

Dr Thomas’ Report

[11] The salient recordals emanating from Dr Thomas ’ report dated 21
September 2015 , pursuant to the deceased being referred with a complaint of
memory loss, included that the deceased:

(a) had limited insight into her illness ;

(b) agreed that she was forgetful but didn’t think that it impaired her in any way
and

(c) bore knowledge of her late husband’s demise.

[12] On direct questioning Dr Thomas opined that it was apparent that there was
a marked decline in the deceased ’s ability to perform her activities of daily living.
Although the patient still performed grooming and dressing tasks herself, she no
longer cooked or did any cleaning at home. These tasks were performed by her
grand-daughter who then lived with her in the house. It was also documented that
the deceased did not do any shopping and neither did she manage her finances. Dr
Thomas further noted that the deceased would give her grandson her bank card and
her identity do cument with instructions to buy groceries, draw money and pay
accounts. Dr Thomas also recorded that the deceased would otherwise spend her
day knitting, or watching television.

[13] Dr Thomas went on to note that the deceased had received a payment from
his pe nsion fund into her bank account, which money had been promptly withdrawn.
The deceased bore no knowledge of this transaction. According to Dr Thomas, an
amount of approximately R60 000 had been misappropriated.

[14] The neurological examination revealed that the deceased scored 13/30 on
the MOCA. In addition, Dr Thomas noted in assessment, that the patient is known
with problems which included inter alia , progressive dementia with a cognitive profile
atypical for Alzheimer’s disease.

[15] Dr Jeffrey Winston George (“Dr George”) , testified on the virtual platform.
He stated that he is a psychiatrist in private practice since 1995. He confirmed that
he consult ed with the deceased on 13 January 2016. He also verified the content of
his report dated 18 January 20 16 as well as his supplementary report dated 24 June
2024. Dr George explained that he performed various tests on the deceased and
considered the background information provided to him by the Applicant and the
Fourth Respondent.

[16] According to Dr George’s observations the deceased had superficial
orientation and did not display an understanding that she was seeing a psychiatrist.
The deceased was not orientated in respect of time and place in that she could not
provide the da te, day or month. She was only able to identify the year. In
amplification of his conclusion that the decease d’s memory was poor, he explained
that she had difficulty describing her present personal state of affairs. Although she
understood that she was receiving a pension, she was not aware of the amount. In
addition, the deceased was unable to give an accurate account of her personal
history. Although she knew that her husband had passed away, she was unable to
recall when he had passed away or what his previous occupation was.

[17] Dr George expl ained that the nature of vascular dementia was a slow
degeneration of the small blood vessels in the brain, leading to a similar slow
degeneration of the brain itself and the loss of certain faculties as a result thereof.
He confirmed that at the time he consulted with the deceased she was unable to:

(a) Appreciate the nature of the act of executing a Will and the consequences
thereof , in other words, the deceased was unable to make a n informed
decision as to who she wanted to bequeath her assets to;

(b) Recall her assets that she would be disposing of in the Will ;

(c) Unable to confirm values of assets;

(d) Independently recall the names of her expectant heirs; or

(e) Weigh the claims of her expectant heirs and make a free and uninfluenced
executive decision about including them in a Will as heirs and to what extent.

[18] He explained that the score of 13/30 in the MOCA is indicative of significant
cognitive impairment. Dr George concluded that the deceased would not have had
the mental capacity to execute a Will on 9 February 2016 and on 7 January 2015
respectively .

[19] Melanie Marion Johnson (“Ms Johnson”) , who is the granddaughter of the
deceased, testified that she had been living with the deceased since birth. She
narrated that she interacted on a daily basis with the deceased. When she fe ll
pregnant she moved into the separate entrance on the same property. Ms Johnson
observed certain changes in the deceased since about January 2015. She recounted
that the deceased became very forgetful such that she would forget what she ate
and how much she had eaten. She also could not remember birthdays . The
deceased was unable to recall how and when her husband had passed away and
what he did for a living.

[20] Ms Johnson also orated that t he deceased became disinterested in activities
which she enjoyed like knitting, reading, taking walks, watching television and
cooking. She stated that the deceased was disorientated. In augmentation she
explained that the deceased would at times end up in the wrong room of the house
when she intended to go to the lounge. Ms Johnson observed that the deceased
wouldn’t interact or engage in meaningful discussion .

[21] Cecil Kamalie (“Mr Kamalie”) , testified that he was a practising attorney for
26 years and conducts his practi ce from home. He narrated that he had consulted
with the deceased who was accompanied by the First and Second Respondents. He
orated that he generally exercised caution when consulting with the elderly because
of the risk of influence w hen they are accompanied by potential heirs and / or
siblings. In such instances, he would request that those heirs or family members wait
in the reception but could not specifically recall if he had done so when he consulted
with the deceased. He was unsu re whether the family members were present during
the consultation with the deceased

[22] Mr Kamalie recounted that he had a conversation with the deceased and she
was able to communicate with him. She informed him that she obtained a pension.
She also spoke about her deceased husband. Mr Kamalie had a clear recollection
that the deceased in fact corrected him on the spelling of her name. He further
orated that he explained to her what he would include into the Will whereafter he had
the Will typed up and before she signed the Will he went through the content thereof
with he r. Mr Kamalie and his wife were witnesses to the Will at the time. According to
his observation, the deceased understood the content of the Will because she
responded as a person who understood what she was signing. Mr Kamalie testified
that “most” of the information was conveyed to him by the deceased.

[23] Carlo Johnson (“the First Respondent”), testified that he is the grandson of
the deceased and that the Applicant is his father . Mel anie Johnson (“Ms Johnson”) is
his sister. He confirmed that he is residing at the property that forms part of the
dispute in these proceedings . The First Respondent narrated that he was raised by
his grandparents since he was an infant. In 2014 he moved back to take care of his
grandparents. He stated that the deceased and the Applicant did not have much of a
relationship and that the Applicant would only visit when he needed something. He
described t hat the deceas ed was fond of Ms Johnson, but claimed that because she
had bad manner s, a temper and a party lifestyle , the deceased could not deal with it.
He explicated that Ms Johnson resided in the separate entrance and hardly came
into the main house. According to t he First Respondent, she mainly visited the
deceased on Sundays w hich was her day off from work . The extent of Ms Johnson’s
contribution or interaction with the deceased was described as her doing things for
the deceased now and again.

