Longfellow v BOE Trust Ltd NO and Others (13591/2008) [2010] ZAWCHC 117 (28 April 2010)

Longfellow v BOE Trust Ltd NO and Others (13591/2008) [2010] ZAWCHC 117 (28 April 2010)

The court found that the applicant failed to prove, on a balance of probabilities, that the deceased intended the draft document to be her last will and testament. The circumstances indicated that the applicant initiated the drafting process without a clear request from the deceased, and the evidence suggested the document reflected the applicant's wishes rather than the deceased's. The court also found that the applicant may have unduly influenced the deceased, who was terminally ill and under medication at the relevant time. As a result, the application for condonation under section 2(3) of the Wills Act was refused, and the applicant was not declared competent to inherit under the...

Citation
[2010] ZAWCHC 117
Parties
Applicant: John Longfellow; Respondent: BOE Trust Limited N.O.; Respondent: Alan Theuns Christian de Klerk; Respondent: Michaela Brockman; Respondent: Michelle de Klerk; Respondent: The Master of the High Court (Cape Provincial Division)
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
28 April 2010
Case Number
13591/2008
Procedural Posture
Urgent Application / Application for Condonation of Non Compliance With Wills Act and Ancillary Relief
Outcome
Application refused with costs.
Judges
E.D. Baartman
Legal Topics
Wills Act Section 2 3, Testamentary Intention, Undue Influence, Competency to Inherit, Costs Order, Condonation of Formal Defect
Family and Children Land and Property Civil Procedure Wills Act Section 2 3 Testamentary Intention Undue Influence Competency to Inherit Costs Order +1 more

Case Brief

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Parties

John Longfellow

Applicant

BOE Trust Limited N.O.

Respondent

Alan Theuns Christian de Klerk

Respondent

Michaela Brockman

Respondent

Michelle de Klerk

Respondent

The Master of the High Court (Cape Provincial Division)

Respondent

Procedural Posture

Urgent Application / Application for Condonation of Non Compliance With Wills Act and Ancillary Relief

Legal Issues

  1. 1 Whether the draft document prepared by the applicant was intended by the deceased to be her last will and testament.
  2. 2 Whether the court should condone non-compliance with the formal requirements of the Wills Act under section 2(3).
  3. 3 Whether the applicant is competent to inherit under the draft will he prepared.

Ratio Decidendi

The court found that the applicant failed to prove, on a balance of probabilities, that the deceased intended the draft document to be her last will and testament. The circumstances indicated that the applicant initiated the drafting process without a clear request from the deceased, and the evidence suggested the document reflected the applicant's wishes rather than the deceased's. The court also found that the applicant may have unduly influenced the deceased, who was terminally ill and under medication at the relevant time. As a result, the application for condonation under section 2(3) of the Wills Act was refused, and the applicant was not declared competent to inherit under the...

Court Disposition

Application refused with costs.

Orders

  • The application is refused with costs, such costs to be paid from the estate of the late Jacqueline Susan Longfellow.
  • In the event of the estate having insufficient funds to satisfy the costs order, the second and fourth respondents are ordered to pay the wasted costs occasioned by the postponement of the matter on 27 November 2009.