Van Zyl v Master of the High Court, Cape Town and Others (17695/21) [2023] ZAWCHC 175 (28 February 2023)

80 Reportability
Trusts and Estates
View PDF SAFLII Source
Share WhatsApp LinkedIn X Email

Brief Summary

Wills — Validity of will — Application for condonation of non-compliance with formalities of Wills Act — Applicant seeking to validate purported will executed by deceased — Court satisfied that deceased intended document to serve as will despite lack of witnesses and other formalities — Applicant declared competent to benefit under will.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings took the form of an opposed motion application in the Western Cape Division of the High Court, Cape Town. The applicant, Kim Van Zyl, sought relief concerning a document signed by the late Dale Charles Kelly on 6 November 2018, described in the judgment as “the purported will”.


The respondents were the Master of the High Court, Cape Town (first respondent), Jennifer Gloria Tyler (second respondent, the opposing party), and Nedbank Limited (third respondent). The substantive dispute lay between the applicant and the second respondent, with the Master cited because the relief sought included an order directing acceptance of the document for purposes of estate administration.


Procedurally, the matter was argued on 10 October 2022 and judgment was delivered on 28 February 2023. The applicant sought condonation of non-compliance with the statutory formalities for the execution of wills and, consequentially, an order that the Master accept the document as a valid will. A further aspect of the relief was directed at the applicant’s competence to receive benefits under the document, notwithstanding her role in relation to its execution.


The dispute concerned the validity and acceptance of a non-compliant will under section 2(3) of the Wills Act 7 of 1953, and the applicant’s ability to inherit despite being a signatory/witness and beneficiary under the document, implicating section 4A of the Wills Act.


2. Material Facts


It was common cause that the applicant was the testator’s life partner at the time of his death on 18 February 2021, and that the second respondent had previously been engaged to the testator but that relationship ended before the applicant and the testator met.


It was also common cause that the testator had executed an earlier will on 12 August 2010 while he was still in a relationship with the second respondent, and that the second respondent was a beneficiary under that earlier will. The purported will was created after that earlier relationship ended and during the period when the testator and the applicant were living together as life partners.


A further set of facts was treated as common cause through a timeline recorded by the court. The second respondent and the testator commenced a long relationship in 2002 and became engaged in 2005, followed by the 2010 will in her favour. After their relationship ended, the applicant met the testator in 2011 and they later lived together for approximately four years until his death. In October 2017 the testator submitted a form to Liberty Life changing his life policy beneficiary designation by replacing the second respondent with the applicant, describing the applicant as his “common law spouse”. In October 2018 the testator raised the topic of his will with the applicant, after which a pro forma will document was purchased. On 6 November 2018 the testator wrote in the contents of that document by hand, indicating to the applicant what he was writing.


It was common cause that the applicant’s son and his girlfriend later visited with the intention of signing as witnesses, but that this did not occur. It was further common cause that shortly before death, on 11 February 2021, the testator spoke to Mr Antony Allende and mentioned that he had drawn up a will some time earlier and discussed beneficiaries including his two biological daughters, expressing regret about the state of that relationship. After the testator’s death, the applicant obtained handwriting expert reports dated 14 September 2021 and 2 February 2022, the latter confirming the expert’s earlier conclusion after inspection at the Master’s office.


The contents of the purported will, as summarised by the court, were that the testator essentially left his estate to the applicant. The document also dealt with specified assets including immovable property, the testator’s 50% share in a business, and references to life policies and investments, including provision that proceeds of certain life policies be paid to the testator’s daughters.


It was common cause that the purported will did not comply with several formal requirements of the Wills Act, including that it was not signed by two witnesses, and that the applicant, who was a beneficiary, signed in the capacity of a witness and was appointed executor while also being a beneficiary.


The disputed aspects, to the extent they were pursued by the second respondent, related to whether the document was final and intended to operate as the testator’s will, and whether the applicant’s involvement in the preparation and signing of the document affected her competence to benefit. The second respondent also criticised the handwriting expert’s opinion and contended, among other things, that the testator would likely have consulted a professional and would have informed her and her son of the contents if he truly intended to disinherit them.


3. Legal Issues


The central legal questions were, first, whether the document dated 6 November 2018, despite non-compliance with statutory formalities, could be condoned and accepted as a valid will under section 2(3) of the Wills Act 7 of 1953, which required the court to be satisfied that the document was intended by the deceased to be his will.


The second principal issue was whether the applicant, notwithstanding her role in signing/attesting and being appointed executor while also being a beneficiary, could be declared competent to receive a benefit in terms of section 4A(2) of the Wills Act, which turns on whether the court is satisfied that the person did not defraud or unduly influence the testator in the execution of the will.