[24] The First Responde nt elucidated that the deceased had expressed her wish
to leave the property to him at a family meeting held after the passing of his
grandfather. The Applicant was , however , disapproving thereof as he believed that
he should inherit the property. The Applicant got ang ry and got into a fight with the
Third Respondent.

[25] The First Respondent narrated that the deceased was taken to an attorney
at as she was desirous to “do her Will”. The First and Third Respondent
accompanied the deceased to the attorney where the decease d informed the
attorney what her wishes were. The First Respondent gave an account of what
transpired at the attorney’s office. The attorney at some point during the consultation
called the Third Respondent to assist him with information concerning the
deceased’s assets which remained after his grandfather had passed on as the Third
Respondent was the Executor of his grandfather’s estate.

[26] The First Respondent was referred to the Court Order granted by Justice
Binns -Ward on 22 June 2016 in terms of which Mrs. Parker was appointed as the
curatrix bonis to the deceased . He stated that he was unaware thereof until 2018
when an application was l aunched to reverse the transfer of the property and the
sheriff served the papers on him . He exp lained the context under which the sale
agreement came about. The First Responde nt stated that the deceased expressed
her desire for him to receive the property while she was alive and not when she
“closes her eyes”. This was because she didn’t want to see him on the street and
because his father and his uncle both owned their own respective properties .

[27] He furthermore explained that the agreement was finalised at a meeting at
Manson Tobin Attorneys in Durbanville where he and the Third Respondent were
present. The First Respondent orated that the deceased informed the attorney that
she was desirous to don ate the property to the First Respondent. When asked to
clarify whether it was a sale agreement or a donation he responded that the
deceased said she would like to transfer the property to him.

[28] The First Respondent confirmed what was stated in the report of Dr Thomas
insofar as it was recorded that the deceased would instruct him to withdraw money
for her. He was asked about his sister’s testimony regarding the deceased’s waning
interest in activities. To this , he responded that the deceased had spine cancer and
moved slow ly. He recounted the activities of the deceased which included the times
when the Third Respondent would drop her off at the station and she would go to
town and come home with her daughter. He explained that the deceased was
capable of doing “her own things ” and only when she would be in pain would she lay
down. The First Respondent administered the deceased’s medicine and also
frequently took her out. He also related that the deceased liked “e ating out”.
Furthermore, he stated that the deceased was good at remembering names but
struggled with remembering places. According to him, s he had an awareness of
where she was and recogni sed her interlocuto r.

[29] In addition, he testified that he discovered another Will which was executed
by the deceased in 2015 approximately 5 months prior to the hearing.

The Applicant’s principal submissions

[30] The Applicant submitted that the medical expert opinion of Dr George
confirmed that t he deceased could not have the requisite mental faculties in place in
order to execute the respective Will dated 7 January 2015 or the impugned Will. It
was contended that the evidence presented by Melanie Johnson was supported by
the opinion of Dr George, which was submitted as not having been seriously
challenged during the hearing by the Respondents. The Applicant furthermore
asserted that the Respondent’s own version, which was elicited through the cross -
examination of the First Respondent and Mr Kamali e, confirmed that the deceased
did not have the requisite mental capacity to execute a Will.

[31] The Applicant contended that if regard were to be had to the unexplained
and suspicious manner of execution of the alleged 2015 Will, coupled with the
circumstanc es pertaining to the 2016 Will and the purported sale of the property by
way of the 2017 Deed of Sale, all formed part o f an ongoing attempt by the First
Respondent to get his hands on the property by exploiting the dementia of
deceased .

The Respondents ’ principal submissions

[32] The Respondents contended that the Applicant had not discharged his onus
to prove on a preponderanc e of probabilities, that any of the deceased’s Will is
susceptible to invalidity as a result of mental incapacity or undue influence upon the
deceased. The Respondents den ied that the deceased did not possess the mental
capacity to execute the 2016 Will .

[33] They suggested that the application is primarily motivated by the Applicant’s
immaterial belief that, because his parents had initially favoured him in terms of their
initial Will, he and the rest of his siblings ought not to have been excluded as
benefic iaries of the deceased’s estate. The Respondents argued that Dr George
could not conclusively make a determination on the deceased’s state of mind at the
time when the 2015 Will was concluded . They suggested that Dr George’s expert
testimony, if measured a gainst the undisputed evidence, does not justify a
conclusion that the deceased was either lacking the capacity to make a Will or was
unduly influenced by the Respondents. They deny the impression sought to be
imputed by the Applicant to the expert reports as if there is justification for a
conclusion that the deceased had no mental capacity.

[34] In addition, it was submitted that the Second Respondent has carried out his
responsibilities as the Master’s representative and therefore which does not justify a
conclusion that the Second Respondent should be removed as the Executor .

Applicable legal p rinciples

[35] It is trite that there is a presumption that a Will which appears regular and
complete on the face of it, is valid until its invalidity has been established on a
balance of probabilities by the person alleging its invalidity.1

[36] Section 4 of the Wills Act2 (“the Wills Act”) deals with the competence of a
person to make a Will and states as follows:


1 Kunz v Swart and Others 1924 AD 618.
2 The Wills Act 7 of 1953.
‘Every person of the age of 16 years or more may make a will unless at the
time of making the will he is mentally incapable of appreciating the na ture 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.’ [my emphasis]

[37] The onus therefore rested on the Applicant to prove that the deceased was
mentally incapable of atte sting to a Will as aptly enunciated in the seminal judgment
of Kirsten and Others v Bailey and Others3 where the court distilled the test to be
applied as follows:

‘The test to be applied in deciding the question of testamentary capacity is
whether 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 its different bearings.’4

Failure to cross -examin e

[38] The Applicant submitted that the First Respondent claimed to have
instructed his Counsel with all the facts relevant to his version in detail. It was
however elucidated that his version was not put to either Dr George or his sister, Ms
Johnson and neither was there evidence challenge d during cross -examination.
Furthermore , certain aspects of the evidence provided by Dr George and Ms
Johnson regarding the cognitive functioning of the deceased went unchallenged
during cross -examination. For instance, it was never put to Ms Johnson that her
version regarding the lack of memory of the deceased and her disorientation within
her own home was denied, nor w ere the allegations that would follow by the First
Respondent put to her to enable her to respond thereto whilst in the witness box.


