Van Deemter and Another v Master of the High Court Pretoria and Others (74302/2013) [2014] ZAGPPHC 664 (29 August 2014)

Van Deemter and Another v Master of the High Court Pretoria and Others (74302/2013) [2014] ZAGPPHC 664 (29 August 2014)

The court found that the Applicants failed to discharge the onus of proving that the deceased lacked testamentary capacity or that the will was invalid. The evidence, including affidavits from medical practitioners and the attorney who drafted the will, established that the deceased was of sound mind and intended the will to be his last testament. The Applicants' alternative argument based on discrepancies with a prior will was rejected, as the drafting process and the deceased's legal background indicated he understood and approved the final will. On the counter-application, the First Applicant's lack of progress in administering the estate and his failure to properly address allegations...

Citation
[2014] ZAGPPHC 664
Parties
Applicant: Thomas Johan Van Deemter; Applicant: Johanna Maria Ohlhoff (born Van Deemter); Respondent: The Master of the High Court Pretoria; Respondent: Maryke Swanepoel N.O.; Respondent: Herman Ohlhoff; Respondent: Jan Theunis Christiaan Ohlhoff; Respondent: Fritz Ulrich Otto Ohlhoff; Respondent: Marilee Ohlhoff; Respondent: Christine Van Deemter; Respondent: Anika Van Deemter; Respondent: Tarien Helberg; Respondent: Maryna Swanepoel; Respondent: Karin Swanepoel; Respondent: Gerrit Le Roux Swanepoel; Respondent: Hermien Bosch; Respondent: ABSA Trust N.O. / Una Posthimus N.O.; Respondent: Almero Bosch; Respondent: Cornelius Lodewickus De Jager N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 August 2014
Case Number
74302/2013
Procedural Posture
Review Application / Opposed Motion; Application and Counter Application
Outcome
Application dismissed with costs; counter-application granted.
Judges
N Davis
Legal Topics
Testamentary Capacity, Validity of Wills, Executor Removal, Administration of Estates Act, Onus of Proof, Costs Orders
Civil Procedure Family and Children Land and Property Testamentary Capacity Validity of Wills Executor Removal Administration of Estates Act Onus of Proof +1 more

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Parties

Thomas Johan Van Deemter

Applicant

Johanna Maria Ohlhoff (born Van Deemter)

Applicant

The Master of the High Court Pretoria

Respondent

Maryke Swanepoel N.O.

Respondent

Herman Ohlhoff

Respondent

Jan Theunis Christiaan Ohlhoff

Respondent

Fritz Ulrich Otto Ohlhoff

Respondent

Marilee Ohlhoff

Respondent

Christine Van Deemter

Respondent

Anika Van Deemter

Respondent

Tarien Helberg

Respondent

Maryna Swanepoel

Respondent

Karin Swanepoel

Respondent

Gerrit Le Roux Swanepoel

Respondent

Hermien Bosch

Respondent

ABSA Trust N.O. / Una Posthimus N.O.

Respondent

Almero Bosch

Respondent

Cornelius Lodewickus De Jager N.O.

Respondent

Procedural Posture

Review Application / Opposed Motion; Application and Counter Application

Legal Issues

  1. 1 Whether the will dated 12 November 2004 is invalid due to lack of testamentary capacity or undue influence.
  2. 2 Whether the deceased's surviving spouse should be declared unfit to inherit from the deceased.
  3. 3 Whether the First Applicant should be removed as executor of the deceased's estate.

Ratio Decidendi

The court found that the Applicants failed to discharge the onus of proving that the deceased lacked testamentary capacity or that the will was invalid. The evidence, including affidavits from medical practitioners and the attorney who drafted the will, established that the deceased was of sound mind and intended the will to be his last testament. The Applicants' alternative argument based on discrepancies with a prior will was rejected, as the drafting process and the deceased's legal background indicated he understood and approved the final will. On the counter-application, the First Applicant's lack of progress in administering the estate and his failure to properly address allegations...

Court Disposition

Application dismissed with costs; counter-application granted.

Orders

  • The application is dismissed with costs, including costs of the counter-application, both on the scale as between attorney and client.
  • The First Applicant, Mr Thomas Johan Van Deemter, is removed from his office as executor of the estate of the late Mr Jan Van Deemter (Masters ref: 4677/2011).