Naidoo NO and Another v Crowhurst NO and Others (21732/2009) [2009] ZAWCHC 186; [2010] 2 All SA 379 (WCC) (1 December 2009)

Naidoo NO and Another v Crowhurst NO and Others (21732/2009) [2009] ZAWCHC 186; [2010] 2 All SA 379 (WCC) (1 December 2009)

The court found that the applicant failed to discharge the burden of proof required by section 4 of the Wills Act to show, on a balance of probabilities, that the deceased was mentally incapable of appreciating the nature and effect of his act when executing the disputed will. The respondents provided credible and corroborated evidence from both medical and lay witnesses that the deceased was lucid, understood the nature and extent of his property, and was able to discuss and amend the will. The applicant's evidence was speculative, lacked expert support, and was contradicted by contemporaneous accounts. The court held that the respondents' version was not so untenable as to be rejected...

Citation
[2009] ZAWCHC 186
Parties
Applicant: Carmel Naidoo N.O.; Applicant: Carmel Naidoo; Respondent: John Kennelly Wolfe Crowhurst N.O.; Respondent: Soraya Solomon N.O.; Respondent: Soraya Solomon; Respondent: Mohamed Riyadh Solomon; Respondent: Bernard Lawrence Engel; Respondent: Faith Engel; Respondent: Shaheeza Abdul-Hamid; Respondent: Faradiba Effendi; Respondent: Bisset Boehmke McBlain Attorneys; Respondent: The Master of the High Court; Respondent: The Registrar of Deeds
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
1 December 2009
Case Number
21732/2009
Procedural Posture
Urgent Application / Final Determination on Opposed Motion; Application for Referral to Oral Evidence Refused
Outcome
Application dismissed.
Judges
Breitenbach AJ
Legal Topics
Testamentary Capacity, Wills Act, Burden of Proof, Motion Proceedings, Costs in Will Cases
Civil Procedure Family and Children Testamentary Capacity Wills Act Burden of Proof Motion Proceedings Costs in Will Cases

Case Brief

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Parties

Carmel Naidoo N.O.

Applicant

Carmel Naidoo

Applicant

John Kennelly Wolfe Crowhurst N.O.

Respondent

Soraya Solomon N.O.

Respondent

Soraya Solomon

Respondent

Mohamed Riyadh Solomon

Respondent

Bernard Lawrence Engel

Respondent

Faith Engel

Respondent

Shaheeza Abdul-Hamid

Respondent

Faradiba Effendi

Respondent

Bisset Boehmke McBlain Attorneys

Respondent

The Master of the High Court

Respondent

The Registrar of Deeds

Respondent

Procedural Posture

Urgent Application / Final Determination on Opposed Motion; Application for Referral to Oral Evidence Refused

Legal Issues

  1. 1 Whether the deceased was mentally incapable of appreciating the nature and effect of his act when executing the disputed will.
  2. 2 Whether the applicant discharged the burden of proof under section 4 of the Wills Act 7 of 1953.
  3. 3 Whether the respondents' version regarding testamentary capacity is so untenable as to be rejected on the papers.

Ratio Decidendi

The court found that the applicant failed to discharge the burden of proof required by section 4 of the Wills Act to show, on a balance of probabilities, that the deceased was mentally incapable of appreciating the nature and effect of his act when executing the disputed will. The respondents provided credible and corroborated evidence from both medical and lay witnesses that the deceased was lucid, understood the nature and extent of his property, and was able to discuss and amend the will. The applicant's evidence was speculative, lacked expert support, and was contradicted by contemporaneous accounts. The court held that the respondents' version was not so untenable as to be rejected...

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.
  • The costs of the application, in the case of the first respondent on the attorney and client scale, shall be paid from the estate of the late Uranin Vladimir Dzerzhinsky Joseph Solomon, save that in respect of the period starting on 9 November 2009 the applicant shall pay her own costs.