Herman and Others v Wiggill and Others (EL961/2013; ECD2161/13) [2015] ZAECELLC 12 (18 September 2015)

Herman and Others v Wiggill and Others (EL961/2013; ECD2161/13) [2015] ZAECELLC 12 (18 September 2015)

The court found that the plaintiffs failed to discharge the burden of proof that the deceased lacked testamentary capacity when signing the second will. The evidence of independent witnesses, including the deceased's oncologist and a professional nurse, established that the deceased was capable of lucid conversation and understood her actions at relevant times. The court accepted that terminally ill patients may experience fluctuating levels of consciousness, but this did not mean the deceased was mentally incapable throughout. The court further found no evidence of undue influence at the time of signing the second will; the only witness present, Margaret Richter, confirmed that no...

Citation
[2015] ZAECELLC 12
Parties
Plaintiff: Kurt Herman; Plaintiff: Margaret Richter; Plaintiff: Wayne Herman; Defendant: Peter Wiggill; Defendant: Wayne Changfoot; Defendant: The Master of the High Court; Defendant: Lisa Herman; Defendant: Veronica Booi; Defendant: Rhoda Swart; Defendant: Mbulelo Mayekiso; Defendant: Dumile Tshalisi; Defendant: Nombulela Siyangaphi; Defendant: Ntomibise Silwana; Defendant: Hlengiwe Sityata; Defendant: Mary Lynn Wylde
Court
Eastern Cape High Court, East London Local Court
Jurisdiction
South Africa
Judgment Date
18 September 2015
Case Number
EL961/2013; ECD2161/13
Procedural Posture
Civil Trial / Judgment After Trial
Outcome
Claim of the second and third plaintiffs dismissed with costs.
Judges
T Stretch
Legal Topics
Testamentary Capacity, Wills Act Compliance, Undue Influence, Administration of Estates, Burden of Proof, Revocation of Will
Family and Children Land and Property Civil Procedure Testamentary Capacity Wills Act Compliance Undue Influence Administration of Estates Burden of Proof +1 more

Case Brief

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Parties

Kurt Herman

Plaintiff

Margaret Richter

Plaintiff

Wayne Herman

Plaintiff

Peter Wiggill

Defendant

Wayne Changfoot

Defendant

The Master of the High Court

Defendant

Lisa Herman

Defendant

Veronica Booi

Defendant

Rhoda Swart

Defendant

Mbulelo Mayekiso

Defendant

Dumile Tshalisi

Defendant

Nombulela Siyangaphi

Defendant

Ntomibise Silwana

Defendant

Hlengiwe Sityata

Defendant

Mary Lynn Wylde

Defendant

Procedural Posture

Civil Trial / Judgment After Trial

Legal Issues

  1. 1 Whether the deceased was mentally capable of appreciating the nature and effect of her act when signing the second will on 17 May 2013.
  2. 2 Whether the second will was procured by undue influence exerted by the first and/or second defendant.
  3. 3 Whether the second will complies with section 4 of the Wills Act 7 of 1953 and should be accepted as the valid last will and testament.

Ratio Decidendi

The court found that the plaintiffs failed to discharge the burden of proof that the deceased lacked testamentary capacity when signing the second will. The evidence of independent witnesses, including the deceased's oncologist and a professional nurse, established that the deceased was capable of lucid conversation and understood her actions at relevant times. The court accepted that terminally ill patients may experience fluctuating levels of consciousness, but this did not mean the deceased was mentally incapable throughout. The court further found no evidence of undue influence at the time of signing the second will; the only witness present, Margaret Richter, confirmed that no...

Court Disposition

Claim of the second and third plaintiffs dismissed with costs.

Orders

  • The claim of the second and third plaintiffs is dismissed with costs.