A further issue concerned the approach to factual disputes in motion proceedings where final relief is sought, with the court referencing the framework associated with Plascon-Evans and related authority on rejecting denials that do not raise a real, genuine, or bona fide dispute of fact. This component involved the application of legal principles to fact, including evaluative assessment of whether the second respondent’s opposition created a genuine dispute.


The judgment also addressed the role of expert evidence, specifically the extent to which expert opinion must disclose reasoning and assumptions, and how such evidence fits into the court’s assessment of whether the purported will was executed by the testator.


4. Court’s Reasoning


The court approached the matter on the basis that the onus rested on the applicant to show, on a balance of probabilities, that the document was intended by the testator to be his will and that she did not defraud or unduly influence him in its execution. In dealing with the statutory purpose of formalities, the court referred to authority recognising that strict execution requirements are designed to prevent fraud and to require caution when determining a deceased person’s true intention.


On the evidence, the court was satisfied that the testator intended the applicant to be his beneficiary. The court treated the evidence regarding the applicant’s relationship with the testator as effectively uncontested, noting that it was not gainsaid by the second respondent. The court also considered that the inclusion of the testator’s biological daughters as beneficiaries in relation to certain policy proceeds aligned with the evidence that he regretted neglecting his children, and it evaluated this as consistent with the probabilities emerging from the record.


In assessing the second respondent’s opposition, the court applied principles relevant to final relief in motion proceedings. It referenced the approach that denials which do not raise a real or genuine dispute of fact, or which are not bona fide, need not be accepted. Within that evaluative framework, the court preferred the applicant’s version as more probable, indicating that the opposition did not provide evidential support sufficient to displace the applicant’s case on intention and voluntariness.


The court further concluded that it was satisfied the applicant did not defraud or unduly influence the testator. It held that allegations by the second respondent to the contrary were unsupported by evidence and were not accepted. This conclusion was central both to the section 2(3) enquiry, insofar as it reinforced the reliability of the document as a genuine expression of intention, and to the section 4A(2) enquiry regarding competence to benefit despite the applicant’s involvement as a signatory/witness and her status as beneficiary.


Regarding expert evidence, the court referred to the principle that opinion evidence on matters requiring expertise should be given by qualified experts and that the reasoning and assumptions underpinning expert conclusions must be disclosed. The applicant had furnished handwriting expert evidence supporting that the signature and handwritten portions were those of the testator. While there was criticism from the second respondent of the expert’s opinion, the court proceeded on the basis that it had been provided with expert evidence by the applicant, which it accepted as such, and it found it unnecessary to comment on the second respondent’s failure to produce competing expert evidence.


Having been satisfied that the statutory threshold was met, the court applied section 2(3) by declaring the will valid notwithstanding non-compliance with the formalities, and it applied section 4A by declaring the applicant competent to receive a benefit because the court was satisfied that she did not defraud or unduly influence the testator.


5. Outcome and Relief


The court granted the application. It condoned the non-compliance with the formalities in the Wills Act 7 of 1953 in respect of the document attached to the papers.


It declared, insofar as necessary, that the document was a valid will in terms of section 2(3) of the Wills Act. It further declared the applicant competent to receive a benefit under the will in terms of section 4A of the Wills Act.


The court ordered the Master of the High Court, Cape Town to accept the will as a valid will for purposes of the Wills Act and the Administration of Estates Act 66 of 1965. The court ordered that the costs of the application be borne by the second respondent.


Cases Cited


Ndebele and Others NNO v The Master and Another 2001 (2) SA 102 (C).


Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).


Pipoll-Dausa v Middleton NO and Others 2005 (3) SA 141 (C).


Wightman t/a JW Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; 2008 (3) SA 371 (SCA).


Visagie v Gerryts en ’n Ander 2000 (3) SA 670 (KPA).


Legislation Cited


Wills Act 7 of 1953, including section 2(1), section 2(3), and section 4A.


Administration of Estates Act 66 of 1965.


Rules of Court Cited


No specific Rules of Court were cited in the judgment. The court referred instead to general principles governing final relief in motion proceedings associated with the Plascon-Evans approach.


Held


The court held that the applicant had established on a balance of probabilities that the document dated 6 November 2018, drafted and signed by the deceased, was intended to be his will. Despite non-compliance with statutory execution formalities, the court held that the requirements for condonation and acceptance under section 2(3) of the Wills Act 7 of 1953 were met and ordered the Master to accept the document as a will for estate administration purposes.