3 1976 (4) SA 108 (C).
4 See also Banks v Goodfellow 1870 LR 5 QB 549 and Naidoo NO & Another v Crowhurst NO &
Others 2010 (2) All SA 379 (WCC) where the court held:
‘The main element of the test for deciding the question of testamentary capacity that emerge
are the following: at the time of making the will the testator must have been capable of
comprehending the nature and extent of his property, of recollecting and understanding the
claims of relations and other upon his favour or upon his property and of forming the intention
of granting each of them the share in the property set out in the will or excluding them from any
share of his property as the case may be.’
[39] The matter of President of the Republic of South Africa v SARFU 5 is the
locus classicus on cross -examination where the Constitutional Court stated as
follows :

‘[61] As a general rule it is essential, when it is intended to suggest that a
witness is not speaking the truth on a particular point, to direct the witness’s
attention to the fact by questions put in cross -examination, showing that the
imputation is inten ded to be made and to afford the witness an opportunity,
whilst still in the witness -box of giving any explanation open to the witness and
of defending his or her character. If a point in dispute is left unchallenged in
cross -examination, the party calling the witness is entitled to assume that the
unchallenged witness’s evidence is accepted as correct. This rule was
enunciated by the House of Lords in Browne v Dunn and has been adopted
and consistently followed by our courts.

[62] The rule in Browne v Du nn is not merely one of professional practice but “is
essential to fair play and fair dealing with witnesses”. It is still current in England
and has been adopted and followed in substantially the same form in the
Commonwealth jurisdictions.

[63] The pre cise nature of the imputation should be made clear to the witness
so that it can be met and destroyed, particularly where the imputation relies
upon inferences to be drawn from other evidence in the proceedings. It should
be made clear not only that the ev idence is to be challenged but also how it is
to be challenged. This is so because the witness must be given an opportunity
to deny the challenge, to call corroborative evidence, to qualify the evidence
given by the witness or others and to explain contrad ictions on which reliance is
to be placed. ’

[40] It is therefore trite that the unchallenged evidence becomes common cause
as the party calling the witness is entitled to assume that the unchallenged witness’s
testimony is accepted as correct. This in essence defeats the very purpose of cross -

5 2000 (1) SA 1 (CC) at paras 61 – 63.
examination as crystallised by academic writers and a plethora of case authorities on
point.6

[41] Thus, it follows that Section 15 of the Civil Proceedings Evidence Act7 finds
application which states as follows:

‘It shall not be necessary for any party in any civil proceedings to prove nor
shall it be competent for any such party to disprove any fact admitted on the
record of such proceedings.’

[42] The implied common cause evidence is analogous to a formal admission in
the pleadings or one made during the course of a trial. It is then not competent for a
party to subsequently lead evidence that contradicts this. In upholding the principle
and standards of fairness regard mu st be had to the potential prejudice if the rule is
not adhered to. More especially as the party accepting the correctness of the version
of a witness due to the lack of cross -examination on a topic, may have found it
unnecessary to lead further evidence i n proof thereof or to call further witnesses in
support thereof prior to closing his or her case.

[43] During the trial, Counsel on behalf of the Respondents admitted that Dr
Thomas conducted a MOCA test on the deceased and that the result was 13/30. The
consequences of such a low score w ere never challenged either during the cross -
examination of Dr George or by any rebuttal evidence from another expert witness.

Evaluation of evidence

[44] The Respondents ’ challenge essentially went to the content of Dr Thoma s’
report wherein the activities of the deceased were noted. They argued that the tasks
identified in Dr Thomas’ report which the deceased is credited as having been
capable of performing, are not tasks that would ordinarily be expected from a person,
who, at that critical moment was mentally incapable of making decisions including a

6 Marnewi ck SC, ‘Litigation Skills for South African Lawyers’ , (4th Ed.) LexisNexis (2019) at page 343;
Pretorius, ‘Cross -Examination in South African Law’ Butterworths (1997) at pages 89 – 92.
7 Act No. 25 of 1965.
decision relating to how her estate should devolve. Furthermore, it was argued that
in investigating whether the person had the mental capacity to execute a Will, one
has to co nsider whether at the time when that Will was executed , there is evidence
that the testator would probably have been mentally incapacitated.

[45] The Applicant argued that the evidence of Dr George and Ms Johnson
overwhelmingly prove d that the deceased did not have the requisite testamentary
capacity to execute either of the two Wills in question. If regard is had to the version
of the Respondents’ witnesses re garding the execution of the 2016 Will, it too proves
that the deceased did not have the requisite mental capacity to execute the Will. In
augmentation of this assertion , the Applicant contended that:

(a) The deceased could not independently recall all her ass ets. The assistance of
the Third Respondent had to be relied upon in this regard. It became manifest
that the Mercedes Benz motor vehicle was not included which it was argued,
the deceased would have been expected to remember, had her memory been
intact;

(b) The information given to Mr Kamalie was inaccurate insofar as she was
unable to recall where her late husband worked and inaccurately mentioned
that he worked for Telkom instead of SA Post Office.

[46] The Respondents zoned in on the date that Dr George had examined the
deceased, namely 13 January 2016. They highlighted that Dr George did not have
any information concerning the deceased’s state of mind a year earlier when she
executed the 2015 Will or at the time when the deceased’s husband died on 23
October 2014. The Respondents rely on the concession made by Dr George that it is
possible that the deceased’s Alzheimer ’s condition, if it already existed in January
2015, would not have been of the same level as when it was when he examined the
deceased in 2016 .

[47] The Respondents placed reliance on the matter of Essop v Mustapha
Essop NNO and Others8 where the court confirmed that the decisive moment for
establishing the competence of the testator is the time when the Will is made. In
applying this legal principle, the Respondents conte nded that the evidence of Dr
George falls to be rejected as his findings were not based on any objective evidence
based on any assessment. This, they say , is because there was at least a period of
11 months from the time when the deceased had executed the 2015 Will to the time
when the deceased was examined by Dr George in 2016. In this regard, it was
argued that it is probable that the deceased may not have had dementia at that
stage or it may have been at an insignificant level that did not impact any of her
decision -making abilities.

