L.L v C.H NO and Others [2023] ZAGPJHC 1440
LL and EH knew each other since 1980 and entered into a romantic relationship at some stage while EH’s husband was still alive. They acquired a property in Westcliff (JHB) and, although the property was registered in EH’s name, LL renovated the property at his own cost. After EH’s husband passed away in 1990, they started living together in EH’s property in Montgomery Park (JHB) and later moved into the Westcliff property. They also later purchased LL’s parents’ home in Schulensee, Germany. EH’s health started deteriorating and she died in July 2016. Her daughter (CH) had little contact with her mother for many years as CH relocated to Germany. Just before EH’s death, CH came to South Africa and brought an ex parte application (without notifying LL) to be appointed as curator bonis for EH. After EH’s death, CH falsely communicated to the Master that she was permanently resident in South Africa and was appointed executor of EH’s intestate estate. Years earlier, LL had mutual wills for him and EH prepared and he signed his, but she did not sign hers – according to LL because she was reluctant to face her mortality. CH did not open an estate bank account as required by section 28 of the Administration of Estates Act, 66 of 1965 (the Estates Act), but sold, inter alia, EH’s 1969 Mercedes Benz 280SL for R1.25m and claimed half the sale proceeds of the Schulensee property.
LL applied to court to declare his relationship with EH a universal partnership and, on that basis, claimed half her estate. CH opposed the application. The South Gauteng High Court dismissed the application with costs on the basis that an application was inappropriate due to the existence of serious factual disputes and that LL should have made use of an action.
On appeal to a full bench of the court, the court (Wilson J, with Opperman and NOKO JJ concurring) held that a flat denial by CH of the allegations in LL’s papers without any specific allegations did not constitute serious factual disputes sufficient to make an application an inappropriate process. On the papers there was no serious challenge of any of LL’s averments about the existence of a universal partnership between him and EH. LL’s appeal was allowed with costs and the court held that a universal partnership did indeed exist and that each of LL and EH owned half of the other’s estate. Apart from cohabiting, there was a shared financial objective between LL and EH. The court ordered that LL was entitled to inherit half of EH’s estate. The court also removed CH as executor of EH’s estate under section 54(1)(a)(v) of the Estates Act and ordered the Master to appoint a new executor by 31 March 2024.