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 182
|

|

Solomon v Solomon and Another (17909/2022) [2023] ZAWCHC 182 (20 July 2023)

Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No. 17909/2022
Before:
The Hon. Ms Acting Justice Hofmeyr
Date
of hearing: 18 July 2023
Date
of judgment:  20 July 2023
In
the matter between:
JEAN-PAUL
SOLOMON

Applicant
and
SHANE
GRAIG SOLOMON

First Respondent
THE
MASTER OF THE HIGH COURT

Second Respondent
JUDGMENT
HOFMEYR
AJ:
1
This is a case about two brothers and an
inheritance. The applicant was disinherited from their father’s
will. He seeks to
have the will declared inexecutable so that he can
inherit from the estate in terms of the rules of intestate
succession.
2
The first respondent is the brother who
stands to inherit under the will. The first respondent brought a
counter application to
have the will accepted by the Master of the
High Court even though it does not comply with all the formalities of
section 2(1)
of the
Wills Act 7 of 1953
. The first respondent also
seeks an order that he be declared competent to receive a benefit
from the will under
section 4A(2)(a)
of the
Wills Act.
The
facts
3
Prior to May 2020, the deceased had a joint
will that he and his late wife had executed in 1996. Under the old
joint will, their
sons (namely, the applicant and the first
respondent) were both beneficiaries in equal proportions.
4
The deceased’s wife died in 2004. 16
years later, in May 2020, the deceased executed a new will. In terms
of the new will,
he provided that the first respondent would be the
sole beneficiary and would be appointed as executor of the estate.
5
By the time that he executed the new will,
it is common cause that the deceased had a very strained relationship
with the applicant.
The relationship was so damaged that when the
deceased tried to contact the applicant to wish him well on his 40
th
birthday, the applicant did not take his call and instead sent him a
message telling him to “piss off”. The applicant
then
messaged his brother – the first respondent – saying:
“Just let me know when he’s dead. I’m
done with
him.”
6
This deterioration in the relationship
between the deceased and the applicant is not denied by the
applicant. In fact, after the
deceased’s death, the applicant
posted messages on Facebook referring to his father as a “bitter,
manipulative, vindictive,
angry person”. It was also common
cause that the deterioration in the relationship between the
applicant and the deceased
occurred after the mother had passed away.
7
While the applicant and the deceased’s
relationship was deteriorating, the first respondent and his family
played a significant
role in caring for the deceased. They moved into
the deceased’s home shortly after their mother had died. In
2013, when the
deceased was diagnosed with cancer, the first
respondent assumed the primary caregiver role to his father. He saw
him through almost
a year of chemotherapy and radiation therapy. When
the deceased had a fall towards the end of 2014 and the first
respondent contacted
the applicant to tell him about the fall, the
applicant’s response was: “Why are you letting me know,
call me when
he’s dead”.
8
The deceased died on 15 June 2020 while on
a morning walk at a park near to the family home.
9
As I set out above, almost a month before
this day, on 20 May 2020, the deceased executed a new will. The
circumstances of its execution
are important to the legal issues in
the case so I must set them out in some detail. I rely on the version
of the first respondent
in doing so because he was there at the time.
The applicant was not there and has not set up any facts that
meaningfully dispute
this version of events. The first respondent’s
averments are also confirmed under oath by every other person who was
involved
in the events of that day. There are confirmatory affidavits
from the first respondent’s wife, his daughter, his son, and
Mr
Shane Pillay – an electrician who was working at the house on
the day. Their own accounts of the day are also consistent
with each
other.
10
In May 2020, the deceased was not in a good
state of health. It was two months after the emergence of the Covid19
pandemic and the
deceased was suffering from numerous comorbidities
including high blood pressure, kidney problems, arthritis and gout.
11
The first respondent explained that on the
morning of 20 May 2020, he made his father breakfast and took it to
his room. Shortly
thereafter, his father called him back and told him
that he had written out a new will which he kept in a folder. His
father showed
him the folder but the first respondent said he did not
read the will. His father then said to him that he needed witnesses
to
sign the will and explained that the first respondent could not do
so because he was a beneficiary under the will. His father then
asked
the first respondent to call his wife and daughter (who lived with
them in the family home) to come to his room.
12
They did so and then signed the will
together in the presence of the deceased. The first respondent was
not in the room at the time.
When his wife and daughter left the
room, his father called him back into the room and asked him to call
Mr Pillay to come into
his bedroom. Mr Pillay went into the room and
the deceased asked him to “do him a favour” and sign the
will as a witness.
Mr Pillay did so. His signature is therefore the
third witness signature that appears on the will. He did not,
however, sign the
will in the presence of the other two witnesses. He
did so after they had already left the room. The deceased did not
show the
first respondent the will on that day or thereafter. It was,
in fact, only found two weeks after the deceased’s death, when

