Vermaak NO and Another v Jacobs and Others [2019] ZAGPJHC 346
The first plaintiff (V) took over as executor of the deceased estate of L from the second plaintiff’s (E) husband (P), after P passed away. L made a joint will with her husband, G in 2005. G died later in 2005. L then executed a will in March 2010, and again in October 2014. She passed away in December 2014.
P initiated the litigation and applied to the court for an order declaring which one of the three wills should be given effect to, as the different heirs and legatees held different views as to L’s state of mind when she executed the wills. Due to the material differences the matter was referred to trial. When the trial commenced, all parties accepted that the 2014 will cannot stand as it was by then clear that L suffered from dementia and was already unsound of mind at the time of its execution. The first defendant (J) was adamant that L was already unsound of mind in 2010, and held the view that the 2005 will would be the last validly executed will. The third (S) and fourth (Z) defendants held the view that L was sound of mind when she executed the 2010 will.
The court (Sutherland J) applied the provisions of section 4 of the Wills Act, 7 of 1953, that any person who alleges that a testator was not mentally capable of executing a will is faced with the onus of proving that. Proof of the incapability must be on a balance of probabilities. Expert witnesses give their expert opinions, but the court must evaluate their evidence together with that of any other witnesses to reach a factual finding. After weighing the evidence of two experts, as well as the evidence of J, Z, L’s physician, a friend of L, and two domestic helpers, the court concluded that there is nothing of substance supporting the allegation by J that L was already unsound of mind in 2010. The court held that the 2010 will is therefore L’s last valid will.