Opperman v Opperman and Others (3659/2015) [2016] ZAFSHC 26 (3 March 2016)

Opperman v Opperman and Others (3659/2015) [2016] ZAFSHC 26 (3 March 2016)

The court found that the 2006 document was executed in full compliance with the Wills Act, signed by the testator and witnesses on all required pages. The 2015 document was not personally drafted by the testator, only amended by him, and was unsigned and left without instruction, indicating no intention for it to be his will. The 2009 document was not found in the testator’s possession after death, raising a presumption of revocation, and did not materially differ from the 2006 document. The applicant, although a witness, did not defraud or unduly influence the testator and is competent to receive a benefit under section 4A(2)(a). The costs of both the application and counter-application...

Citation
[2016] ZAFSHC 26
Parties
Applicant: Lowika Opperman; Respondent: Jonathan Opperman; Respondent: Chrys’anne Nel; Respondent: Aleacia Opperman; Respondent: Wendy Myburgh; Respondent: Master for the High Court, Bloemfontein
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
3 March 2016
Case Number
3659/2015
Procedural Posture
Review Application / Judgment After Application and Counter Application
Outcome
The 2006 document is declared the last will of the testator. The applicant is competent to receive a benefit from the will. The counter-application is dismissed. Costs are to be paid from the estate.
Judges
C. H. G. Van der Merwe
Legal Topics
Wills Act Formalities, Revocation of Wills, Beneficiary Disqualification, Testamentary Intention
Family and Children Land and Property Wills Act Formalities Revocation of Wills Beneficiary Disqualification Testamentary Intention

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Parties

Lowika Opperman

Applicant

Jonathan Opperman

Respondent

Chrys’anne Nel

Respondent

Aleacia Opperman

Respondent

Wendy Myburgh

Respondent

Master for the High Court, Bloemfontein

Respondent

Procedural Posture

Review Application / Judgment After Application and Counter Application

Legal Issues

  1. 1 Which document should be declared the testator’s last will.
  2. 2 Whether the 2015 document, 2009 document, or 1989 document constitutes the valid will.
  3. 3 Whether the applicant is disqualified from receiving a benefit as a witness to the will.

Ratio Decidendi

The court found that the 2006 document was executed in full compliance with the Wills Act, signed by the testator and witnesses on all required pages. The 2015 document was not personally drafted by the testator, only amended by him, and was unsigned and left without instruction, indicating no intention for it to be his will. The 2009 document was not found in the testator’s possession after death, raising a presumption of revocation, and did not materially differ from the 2006 document. The applicant, although a witness, did not defraud or unduly influence the testator and is competent to receive a benefit under section 4A(2)(a). The costs of both the application and counter-application...

Court Disposition

The 2006 document is declared the last will of the testator. The applicant is competent to receive a benefit from the will. The counter-application is dismissed. Costs are to be paid from the estate.

Orders

  • It is declared that the document executed by the late Jonathan Jan Daniël Opperman on 1 May 2006 is his last will and the fifth respondent is directed to register and accept it and to give effect thereto.
  • It is declared in terms of section 4A(2)(a) of the Wills Act 7 of 1953 that the applicant is competent to receive a benefit from the will of the late Jonathan Jan Daniël Opperman dated 1 May 2006.