Haribans NO and Another v Haribans (AR227/11) [2011] ZAKZPHC 46 (28 October 2011)

Haribans NO and Another v Haribans (AR227/11) [2011] ZAKZPHC 46 (28 October 2011)

The appeal succeeded because the respondent failed to discharge the onus of proving, on a balance of probabilities, that the disputed will represented the last will and testament of the deceased. The court found that the cumulative effect of unexplained and suspicious circumstances—including the absence of the original will, lack of supporting documentation, unexplained appearance in the file of the deceased’s late wife, procedural irregularities at the Master’s office, and material differences in the deceased’s signatures—rendered the authenticity of the disputed will improbable. The trial court’s reliance on assumptions regarding standard procedures and the genuineness of the stamp and...

Citation
[2011] ZAKZPHC 46
Parties
Appellant: Shanil Haribans NO; Appellant: Shanil Haribans; Respondent: Norosh Haribans
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
28 October 2011
Case Number
AR227/11
Procedural Posture
Leave to Appeal / Appeal From High Court Judgment Validating Disputed Will
Outcome
Appeal upheld; application to validate disputed will dismissed with costs.
Judges
Lopes, Ndlovu, Seegobin
Legal Topics
Wills Act, Validity of Wills, Onus of Proof, Estate Administration
Civil Procedure Family and Children Wills Act Validity of Wills Onus of Proof Estate Administration

Case Brief

Summary, issues, holding and outcome

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Parties

Shanil Haribans NO

Appellant

Shanil Haribans

Appellant

Norosh Haribans

Respondent

Procedural Posture

Leave to Appeal / Appeal From High Court Judgment Validating Disputed Will

Legal Issues

  1. 1 Whether the disputed will dated 24 June 2005 was valid and represented the last will and testament of the deceased.
  2. 2 Whether the respondent discharged the onus of proving the validity of the disputed will on a balance of probabilities.
  3. 3 Whether procedural irregularities and suspicious circumstances surrounding the disputed will precluded its acceptance.

Ratio Decidendi

The appeal succeeded because the respondent failed to discharge the onus of proving, on a balance of probabilities, that the disputed will represented the last will and testament of the deceased. The court found that the cumulative effect of unexplained and suspicious circumstances—including the absence of the original will, lack of supporting documentation, unexplained appearance in the file of the deceased’s late wife, procedural irregularities at the Master’s office, and material differences in the deceased’s signatures—rendered the authenticity of the disputed will improbable. The trial court’s reliance on assumptions regarding standard procedures and the genuineness of the stamp and...

Court Disposition

Appeal upheld; application to validate disputed will dismissed with costs.

Orders

  • The appellants’ failure to timeously lodge security in terms of rule 49(13)(a) is condoned.
  • The appellants are to pay the costs of the application for condonation.