Pretorius and Another v Malan and Others (1503/2023) [2023] ZAFSHC 298 (31 July 2023)

Pretorius and Another v Malan and Others (1503/2023) [2023] ZAFSHC 298 (31 July 2023)

The court found that the dispute regarding the validity of the will dated 28 April 2022 could not be resolved on the papers due to contradictory affidavits and factual disputes. The resolution of the matter depended on the evidence of the two witnesses to the second will. In the interests of justice and expediency, the court determined that it was appropriate to refer the matter to oral evidence, allowing the witnesses to be examined and cross-examined. The application was not dismissed, and costs were reserved for later adjudication.

Citation
[2023] ZAFSHC 298
Parties
Applicant: Yvonne Pretorius; Applicant: Rachel Charlotte van Niekerk; Respondent: Hilda Malan; Respondent: Gerhard Robin Kotze N.O.; Respondent: Master of the High Court Bloemfontein; Respondent: ABSA Bank
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
31 July 2023
Case Number
1503/2023
Procedural Posture
Urgent Application / Referral to Oral Evidence
Outcome
The application is referred to oral evidence for the resolution of the dispute regarding the validity of the will dated 28 April 2022. Costs are reserved for later adjudication.
Judges
Mhlambi
Legal Topics
Validity of Wills, Motion Proceedings, Oral Evidence, Revocation of Wills
Civil Procedure Family and Children Validity of Wills Motion Proceedings Oral Evidence Revocation of Wills

Case Brief

Summary, issues, holding and outcome

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Parties

Yvonne Pretorius

Applicant

Rachel Charlotte van Niekerk

Applicant

Hilda Malan

Respondent

Gerhard Robin Kotze N.O.

Respondent

Master of the High Court Bloemfontein

Respondent

ABSA Bank

Respondent

Procedural Posture

Urgent Application / Referral to Oral Evidence

Legal Issues

  1. 1 Whether the will dated 28 April 2022 is valid and constitutes the last will and testament of the deceased.
  2. 2 Whether the application should be dismissed due to factual disputes or referred to oral evidence.
  3. 3 Whether the applicants should have proceeded by way of action rather than motion proceedings.

Ratio Decidendi

The court found that the dispute regarding the validity of the will dated 28 April 2022 could not be resolved on the papers due to contradictory affidavits and factual disputes. The resolution of the matter depended on the evidence of the two witnesses to the second will. In the interests of justice and expediency, the court determined that it was appropriate to refer the matter to oral evidence, allowing the witnesses to be examined and cross-examined. The application was not dismissed, and costs were reserved for later adjudication.

Court Disposition

The application is referred to oral evidence for the resolution of the dispute regarding the validity of the will dated 28 April 2022. Costs are reserved for later adjudication.

Orders

  • The matter is referred to oral evidence for the resolution of the dispute surrounding the validity of the will signed on 28 April 2022.
  • Ms Felicia Christine Blom and Mr Martin du Bruyn are ordered to personally appear in court to be examined and cross-examined as witnesses on a date to be determined.