Smit v Master of the High Court, Western Cape and Others [2022] ZAWCHC 56
The applicant (Z) is the widow of a murdered wine farmer (S) who was shot and killed in the dining room of the house in which they lived on 2 June 2019. The farm on which the house is situated is the property of a trust set up by the deceased years before his death. S executed a will on 7 December 2018. The terms of this will excluded Z from inheriting the bulk of the estate. Z produced a document some time after the death of S which purported to be a will executed by S on 12 January 2019. Z handed this document in at the Master, but it was rejected by the Master. Z and three others were later arrested for the murder of S. Z launched the application to the Western Cape High Court to declare the document of 12 January 2019 to be the last valid will of S. This document bequeathed the bulk of the estate to Z, nominated Z as executor in the estate, and also appeared to give Z the power to dismiss the trustees of two trusts holding most of the property of S’s farming business. The second respondent (M) and third respondent (L) are S’s daughters from his previous marriage to E. M and L opposed the application while the first respondent decided to abide the decision of the court.
Z’s case was that she discovered the document in S’s Bible after his death and that she wanted to give effect to his last wishes. M and L adduced evidence about the plot to murder S, according to which Z was the planner of the murder for which she employed three others. Amongst the alleged murderers were security personnel employed by S to assist with the prevention of land grabs on a part of the land bordering an informal settlement outside Stellenbosch. Evidence about the plot was contested by Z, but was not seriously dented in cross examination. M and L also called two handwriting experts who both concluded that the document was a forgery and was not signed by S. Z also called a handwriting expert who maintained that the differences between S’s purported signature on the document and his signature on other documents were resulting from an injury to his right thumb. One of the experts, P, refuted that with experiments involving a number of people to test whether the use or not of the writing hand’s thumb would make any significant difference to handwriting. No discernible differences could be indicated. In contrast, 16 differences between S’s signature on other documents and the signature on the document could be identified.
The court (Mantame J) found on the facts that Z did forge the document dated 12 January 2019 and participated in the plot to kill S. Although the criminal trial is still pending, the court found on a balance of probabilities that M and L proved that Z was involved in both the murder and the forgery. Relying on the judgements in Danielz N.O v De Wet and Another; De Wet and Danielz N.O and Another [2008] ZAWCHC 35 and Taylor v Pim 1903 NLR 484, the court held that unworthiness to inherit is not limited to cases of conviction on charges of murder. It would be unconscionable to allow Z to benefit from forging a document purporting to be S’s will. The last will of S dated 7 December 2018 was declared his last valid will and the court ordered the Master to accept it as such and appoint a person nominated by M and L as executor. The document dated 12 January 2019 was declared a forgery and to be null and void. Z was declared unworthy to inherit under the will dated 7 December 2018 or to receive any benefit from the estate of S, including any maintenance or insurance benefits.