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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 048796/25
In the matter between
MARTHINUS WESSEL NAGEL NO 1st APPLICANT
RYSZARD ORLIK 2nd APPLICANT
ARN ORLIK 3rd APPLICANT
MERYN ORLIK 4th APPLICANT
AND
STRUAN ORLIK 1st RESPONDENT
THE MASTER OF THE HIGH COURT, 2nd
RESPONDENT
~•
~
n)/ ~
CAPE TOWN
In Re the Counter Application of
STRUAN ORLIK APPLICANT
AND
MARTHINUS WESEL NAGEL NO 1st
RESPONDENT
RYSZARD ORLIK 2nd
RESPONDENT
ARN ORLIK 3rd
RESPONDENT
MERYN ORLIK 4th
RESPONDENT
THE MASTER OF THE HIGH COURT, 5th
RESPONDENT
CAPE TOWN
JANE COURTNEY ORLIK 6th
RESPONDENT
LANE ORLIK 7th
RESPONDENT
PAIGE ELIZABETH ORLIK 8th
RESPONDENT
BRITTANY ANN ORLIK 9th
RESPONDENT
CARRIE BUICK 10th
RESPONDENT
Heard on: 24 February 2026
Delivered on: 08 June 2026
ORDER
___________________________________________________________________
(a) The application for a declaration that subsequent to effect being given to
the bequeaths contained in the last will and testament of the deceased as
referenced in clause 3.1 to 3.7 , the residue of the estate shall be
distributed according to clause 3.8 which provides that the residue of the
estate including all movable and immovable assets be distributed in equal
shares between the 2nd, 3rd and 4th applicants only, is dismissed.
(b) The costs of the main application shall be borne by the estate.
(c) The counterapplications for the discharge of Marthinus Wessel Nagel
(Nagel) as executor of the estate ; for the order for Nagel to repay
executors fees and forfeiture of any executor fees of the estate ; for the
authority for the Master to appoint another person as executor and for the
order to deliver the objections and answering affidavits to another person
and to instruct such person to furnish comments in respect of the
objections, is dismissed.
(d) The costs of the counterapplication shall be borne by the estate.
________________________________________________________________
JUDGMENT
________________________________________________________________
THULARE, J
[1] In the opposed main application the applicants sought a declaratory order
concerning the proper interpretation of the last will and testament of the late
JER Orlik (JER). The applicants sought an order that after the effect being given
to the bequests in clause 3.1 to 3.7 of the will, the residue of the estate shall be
distributed in equal shares between 2nd , 3rd and 4th applicants only excluding the
first respondent. Only the first respondent ( Struan) opposed the application.
Struan also brought a counter application wherein he sought a stay of the
administration of the estate pending the outcome of his objection lodged with
the Master, the rectification of the will by substitution of paragraph 3.8 thereof
so as to include him therein, alternatively that the issue of rectification be
referred for oral evidence and the removal of the first applicant (Nagel) as the
executor of the estate. The counterapplication is opposed by the applicants in
the main application . The sixth to tenth respondents in the counter application
have not opposed the applications and no relief was sought against them. They
were the JERs niece (tenth respondent) and grandchildren (sixth to ninth
respondents). They were heirs who benefited from the will by way of specific
bequests and are not involved in the dispute concerning the residue of the estate.
Although the applicants in the main application in reply and answer to the
counter application raised a point in limine, they have since abandoned it but
contended that Struan’s conduct was relevant for costs. The Master did not
oppose any of the applications.
[2] The second to fourth applicants in the main application and Struan are
siblings born of JER and are also nominated heirs . JER was a widow . She
passed away on 27 March 2022 and left an estate of considerable value,
comprising assets with an approximate value of just under 22 million rands. She
executed a last will and testament dated 29 October 2021. In the will she made
several specific bequeaths recorded in paragraphs 3.1 to 3.7 thereof in which her
four children, her grandchildren and her niece benefitted as heirs. In addition to
the specific bequeaths, the residue of the estate was bequeathed to the second to
fourth applicants. It is the interpretation of this clause , 3.8, that is in dispute.
Struan contends that the deceased di d not intend to exclude him from the
residual bequest. Paragraph 3.11 provided a resolution mechanism for any
dispute arising from the bequeaths. Struan relied on the provisions paragraph
3.11.
[3] A dispute arose between 2nd, 3rd and 4th on one side and Struan on the other
in respect of the interpretation of clause 3.11 of the last will and testament of
JER. Nagel also differs from Struan on the interpretation of clause 3.11. Nagels
interpretation of the disputed will is that only the 2 nd, 3rd and 4th applicants were
the residuary heirs, which excluded Struan from the benefit . Struan’s view was
that Nagels interpretation was influenced by extreme bias in favour of his
siblings to his extreme prejudice. Struan’s view was that Nagel accepted his
siblings contention that clause 3.8 expressed the wish of JER that the residual
was governed by clause 3.8, without in any way investigating it.
The main application
[4] Clauses 3.1 to 3.8 of the will reads as follows:
3. APPOINTMENT OF HEIRS
Bequeth my estate as follows:
3.1 All my jewellery I bequeath to my daughter, MERYN ORLIK, identity number …
3.2 To my daughter MERYN ORLIK identity number … the sum of R200 000 (two hundred
thousand rand).