[48] The Respondents further suggested that Dr George’s evidence revealed his
own biases when he testified during cross -examination that he did not believe that
the deceased would have chosen to deviate from the contents of the Joint Will and
decide to bequeath her property to one person to the exclusion of all her children.
They fortify this assertion on the basis that it aligns with the Applicant’s view that
there was no reason for the deceased to disinherit any of their children especially in
favour of the First Respondent.

[49] In my view , there is no notable indication of bias as Dr George was called as
an expert witness. The questions posed during cross -examination invited him to
share his viewpoint, and he gave his response. It can therefore hardly be argued that
a solicited view elicited during cross -examination is tantamount to bias, given the
stage of the proceedings at which such opinion was extracted. To reiterate, the
MOCA score of 13/30 in and of itself is telling and clearly supported by additional
considerations and not purely base d on an opinion, highlighted in isolation.

[50] It is trite that a court, in evaluating all the evidence must distinguish
probabilities and inferences from conjecture or speculation. To my mind, the
Respondents have produced no evidence in rebuttal of the testimony and reports of
the expert witnesses to gainsay the conclusion that the deceased was indeed

8 1988 (4) SA 213 (D)
suffering from Alzheimer’s dementia, which was moderately advanced. Th e report of
Dr George must be considered in the milieu of all the evidence including that of Ms
Johnson, who in opinion , made a good impression on the court and remained
steadfast despite being thoroughly cross -examined . Her version is supported by the
independent and unchallenged report of Dr Thomas. Significantly, Dr Thomas noted
the de cline in the deceased’s interests and activities which corroborates the
testimony of Ms Johnson in this regard. The independence of Dr Thomas’ report is
underpinned by the fact that Ms Johnson was not present at the examination. Dr
Thomas’ conclusion was i nformed by another collateral source , more specifically
“one of her sons”, together with the further investigation of her cognitive decline
when she was admitted to hospital over the period 28 – 29 September 2015 .

[51] The chronology of events is a critical consideration. In this regard, t he
impugned Will is dated 9 February 2016. Dr George’s report is dated 18 January
2016 , after having consulted with the deceased on 13 January 2016. The deceased
was referred by the curatrix bonis for a psychiatric evaluation because she could not
manage her affairs. Mrs Parker was appointed as such on 22 June 2016. The
deceased, barely one month after consulting with Dr George, who recommended the
appointment of a curator bonis , is then taken to an attorney to attes t to a Will in
circumstances where she was found to be incapable of managing her financial
affairs and had displayed cognitive decline. Furthermore, R60 000 was recorded by
Dr Thomas to have been misappropriated.

[52] To my mind, t he deceased would have failed the test even without the expert
opinions of Dr Thomas and Dr George, as Ms Johnson and the First Respondent
confirm that the deceased was displaying signs of forgetfulness . To some measure,
the First Respondent’s concession that the deceased was a bit forgetful corroborates
the experts ’ findings. Although the First Respondent held the view that Dr George
exaggerated the extent of the deceased’s mental abilities, the First Respondent
conceded that he was aware that the deceased had consulted medical practitioners
regarding her possible dementia. The First Respondent was therefore not forthright
with Mr Kamalie regarding the Respondent’s cognitive decline .

[53] To add to the further suspicion, Mr Kamalie testified that the deceased
spoke about her late husband being employed at Telkom. This is factually incorrect
as confirmed by the First Respondent that his grandfather was in fact employed at
the SA Post Office. This factual error, in my view, is material and speaks directly to
the testamentary capacity of the deceased. Furthermore, a recommendation for the
appointment of a curator bonis was made by Dr George on 18 January 2016, prior to
them visiting the Attorneys, base d on his finding that the deceased was unable to
manage her own affairs. The First Respondent’s claim not to know about this
appears implausible as this court is beholden to weigh the evidence in its totality. In
other words, evidence must be viewed holistically. Therefore , these factors
considered cumulatively, to my mind, on a balance of probabilities, lead to the
inescapable inference that she would not have had the requisite testamentary
capacity to execute the 2016 Will, bearing in mind that the test required that:

(a) She should be of sufficient intelligence;

(b) Possess a sufficiently sound mind and memory ;

(c) For her to appreciate the nature of the testamentary act in all its bearings .
[my emphasis]

[54] Consequently, based on the objective facts proven, the 2016 Will falls to be
declared null and void. Should I be wrong, it behoves me to consider the suggestion
that she was unduly influenced in executing the 2016 Will.

Undue influence

[55] It is trite that the expression of a testator’s last wishes must be the result of
the exercise of his or her own volition. Any impairment to the free expression of the
testator’s wishes at the time the will is made may result in a will being declared
invalid.9


9 Spies NO v Smith en Ande re 1957 (1) SA 539 (A).
[56] In dealing wi th the deceased’s susceptibility to being influenced, t he
Applicant contended that at her advanced age of 84 years, in 2016, and with the
deceased having been diagnosed with dementia, it would have been easy for the
deceased to be influenced into executing a Will and signing a Deed of Sale. The
suspicious and unexplained circumstances surrounding these events lend credence,
it was argued , to this inescapable inference. The Applicant contended that it is thus
reasonable to conclude that this is nothing other than an opportunistic and
underhanded attempt by the Respondents to have the property transferred to the
First Respondent. To cement this argument, it was highlighted that the Third
Respondent conducts a business from the property.

[57] The Respondent s argued that the Applicant’s claim that the deceased could
not have made a Will without knowing what she was doing or through undue
pressur e is not supported by probable evidence. It is however noteworthy that d uring
cross -examination, Mr Kamalie stated that he did question the deceased as to why
she wanted to bequeath the immovable property to her grandson to which she
responded that it was because he looked after her. This explanation was also given
by the First Respondent during his testimony. He further stated that the deceased
reasoned that the Applicant and the Third Respondent own their own immovable
properties respectively and she did not want to see him on the street.