the first respondent’s son was cleaning the deceased’s
bedroom and found the will in a folder on the bed shelf.
13
The first respondent describes the deceased
as a private person who did not speak openly about his private
business and who handled
his own affairs.
14
The first respondent also had no knowledge
that the deceased was intending to change his will until the day he
was called into his
bedroom after breakfast and told that the
deceased had changed his will to make him the sole beneficiary.
15
Despite not knowing about his father’s
intentions to change the joint will, the first respondent says in his
affidavit that
he has some understanding of why the deceased decided
to leave his whole estate to him. He says that the applicant treated
their
father in an appalling manner and that his father was deeply
hurt by the applicant’s conduct. He points out that it was the

applicant’s choice to remove himself from the deceased’s
life in 2014.
16
The
applicant offers no meaningful response to these averments. In fact,
the mainstay of his replying affidavit is the refrain “no

comment”. On critical issues, such as the facts that transpired
on the day that the new will was executed, the applicant
does not set
up any contradictory facts. Instead, he opines that the version of
the first respondent is “not reasonably true”
but then
does not explain why and rather says that the matter will be
addressed in legal argument. I raised with counsel for the
applicant
whether this type of approach from the applicant could reasonably
give rise to a genuine dispute of fact.
[1]
Ms
Cowlin, who appeared for the applicant, fairly conceded that it could
not. Disputed facts are matters for evidence, not for counsel
to
advance in legal submissions.
17
Against this backdrop, the uncontested
facts on which this application must be decided are the following:
17.1
The first respondent had no knowledge that
the deceased intended to change his will until he was told about the
new will on the
morning of 20 May 2020.
17.2
At that stage, the will had already been
drafted by the deceased and kept in a folder.
17.3
The first respondent’s only role on
the day that the will was executed was to arrange for the people,
whom the deceased wanted
to have sign the will as witnesses, to come
to his bedroom.
17.4
Although the first respondent is frank
about the fact that he has no direct knowledge of what informed the
deceased’s decision
to change his will, he sets out a long
history of a deteriorating relationship between the deceased and the
applicant. The relationship
was so bad in recent years that the
applicant, at least twice, indicated that his only interest in his
father was to be told when
he had died.
The questions
18
There are two questions that arise for
determination in this matter.
18.1
The first is whether the document
purporting to be the deceased’s will was drafted or executed by
the deceased and intended
to be his will.
18.2
The second is whether the first respondent
should be disqualified from receiving a benefit under the will,
including being appointed
as executor.
19
I shall deal with each question in turn.
The answers
Section 2(3)
of the
Wills Act
20
Section
2(1) of the
Wills Act says
that no
will shall be valid unless certain formal requirements are met. One
of those requirements – set out in
section 2(1)(iii)
– is
that the witnesses who attest and sign the will do so in the presence
of each other. It is common cause that that did
not happen in this
case. The three witnesses were not in each other’s presence at
the time that they signed the will. The
first respondent’s wife
and daughter were together but Mr Pillay only signed after they had
left the deceased’s bedroom.
21
This non-compliance with the formalities
under
section 2(1)
is not, however, the death knell for the will.
This is because
section 2(3)
of the
Wills Act creates
a power for the
courts to order that the Master accept a document as a valid will
even when the requirements of
section 2(1)
have not been satisfied.
22
Section 2(3)
reads as follows:
“
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
or
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 No. 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)
.”
23
There are two relevant requirements under
this section. The first is that the document, which purports to be a
will, must have been
drafted or executed by the deceased and the
second is that the document must have been intended to be his will.
24
In
van
der Merwe v The Master
2010
(6) SA 544
(SCA), the Supreme Court of Appeal held that section 2(3)
was introduced into the Act to ensure that a failure to comply with
the
formalities prescribed by the Act should not frustrate or defeat
the genuine intention of testators.
[2]
Its
purpose is to empower the courts to find that a document, which does
not meet the formal requirements for validity, can nonetheless
be
treated as a valid will and to direct that the Master accept the will
as such.
25
In
this case, there is no dispute that the document in question was
drafted by the deceased. The only question is therefore whether
it
was intended by the deceased to be his will. In
van
Wetten and Another v Bosch and Others
2004
(1) SA 348
(SCA), the Supreme Court of Appeal explained that the
latter question must be answered by examining the document itself, as
well
as the context of the surrounding circumstances.
[3]
26
The document itself begins with the words:
“this is the last will and testament of Percival Fairhurst
Solomon”. The
remainder of the document sets out that the
deceased revokes all previous wills and codicils and that he has
written out the will
in his own hand and was of “sound health
and mind” when he did so.
27
When the deceased called the first
