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Court case on costs of litigation paid from deceased estate

Kriel v Master of the High Court and Others [2020] ZAWCHC 57

The applicant (K) is the surviving spouse of R who died in July 2018 at the age of 71. K was 92 years old at the time of bringing the application. R executed a valid will in March 2005 in which K was the sole beneficiary. R executed two more wills on 8 April 2018 and 26 April 2018 respectively. K alleged in his application that R was not mentally capable of executing a valid will on both these occasions. The first (the Master) and fifth (ABSA Trust) respondents did not oppose the application. The second to fourth respondents did so initially, but later indicated that they would tender a settlement proposal to K and then abandoned their opposition to the application.

The court (Rogers J) held that the two 2018 wills were not validly executed due to R’s diminished mental capacity. The court criticised the role the second to fourth respondents played in bringing about the execution of the two 2018 wills, from which they stood to benefit. The court indicated its displeasure with their conduct by deviating from the usual practice in cases about disputed wills that costs be paid from the estate by ordering that these respondents pay the costs. The court, however, refrained from imposing a punitive cost order as requested by the applicant.

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