Law of Succession Case Summaries PDF

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Law of Succession Cases: Contents Ex Parte Graham, 1963 (D)........................................................................ Harris v Assumed Administrator Estate MacGregor, 1987 (A).................... Ex Parte Steenkamp and Steenkamp, 1952 (T).......................................... Gory ...

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Law of Succession Cases: Contents Ex Parte Graham, 1963 (D).........................................................................3 Harris v Assumed Administrator Estate MacGregor, 1987 (A).....................4 Ex Parte Steenkamp and Steenkamp, 1952 (T)...........................................6 Gory v Kolver, 2007 (CC).............................................................................7 Rapson v Putterill, 1913..............................................................................8 Essop v Mustapha and Essop, 1988 (D)......................................................9 Spies v Smith, 1957 (A).............................................................................10 Thirion v Die Meester, 2001 (T).................................................................11 Katz and Another v Katz and Others, 2004 (C)..........................................11 Ex Parte Estate Davies, 1957 (N)..............................................................14 Bosch v Nel, 1992 (T)................................................................................14 Liebenberg v The Master, 1992 (D)...........................................................15 Kidwell v The Master, 1983 (E)..................................................................16 Ex parte Aufrichtig, 1979 (D)....................................................................17 Jeffrey v The Master, 1990 (N)...................................................................18 Logue v the Master, 1995 (N)....................................................................19 Ex parte Maurice, 1995 (C)........................................................................21 Webster v The Master and Others, 1996 (D).............................................22 Harlow v Becker NO and Others, 1997/8...................................................23 MacDonald v The Master, 2002 (O)...........................................................24 Bekker v Naude, 2003 (SCA).....................................................................25 Ex parte Porter, 2010 (WC).......................................................................26 Wood v Estate Fawcus, 1935.....................................................................28 Fram v Fram’s Executrix, 1947 (W)...........................................................28 Marais v The Master, 1984 (D)..................................................................29 Davis v Steel and Eriksen, 1949 (W).........................................................31 Le Roux v Le Roux, 1963 (C).....................................................................31 Gafin v Kavin, 1980 (W)............................................................................33 Casey v The Master, 1992 (N)...................................................................33 Pillay v Nagan, 2001 (D)............................................................................34

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Blom v Brown, 2011 (SCA)........................................................................34 De Wayer v SPCA, Johannesburg, 1963 (T)...............................................36 Minister of Education v Syfrets, 2006 (C)..................................................36 Ex Parte BOE Trust, 2009 (WCC)................................................................38 Webb v Davis, 1998 (A).............................................................................40 Simplex v van der Merwe, 1996 (W).........................................................42 Ex Parte President of the Methodist Church of Southern Africa: In re William Marsh Will Trust, 1993 (C).............................................................44 Lello v Dales, 1971 (A)..............................................................................46 McAlpine v McAlpine, 1997 (A)..................................................................48 Van Aardt v Van Aardt, 2007 (E)................................................................50 Jordaan v De Villiers, 1991 (C)...................................................................52 Brink v van Niekerk, 2011 (WCC)..............................................................54 Van Deventer v Van Deventer, 2007 (SCA)...............................................56 Henriques v Giles, 2010 (SCA)..................................................................56

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Topic 1: Introduction Ex Parte Graham, 1963 (D) Facts   

Woman (50) left estate to adopted son (16), should the son predecease her, her mother would inherit Both were killed in an aeroplane crash Executor awarded entire estate to her mother – but registrar wanted order of court declaring that the son had died before or simultaneously to woman before transferring any property to her mother – executor then applied for order that they had died simultaneously, order was granted

Legal Question Is there a presumption in our law regarding sequence of death?

Obiter Remarks  

No presumption as to which of two people have predeceased each other (Nepgen, NO v Van Dyk NO) Decisions of the court have shown that there is no presumption as to which person may have died before the other – presumed to have died simultaneously

Ratio Decidendi & Judgment    

Where people die together in a single catastrophe, no one is deemed to have survived another, unless otherwise proved Rejection of Roman law presumptions of order of death Confirms approach of Negpen v Van Dyk Testator and son presumed to have died simultaneously

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If a person died simultaneously to another, they cannot inherit from that person – only if died after that person Commorientes – where many persons simultaneously die in a catastrophe  may sometimes be NB to determine if any person died before another This case abolishes all Roman-Dutch Law presumptions about order of death, the court must look at all the facts, evidence and testimonies, if it is absolutely impossible to determine order of death, then the commorientes presumption is used If cannot prove on a balance of probabilities the sequence of death, then commorientes presumption is used Schoemann: South African law does not strictly say that no presumption arises – there is no presumption regarding the sequence of death but the implication of the rule that the persons