[58] Mr Kamalie during his testimony could not recall whether they spoke about
movable assets. It is noteworthy that t he Third Respondent, included in the
Liquidation and Distribution Account that the estate owned a Mercedes Benz motor
vehicle to the value of approximately R20 000. It was pointed out to the First
Respondent that the deceased did not mention this vehicle i n her 2016 Will. It is also
notable that the only persons named as beneficiaries in the 2016 Will are the First
and Third Respondents , to the exclusion of the Applicant and the remainder of the
siblings. It therefore beckons the question whether it is coincidental that the two
persons who accompany the deceased to the attorneys , are the same persons who
had knowledge of her medical assessment and the recommendation of a curator
bonis are the only persons named in the deceased’s Will . Moreover, t he only
person’s identity document number included in the 2016 Will is that of the Third
Respondent who is also the nominated Executor of the estate.

[59] Mr Kamalie’s testimony that he would generally ask those accompanying a
testator not to speak, contradicts his e vidence that “most” of the information was
elicited from the deceased upon an analysis of the content of the 2016 Will.
Essentially, under the paragraph headed “heirs and beneficiaries”, the First
Respondent is named the sole and universal heir of the dece ased’s estate. The
Third Respondent is named as the beneficiary of shares held by the deceased in
Public Companies. It is hardly likely for the deceased to have had knowledge of this
fact and that there was still funds due to her from her late husband’s es tate which is
bequeathed to the First and Third Respondents equally. Again, this must be viewed
against the evidence concerning the deceased’s “forgetfulness” coupled by the fact
that Dr Thomas’ report mentioned that the deceased had no knowledge of
moveme nt of certain funds.

[60] Mr Kamalie was unaware that the deceased had consulted with a
psychiatrist and neurologist. This fact ought to have been disclosed to Mr Kamalie by
the First Respondent, who during cross -examination, confirmed that he had
knowledge that the deceased was taken to a neurologist and had consulted with Dr
George. To my mind , both the First and Third Respondents had to have been aware
of this fact as the deceased had an in-hospital assessment. When this was
disclosed to Mr Kamalie , he remarked during cross -examination, that had he known
the deceased had been diagnosed with dementia or consulted a psychiatrist for
dementia, he would not have assisted her in executing the Will becau se the validity
thereof would be challenged.

[61] I am therefore fully persuaded, that t he Respondents who accompanied the
deceased to Mr Kamalie’s office would have been aware of her cognitive decline , as
the First Respondent resides on the property and the Third Respondent conducts a
business from the property. Furthermore, the fact that the appointment of a curator
bonis was recom mended because the deceased was found not to be able to
manage her own a ffairs, should have been brought to the attention of Mr Kamalie,
who was clearly unsuspecting. Therefore, it would not be far -fetched to infer that
there may have been an agenda as alluded to by the Applicant in argument.

[62] The First Respondent refuted the notion that the deceased was afraid of him
and stated that she was fond of him that is why he was the one called upon by his
grandparents to help them and look after them. It is my view that the Respondent’s
argument regard ing the undue pressure in the context of the relationship she had
with the First and Third Respondents is misplaced as it is apparent that the
deceased was vulnerable.

[63] In my view, it was the deceased’s state of mind that was taken advantage of
and not th at she was pressurised in the context of being forced to leave the property
to the First Respondent. There is no evidence that the deceased was mistreated. On
the contrary, it is clear that she had a good relationship with her family , more
specifically the First Respondent.

[64] The timing of the 2016 Will being subsequent to the medical diagnosis and
curator bonis recommendation, become s a crucial consideration. Inasmuch as Mr
Kamalie may have formed the view, based on his observations and interactions with
the deceased as to the capacity to execute a Will , he was unaware of the
deceased’s medical diagnosis. He cannot be faulted for proceeding to draft the Will
on what appears to be partial instructions obtained from the deceased and the errors
and omissions alluded to earlier in this judgment .

[65] It would however be remiss of the court not to restate the trite legal principle
that a testator is free to dictate the direction which her estate should take upon her
death. This is however not unqualified as the person making the Will must be
mentally capable of appreciating the nature and effect of his or her act, which i n my
view, wasn’t the case with the deceased, based on the contextual narrative together
with the expert testimony and reports.

[66] Though it was argued that there is nothing to suggest that the First
Respondent is not worthy of inheriting the deceased’s esta te, the Respondents fail to
appreciate that the primary consideration is , in fact , whether the deceased was
capable of executing the Will in 2016 and 2015 , respectively. This court has no doubt
that the deceased had a close bond with the First Respondent , but this , in and of
itself, is not sufficient to conclude that the deceased had the mental capacity to
appreciate the nature and effect of her act. This co urt is , after all , enjoined to
correctly apply the legal considerations , which should not be overshadowed by
considerations of the heart .

[67] The test distilled in Banks v Goodfellow10, remains locus classicus :

‘The testator must … be possessed of sound and disposing mind and memory
…. But his memory may be very imperfect … and yet his understanding may be
sufficiently sound for many of the ordinary transactions … were his mind and
memory sufficiently sound to ena ble him to know and to understand the
business in which he was engaged at the time he executed his will?’

[68] Without rebuttal evidence regarding the deceased’s mental capacity, I am
satisfied, on a conspectus of the evidence that the deceased no longer had a
disposing mind at the time of executing the Will in 2016 . Consequently, o n a balance
of probabilities, I am of the view that the deceased was at the time of executing the
2016 Will unable to:

(a) Appreciate her actions;

(b) Recall her property and interests;

(c) Recall and/or identify her potential heirs and the claims of her other children
and

(d) Make her own informed executive decision regarding the terms of the Will.

Removal as Executor

[69] Section 54, of the Administration of Estates Act11 stipulates as follows:

‘54 Removal from office of Executor

10 1870 LR 5 QB 549.
11 Act 66 of 1965.

(1) An Executor may at any time be removed from his office -

(a) by the Court -

(i) ......