3.3 To my niece CARRIE BUICK of …, Scotland the sum of R100 000-00 (one hundred
thousand rand).
3.4 To my son RYSZARD WILLIAM GERARD ORLIK identity number … the sum of
R750 000-00 (seven hundred and fifty thousand rand).
3.5 To my son STRUAN ORLIK identity number … I bequeath my loan account in RSA &
M TRUST ( I[...]) and all assets related to the trust and name my son, STRUAN ORLIK as
my follow-up trustee of the RSA & M TRUST (I[...]).
3.6 To my son ARN ORLIK identity number … the sum of R950 000 (nine hundred and fifty
thousand rand).
3.7 My grandchildren are to receive each an amount of R200 000 (two hundred thousand
rand:
3.7.1 COURTNEY JANE ORLIK, identity number …
3.7.2 SHANNYN LANE ORLIK identity number …
3.7.3 PAIGE ELIZABETH ORLIK identity number …
3.7.4 BRITTANY ANN ORLIK identity number …
3.8 The entire balance of my estate including all movable and immovable assets in equal
shares to my children RYSZARD ORLIK, ARN ORLIK and MERYN ORLIK in equal
shares.
Clauses 3.9 and 3.10 are not applicable for purposes of the dispute and the
judgment. Clause 3.11 reads as follows:
3.11 In the event of there being any dispute and/ or argument and or difference of opinion
between my aforesaid children in respect of the bequest s as set out in herein, I direct that
MARTHINUS WESSEL NAGEL shall act as arbitrator with the power to make a final
determination in resolving the dispute/difference of opinion /argument between my children.
In this regard MARTHINUS WESSEL NAGEL shall have the full power as to how to resolve
the dispute, which power shall include the selling of the assets and then distributing the
proceeds thereof in equal shares to my children at all times taking into account the principle
that they should share in the entire bequests in terms of these sub-paragraphs equally fit and
upon the death of such beneficiary the said inheritance shall devolve upon the intestate heirs
of such beneficiary.
[5] A dispute arose in respect of the bequest set out in clause 3.8. The dispute in
respect of that bequest triggered clause 3.11. The children named in the will ,
before clause 3.11 are the 4th applicant in clause 3.1 and 3.2, the 2nd applicant in
clause 3.4, Struan in clause 3.5 and the 3 rd applicant in clause 3.6. It is the
children to which clause 3.11 refers when it mentions my aforesaid children.
There is no basis to conclude that clause 3.11 excluded Struan from the dispute
resolution mechanism which his mother set up in that clause. The dispute
resolution mechanism in clause 3.11 applied to all four children of JER.
[6] The approach to the interpretation of a will was set out in Spangenberg and
Others v Engelbrecht NO and Another (717/21) [2023] ZASCA 100 (14 June
2023) at para 12 where it was said that:
Principles of Interpretation
[12] The ‘golden rule’ for the interpretation of Wills and the inherent limitation (that it
should not contravene the law), was, as far back as 1914, described in Robertson v
Robertson thus:
‘The golden rule for the interpretation of testaments is to ascertain the wishes of the testator
from the language used. And when these wishes are ascertained, the court is bound to give
effect to them, unless we are prevented by some rule or law from doing so .’ [Emphasis
added.]
[7] The Concise Oxford English Dictionary , 10 th edition, edited by J. Pearsall,
Oxford University Press, 2002, (the dictionary) defined the word any as
whichever of a specified class might be chosen. The dispute as to the exclusion
or inclusion of Struan in clause 3.8 falls within the category of any dispute as
envisaged in clause 3.11. Nowhere does the will say that cl ause 3.8 was
excluded from the operation of clause 3. 11. Clause 3.11 clothed Nagel with the
power to make a final determination in resolving the dispute between Struan
and his siblings. Clause 3.8 was a dominant clause which bequeathed the
residue of the assets, but it was JER who required that its effect should be
strained by clause 3.11. It is the testator who determines the destiny of their
estate. Clause 3.11 renders clause 3.8 to no longer be a term so self-evident as to
go without saying. In the event of a dispute like the present, clause 3.11 sets out
a process through which beneficiaries should be identified, and the court should
not hesitate to give effect to the testator’s intention under those circumstances.
Clause 3.11 is part of the whole of the terms of the will from which the
testator’s intention is to be determined.
[8] In Raubenheimer v Raubenheimer and Others 2012 (5) SA 290 (SCA) at
para 23 it was said:
[23] In interpreting a will, a court must if at all possible give effect to the wishes of the
testator. The cardinal rule is that no matter how clumsily worded a will might be, a will
should be so construed as to ascertain from the language used therein the true intention of the
testator in order that his wishes can be carried out [per Steyn J in Masters v Estate Cooper
1954 (1) SA 140 (C) at 143H-144A].
