Johnson v Johnson and Others (16626/2023) [2025] ZAWCHC 54 (19 February 2025)

Johnson v Johnson and Others (16626/2023) [2025] ZAWCHC 54 (19 February 2025)

The court found, on a balance of probabilities, that the deceased did not possess the requisite testamentary capacity to execute either the 2015 or 2016 Will. Expert medical evidence, including a MOCA score of 13/30 and psychiatric assessments, established significant cognitive impairment due to moderately advanced dementia. The evidence of Ms Johnson and the unchallenged expert reports corroborated the deceased's inability to appreciate the nature and effect of her actions, recall her assets, or identify her heirs. The suspicious circumstances surrounding the execution of both Wills and the property transfer further supported the inference of incapacity and undue influence. The court...

Citation
[2025] ZAWCHC 54
Parties
Applicant: Donovan Dennis Johnson; Respondent: Carlo Johnson; Respondent: Bradley Johnson N. O; Respondent: Bradley Johnson; Respondent: Carol Kritzinger; Respondent: Ursula Mostert; Respondent: Robert Mostert; Respondent: Sharifa Mostert; Respondent: Trevor Mostert; Respondent: Gerald Mostert; Respondent: Master of the High Court, Cape Town; Respondent: Registrar of Deeds
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
19 February 2025
Case Number
16626/2023
Procedural Posture
Civil Application / Opposed Application for Declaratory and Ancillary Relief
Outcome
Application granted. Both the 2015 and 2016 Wills declared void ab initio. The deceased is deemed to have died intestate. Property transfer to First Respondent set aside. Second Respondent removed as executor. Estate to be administered under intestate succession.
Judges
P D Andrews
Legal Topics
Testamentary Capacity, Wills Act, Executor Removal, Intestate Succession, Property Transfer Setting Aside, Undue Influence
Family and Children Land and Property Civil Procedure Testamentary Capacity Wills Act Executor Removal Intestate Succession Property Transfer Setting Aside +1 more

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Parties

Donovan Dennis Johnson

Applicant

Carlo Johnson

Respondent

Bradley Johnson N. O

Respondent

Bradley Johnson

Respondent

Carol Kritzinger

Respondent

Ursula Mostert

Respondent

Robert Mostert

Respondent

Sharifa Mostert

Respondent

Trevor Mostert

Respondent

Gerald Mostert

Respondent

Master of the High Court, Cape Town

Respondent

Registrar of Deeds

Respondent

Procedural Posture

Civil Application / Opposed Application for Declaratory and Ancillary Relief

Legal Issues

  1. 1 Whether the deceased had testamentary capacity to execute the 2015 and 2016 Wills.
  2. 2 Whether the 2015 and 2016 Wills are authentic and valid.
  3. 3 Whether the transfer of the property to the First Respondent should be set aside.

Ratio Decidendi

The court found, on a balance of probabilities, that the deceased did not possess the requisite testamentary capacity to execute either the 2015 or 2016 Will. Expert medical evidence, including a MOCA score of 13/30 and psychiatric assessments, established significant cognitive impairment due to moderately advanced dementia. The evidence of Ms Johnson and the unchallenged expert reports corroborated the deceased's inability to appreciate the nature and effect of her actions, recall her assets, or identify her heirs. The suspicious circumstances surrounding the execution of both Wills and the property transfer further supported the inference of incapacity and undue influence. The court...

Court Disposition

Application granted. Both the 2015 and 2016 Wills declared void ab initio. The deceased is deemed to have died intestate. Property transfer to First Respondent set aside. Second Respondent removed as executor. Estate to be administered under intestate succession.

Orders

  • The Will of Marion Johnson executed on 9 February 2016 is declared null and void.
  • The transfer of Erf 1[…] Cape Town to the First Respondent on or about 16 September 2021 is set aside.