Smith v Sampson and Another (15741/2012) [2013] ZAWCHC 11 (14 February 2013)

Smith v Sampson and Another (15741/2012) [2013] ZAWCHC 11 (14 February 2013)

The court found that the applicant's case was riddled with inconsistencies and lacked credible, independent evidence regarding the existence and contents of the alleged Joint Last Will and Testament. The supporting affidavit from Mr. Chotia did not advance the applicant's case, as he had no independent recollection or records of the Will's instructions or contents. The reconstructed document included provisions not supported by the applicant's own account or instructions. The applicant failed to discharge the onus of proving, on a balance of probabilities, that the reconstructed Will accurately and completely reflected the intentions of the deceased and herself. The delay in bringing the...

Citation
[2013] ZAWCHC 11
Parties
Applicant: Veronica Maud Smith; Respondent: Sharon Patricia Sampson; Respondent: Master of the High Court, Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
14 February 2013
Case Number
15741/2012
Procedural Posture
Civil Application / First Instance
Outcome
Application dismissed.
Judges
Traverso
Legal Topics
Wills and Testamentary Documents, Reconstruction of Lost Will, Administration of Estates Act, Onus of Proof
Land and Property Civil Procedure Wills and Testamentary Documents Reconstruction of Lost Will Administration of Estates Act Onus of Proof

Case Brief

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Parties

Veronica Maud Smith

Applicant

Sharon Patricia Sampson

Respondent

Master of the High Court, Cape Town

Respondent

Procedural Posture

Civil Application / First Instance

Legal Issues

  1. 1 Whether the court should order the Master to accept a reconstructed unsigned Will as the Joint Last Will and Testament of the applicant and the deceased for administration purposes.
  2. 2 Whether the reconstructed Will revokes the 1992 Will accepted by the Master.
  3. 3 Whether the applicant has discharged the onus to prove the contents of the lost Will on a balance of probabilities.

Ratio Decidendi

The court found that the applicant's case was riddled with inconsistencies and lacked credible, independent evidence regarding the existence and contents of the alleged Joint Last Will and Testament. The supporting affidavit from Mr. Chotia did not advance the applicant's case, as he had no independent recollection or records of the Will's instructions or contents. The reconstructed document included provisions not supported by the applicant's own account or instructions. The applicant failed to discharge the onus of proving, on a balance of probabilities, that the reconstructed Will accurately and completely reflected the intentions of the deceased and herself. The delay in bringing the...

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.
  • No order is made as to costs.