respondent to his bedroom on the morning of 20 May 2020, he was
unequivocal about his conduct
and his intentions. He said that he had
drafted a new will and wanted the first respondent’s assistance
in arranging for
it to be witnessed. He said that he had the will in
a folder. The applicant does not dispute these facts.
28
I
am therefore satisfied that the document purporting to be the
deceased’s will was drafted by the deceased and intended by
him
to be his will. I am therefore required to order that the Master
accept the document as the deceased’s will.
[4]
29
The question that remains is whether the
first respondent is entitled to inherit under the will.
Section 4A
of the
Wills Act
30
Section
4A(1) of the
Wills Act provides
that a person who attests and signs a will as a witness, and the
spouse of that person at the time of execution of the will, shall
be
disqualified from receiving any benefit from the will.
Section 4A(3)
says that the appointment of a person as the executor of a will shall
be regarded as a benefit received by that person under the
will.
31
The first respondent’s wife witnessed
the will on the morning of 20 May 2020. In terms of
sections 4A(1)
and (3) of the
Wills Act, he
is therefore disqualified from
inheriting from the estate of the deceased under the will and from
being appointed as executor.
32
However, that is not the end of the matter
because
section 4A(2)
of the
Wills Act creates
three exceptions to
this disqualification. The relevant one for the purposes of this case
is
section 4A(2)(a).
The section says that 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.
33
The
first respondent seeks a declarator to this effect in his counter
application. As the Supreme Court of Appeal recognised in
Blom
v Brown
,
the purpose of the section is to permit a beneficiary, who would
otherwise be disqualified from inheriting, to satisfy the court
that
he or she (or his or her spouse) did not defraud or unduly influence
the testator in the execution of the will.
[5]
The
Pietermaritzburg High Court has held that the beneficiary, who seeks
the declarator under
section 4A(2)(a)
, bears the onus of establishing
that there was no fraud or undue influence over the testator.
[6]
The
approach is sound because it is the would-be beneficiary who seeks an
exception to the default disqualification under the statute.
It is
therefore appropriate that the beneficiary should bear the burden of
proving that there was no such fraud or undue influence.
34
In this case, the first respondent has set
out the facts surrounding the deceased’s preparation of the
will and his own involvement
in it in clear and precise terms. These
averments include the fact that neither he nor his wife had any
knowledge of the will before
the morning of 20 May 2020.
35
The applicant’s response to this
averment is a combination of avoidance and deflection. First, he says
that he has “no
comment” in response to the averment and
then he takes issue with whether the electrician, Mr Pillay, in fact
signed the
will on the 20
th
of May 2020. This latter point consumes most of the applicant’s
factual case on the papers. The applicant advances numerous
theories
about how unlikely it is that Mr Pillay signed the will on the same
day as the first respondent’s wife and daughter.
However, this
issue, even if the applicant were correct, misses the point. It is
not evidence that the first respondent or his
wife were involved in
defrauding the deceased or unduly influencing him. At most, it may be
evidence that the first respondent
does not fall within the exception
under
section 4A(2)(c)
of the
Wills Act. That
section provides that a
person whose spouse attested and signed a will shall not be
disqualified from inheriting if there were
at least two other
competent witnesses who signed and attested the will. The applicant’s
factual case appears to be aimed
at showing that Mr Pillay cannot be
counted as one of the two other witnesses because he did not, in
fact, sign the will when he
said that he did. However, the first
respondent does not rely on
section 4A(2)(c).
He claims to be
entitled to benefit under the will in terms of
section 4A(2)
(a)
,
not 4A(2)
(c)
of the
Wills Act.
36
The
first respondent did not file a
replying affidavit in his counter application. The papers reveal that
his attorneys of record withdrew
in March this year so he has been
without legal representation since then. The first respondent
therefore represented himself at
the hearing and informed me that he
has been unsuccessful in seeking pro bono legal assistance in the
interim.
37
The absence of a replying affidavit is,
however, of no moment because, for the reasons I have already set out
above, the applicant
has singularly failed to put up any facts that
undermine the first respondent’s clear account of the events on
the 20
th
of May 2020.
38
I am therefore satisfied that neither the
first respondent nor his wife defrauded or unduly influenced the
deceased in the execution
of his will. On the contrary, the papers
reveal that the first respondent and his family cared for the
deceased at the times in
his life when he most needed his family’s
support. They were there for him during his struggle with cancer,
during the challenges
that the Covid19 pandemic presented to the
world, and they respected his privacy throughout. There is not an
iota of evidence that
they defrauded or unduly influenced the
deceased.
39
This is precisely the type of case for
which the legislature provided exceptions in
section 2(3)
and
section
4A(2)(a)
of the
Wills Act.
40
The
only remaining issue is one of costs. Costs ordinarily follow the
result.
[7]
I
see no reason why they should not do so in this case. The first
respondent has been successful both in resisting the applicant’s

