Lipchick and Others v Master of the High Court and Others (41815/2009) [2011] ZAGPJHC 49 (7 June 2011)

Lipchick and Others v Master of the High Court and Others (41815/2009) [2011] ZAGPJHC 49 (7 June 2011)

The court found that the will dated 13 December 2004 was written and signed by the testatrix in her own handwriting, with clear intention to revoke all previous wills and codicils. The evidence, including affidavits from Harry Schwarz, Annette Schwarz, and other witnesses, established that the testatrix was mentally alert and possessed testamentary capacity at the time of executing the will. The respondents failed to discharge the onus of proving mental incapacity, and their allegations were found to be far-fetched and untenable. There was no genuine dispute of fact requiring referral to oral evidence. The codicil dated 20 September 2004 was expressly revoked. The applicants were entitled...

Citation
[2011] ZAGPJHC 49
Parties
Applicant: Gary Lipchick; Applicant: Charlene Lipchick; Applicant: Desiree Hirner; Respondent: Master of the High Court; Respondent: Nicole Lipchick; Respondent: Candice Lipchick
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
7 June 2011
Case Number
41815/2009
Procedural Posture
Civil Application / Judgment
Outcome
Application granted. The handwritten will dated 13 December 2004 is accepted as the last will of Fay Lipchick. The codicil dated 20 September 2004 is declared revoked. Costs awarded against the second and third respondents.
Judges
N.P. Willis
Legal Topics
Wills Act Section 2 3, Testamentary Capacity, Administration of Estates Act, Revocation of Codicil, Onus of Proof, Costs Order
Civil Procedure Family and Children Wills Act Section 2 3 Testamentary Capacity Administration of Estates Act Revocation of Codicil Onus of Proof Costs Order

Case Brief

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Parties

Gary Lipchick

Applicant

Charlene Lipchick

Applicant

Desiree Hirner

Applicant

Master of the High Court

Respondent

Nicole Lipchick

Respondent

Candice Lipchick

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Whether the handwritten will dated 13 December 2004 was intended by the testatrix to be her last will.
  2. 2 Whether the testatrix possessed the requisite testamentary capacity at the time of executing the will.
  3. 3 Whether the codicil dated 20 September 2004 was valid or revoked.

Ratio Decidendi

The court found that the will dated 13 December 2004 was written and signed by the testatrix in her own handwriting, with clear intention to revoke all previous wills and codicils. The evidence, including affidavits from Harry Schwarz, Annette Schwarz, and other witnesses, established that the testatrix was mentally alert and possessed testamentary capacity at the time of executing the will. The respondents failed to discharge the onus of proving mental incapacity, and their allegations were found to be far-fetched and untenable. There was no genuine dispute of fact requiring referral to oral evidence. The codicil dated 20 September 2004 was expressly revoked. The applicants were entitled...

Court Disposition

Application granted. The handwritten will dated 13 December 2004 is accepted as the last will of Fay Lipchick. The codicil dated 20 September 2004 is declared revoked. Costs awarded against the second and third respondents.

Orders

  • The Master of the High Court is directed to accept the handwritten will dated 13 December 2004 as the last will of Fay Lipchick for the purposes of the Administration of Estates Act, No 66 of 1965, notwithstanding non-compliance with formalities under Section 2(1) of the Wills Act, No.7 of 1953.
  • The codicil dated 20 September 2004 is declared to have been revoked.