The court further held that, although the applicant signed the document in circumstances that engaged section 4A of the Wills Act, she was competent to receive benefits under the will because the court was satisfied that she did not defraud or unduly influence the testator in executing the will.


LEGAL PRINCIPLES


The judgment applied the principle that the formalities for execution of wills in section 2(1) of the Wills Act 7 of 1953 serve an anti-fraud function and require caution in determining testamentary intention.


It applied section 2(3) of the Wills Act to permit a court to direct acceptance of a document as a will even where formalities have not been met, provided the court is satisfied that the deceased intended the document to be his will.


It applied section 4A(2) of the Wills Act to allow a court to declare a person competent to receive a benefit despite being disqualified by participation as a witness/signatory, where the court is satisfied that the person did not defraud or unduly influence the testator.


The judgment also applied principles governing final relief on motion, including that denials that are not real, genuine, or bona fide do not necessarily create disputes of fact that prevent final relief, and that courts may take a robust, common-sense approach to untenable versions.


Finally, the judgment applied principles relating to expert evidence, including that expert opinions must be supported by disclosed reasoning and assumptions, and that expert evidence is the appropriate vehicle for opinion on matters requiring specialised skill such as handwriting comparison.

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2023
>>
[2023] ZAWCHC 175
|

|

Van Zyl v Master of the High Court, Cape Town and Others (17695/21) [2023] ZAWCHC 175 (28 February 2023)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
OFFICE
OF THE CHIEF JUSTICE
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
CASE NO: 17695/21
KIM
VAN ZYL
Applicant
V
THE
MASTER OF THE HIGH COURT, CAPE TOWN
First
Respondent
JENNIFER
GLORIA TYLER
Second
Respondent
NEDBANK
LIMITED
Third
Respondent
JUDGMENT DELIVERED ON
THIS 28th DAY OF FEBRUARY 2023
FORTUIN, J:
A.
INTRODUCTION
[1]
This is an application in which the applicant seeks certain relief in
respect of a document signed
by the late Dale Charles Kelly (“the
testator”) dated 6 November 2018 (“the purported will”).
The applicant
seeks an order that the non-compliance with the
formalities contained in the Wills Act, 7 of 1953 (“the
Wills
Act&rdquo
;) be condoned and that, insofar as may be necessary, the
purported will be declared to be a valid will in terms of
section
2(3)
of the
Wills Act. The
applicant also seeks an order that she be
declared competent to receive a benefit from the purported will in
terms of
section 4A
of the
Wills Act.
B
.
COMMON CAUSE FACTS
[2]
The applicant, Kim Sharon Van Zyl, was the life partner of the
testator at the time of his passing
on 18 February 2021. Second
respondent, Jennifer Claudia Tyler, who opposes this application, was
previously engaged to the testator.
Her relationship with the
testator ended before the applicant and the testator met.
[3]
It is common cause that the testator executed a previous will on 12
August 2010 while he and the
second respondent was still in a
relationship in which the second respondent was the beneficiary. The
purported will was executed
after the relationship with the second
respondent had ended and while the testator and the applicant were
life partners.
[4] The following
timeline is also common cause:
a.
During October 2002 the second respondent
commenced a 12-year relationship with the deceased;
b. The testator and the
second respondent got engaged in 2005;
c.
On 12 August 2010 the will benefiting the second respondent was
signed;
d.
At some point thereafter the relationship between the testator and
the second respondent
came to an end;
e.
In 2011 the applicant met the testator and sometime thereafter they
moved into the same house
where they lived together for 4 years until
his death. They regarded each other as life partners;
f.
In February 2016 the second respondent’s son, who was also to
benefit from his
previous will, moved to the United Kingdom;
g.
In October 2017 the testator submitted a form to Liberty Life in
which he changed his life
policy to reflect the applicant as his
beneficiary and to remove the second respondent as a beneficiary.
In that application
the testator described the applicant as his
“common law spouse”.
h.
In October 2018 the testator raised the issue of his will with the
applicant and she then
purchased a
pro forma
document on his
behalf;
I.
on 6 November 2018 the testator penned the contents of the document
and indicated to
the applicant what he was writing;
j.
The applicant’s son, Devon Steenkamp, and his girlfriend
visited the applicant
and the testator shortly thereafter with the
intention of signing the will as witnesses. This was however not done
as both the
applicant and the testator forgot to remind them to sign
as witnesses.
k.
On 8 February 2021 the second respondent contacted the testator for
the last time via WhatsApp
regarding a time share which was in both
their names;
l.
