V.A.K and Another v G.K and Others (842/2021) [2022] ZANCHC 36 (14 June 2022)

V.A.K and Another v G.K and Others (842/2021) [2022] ZANCHC 36 (14 June 2022)

The court found that the document purporting to be the will of the late Z[....] K[....]3 was a forgery, as confirmed by expert evidence and the consensus of the parties. The appointment of the first respondent as executrix was based on this invalid will and was therefore unlawful. The purported nominations by other heirs were unsupported by credible evidence. The first respondent's removal of the minor children from Kimberley to Cape Town was done without a court order or agreement and amounted to self-help. However, the court determined that the best interests of the minor children required stability and continuity, and thus declined to order their immediate return, instead directing...

Citation
[2022] ZANCHC 36
Parties
Applicant: V[….] A[….] K[….]1; Applicant: F[....] X[....]; Respondent: G[….] K[….]2; Respondent: ESKOM PENSION AND PROVIDENT FUND; Respondent: GOVERNMENT EMPLOYEES PENSION FUND; Respondent: THE MASTER OF THE HIGH COURT
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
14 June 2022
Case Number
842/2021
Procedural Posture
Urgent Application / Final Determination of Urgent Application
Outcome
Application granted in substantial part; will declared invalid; appointment of executrix set aside; interdicts granted; costs awarded against first respondent.
Judges
O.K. Chwaro
Legal Topics
Guardianship of Minors, Intestate Succession, Will Forgery, Removal of Executor, Interdictory Relief, Best Interests of Child
Family and Children Civil Procedure Land and Property Guardianship of Minors Intestate Succession Will Forgery Removal of Executor Interdictory Relief +1 more

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Parties

V[….] A[….] K[….]1

Applicant

F[....] X[....]

Applicant

G[….] K[….]2

Respondent

ESKOM PENSION AND PROVIDENT FUND

Respondent

GOVERNMENT EMPLOYEES PENSION FUND

Respondent

THE MASTER OF THE HIGH COURT

Respondent

Procedural Posture

Urgent Application / Final Determination of Urgent Application

Legal Issues

  1. 1 Whether the document purporting to be the will of the late Z[....] K[....]3 is valid.
  2. 2 Whether the appointment of G[....] K[....]2 as executrix of the estate is lawful.
  3. 3 Whether the minor children should be returned to the care of the second applicant.

Ratio Decidendi

The court found that the document purporting to be the will of the late Z[....] K[....]3 was a forgery, as confirmed by expert evidence and the consensus of the parties. The appointment of the first respondent as executrix was based on this invalid will and was therefore unlawful. The purported nominations by other heirs were unsupported by credible evidence. The first respondent's removal of the minor children from Kimberley to Cape Town was done without a court order or agreement and amounted to self-help. However, the court determined that the best interests of the minor children required stability and continuity, and thus declined to order their immediate return, instead directing...

Court Disposition

Application granted in substantial part; will declared invalid; appointment of executrix set aside; interdicts granted; costs awarded against first respondent.

Orders

  • The document purporting to be the will of the late Z[....] K[....]3 is declared invalid, null and void.
  • It is declared that the late Z[....] K[....]3 died intestate.