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are considered to have died simultaneously is to create a presumption that they have died simultaneously unless the contrary is proven Can the descendants of a commoriens inherit from the other commoriens by representing him or her? Representation could take place if the commorientes are considered to have predeceased each other respectively, but not if they were to be eliminated or “thought away” for the purposes of the law of succession Sec 2C(2) of the Wills Act 7/1953: if a descendant of the testator would have been entitled to a benefit in terms of a will, had he or she not predeceased the testator, or had not been disqualified from inheriting, the descendants of the descendant are per stripes entitled to benefit, unless the context of the will indicates otherwise When two persons die simultaneously they should be considered to have predeceased each other Dutch law: beneficiaries who die simultaneously are also represented

Harris v Assumed Administrator Estate MacGregor, 1987 (A) Facts 

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Testator created a trust, in will determined that the wife would receive the income from the trust while she lived, after she died the trust capital would thereafter devolve on their children. If they did not have children then would go to testator’s brother, and to his brother’s children if his brother’s wife and his brother predeceased his wife Every contingency failed. Survived by wife, mother (d: 1960) and brother (d: 1979) Widow sought declaration by court that the intestate heirs were to be determined on the date of the brother’s death Court a quo: heirs to be determined on testator’s death Appellant court: heirs to be determined on brother’s death

Legal Question When does a will, or do the provisions of a will, become inoperative?

Obiter Remarks 

“if a man dies without having made a will at all, the agnate who takes is the one who was nearest at the time of the death of the deceased. But when a man dies, having made a will, the agnate who takes (if one is to take at all) is the one who is nearest when first it become certain that no one will accept inheritance under the

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testament; for until that moment the deceased cannot properly be said t have died intestate at all, and this period of uncertainty is sometimes a long on, so that it not unfrequently happens that through the death, during it, of a nearer agnate, another becomes nearest who was not so at the death of the testator”

Ratio Decidendi & Judgment 

Gauis: the date for determining the nearest agnate is not the moment of death, but the moment when intestacy is certain

Notes 

Common law position regarding the vesting of an intestate estate and the determination of the intestate heirs: – Where a deceased dies without having made a valid will at all, or without leaving a valid will, his intestate estate vests on the date of his death when his intestate heirs have to be determined – Where a testator died leaving a valid will which took effect on his death, but which subsequently became inoperative, either in toto or pro parte, intestacy then occurs and his intestate estate vests on the date when it first became certain that his will had become inoperative. Intestate heirs to be determined, not on date, but when intestacy becomes certain

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Topic 2: Intestate Succession Ex Parte Steenkamp and Steenkamp, 1952 (T) Facts 

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Testators bequeathed a farm and certain movables to grandchildren – the children’s father (Steenkamp) murdered the grandparents – was then convicted and sentenced to life imprisonment One of the grandchildren died thereafter, and so S and wife applied for order declaring them to be the sole heirs of the child Master raised the question if S was legible to inherit anything in the estate of the child which had come from his grandparents Court held him not unworthy to inherit from the child

Legal Question Can Steenkamp inherit anything in the child’s estate which had come from the grandparents whom he had murdered?

Obiter Remarks 

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“bloody hand rule” used in Makhanya v Minister of Finance, 2001 to exclude a person from benefitting from a statutory enactment – inappropriate in the law of succession, court had no authority to rely on for this viewpoint “bloody hand rule” is a more general principle that no man should benefit from his crime Ferreira v Die Meester: the master does not have the authority to decide if one person is guilty of causing the death of another person, only the court has the power to decide on this matter

Ratio Decidendi & Judgment 

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It is not general unworthiness which attaches to a murderer – a person may be unworthy to inherit from one person, but still able to inherit from another – the fact that a person has a bad character, or has behaved badly does not mean that such a person is not entitled to inherit No authority that mere personal demerits (intemperance or evil mind or conversation not associated with misconduct towards or illtreatment of the testator) can per se render a person unworthy in the legal sense to receive a legacy NB: the courts look at the conduct of the person towards the testator in order to determine the person’s unworthiness to inherit Court found in casu that there was no causal link between S murdering the testators and inheriting from the grandchild  the cause of S’s enrichment was the birth and death of the child, and not the murder – Criticised by Hahlo – see notes 6

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Hahlo’s criticism of decision: concedes that birth and death of child = immediate cause of S’s enrichment but argues that if S had not murdered the testators, they would have likely outlived the child in any case and he would not have inherited – therefore, how can the murder not be the direct cause of enrichment? On the facts of this case there is a sufficiently close link between murder and enrichment so as to bring case into rule that no one should be allowed to benefit from his own wrong A killer is still precluded from taking benefit if the testator lives for some time after being injured without altering his will

Gory v Kolver, 2007 ( (not prescribed)

Notes  

Decision made under the law as it stood before the Civil Union Act 17/2006 Word “spouse” for purposes of intestate succession must be read to include same-sex marriages that have two characteristics: – (1) Permanent-life partnerships – (2) Reciprocally undertaken duties of support

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Topic 3: Testamentary Capacity & Capacity to Sign as a Witness Rapson v Putterill, 1913 Facts  