On 11 February 2021 the testator met with Mr Antony Allende and
mentioned in a conversation
that he had drawn up a will some time ago
and discussed the beneficiaries, including his two biological
daughters.  During
this conversation he expressed regret at the
state of his relationship with his daughters.
m.
On 18 February 2021 the deceased passed away.
n.
On 14 September 2021 the applicant’s attorney obtained a report
from a handwriting
expert that in his opinion the will was signed by
the testator and the written portions were completed by him.
o.
On 2 February 2022 a supplementary report was submitted dealing with
the expert’s inspection
of the will at the Master’s
office.  In this report he confirms his earlier findings.
[5]
In essence the testator left his estate to the applicant. He also
provided in the purported will
that the proceeds of certain life
policies be paid to his daughters of his previous marriage.
C.
THE SECOND RESPONDENT’S CASE
[6]
The second respondent opposes the relief sought on the following
grounds:
a.
The purported will effectively disinherit
the second respondent and her son while benefiting the applicant and
his biological daughters.
b.
She would’ve expected the
testator to have informed her and her son of the contents of his last
will.
c.
The testator should and would have
instructed a professional to draw up his will but did not do so.
d.
There is no reason for the testator to have
disinherited the second respondent’s son while benefiting his
daughters in the
purported will.
e.
The purported will is incomplete and not
final.
f.
The second respondent criticizes the
opinions expressed by the handwriting expert Mr. Bester for a number
of reasons.
D.
THE CONTENTS OF THE PURPORTED
WILL
[7]
The will was a standard form document which was purchased by the
applicant on behalf of the testator.
The testator inserted, by his
own hand, the contents set out in the document. In the document the
testator essentially bequeathed
his entire estate to the applicant.
Certain assets are described as being:
a.
The property at […] L[…] G[…], Lyndwood Road,
Durbanville;
b.
The 50% share held by the Testator in Frandale Imports, trading as
The German Grocer. The
Testator indicated that a first option should
be offered to Mr FS Vuchs, who held the other 50% in that business;
c.
Certain Liberty Life insurance policies in which he recorded that
those policies would cause
certain payments to be made to the
applicant and his two daughters, Vickey Kelly and Carla Kelly; and
d.
The testator also stated that all Glacier Investments 90 shares
should be bequeathed to the
applicant.  That was a reference to
a living annuity in which the applicant was nominated as beneficiary.
[8]
The document was signed by the testator and the handwritten contents
was also completed by him.
It is common cause that the document
does not comply with the number of requirements set out in the
Wills
Act.  In
particular:
a.
The purported will was not signed by two witnesses but only by the
applicant
b.
The applicant signed as a witness to the purported will while named
as a beneficiary.
c.
She was appointed as an executor of the estate while named as a
beneficiary.
E.
RELEVANT LEGAL PROVISIONS
[9]
Firstly, three sections of the
Wills Act are
at issue.  It is
trite that the purpose of the strict requirements of section 2(1) of
the Act is to prevent fraud and to apply
caution when attempting to
ascertain the true intention of the deceased.  In this regards
see
Ndebele
and Others NNO v The Master and Another
[1]
.
[10]
Section 2(3) of the Act provides that:
“
If
a court is satisfied that a document or the amendment of a document
drafted or executed by a person who has died since the drafting
of
execution thereof, was intended to be his will or an amendment of his
will, the court shall order the Master to accept that
document, or
that document as amended, for the purposes of the Administration of
Estates Act, 1965 (Act 66 of 1965), as a will,
although it does not
comply with all the formalities for the execution or amendment of
wills referred to in subsection (1).”
[11]
Section 4A provides that:
“
(1)
Any person who attests and signs a will as a
witness, or who signs a will in the presence and by direction
of the
testator, or who writes out the will or any part thereof in his own
handwriting, and the person who is the spouse of such
person at the
time of the execution of the will, shall be disqualified from
receiving any benefit from that will.
(2)
Notwithstanding the provisions of subsection (1)-
(a)
a court may declare a person or his spouse referred to in subsection
(1) to be competent to receive
a benefit from a will if the court is
satisfied that that person or his spouse did not defraud or unduly
influence the testator
in the execution of the will;
…”
[12]
The second legal issue at hand is where final relief is sought in
motion proceedings.  The manner of
establishing facts in such
matters is set out in
Plascon-Evans
Paints Ltd
[2]
.
Denials
by a respondent which do not raise a real or genuine dispute of fact
or which are not
bona
fide
should not be accepted by a court.  In this regards see
Pipoll-Dausa
v Middleton NO and Others
[3]
.
[13]
It is trite that a version which does not raise a genuine dispute of
