Kelly NO and Others v Kelly and Others (4334/10) [2011] ZAKZPHC 19 (11 May 2011)

Kelly NO and Others v Kelly and Others (4334/10) [2011] ZAKZPHC 19 (11 May 2011)

The court found that the evidence overwhelmingly supported the applicants' case that the testatrix intended her three nephews to benefit equally from the residue of her estate, and that clause 4.2 of the last will was erroneously drafted by transposing beneficiaries from the Bonnie Trust deed. The respondents failed to adduce credible evidence to refute the applicants' version and relied on irrelevant, hearsay, and unsubstantiated allegations. The points in limine were abandoned or found to be without merit. The court was satisfied that the applicants discharged the onus of proving that clause 4.2 did not record the testatrix's intention and that rectification was warranted. Costs were...

Citation
[2011] ZAKZPHC 19
Parties
Applicant: Clive Ronald Kelly N.O; Applicant: Derrick Collett N.O; Applicant: Louise Anne Kelly N.O; Applicant: Brian Spencer Kelly N.O; Respondent: Garreth Cullen Kelly; Respondent: John William Kelly; Respondent: Richard Cullen Kelly; Respondent: Sean Kelly; Respondent: Cullen Kelly; Respondent: The Master of the High Court (KZN)
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
11 May 2011
Case Number
4334/10
Procedural Posture
Rectification Application / Judgment After Opposed Application
Outcome
Application granted. Clause 4.2 of the last will is rectified to reflect the testatrix's true intention. Costs awarded against the respondents, jointly and severally.
Judges
Dhaya Pillay
Legal Topics
Rectification of Wills, Testamentary Trusts, Beneficiary Definition, Locus Standi, Costs Order
Civil Procedure Family and Children Rectification of Wills Testamentary Trusts Beneficiary Definition Locus Standi Costs Order

Case Brief

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Parties

Clive Ronald Kelly N.O

Applicant

Derrick Collett N.O

Applicant

Louise Anne Kelly N.O

Applicant

Brian Spencer Kelly N.O

Applicant

Garreth Cullen Kelly

Respondent

John William Kelly

Respondent

Richard Cullen Kelly

Respondent

Sean Kelly

Respondent

Cullen Kelly

Respondent

The Master of the High Court (KZN)

Respondent

Procedural Posture

Rectification Application / Judgment After Opposed Application

Legal Issues

  1. 1 Whether clause 4.2 of the last will of Olga Amy Cronje accurately reflects the testatrix's intention.
  2. 2 Whether the will should be rectified to give effect to the testatrix's true wishes.
  3. 3 Whether the applicants, as trustees, have locus standi to bring the application.

Ratio Decidendi

The court found that the evidence overwhelmingly supported the applicants' case that the testatrix intended her three nephews to benefit equally from the residue of her estate, and that clause 4.2 of the last will was erroneously drafted by transposing beneficiaries from the Bonnie Trust deed. The respondents failed to adduce credible evidence to refute the applicants' version and relied on irrelevant, hearsay, and unsubstantiated allegations. The points in limine were abandoned or found to be without merit. The court was satisfied that the applicants discharged the onus of proving that clause 4.2 did not record the testatrix's intention and that rectification was warranted. Costs were...

Court Disposition

Application granted. Clause 4.2 of the last will is rectified to reflect the testatrix's true intention. Costs awarded against the respondents, jointly and severally.

Orders

  • Clause 4.2 of the last will is rectified to read: 'As to ⅓ (one-third) thereof upon a testamentary trust created pursuant to this will, the main beneficiaries of which shall be BRIAN SPENCER KELLY and LOUISE ANNE KELLY whom failing and other beneficiaries shall be any children born of the marriage between the main...
  • The remaining beneficiaries as described in the last will have no vested or other right to claim or demand any benefits under the testamentary trust created in clause 4.2 of the last will, and the applicants (as trustees in the Olga Trust) have an unfettered discretion to distribute to the beneficiaries the benefits...