Van Niekerk v Van Niekerk and Others (26021/2014) [2016] ZAGPPHC 120 (18 March 2016)

Van Niekerk v Van Niekerk and Others (26021/2014) [2016] ZAGPPHC 120 (18 March 2016)

The court found that the contested will dated 10 August 2013 was drafted and signed by the deceased with the clear intention to revoke his previous will and bequeath his entire estate to his three children. The evidence of the handwriting expert confirmed the authenticity of the signature, and the affidavit of Bezuidenhout corroborated that the deceased showed her the signed will before his death. The psychiatric reports indicated the deceased was emotionally stable and capable of forming testamentary intention at the relevant time. Allegations of fraud and forgery were not substantiated and were found to be irrelevant to the determination of the deceased's intention regarding the will....

Citation
[2016] ZAGPPHC 120
Parties
Applicant: Van Niekerk, W; Respondent: Van Niekerk, S N.O.; Respondent: Van Niekerk, S; Respondent: Van Niekerk, S M; Respondent: Van Niekerk, W S; Respondent: Van Niekerk, R G; Respondent: Master of the High Court, Nelspruit; Respondent: Wynand Prinsloo & Van Eeden Ingelyf
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
18 March 2016
Case Number
26021/2014
Procedural Posture
Review Application / Application for Acceptance of Will Under Section 2(3) of the Wills Act
Outcome
Application granted. The contested will is accepted as the last will of the deceased. The previous will is revoked. An independent executor is to be appointed. Costs awarded against first and second respondents.
Judges
AC Basson
Legal Topics
Wills Act Section 2 3, Revocation of Previous Will, Testamentary Intention, Appointment of Executor, Allegations of Fraud, Minor Beneficiaries
Family and Children Land and Property Civil Procedure Wills Act Section 2 3 Revocation of Previous Will Testamentary Intention Appointment of Executor Allegations of Fraud +1 more

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Parties

Van Niekerk, W

Applicant

Van Niekerk, S N.O.

Respondent

Van Niekerk, S

Respondent

Van Niekerk, S M

Respondent

Van Niekerk, W S

Respondent

Van Niekerk, R G

Respondent

Master of the High Court, Nelspruit

Respondent

Wynand Prinsloo & Van Eeden Ingelyf

Respondent

Procedural Posture

Review Application / Application for Acceptance of Will Under Section 2(3) of the Wills Act

Legal Issues

  1. 1 Whether the contested will dated 10 August 2013 was intended by the deceased to be his last will and testament.
  2. 2 Whether the contested will should be accepted by the Master of the High Court under section 2(3) of the Wills Act despite non-compliance with formalities.
  3. 3 Whether the previous will dated 11 February 2008 was revoked by the contested will.

Ratio Decidendi

The court found that the contested will dated 10 August 2013 was drafted and signed by the deceased with the clear intention to revoke his previous will and bequeath his entire estate to his three children. The evidence of the handwriting expert confirmed the authenticity of the signature, and the affidavit of Bezuidenhout corroborated that the deceased showed her the signed will before his death. The psychiatric reports indicated the deceased was emotionally stable and capable of forming testamentary intention at the relevant time. Allegations of fraud and forgery were not substantiated and were found to be irrelevant to the determination of the deceased's intention regarding the will....

Court Disposition

Application granted. The contested will is accepted as the last will of the deceased. The previous will is revoked. An independent executor is to be appointed. Costs awarded against first and second respondents.

Orders

  • The Master of the High Court is directed to accept the document annexed as 'Annexure A' as the will of the late Gert Willem van Niekerk for the purposes of the Administration of Estates Act 66 of 1965.
  • The Master is directed to withdraw the Letter of Executorship dated 7 October 2013 appointing the first respondent as executrix under the 2008 will.