fact should be rejected. A court should
adopt a common sense approach
and reject a fanciful and untenable detailed version.  This was
at issue in
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[4]
where the SCA stated as follows:
“
A
litigant may not necessarily recognise or understand the nuances of a
bare or general denial as against a real attempt to grapple
with all
relevant factual allegations made by the other party.  But when
he signs the answering affidavit, he commits himself
to its contents,
inadequate as they may be, and will only in exceptional circumstances
be permitted to disavow them.  There
is thus a serious duty
imposed upon a legal adviser who settle an answering affidavit to
ascertain and engage with facts which
his client disputes and to
reflect such disputes full and accurately in the answering
affidavit.  If that does not happen
it should come as no
surprise that the court takes a robust view of the matter.”
[14]
The third issue is the law relating to expert evidence.  In
order for a court to determine the correctness
of an opinion
expressed by an expert, it is necessary that the reasoning which led
to it, as well as the assumptions on which it
was based, had to be
disclosed to the court.  In this regards see
Visagie
v Gerryts en ‘n Ander
[5]
.
F.
DISCUSSION
[15]    In
casu
, the onus is on the applicant to demonstrate that the
purported will was intended by the testator and that she did not
defraud
or unduly influence him in the execution thereof.
[16]
From the evidence provided, I am satisfied that the testator intended
the applicant to be his beneficiary.
The evidence of their
relationship was not gainsaid by the second respondent.  The
fact that the deceased included his two
biological daughters as
beneficiaries is, in my view, in line with the evidence presented
that he regretted the neglect of his
children.  In considering
the probabilities, I find that the applicant’s version in this
regard is more probable.
Consequently, I find that the
purported will intended the applicant to benefit in terms of section
2(1) of the Act.
[17]    I
am satisfied that the applicant did not defraud the testator, or
unduly influence him in the execution
of the purported will.
Any allegation by the second respondent to the contrary, is not
supported by any evidence and is,
in my view, not to be accepted.
Consequently, I declare the applicant to be competent to receive the
benefit.
[18]    In
terms of
section 2(3)
of the
Wills Act the
court may declare a will
to be valid notwithstanding non-compliance with the requirements of
the act.  This will be done in
the event that the court is
satisfied that the document was intended by the testator to be
his/her will.  I declare that this
will is valid in terms of
section 2(3) of the Act.
[19]
Moreover, in terms of
section 4A
of the
Wills Act, a
court may
declare a witness to a will competent to receive a benefit if the
court is satisfied that the person did not defraud
or unduly
influence the testator in the execution of the will.  As found
above, I am satisfied that the applicant did not
defraud or unduly
influence the testator, and, consequently, I also declare her to be
competent to receive a benefit in term of
section 4A.
[20]
The applicant in
casu
submitted a report of a handwriting
expert.  It is trite that it is not permissible for a lay
witness to express opinion evidence
regarding matters which require
experience and/or qualifications of an expert nature.  Much was
made by the applicant regarding
the second respondent’s failure
to place her own expert’s evidence before the court.  I do
not find it necessary
to comment on this failure.  The court was
provided with the evidence of an expert by the applicant, which was
accepted as
such.
G.
CONCLUSION
[21]
Consequently, I am of the view that the applicant demonstrated on a
balance of probabilities that the document
was intended to be the
testator’s last will. Moreover, that she did not unduly
influence or defraud the testator in executing
the will.
H.
ORDER
[22]    In
the circumstances, I make the following order:
1.
That the non-compliance of formalities as contained in the
Wills Act,
7 of 1953
, as amended (“the
Wills Act&rdquo
;), in respect of
the will of the testator a copy of which is annexed hereto marked “A”
(“the will”), be
condoned.
2.
That, insofar as may be necessary, the will be declared a valid will
in terms of
Section 2(3)
of the
Wills Act.
>
3.
That the applicant be declared competent to receive a benefit from
the will in terms of
Section 4A
of the
Wills Act.
4.
That
the first respondent be ordered to accept the will as a valid
will for the purposes of the
Wills Act and
Administration of Estates
Act, 66 of 1965
.
5.
Costs of this application to be borne by the second respondent.
FORTUIN, J
Date of
hearing:

10 October 2022
Date of
judgment:

28 February 2023
Counsel
for plaintiff:
Adv
S van Reenen
Instructed
by:
Lazzara
Leicher Inc
Counsel
for 2
nd
respondent:
Adv
N Kruger
Instructed
by:
Doms
Attorneys
[1]
2001(2) SA 102 (C) par 30.
[2]
1984(3)
SA 623 (A) 643 E-635C.
[3]
2005(3) SA 141 (C).
[4]
[2008] ZASCA 6
;
2008 (3) SA 371
SCA.
[5]
2000 (3) SA 670
(KPA) at 681.

Back to Law Reports