Westerhuis and Another v Westerhuis and Others (A276/2017) [2018] ZAWCHC 84 (27 June 2018)

Westerhuis and Another v Westerhuis and Others (A276/2017) [2018] ZAWCHC 84 (27 June 2018)

The court found that the appellants failed to discharge the onus of proving the authenticity of the second will. The evidence of the handwriting expert, Dr Rosa, cast serious doubt on the integrity of the signatures attributed to the deceased. The police witness, Const. Nohako, was unreliable and contradicted by his own prior statements and by the investigating officer, D/Sgt. Toua. The appellants did not testify, and their affidavits were inadmissible hearsay. The manuscript amendment to clause 1.2 was not properly witnessed and could not be condoned under section 2(3) of the Wills Act. The first will was valid and should be accepted as the deceased's last will. The estate's immovable...

Citation
[2018] ZAWCHC 84
Parties
Appellant: Frederick Westerhuis; Appellant: Catherine Westerhuis; Respondent: Jan Lambertus Westerhuis; Respondent: Jan Lambertus Westerhuis N.O.; Respondent: Derick Alexander Westerhuis N.O.; Respondent: Estate of the late Hendrikus Westerhuis; Respondent: Patricia Westerhuis; Respondent: Marelize van der Mescht
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
27 June 2018
Case Number
A276/2017
Procedural Posture
Civil Appeal / Appeal From Trial Court Judgment; Hearing and Decision on Validity of Wills and Related Orders
Outcome
Appeal dismissed with costs; order of trial court set aside and replaced with declaration of validity of first will and invalidity of second will.
Judges
Erasmus, Gamble, Parker
Legal Topics
Wills Act Formalities, Testamentary Intention, Intestate Succession, Handwriting Expert Evidence, Section 2 3 Condonation, Executor Appointment
Family and Children Land and Property Civil Procedure Wills Act Formalities Testamentary Intention Intestate Succession Handwriting Expert Evidence Section 2 3 Condonation +1 more

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Parties

Frederick Westerhuis

Appellant

Catherine Westerhuis

Appellant

Jan Lambertus Westerhuis

Respondent

Jan Lambertus Westerhuis N.O.

Respondent

Derick Alexander Westerhuis N.O.

Respondent

Estate of the late Hendrikus Westerhuis

Respondent

Patricia Westerhuis

Respondent

Marelize van der Mescht

Respondent

Procedural Posture

Civil Appeal / Appeal From Trial Court Judgment; Hearing and Decision on Validity of Wills and Related Orders

Legal Issues

  1. 1 Whether the second will dated 17 October 2013 was validly executed in terms of the Wills Act.
  2. 2 Whether the manuscript amendment to clause 1.2 of the second will was valid and should be condoned under section 2(3) of the Wills Act.
  3. 3 Whether the signature on the second will was that of the deceased.

Ratio Decidendi

The court found that the appellants failed to discharge the onus of proving the authenticity of the second will. The evidence of the handwriting expert, Dr Rosa, cast serious doubt on the integrity of the signatures attributed to the deceased. The police witness, Const. Nohako, was unreliable and contradicted by his own prior statements and by the investigating officer, D/Sgt. Toua. The appellants did not testify, and their affidavits were inadmissible hearsay. The manuscript amendment to clause 1.2 was not properly witnessed and could not be condoned under section 2(3) of the Wills Act. The first will was valid and should be accepted as the deceased's last will. The estate's immovable...

Court Disposition

Appeal dismissed with costs; order of trial court set aside and replaced with declaration of validity of first will and invalidity of second will.

Orders

  • The appeal is dismissed with costs, such costs to be paid jointly and severally by the First and Second Appellants.
  • It is declared that the document attached as Annexure JLW 1 and signed by Jannetje Haasnoot on 16 January 2013 is the deceased's valid last will.