Kethel v Kethel's Estate

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Schreiner JA, Fagan AJA
• Judgment Date: 21 June 1949
• Citation: 1949 (3) SA 598 (A)
• Hearing Date: 03 May 1949
• Court: Appellate Division

Kethel v Kethel's Estate
1949 (3) SA 598 (A)

1949 (3) SA p598

Citation	1949 (3) SA 598 (A)
Court	Appellate Division
Judge	Watermeyer CJ, Schreiner JA, Fagan AJA
Heard	May 3, 1949
Judgment	June 21, 1949

Flynote : Sleutelwoorde

Will — Action to set aside — Necessary parties — Beneficiaries must be joined — Non-joinder of necessary parties — Point taken by Appellate Division mero motu.

Headnote : Kopnota

All the beneficiaries under a will must be joined as defendants in an action wherein is claimed an order declaring that will invalid.

The widow of a testator brought an action claiming orders declaring that a will made by him in 1947 was invalid and that the will made by him in 1931 was his last will. She was the sole heiress under the 1931 will, but was not mentioned in the 1947 will, which divided the estate among a number of friends and relatives. The sole defendant cited was the executor appointed under the 1947 will, who did not defend the action. Some of the beneficiaries under the 1947 will knew of the proceedings and had intimated that they had decided not to intervene on the grounds of expense. At least two of the beneficiaries under the 1947 will were minors. The trial court having made an order of absolution from the instance, the plaintiff appealed. The Appellate Division raised mero motu the question whether the necessary parties had been joined in the proceedings.

Held, as the real dispute was between the plaintiff and the beneficiaries under the 1947 will, that the plaintiff should have cited not only the executor but such beneficiaries as defendants and should have had curators-ad-litem appointed to represent the minor beneficiaries.

Held, further, that a judgment against the executor would not be res judicata against the beneficiaries.

Held, further, that the rights of the beneficiaries were not affected by their failure to intervene in the proceedings.

Amalgamated Engineering Union v Minister of Labour (1949 (3), S.A.L.R. 637) applied.

Held, therefore, as the order of the trial court was absolution from the instance, that there should be no order on the appeal.

The decision of the Eastern Districts Local Division in Kethel v Estate Kethel (1948 (3), S.A.L.R. 797) confirmed, but for different reasons.

Case Information

Appeal from a decision in the Eastern Districts Local Division [PITTMAN, J.P.]. The facts appear from the judgment of FAGAN, A.J.A.

J. N. C. de Villiers, K.C., for the appellant: The onus was admittedly on appellant to prove that the deceased, when he signed the will in question was mentally deranged; see Rapson v Putterill (1913 AD 417 at p. 420), Cloete v Marais (1934, E.D.L. 239 at p.

1949 (3) SA p599

241), Tregea v Godart (1937 AD 16). The existence of insane delusions, at the time of the making of the will, affords evidence of unsoundness of mind, but to be insane a delusion must be persistent and existing only in the imagination of the patient and must be such that no rational person can conceive that the patient, when sane, would have believed it; see Rapson v Putterill (supra), Renton, Lunacy (p. 51). When it is shown that over a period a person, while exhibiting no other external signs of insanity, had an insane delusion, such person is in law regarded as having been insane during that period; the presumption of law is, furthermore, that he had such insane delusion at all times during such period and accordingly the burden of proving a lucid interval at a given time during such period, that is that he had for the time being no insane delusion, lies on the party alleging it; all legal acts doen by such person during such period are presumed to be void; see Estate Rehne v Rehne (1930 OPD 80 at pp. 84 - 6). The delusion in question was an insane one because no rational person could conceive that deceased, when sane, could have entertained it; furthermore, the delusion was a symptom of a disordered mind; cf. Lange v Lange (1945 AD 332 at pp. 341 - 4), Pheasant v Warne (1922 AD 481), Cerfontein's Executor v O'Haire (1873, Buch. 47), Halsbury's Laws of England (Hailsham ed., vol. 34, paras. 31 and 35; vol. 21, pp. 272, 289), Taylor, Medical Jurisprudence (8th ed., vol. 1, pp. 821 - 2), Woods v Master & Gwynn, N.O. (1942, S.R. 159); and it was calculated to influence the testator when making a will; cf. Rehne's case (supra, at 88, 91). Banks v Goodfellow (5 Q.B. 549 at p. 565), Jenkins v Morris (14 Ch.D. at pp. 679 - 80). The terms of the will are affected with inofficiositas in that appellant, who has the highest equitable claim to the deceased's estate, was totally excluded in favour of more distant relatives in spite of the fact that she faithfully looked after and attended the deceased up to the time of his death; cf. Cloete v Marais (supra, at p. 250), Harwood v Baker (1840, 3 Moore P.C. at p. 290). The secrecy attending the making of the disputed will is also indicative of the fact that deceased was largely influenced by the insane delusion he was suffering from; cf. Wood's case (supra).

