The Master of the High Court in Bloemfontein (eighth respondent) on the 24th of May 2017 accepted a written and signed document as Last Will and Testament of the deceased who passed on the 25th of April 2017. The Applicant is one of the deceased’s daughters. The Applicant challenged the validity of the Will on the grounds that the testatrix (the deceased) did not exercise her free will when attesting it due to the duress and undue influence exerted by the third and fourth respondents. It was also contended that the prescribed statutory formalities of the Wills Act 7 of 1953 had not been complied with and the terms were vague, uncertain and unenforceable.
The court held that in action proceedings the witness testify viva voce, can be interrogated and cross-examined and the court, having seen the witnesses, can make credibility findings. In casu the court found merit in the contentions on behalf of respondents that the applicant’s case was based on uncorroborated hearsay evidence. The contention that the applicant’s explanation for waiting until the deceased has passed before coming forward is untenable, has a ring of truth. This is so in particular bearing in mind that the deceased had lived on her own amongst her peers in an old age home, for some time before her passing, where she could at any time have amended, varied or revoked the Will without anybody having had knowledge thereof.
The court had no doubt that when the Master was confronted by what was purported to be the Last Will and Testament of the deceased, the Master had no choice but to so accept as on face value the document complied with the provision of the wills Act. There was no basis to declare any of the paragraphs of the Will invalid or of no force and effect.
The application was dismissed with costs.
Compiled by: Richard Mokhele (LL. B); source: https://www.lexisnexis.co.za/
De Bruin v Stoffberg N.O and others
| Case Number: | 3694 / 2018 |
| Judgment Date: | 23 / 01 / 2020 |
| Country: | South Africa |
| Jurisdiction: | High Court |
| Division: | Free State, Bloemfontein |
| Bench: | C Reinders J |
Keywords:
Wills, Trusts and Estates – Will – Validity of
Mini Summary:
The applicant challenged the acceptance by the eighth respondent (the Master) of a written and signed document as the last will of the applicant’s mother (the deceased).
The validity of the will was challenged by the applicant on the ground that the testatrix did not exercise her free will when attesting it due to the duress and undue influence exerted by the third and fourth respondents. It was also contended that the prescribed statutory formalities of the Wills Act 7 of 1953 had not been complied with and the terms were vague, uncertain and unenforceable.
Held that in action proceedings, the witnesses testify viva voce, can be interrogated and cross-examined and the court, having seen the witnesses, can make credibility findings. The court is then in a favourable position to reject or accept evidence whilst the final question would be whether the plaintiff has proved its case on a preponderance of probabilities. In casu the court found merit in the contentions on behalf of respondents that the applicant’s case was based on uncorroborated hearsay evidence. If the matter was adjudicated on the respondents’ version (as required where disputes of fact arose in motion proceedings), much of the applicant’s evidence was unreliable and wrong.
There was no basis to declare any of the paragraphs of the will invalid or of no force and effect.
The application was dismissed with costs.