(ii) if he has at any time been a party to an agreement or arrangement
whereby he has undertaken that he will, in his capacity as Executor , grant
or endeavour to grant to, or obtain or endeavour to obtain for any heir,
debtor or creditor of the estate, any bene fit to which he is not entitled; or

(iii) if he has by means of any misrepresentation or any reward or offer
of any reward, whether direct or indirect, induced or attempted to induce
any person to vote for his recommendation to the Master as Executor or to
effect or to assist in effecting such recommendation; or

(iv) if he has accepted or expressed his willingness to accept from any
person any benefit whatsoever in consideration of such person being
engaged to perform any work on behalf of the estate; or

(v) if for any other reason the Court is satisfied that it is
undesirable that he should act as Executor of the estate concerned;
…’ [my emphasis]

[70] The Applicant placed reliance on Van Niekerk v Van Niekerk and Another
12 (“Van Niekerk ”) to underscore the manner in which an Executor is to exercise its
powers and functions. In this regard, an Executor is obliged to exercise his or her
powers bona fide and with a measure of objectivity. It is trite that it is undesirable for
a person to act as Executor if inter alia :


12 2011 (2) SA 145 (KZP), para 11.
(a) there is a conflict of interest between the personal interests of the Executor
and the estate13;

(b) the Executor is incapable of behaving in a fair and impartial manner towards
creditors and/or heirs in the estate14;

(c) It is apparent from the Executor ’s conduct that it is their purpose and intent to
use their office to resist all claims, or all claims from a particular source,
irrespective of their merits and without any f air-minded consideration
thereof;15

(d) the Executor conducted him or herself in such a manner that it actually
imperils his or her proper administration of the estate.16

[71] Whilst these aforestated principles do not constitute a closed list, it is
noteworthy that the Second Respondent was not called to testify during the
proceedings. As previously stated, no expert evidence in rebuttal was led by the
Respondents to gainsay th e evidence of Dr George, coupled with the fact that the
MOCA test result was not placed in dispute.

[72] The Applicant submitted that the Second Respondent must have been
aware of the mental capacity of the deceased, and notwithstanding supported and
perhaps advised the First Respondent in the various attempts to secure the property
for the First Respondent. In addition, it was contended that the Second Respondent
is faced with a serious conflict of interest in that the future housing of his business is
under threat. Evident from the Liquidation and Distribution Account compiled for the
joint estate, it was highlighted that there are little or no cash assets available to cover
the administration thereof. It is the Applicant’s contention that the Respondents are
in cahoots and have acted in an underhanded manner, which renders it undesirable

13 Grobbelaar v Grobbelaar 1959 (4) SA 719 (A); Reichman v Reichman and Others 2012 (4) SA 432
(GSJ).
14 Van Niekerk, para 25.
15 Van Niekerk, para 12.
16 Oberholster NO and Others v Richter 2013 (3) All SA 205 (GNP) at para 17.
for the Second Respondent to continue with the administration of the estate of the
deceased.

[73] It is however apposite to state that the Second Respondent was duly
appointed by the Tenth Respondent which appointment was not challenged by any
of his seven siblings. The Respondents contended that the Second Respondent had
no motives to influence the deceased.

[74] The matter of Pexmart CC and Others v H. Mocke Construction (Pty) Ltd
and Another17 is instructive on the aspect of a litigant’s failure to call available
witnesses.

‘It is true that this court in Munster Estates (Pty) Ltd v Killarney Hills
(Pty) Ltd 1979 (1) SA 621 (A) at 624 B-F, enunciated that its earlier
decision in Elgin Fireclays Ltd v Webb 1947 (4) SA 744 (A), did not lay
down a general and inflexible rule to be applied without more in every
case, that an adverse inference is to be drawn where a party fails to
call as a witness one who is available and able to elucidate the facts.
Whether such an inference is to be drawn will depend on the facts
peculiar to the case in which the question arises. In Munster this court
had regard to the circumstances which justified the adv erse inference.
During the course of the plaintiff’s case it was indicated that the witness
would be called. This court held that to say that the witness was
‘equally’ available, was to ignore the realities, particularly if the
association was taken into a ccount. The witness not called was also
clearly able to elucidate the facts. He was the most knowledgeable of
the plaintiff’s representatives on a material aspect. This court also took
into account that, during the course of the plaintiff’s case, contradic tory
evidence had been led which could have been clarified had the witness
been called. It held that the probable reason for not calling him as a

17 (159/2018) [2018] ZASCA 175; [2019] 1 All SA 335 (SCA); 2019 (3) SA 117 (SCA) (3 December
2018) at para 69.
witness was that it was feared that his evidence would expose facts
unfavourable to the plaintiff’s case. ’18

[75] In casu, there was no indication that the Second Respondent was not
available to testify. The Third Respondent in his capacity as Executor , (the Second
Respondent), holds a fiduciary duty to act in the best interest of the estate and its
beneficiaries. Therefore, the Second Respondent is to be held to the highest
fiduciary standard of care. Given the highlighted discrepancies elucidated during the
hearing, it would have been expected of the Second Respondent to provide
explanations.

[76] The person best placed to assist the court in this regard would be the
Second Respondent himself. The Respondents incorrectly, in my view, identif y the
challenged conflict of interest to suggest the Applicant’s disagreement “with how the
Second Respondent proceeded with the winding up process” .19 My understanding of
the Applicant’s argument goes to the fact that i t is uncontroverted that the Third
Respondent conducts his business from the property in question which implies that
he may have a vested interest to the extent that there is a conflict of interest.

[77] Furthermore, the Second Respondent too in my view, had to have been
aware of the deceased’s visits to the doctors and significant memory loss. The mere
fact that the appointment of a curat or bonis was recommended because the
deceased could no longer manage her own financial affairs is a critica l factor in my
view. The Third Respondent assisted Mr Kamalie in identifying the deceased’s
assets as it was evident that she was unable to recall the same. This, the
Respondents argued was because the Third Respondent would have been privy to
or required verification from the Third Respondent, who was also the Executor of the
deceased’s late husband’s estate.

18 See also, PJ Schwikkard et al ‘Principles of Evidence, Second Edition ’, (2002) at page 513 :
"A party's failure to call available witnesses may in exceptional circumstances lead to an
adverse inference being drawn from such failure against the party concerned. The extent to
which such an inference can be drawn will depend on the circumstances of the case. The Court
should, inter alia, consider the following: Was the party concerned perhaps under erroneous
but bona fide impression that he had proved his case and that there was therefore no need to
have called the witness? Is there a possibility that the party concerned believed that the
potential witness was biased, hostile or unreliable?"
19 Respondents Heads of Argument, para 38, page 11.