application to have the will declared inexecutable and in advancing
the case for his own relief in the counter application.
Order
41
I therefore make the following order:
(a)
The Master of the High Court is ordered to
accept the document dated and signed on 20 May 2020 and executed by
the late Percival
Fairhurst Solomon, who passed away on 15 June 2020,
a copy of which is annexed to the founding affidavit as “
SS1
”
(“the will”), as his last will and testament for purposes
of the
Administration of Estates Act 66
of 1965 although it does not
comply with all the formalities for the execution of a will under
section 2(1) of the Wills Act 7
of 1953.
(b)
The first respondent, Mr Shane Graig
Solomon, is declared to be competent to receive any benefit under the
will, including being
appointed as the executor of the will.
(c)
The applicant, Mr Jean-Paul Solomon, is
ordered to pay the costs of the application and counter application.
K HOFMEYR
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES
Applicants'
counsel:
AH COWLIN
Applicants'
attorneys:
Klynveld-Gibbens Inc c/o Johan Victor Attorneys / Litigants
Respondent's
counsel:
IN PERSON
Respondent's
attorneys:
[1]
As
the Supreme Court of Appeal held in
Wightman
t/a
JW Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA)
para
13: “
A
real, genuine and bona fide dispute of fact can exist only where the
court is satisfied that the party who purports to raise
the dispute
has in his affidavit seriously and unambiguously addressed the fact
said to be disputed.”
[2]
van
der Merwe v The Master
2010
(6) SA 544
(SCA) para 14
[3]
van
Wetten and Another v Bosch and Others
2004 (1) SA 348
(SCA)
para
16
[4]
Van
Der Merwe v The Master
2010 (6) SA 544
(SCA) para 14
[5]
Blom
v Brown
[2011] 3 All SA 223
(SCA) para 22
[6]
Van
Heerden v Picton and Others
2021 JDR 3183 (KZP) para 13
[7]
Mkhatshwa
and Others v Mkhatshwa and Others
2021 (5) SA 447
(CC) para 17