Van Zyl v Master of the High Court (Bloemfontein) and Others (5501/2021) [2024] ZAFSHC 238 (5 August 2024)

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: YES/NO

Of Interest to other Judges: YES/NO

Circulate to Magistrates: YES/NO

Case number: 5501/2021

In the application between: ELAINE VAN ZYL Applicant and MASTER OF THE HIGH COURT (BLOEMFONTEIN) 1st Respondent DANE ANDREA VAN ZYL 2nd Respondent LISA DOCHERTY 3rd Respondent SANLAM TRUST (PTY) LTD 4th Respondent ANDREW EDWARD LORENTZ 5th Respondent PIERRE ULRICH VOS N.O. 6th Respondent And in the rescission application between: DANE ANDREA VAN ZYL 1st Applicant LISA DOCHERTY 2nd Applicant and ELAINE VAN ZYL 1st Respondent SANLAM TRUST (PTY) LTD 2nd Respondent ANDREW EDWARD LORENTZ 3rd Respondent PIERRE ULRICH VOS N.O. 4th Respondent MASTER OF THE HIGH COURT (BLOEMFONTEIN) 5th Respondent HERMANUS STEYN BADENHORST N.O. 6th Respondent NOORDMANS ATTORNEYS 7th Respondent KRUGER VENTER INCORPORATED 8th Respondent JEAN RAYMOND CASTRO N.O. 9th Respondent PIET HAASBROEK ATTORNEYS 10th Respondent LEGAL PRACTICE COUNCIL, FREE STATE PROVINCIAL OFFICE 11th Respondent

CORAM:

VAN ZYL, J

HEARD ON: 7 MARCH 2024

DELIVERED ON: 5 AUGUST 2024

[1] In terms of the Notice of Motion the applicant is seeking the following relief:

“1. That a Rule Nisi be hereby issue calling on the respondent to show cause, if any, to this Honourable Court … why an Order should not be granted in the following terms:

1.1 That the Fifth-, Sixth-, Seventh-, Eighth-, Ninth-, Tenth-, and Eleventh Respondents are joined to this application as Respondents;

1.2 That the Fifth-, Sixth-, Seventh-, Ninth- and Tenth Respondents be interdicted from winding up the estate of the late Daniel Johannes van Zyl …

1.3 That the Sixth-, Seventh-, Eighth-, Ninth-, and Tenth Respondents render an account of all expenses incurred up to date in relation to the winding up of the estate of the late Daniel Johannes van Zyl;

1.4 That the Court Order under case number 5501/2021, granted by the Honourable Acting Judge Mpama, out of this Honourable Court on 23 November 2022 be set aside;

1.5 Alternatively to 1.4 above, that the Court Order under case number 5501/2021, granted by the Honourable Acting Judge Mpama, out of this Honourable Court on 23 November 2022 be rescinded;

1.6 That those Respondents who oppose this application, be directed to pay the costs of this application only in the event of their opposition, jointly and severally”.

2. That the relief sought in paragraph 1.2 above shall operate as an interim Order with immediate effect, pending the final determination of this application;

3. That the applicant be granted such further and/or alternative relief as this Honourable Court deems meet.

The parties:

[2] The first applicant, Dane Andrea van Zyl, is the daughter of Daniel Johannes van Zyl (“the deceased”). I will refer to her as “Dane”.

[3] The second applicant, Lisa Docherty, is the biological sister of the deceased. She has been nominated as the co-executor with Sanlam in terms of the 2014 Will, which Will I will deal with later herein. I will refer to her as “Lisa”.

[4] The first respondent, Elaine van Zyl, is the surviving spouse of the deceased. I will refer to her as “Elaine”.

[5] The second respondent, Sanlam Trust (Pty) Ltd, has been nominated as co-executor and co-trustee in terms of the 2014 Will to which I will refer later herein. I will refer to this entity as “Sanlam”.

[6] The third respondent, Andrew Edward Lorentz, is the brother of the deceased. He has been nominated as the co-trustee with Sanlam in terms of the 2014 Will. I will refer to him as “Lorentz”.

[7] The fourth respondent, Pierre Ulrich Vos N.O. is the duly appointed interim curator of the deceased’s estate in terms of a Court Order granted on 10 September 2021, under case number 4035/2021. I will refer to him as “Vos”.

[8] The fifth respondent is the Master of the High Court, Bloemfontein to whom I will refer as “the Master”.

[9] The sixth respondent, Hermanus Steyn Badenhorst N.O., is an attorney who is the co-executor of the deceased’s estate in terms of a Court Order granted on 23 November 2022, under case number 5501/2021 (“the November 2022 Order”). At the time of the granting of the November 2022 Order Badenhorst was Dane’s attorney of record. I will refer to him as “Badenhorst”.

[10] The seventh respondent, Noordmans Attorneys, are the attorneys of record for Elaine and the correspondent attorneys of Roma Badenhorst Attorneys. I will refer to the firm as “Noordmans”.

[11] The eighth respondent, Kruger Venter Incorporated, is a firm of attorneys who represented Dane throughout this matter, until she formally terminated their mandate on 10 May 2023. I will refer to them as either “Kruger Venter” or (Mr) “Kruger”, depending on the context.

[12] The ninth respondent, Jean Raymond Castro N.O., practices as an attorney at the firm of Piet Haasbroek Attorneys. He is cited in his capacity as the co-executor of the deceased’s estate in terms of the November 2022 Order. I will refer to him as “Castro”.

[13] The tenth respondent, Piet Haasbroek Attorneys, is a firm of attorneys situated in Welkom. I will refer to the firm as “Piet Haasbroek Attorneys”.

[14] The eleventh respondent is the Legal Practice Council, Free State Provincial Office, to whom I will refer as “the LPC”.

[15] I mean no disrespect by referring to the parties as set out above. It is merely done for the sake of brevity and clarity.

[15] The sixth, seventh, eighth, ninth, tenth and eleventh respondents are all new parties to this application and are cited by virtue of their direct and substantial interest in the application.

Background:

[16] The deceased signed and executed a valid Will on 17 December 2014 (“the 2014 Will) and which made provision for, inter alia, the following: (i) all previous Wills were revoked; (ii) his entire estate was made over to Dane as sole heir. However, until she reached the age of 25, such benefit was to be held in trust; (iii) Sanlam and Lisa were nominated as co-executors while Sanlam and Lorentz were nominated as co-trustees of the trust to be created in terms of the said Will.

[17] Elaine and the deceased got married on 5 October 2019.

[18] Elaine contends that the deceased subsequently drafted four further Wills, each one revoking the previous one, and with the final one, hence the fifth Will, dated 5 January 2021 (“the 2021 Will”) being the Last and final Will upon which Elaine relies and which she claims revoked the 2014 Will.

[19] The 2021 Will provides, inter alia, for the following: (i) it was declared by the deceased to be his last Will and Testament; (ii) the deceased revoked all previous Wills made by him, hence (also) the 2014 Will; (iii) the deceased nominated and appointed Elaine as executrix and sole beneficiary/heir of his entire estate; (iv) the deceased made over to Elaine the immovable property as well as both close corporations and all their stock and assets; and (v) the remainder of the deceased’s estate was made over to Elaine as sole heir/legatee.

[20] None of the subsequent four Wills, including the 2021 Will, were validly executed in accordance with the validity formalities

prescribed by the Wills Act, 7 of 1953 (“the Will`s Act”).

[21] Elaine subsequently launched the main application, seeking the following relief:

1. That it be declared that the 2014 Will of the deceased is revoked in terms of Section 2A(c) of the Wills Act.