[9] Nagel did not have a blank cheque. There is an underpinning principle to
which his determination had to comply with. The dictionary defines a principle
as a fundamental truth or proposition serving as the f oundation for belief or
action. The principle is a rule or belief that should have governed Nagels
behaviour and attitude [the dictionary’s further definition of principle] . The
fundamental source of and basis for resolving the dispute between JERs
children, which should have been the quality and attribute of Nagels
determination, was that all the children of JER, to which clause 3.11 applied,
should share in the entire bequest in terms of sub -paragraph 3.8, which was the
only disputed clause, equally fit. This is the principle which Nagel had to apply
in exercising his power to resolve the dispute. It is in exercising that power,
underpinned by considering the principle, that he would then distribute the
entire balance of JERs estate in equal shares , to all her children, which included
Struan.
[10] I do not understand the position of Nagel as arbitrator , as mentioned in the
will, to mean that the dispute was to be referred to arbitration as we understand
it in law, before him. He is a professional chartered accountant and not a lawyer.
There may be jurisdictional issues relating to an arbitrator adjudicating on a
disputed will , as well as whether the siblings having a dispute voluntari ly
agreed to arbitration of their dispute. A professional chartered accountant may
not necessarily have the professional training, competency, skill and experience
to attend to those kinds of disputes. I understand that provision in the will to
simply indicate an honest attempt by a mother to ensure that Nagel would be
able to break a deadlock between any of her children by making a binding
decision subject to all the children benefiting equally.
The counterapplication
[10] In the light of my findings , rulings and orders in the main application, the
need for rectification and referral for oral evidence falls away. The removal
from office of executor by the court is governed by section 54 (1) of the
Administration of Estates Act, 1965 (Act No. 66 of 1965) (the AEA). It provides
that:
“54 Removal from office of executor
(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 benefit 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; …”
[11] A court has a discretion in an application seeking the removal of an
executor and in the exercise of that discretion the predominant considerations
are the interests of the estate and those of the beneficiaries [Die Meester v
Meyer en Andere 1975 (2) SA 1 (T) at 17F, a passage approved by the
Constitutional Court in Gory v Kolver NO and Others (Starke and Others
Intervening) 2007 (4) SA 97 (CC) at [56]. The acts or omissions complained of
against an executor must be such as to endanger the trust property or to show a
want of honesty or a want of proper capacity to execute the duties, or a want of
reasonable fidelity [Sackville West v Nourse and Another 1925 AD 516 at 527;
Die Meester at 16H]. It must be unde sirable for the executor to continue acting
in such capacity [Oberholster NO and Others v Richter [2013] All SA
205 (GNP) at para 22]
[11] There are disputes of fact in relation to the reasons that Struan advanced
further for the removal of Nagel as the executor. For instance, the inclusion of
the loan account in O rlik Property Holdings CC. Struan alleged it was donation
by JER to her children . Nagel alleged that in the financial statements accepted
by Struan the funds were advanced as a loan due to tax implications involved in
a donation. Interest was raised in the loan account from time to time and the
close corporation claimed this interest as a tax deduction. Nagel disputed that
the loan account should be excluded from the liquidation and distribution
account. There was also a dispute of fact in respect of the offshore assets. Nagel
said the Aviva account funds were liquidated by the deceased, brought back to
South Africa and utilized by the deceased to inter alia purchase ABSA policies.
The ABSA policies had listed beneficiaries, being the 2nd to 4th applicants who
received payments directly from ABSA. These policies did not comprise part of
the estate . The remainder of the funds were used to purchase Citadel
investments which were included in the liquidation and distribution account .
Aviva did not have any records of any remaining policies. Nagel was unaware
Aviva did not have any records of any remaining policies. Nagel was unaware
of any offshore assets which ought to be included in the estate.
[12] In respect of the alleged loan from JER to 4 th applicant being excluded, the
4th applicant sold her property in Johannesburg and bought a property in
Melkbosrand with the proceeds. JER assisted the 4 th applicant in purchasing the
property in Melbosrand. The bequest of an amount left for the 4 th applicant, in
clause 3.2 was included in the will. A consideration of the amounts left for the
2nd, 3 rd applicant as well as Struan indicated that JER considered the financial
assistance provided to 4 th applicant when she executed the will . The deceased
had given the 2nd applicant power of attorney to administer her financial affairs
as JER had been scammed due to being unable to keep up with technological
changes and the ingenuity of the scammers. I deem it not necessary to deal with
the totality of the disputes, suffice it to state th e court cannot determine them on
the papers. Struan had prayed for referral of the dispute as regards interpretation
of the clauses of the will for oral evidence , but not on the question of the
removal of Nagel as executor. I am not persuaded that there is a need for the
discharge of Nagel as executor. I am unable to find that all the facts known to
Nagel in the disputed facts were equally known to Struan before he launched
the counterapplication.
I am not persuaded to refer these disputes for oral evidence in this application.
Equally I am not persuaded that Struan’s contest was spurious. For these
reasons the orders are made.
__________________________
DM THULARE
JUDGE OF THE HIGH COURT
Appearances:
Counsel for the Applicant: Adv MJ Kapp
Instructed by Calitz Inc
Counsel for Respondent: Adv. H F Geyer
Instructed by Bieldermans Inc