Van Loggerenberg and Another v Prigge and Others (91711/2016) [2017] ZAGPPHC 1213 (6 December 2017)

Van Loggerenberg and Another v Prigge and Others (91711/2016) [2017] ZAGPPHC 1213 (6 December 2017)

The court found that the 2016 will did not comply with the mandatory formalities of section 2(1) of the Wills Act, as the deceased did not sign the will in the presence of two witnesses and the witnesses did not attest and sign in the presence of the deceased and each other. The respondents' counter application, seeking to have the 2016 will declared valid under section 2(3), failed because the author of the will was unknown and there was no evidence that the deceased personally drafted or typed the document. The prevailing legal principles require personal drafting or execution by the deceased for section 2(3) to apply. The court exercised its discretion to allow the late filing of the...

Citation
[2017] ZAGPPHC 1213
Parties
Applicant: Johannes Jurgens van Loggerenberg; Applicant: Hybrecht Johanna van Loggerenberg; Respondent: CH Prigge; Respondent: Estate Late Maria Petronella Fredrika Roets; Respondent: Wessels Cronje; Respondent: Mariana Harris; Respondent: Pieter Uys; Respondent: Amalia Uys; Respondent: Karen van Niekerk; Respondent: Master of the High Court, Pretoria
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
6 December 2017
Case Number
91711/2016
Procedural Posture
Review Application / Judgment
Outcome
The 2016 will of Maria Petronella Fredrika Roets is declared null and void. The respondents' counter application is dismissed with costs. Costs of the main application are to be costs in the administration of the estate.
Judges
Janse van Nieuwenhuizen
Legal Topics
Wills Act Formalities, Testamentary Intention, Counter Application Procedure
Civil Procedure Family and Children Wills Act Formalities Testamentary Intention Counter Application Procedure

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 10 Party arguments 2
Sign in to unlock

Parties

Johannes Jurgens van Loggerenberg

Applicant

Hybrecht Johanna van Loggerenberg

Applicant

CH Prigge

Respondent

Estate Late Maria Petronella Fredrika Roets

Respondent

Wessels Cronje

Respondent

Mariana Harris

Respondent

Pieter Uys

Respondent

Amalia Uys

Respondent

Karen van Niekerk

Respondent

Master of the High Court, Pretoria

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the 2016 will of the deceased complies with the formalities prescribed by section 2(1) of the Wills Act, 7 of 1953.
  2. 2 Whether the 2016 will can be declared valid under section 2(3) of the Wills Act despite non-compliance with formalities.
  3. 3 Whether the respondents are entitled to relief in the absence of a conditional counterclaim.

Ratio Decidendi

The court found that the 2016 will did not comply with the mandatory formalities of section 2(1) of the Wills Act, as the deceased did not sign the will in the presence of two witnesses and the witnesses did not attest and sign in the presence of the deceased and each other. The respondents' counter application, seeking to have the 2016 will declared valid under section 2(3), failed because the author of the will was unknown and there was no evidence that the deceased personally drafted or typed the document. The prevailing legal principles require personal drafting or execution by the deceased for section 2(3) to apply. The court exercised its discretion to allow the late filing of the...

Court Disposition

The 2016 will of Maria Petronella Fredrika Roets is declared null and void. The respondents' counter application is dismissed with costs. Costs of the main application are to be costs in the administration of the estate.

Orders

  • The Last Will and Testament of Maria Petronella Fredrika Roets dated 26 March 2016 is declared null and void.
  • The counter application is dismissed with costs.