A is one of three siblings, children of the deceased who died on 25 April 2017. The deceased’s last will and testament dated 12 October 2011 (the will), was accepted by the Master of the High Court on 24 May 2017. The will bequeathed all farmland, as well as the part of a membership interest in a close corporation not sold to her son-in-law (J) in accordance with a buy-and-sell agreement, to the JJ du Toit Kindertrust (the trust), and the residue to the three siblings. The beneficiaries of the trust are the children of the applicant’s one sister (M) and J.
A brought an application to have the will declared invalid due to the alleged undue influence exercised by M and J on the deceased at the time of execution of the will and thereafter. A, in her affidavits, averred that the deceased was frightened of M and J and that they controlled her whole life to the extent that they prescribed where she could travel and by what means. There was also an allegation that J drafted the will.
M and J (third and fourth respondents, respectively) deny any undue influence and also that J drafted the will. In support of the latter denial an affidavit from an attorney (S) was filed, who stated that he drafted the will.
The court (C Reinders J) held that A should have foreseen that there would be substantial disputes on the facts. Nevertheless she chose to approach the court with an application instead of an action. In an application the affidavits form the basis of the whole case and the rule is applied that, unless the version of the respondents does not deny the applicant’s version, or the respondents version is far-fetched or untenable, the application cannot succeed. The circumstances favoured the version of the respondents. For several years before her death the deceased stayed in a retirement home and could have executed a new will if she wanted. The will was apparently executed in accordance with the requirements of the Wills Act, 7 of 1953.
The application was dismissed with costs.
The Wills Act deems a will that complies with the requirements in the act for proper execution to be valid and effective. Anyone who alleges otherwise will have to provide evidence to that effect.