No appearance for the respondent.

Cur adv vult.

Postea (June 21st)

1949 (3) SA p600

Judgment

Fagan, A.J.A.:

The judgment appealed from in this case is one of absolution given in the Eastern Districts Local Division in an action instituted by the widow of the late R. J. B. Kethel for an order declaring a will made by her husband on the 19th February, 1947, to be invalid, and cancelling the Letters of Administration issued to the defendant, on the ground that at the time when the testator made the will he was ill and suffering from delusions, and was, by reason of his health and the said delusions, mentally disordered and incapable of making a valid testamentary disposition; also for an order declaring an earlier will dated 30th May, 1931, to be the testator's last will and testament.

The appellant and her late husband were married out of community of property, and both had assets of sufficient value to enable them to live comfortably. There appear to have been no children - no mention is made of any in the pleadings or in the evidence. The 1931 will was a joint one, in which the survivor was appointed sole and universal heir or heiress of the first-dying. The 1947 will, made by the husband alone, did not mention the wife at all. Legacies were left to a number of relatives of the testator and to some others, apparently friends or children of friends of his, and there was a further direction that the residue was to be paid in equal shares to the legatees or the survivors of them. Two of the legatees are spoken of in the evidence as being minors. There may also be minors amongst the rest; on that point we have no information.

Barclays Bank, which had been nominated as executor in a codicil to the 1931 will, was also appointed as executor in the will of 1947. This last-mentioned will was filed with the Master, and the latter issued letters of administration to the Bank's nominee as executor testamentary.

The plaintiff did not cite any of the beneficiaries under the will which she was attacking as defendants, but cited only the executor in his capacity as such. The latter did not defend the action. To an inquiry directed by the Registrar of this Court to the executor before the hearing of the appeal, the Bank's attorneys replied:

'We have been acting for the Executor from the inception of the action and we have formally notified the attorneys acting and the Registrar of the Eastern Districts Local Division that the Executor's attitude is that this is not a matter in which he considers that he should take sides and that he leaves the matter in the hands of the Court. This is still his attitude and it is not proposed that he should be represented for the purpose of the appeal by attorneys or counsel.'

Attached to the record are some letters written to the Registrar of the Local Division by a firm of attorneys who said they were

1949 (3) SA p601

Fagan AJA

acting for all but three of the heirs mentioned in the disputed will. They said they had been advised by the Bank's attorneys that the executor did not desire to enter an appearance to defend the action, notwithstanding instructions from certain of the legatees for whom they (this firm of attorneys) were acting. They added that their clients would have to consider what action to take in the matter and, if necessary, make an application to Court for leave to intervene in the proceedings as they had not been cited in the summons; and that they were communicating with them for their instructions. About a fortnight later they wrote again:

'Our clients consider that their interests are vitally affected in the proposed proceedings but owing to the expense that may be involved in an application for leave to intervene and, if this is granted, in resisting the proceedings instituted, they find that they cannot afford to run the risk of taking action to which they feel they are entitled. However, Mr. James Kethel Dow, a nephew of the deceased and one of the beneficiaries, would like to attend the Court at the hearing of the matter and to make himself available to the Court to give evidence that may be of assistance in order to determine the issue involved.'

When this letter came to the notice of the...