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Focus: testamentary capacity – mental ability of a testator T and 2nd wife made a will appointing the children born of their marriage as beneficiaries – T’s three daughters from 1 st marriage applied for declaration that will was invalid on grounds that: on date of execution + long time previous, T was of unsound mind, memory and understanding Court a quo: T had been capable + appeal against decision dismissed Widow of T signed a document, which was signed by everyone else party to the action, which stated that, because the T was not sufficiently strong mentally to grasp the provisions of the will at the time that he executed it and it therefore did not represent his true wishes – and estate to be administered according to an earlier will – This would have had greater weight if the evidence proving his sanity had not been so substantial – Doctor even said he was “mentally all right” – a year after the will had been made T’s condition was considerably worse, but he was still able to give correct answers to questions – Also, letters written by T to daughter indicate a man of perfect senses Onus of proof falls on plaintiffs – must prove incapacity to execute a will before and after execution  unable to prove

Legal Question   

Did the testator understand the nature of the act? Was he able to distinguish between all his possible heirs? Did the testator understand the nature, extent and value of the assets in his estate?

Obiter Remarks 

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If the plaintiffs had been able to prove that the testator was of unsound mind, both before and after execution of the will, subject to insane delusions – the defendants would have had to prove that such delusions had had no impact on the testator in the disposing of his property Test for insane delusions: “not merely an unfounded though colourable suspicion; nor even a belief which no rational person would have entertained ... it is a persistent and incorrigible belief of

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things as real which exist only in the imagination of the patient, and which no rational person can conceive that the patient when sane would have believed”  accepted definition

Ratio Decidendi & Judgment   

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Not enough evidence to prove, on the facts that the delusions had any impact on the testator’s ability to validly execute his will Test for insane delusion used in many cases subsequently A testator’s testamentary capacity is not affected in the insane delusions from which he suffers do not affect his power of general understanding and are not connected with the testamentary dispositions An insane person is not capable of making a will, even if a court has not yet declared him insane – purpose of declaration simply shifts burden of proof  rebuttable presumption

Essop v Mustapha and Essop, 1988 (D) Facts  

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1985, testator mad a will which revoked a previous will m 1973 Son challenged will on ground that testator lacked testamentary capacity (mentally incapable) – wanted 1973 will to be declared as the valid will Action dismissed

Legal Question  

Did the testator have the necessary mental capacity to be able to execute a valid will? Whether or not is has been shown that the deceased understood and appreciated the effect of the will?

Obiter Remarks 

Confirmed that the person who is alleging mental incapacity must prove on a balance of probabilities

Ratio Decidendi & Judgment  

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Evidence heard from the deceased’s orthopaedic surgeon – would have known and appreciated that he was signing his will “in the cases of impaired intelligence caused by physical infirmity, though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains” No evidence to suggest that the memory of the deceased was impaired to the extent that he was unable to recall his assets or the

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names and claims of those for whom he wished to make provision, or that the disposition which is made did not accord with his true wishes No evidence to suggest that his mental state was such upon signing the will that he would not have understand the terms of the will and the effect of what he was signing Also nothing in the will to cast any light upon question of capacity Effect of drugs that he was taking? Was only taking a single pill at night before going to sleep - ∴ unable to say that the deceased’s mental faculties were at all affected by the drug at the time of signing Parker v Felgate: if a person was of sound mind when gave instructions for contents of will, and if the will is prepared in accordance with these instructions, then a lower degree of consciousness at the time of signing the will would suffice  can no longer be applied as the Act specifically requires a testator to have such capacity at the date of execution J in casu agrees with above, but will not go so far as to say that the capacity at time of giving instructions is not relevant

Spies v Smith, 1957 (A) Facts 

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Testator was mentally handicapped and suffered from epilepsy, made a will at 21 which declared the two daughters of his stepmother (appellant) as the heirs. Went to live with uncle (curator bonis) after father died. Rest of family wanted him to be committed to a mental institution Made a second will thereafter, revoking his stepsisters as heirs, and instead appointing the children of his uncle as beneficiaries After his death (10 years later) step-mother contested validity of second will on behalf of minor daughter – contended that testator had not been mentally capable and that his uncle had unduly influenced him Court held that second will was valid. Appeal against this decision dismissed.

Legal Question 

Testamentary capacity – undue influencing of a testator

Obiter Remarks 

Rebuttable presumption in our law that a testamentary writing was executed by a competent testator and that it reflects his or her wishes - ∴ he who alleges that this was not the case must prove this on a balance of probabilities 10

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The person who is unduly influencing the testator need not necessarily financially benefit from the will Not every undue interference will constitute an invalidation of the will

Ratio Decidendi & Judgment 

The mere fact that persons share a special relationship (where intimidation may play a role) is not sufficient to justify a rebuttal of the presumption above – but this is a factor which may be taken into consideration with oth...