[78] Though this may be true, his presence during the consultation with Mr
Kamalie and the deceased should have triggered an alarm when the deceased
incorrectly stated that her late husband’s place of employment was Telkom and not
SA Post Office. The Mercedes Benz motor vehicle appears to not have feature d
during the consultation, based on Mr Kamalie’s evidence and the notable absence of
the asset in the 2016 Will. As an Executor , the Second Respondent is legally obliged
to exercise due care and diligence by avoiding any actions that cou ld put the estate
at risk. His fiduciary obligation enjoins him to be impartial. Thus, his silence at the
Attorneys office regarding the deceased’s memory loss and curator bonis
recommendation , in my view, had to be explained.

[79] The authorities are clear that an adverse inference must be drawn if a party
fails to testify or produce evidence of a witness who is available to elucidate the
facts. The court in Shishonga v Minister of Justice and Constitutional
Development and Another 20 made it abundantl y clear ‘that this failure leads
naturally to the inference that he fears that such evidence will expose facts
unfavourable to him’.21

[80] It is trite that the court’s approach regarding an application for the removal of
an Executor is premised on the interests of the estate and those of the
beneficiaries .22 It is settled law that sufficient cause must exist for the removal of an
Executor . It must therefore be apparent that the particular circumstances of acts
complained of are as contemplated in Section 54 (supra) .

[81] The aforementioned a spersions that were cast on the Second Respondent ,
in my view, demonstrate sufficient cause to justify a court -ordered removal of the

20 2007 (4) SA 135 (LC) .
21 At para 112.
"The failure of a party to call a witness is excusable in certain circumstances, such as when the
opposition fails to make out a prima facie case. But an adverse inference must be drawn if a
party fails to testify or produce evidence of a witness who is availab le and able to elucidate the
facts, as this failure leads naturally to the inference that he fears that such evidence will expose
facts unfavourable to him, or even damage his case. That inference is strengthened if the
witnesses have a public duty to test ify."
22 Die Meester v Meyer en Andere 1975 (2) SA 1 (T) at 17F ; Constitutional Court in Gory v Kolver NO
and Others (Starke and Others Intervening) 2007 (4) SA 97 (CC) at para 56.
Second Respondent as the Executor .23 However, a decision in this regard is
rendered moot if the 2016 Will is declared invalid as the decision in this regard falls
to the Master. In light of the conclusion to which I have come, the Second
Respondent should hold the further administration of the estate in abeyance ,
pending the appointment of a new executor for the deceased estate as the effect of
the outcome of this matter will have changed the status of the deceased estate.

The setting aside of the 2015 Will

[82] The viva voce evidence of the First Respondent revealed that he was
requested by his legal representative , during a consultation , to hand in any
documents that would relate to the matter, which led to the discovery of the 2015
Will, approximately 5 months prior to the hearing. The Applicant , as part of the relief
sought, requested that the court declare under alternative relief in prayer 2 of the
notice of motion, the alleged Will of 7 January 2015 invalid. This court is required to
make a determination on the authenticity of the alleged 2015 Will as well as the
mental capacity of the deceased to execute the sa id Will as per the order taken by
agreement between the parties on 22 May 2024.

[83] The Respondents claim that it was at all times the intention of the deceased
that the First Respondent should inherit her property as she had on 7 January 2015,
executed an ea rlier Will wherein the same intention was recorded. They contended
that even if there was evidence to discredit the 2016 Will, there would still be no legal
justification for an order that the deceased died intestate, because prior to executing
the 2016 Will, the deceased had executed the 2015 Will.

[84] In considering the authenti city of the 2015 Will the testimony of the First
Respondent is pivotal. During cross -examination, the First Respondent was referred
to the Joint Will which was executed by the deceased and her late husband on 4
September 2014. He was requested to compare it with the Will of the 7th of January
2015. After performing this exercise, he conceded that the main subject matters
contained in both Wills followed categorically and tha t the wording was substantially

23 Katz and Another v Katz and Others [2004] 4 All SA 545 (C).
similar, notwithstanding the fact that the Joint Will was drafted by Attorneys and the
2015 Will was overtly drafted by a layperson. The Applicant reasoned that this
means that the drafter of the 2015 Will must have copied the layout and wording of
the Joint Will with minor deviations.

[85] Furthermore, i t was also illuminated during cross -examination that even on a
layperson’s examination of the purported signature of the deceased appended to the
2015 Will, it looks significantly different to that in the Joint Will. It was submitted that
no explanation was prof fered by the First Respondent in this regard. The Applicant
contended that the Respondents’ involvement in drafting the 2015 Will is supported
by the fact that their identity numbers are included therein. Although it was pointed
out that the signatures to a layperson’s eye, looked different, the Applicant failed to
challenge same by way of a handwriting expert . Of further significance is the
proposition that was put to the First Respondent to the effect that it would logically
follow that the only ones tha t would have drafte d the 2015 Will and caused the
deceased to sign it would have been those who stood to benefit from it . This
suggestion was vaguely denied by the First Respondent.

[86] It is noteworthy that Dr Thomas, at the end of her report penned an
addendum wherein it was recorded that ‘Mrs Johnson was admitted for the duration
28/09/2015 to 29/09/2015 for further investigation of her problem of cognitive
decline.’ The following reco rdal as a comment under, “special investigations”
pursuant to the MRI brain scan was made:

‘No lobar strophy. Diffuse which matter features suggest small vessel
insufficiency – in the appropriate clinical context, these changes may be
consistent with multi -infarct dementia . No structural pathology or
collection…’ [my emphasis]

[87] Dr Thomas concluded that given the profile of the MRI, the patient likely had
cognitive decline due to small vessel disease. She further opined that the dementia
is irreversible but further decline can be halted by optimising blood pressure control
and treating diabetes (if present). Dr George also opined that the same loss of
mental capacity that was present in 2016 would have been prevalent in January
2015 due to the slow degenerati ve nature of vascular dementia.

