Marais v Botha NO and Others (5461/2007) [2008] ZAWCHC 111 (31 October 2008)

Marais v Botha NO and Others (5461/2007) [2008] ZAWCHC 111 (31 October 2008)

The court found that there is a material dispute of fact regarding the existence of a later will, which cannot be resolved in motion proceedings. Applying the Plascon-Evans rule, the matter must be decided on the respondents' version, which, in the context of marital strife and distrust, supports the inference that the deceased may have executed another will. The applicant failed to adequately respond to the respondents' allegations. Furthermore, the applicant, being charged with conspiracy to murder the deceased, cannot benefit under the joint will or be appointed executor, as this would contravene public policy and the maxim 'de bloedige hand neemt geen erf'. The application was...

Citation
[2008] ZAWCHC 111
Parties
Applicant: Ruby Charmaine Marais; Respondent: Joagem Hendrik Botha NO; Respondent: The Master of the High Court, Cape Town; Respondent: Sarel Marais; Respondent: Jacques Marais; Respondent: Deseray McKirby
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
31 October 2008
Case Number
5461/2007
Procedural Posture
Civil Application / Final Judgment
Outcome
Application dismissed.
Judges
Meer
Legal Topics
Wills Act Section 2 3, Administration of Estates, Testamentary Intention, Executor Appointment, Intestacy, De Bloedige Hand
Land and Property Civil Procedure Wills Act Section 2 3 Administration of Estates Testamentary Intention Executor Appointment Intestacy De Bloedige Hand

Case Brief

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Parties

Ruby Charmaine Marais

Applicant

Joagem Hendrik Botha NO

Respondent

The Master of the High Court, Cape Town

Respondent

Sarel Marais

Respondent

Jacques Marais

Respondent

Deseray McKirby

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the joint will dated 26 February 1999 should be accepted as the valid will of the deceased under section 2(3) of the Wills Act.
  2. 2 Whether there exists a later will executed by the deceased that revokes the joint will.
  3. 3 Whether the applicant, charged with conspiracy to murder the deceased, may benefit under the joint will or be appointed executor.

Ratio Decidendi

The court found that there is a material dispute of fact regarding the existence of a later will, which cannot be resolved in motion proceedings. Applying the Plascon-Evans rule, the matter must be decided on the respondents' version, which, in the context of marital strife and distrust, supports the inference that the deceased may have executed another will. The applicant failed to adequately respond to the respondents' allegations. Furthermore, the applicant, being charged with conspiracy to murder the deceased, cannot benefit under the joint will or be appointed executor, as this would contravene public policy and the maxim 'de bloedige hand neemt geen erf'. The application was...

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.
  • The costs of the application are to be borne by the estate of the late Jacobus Petrus Marais.