S and Another v M and Another (1462/2012) [2014] ZAFSHC 103 (19 June 2014)

S and Another v M and Another (1462/2012) [2014] ZAFSHC 103 (19 June 2014)

The court found that there was sufficient evidence to give rise to a reasonable possibility that another court could reach a different conclusion regarding the testatrix's mental capacity to execute the will dated 20 August 2001. The applicants demonstrated reasonable prospects of success on appeal. The costs order against the second defendant was questioned, as the plaintiffs had not sought such an order in their particulars of claim. The declaration that the deceased died intestate was incorrect, since the prior will of 2 May 2001 would revive if the later will was set aside. Accordingly, leave to appeal was granted.

Citation
[2014] ZAFSHC 103
Parties
Applicant: J[...] C[...] S[...]; Applicant: J[...] C[...] F[...] S[...] NNO (in their representative capacities as trustees of the D[...] Trust); Applicant: Johannes Stephanus Hugo; Respondent: M[...] M[...]; Respondent: C[...] M[...]
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
19 June 2014
Case Number
1462/2012
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Trial Judgment
Outcome
Leave to appeal granted to the applicants to appeal to the full court against the judgment and order made.
Judges
A. Kruger
Legal Topics
Testamentary Capacity, Validity of Wills, Leave to Appeal, Costs Order
Civil Procedure Family and Children Testamentary Capacity Validity of Wills Leave to Appeal Costs Order

Case Brief

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Parties

J[...] C[...] S[...]

Applicant

J[...] C[...] F[...] S[...] NNO (in their representative capacities as trustees of the D[...] Trust)

Applicant

Johannes Stephanus Hugo

Applicant

M[...] M[...]

Respondent

C[...] M[...]

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Trial Judgment

Legal Issues

  1. 1 Whether the applicants have reasonable prospects of success on appeal against the trial court's finding that the testatrix was mentally incapable of executing the will dated 20 August 2001.
  2. 2 Whether the costs order against the second defendant, the attorney who drew up the will, was appropriate given the particulars of claim.
  3. 3 Whether the declaration that the deceased died intestate was correct in light of the existence of a prior will.

Ratio Decidendi

The court found that there was sufficient evidence to give rise to a reasonable possibility that another court could reach a different conclusion regarding the testatrix's mental capacity to execute the will dated 20 August 2001. The applicants demonstrated reasonable prospects of success on appeal. The costs order against the second defendant was questioned, as the plaintiffs had not sought such an order in their particulars of claim. The declaration that the deceased died intestate was incorrect, since the prior will of 2 May 2001 would revive if the later will was set aside. Accordingly, leave to appeal was granted.

Court Disposition

Leave to appeal granted to the applicants to appeal to the full court against the judgment and order made.

Orders

  • Leave to appeal is granted to the applicants to appeal to the full court of this division against the judgment and order made.
  • Costs of this application to be costs in the appeal.