[88] The First Respondent conceded that the deceased could not have been the
drafter of the 2015 Will as she did not have access to a computer or typewriter. In
fact, i t came to light that there was no computer or printer in the home and neither
could the deceas ed type the Will. The First Respondent conceded that there was no
indication that the document was prepared by a professional.

[89] I am therefore of the view that the authenticity of the 2015 Will was not
proven. In terms of the mental capacity of the decea sed as at 2015, Ms Johnson’s
evidence, which stands unabated suggested that the deceased’s cognitive decline
was already evident in January 2015 subsequent to her late husband’s passing. This
is supported by the independent experts whose evidence now stands as common
cause admissions, more particularly the MOCA score of 13/30. It was also evident
that her late husband handled all the household affairs while he was alive. These
considerati ons collectively, bring into question the authenticity and the mental
capacity of the deceased at the time of executing the 2015 Will.

[90] Should I be wrong in coming to this conclusion, I am of the view that the
court’s approach in Kirsten v Bailey (supra) finds application. In that matter ,
a testatrix made three Wills . In the first and third, Bailey was nominated as the
sole beneficiary of her estate ; in the second will, Kirsten was nominated as the s ole
beneficiary. Kirsten challenged the validity of the third will. The court held that Bailey
had led the testatrix to believe that he would leave her unless she appointed him her
sole heir. Thus, Kirsten had proved that the testatrix was unduly influenced and
accordingly lacked the requisite capacity. The testatrix therefore was held to have
died intestate . The effect of the ruling is that if a court declares the last in a series of
wills to be invalid ab initio , the deceased is deemed to have died intestate. The court
will not give effect to an earlier will, as it had already been revoked.

[91] In casu , the 2016 Will would have revoked all former Wills and Codicils.
Therefore, by declaring the 2016 Will as being the last in a series of Wills to be
invalid ab initio , the deceased is deemed to have died intestate.

Setting aside of the Tr ansfer of the property

[92] It is noteworthy that the First Respondent initially spoke about the property
being donated, but the First Respondent confirmed that a deed of donation was not
concluded. The First Respondent confirmed that a Deed of Sale containing a
purchase price was concluded, which purchase price was never paid.

[93] When questioned regarding whether the First Respondent still had a copy of
the actual agreement, he indicated that he would have to look for it and that it should
be amongst h is other documents at home . These documents were never produced.
He was unable to say whether the documents were attached to the application
papers for the setting aside of the transfer.

[94] It is noteworthy that the Agreement of Sale which was entered into between
the deceased and the First Respondent on 20 November 2017, was declared null
and void and set aside on 9 April 2019, by Justice Boqwana, as she then was , under
case number 20533/2018. The Registrar of Deeds was directed to take the
necessary steps to de -register the property by removing the name of the First
Respondent, such that the registration of the property and ownership thereof revert
to the name of the deceased.

[95] According to WinDeed, the property was registered in the name of the First
Respondent on 16 September 2021.24 The Eleventh Respondent reported that as at
13 October 2023, the property was registered in the n ame of the First Respondent.
The p roperty is still currently registered in the name of the First Respondent.

Conclusion

[96] For the reasons already stated I find, on a balance of probabilities that the
deceased did not have the mental capacity to appreciate the nature and effect of her
act when executing the Will s in 2016 and 2015 respectively. Both Wills are

24 Application Bundle, Annexure “A11”, pages 43 – 47.
accordingly declared void ab initio . In any event, i n applying the reasoning of Kirsten
v Bailey (supra), the 2015 Wi ll and all other Will s preceding the 2016 Will, were
already revoked by operation of the 2016 Will at the time when it was executed. The
effect of this ruling is that the deceased is now deemed to have died intestate.

[97] To my mind , this would be a sensible and just outcome in what can only be
described as the “Battle of the Wills” . The principle of fairness, ought to be applied
which in my view will best serve the interest of the estate and the beneficiaries by
declaring the deceas ed estate to be administered in terms of intestate succession.

[98] The effect of this order requires that the status quo ante be restored. It
therefore follows that the transfer of Erf 1 […] Cape Town to the First Respondent
that took place on 16 September 2021, must be set aside. Since the deceased is
now deemed to have died intestate, I am of the view that the Second Respondent
should be removed as the executor by the Master of the High Court as Section
54(1)(b)(i) of the Administration of Estates Act therefore finds application.25 The
intestate heirs of the deceased estate will in due course be called upon to nominate
an Executor of their choice.

Costs

[99] It is trite that costs ordinarily follow the result. However, in light of the
conclusion to which I have come, I deem it appropriate that each party bears their
own costs.

Order

[100] Having heard viva voce testimony, Counsel for the Applicant and Counsel
for the Respondents, and having read the papers filed of record, the following order
is made:

25 ‘… (b) by the Master —
(i) if he has been nominated by will and that will has been declared to be void by the
Court or has been revoked, either wholly or in so far as it relates to his nomination, or
if he h as been nominated by will and the Master is of the opinion that the will is for
any reason invalid’

1. The Will of Marion Johnson executed on 9 February 2016 is hereby declared
null and void;

2. The transfer of Erf 1 […] Cape Town to the First Respondent on or about 16th
September 2021, is hereby set aside;

3. The estate of the late Marion Johnson is to be administered in terms of
intestate succession;

4. The Tenth Respondent is directed to appoint a new executor of the deceased
estate;

5. The Second Respondent shall hold the further administration of the estate of
the deceased in abeyance pending further directives of the Master of the High
Court;

6. A copy of this order is to be served on the 10th and 11th Respondents, within
seven (7) days from the date of this order;

7. Each part y is directed to bear their own costs.


__________________________
P D ANDREWS
Acting Judge of the High Court of
South Africa Western Cape Division,
Cape Town


APPEARANCES:

Counsel for the Applicant: Advocate A Walters
Instructed by: MZ Solomon Attorneys

Counsel for the 1st, 2nd & 3rd Respondent s: Advocate B Ndluli
Instructed by: Legal Aid South Africa

Heard on: 12 November 2024

Delivered: 19 February 2025 – This judgment was handed down electronically
by circulation to the parties’ representatives by email.