Van Niekerk v Kruger

• Jurisdiction: South Africa
• Judge: Navsa ADP, Leach JA, Saldulker JA, Tsoka AJA and Baartman AJA
• Judgment Date: 01 April 2016
• Docket Number: 20632/2014
• Court: Supreme Court of Appeal
• Hearing Date: 03 March 2016
• Citation: 2016 JDR 0589 (SCA)

Saldulker JA and Baartman AJA (Navsa ADP, Leach JA and Tsoka AJA concurring):

Introduction

[1]

On 28 November 2006, Mrs Maria Johanna Kruger (the deceased) executed a will, the original of which allegedly cannot be found (the disputed will). After her death, the appellant sought an order that a copy of the disputed will, Annexure X1 to the papers, be declared a true copy of the deceased's last will and testament, and a further order directing the Master to accept it. In regard to this relief the issues in the court below were (i) whether the deceased had the required mental capacity to have executed the will; (ii) whether the appellant, Mrs Elizabeth Aletta van Niekerk, the deceased's niece had unduly influenced the deceased into executing the disputed will and (iii) whether the deceased's purported signature appended to the disputed will was authentic. The court below held that the document presented was not a true copy of the original will and that the deceased did not have the testamentary capacity. This appeal with the leave of the court below is directed against inter alia the following order:

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Saldulker JA and Baartman AJA (Navsa ADP, Leach JA and Tsoka AJA concurring)

'1.

Annexure "X1" [the disputed will] is declared not to be a true copy of the Deceased's original last will and testament;

2.

Annexure "X1" is declared not to be valid on the face of it;

3.

The Deceased is declared not to have had testamentary capacity on 28 November 2006, nor to have possessed sufficient intelligence, sound mind or memory to understand and appreciate the import of her signature when she signed Annexure "X1" on 28 November 2006, consequently, Annexure "X1" is declared not to be the last will and testament of the Deceased;'

[2]

Before us, the parties were in agreement that the primary question to be addressed was whether the deceased had the required testamentary capacity at the time the will was allegedly executed. In the event of a finding that the deceased lacked the necessary capacity, that would be dispositive of the appeal. Before turning to address that issue it is necessary to have regard to the background.

Background

[3]

The deceased and her husband, the late Mr Pieter Andries Kruger, had three natural children (Gert, Charlotta and Roeloff), the first three respondents. The deceased and the first respondent had been estranged for eight years prior to the material events. The deceased made a career of taking care of young babies who were up for adoption until the adoption process was complete. In the course of her career, the deceased and her husband adopted Ms Magdalena Kruger, the fourth respondent, and 'took in' Mr Pieter Kruger, the fifth respondent when he was three weeks old, never adopting him formally. However, Pieter was treated as their natural son and when he was 16 years old, they officially changed his surname to match theirs. The deceased referred to him affectionately as her 'welfare child'. The deceased was a strong-willed 78-year-old woman. At the time of her death on 24 December 2006 she was obese and suffered from hypertension and diabetes. These conditions, no doubt, contributed to her death.

[4]

The deceased suffered two strokes, one on 15 June 2006 followed by another on 19 October 2006. Between those two events, on 19 August 2006, she suffered

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dehydration and gastroenteritis. The deceased was hospitalised for each of these medical conditions.

[5]

On 15 June 2006, after the deceased had suffered her first stroke, she was treated at Milpark Hospital in Johannesburg by Dr Rowji, a neurologist who attended to her from 15 June until a time shortly before her death. On the day of her admission, Dr Rowji requested that a brain scan be conducted. The scan showed '…an ill-defined area of hypo-intensity in the region of the right basal ganglia involving the head of caudate nucleus the right internal capsule and the lentiform nucleus with some extension into the adjacent deep white matter.' Also apparent from the scan was age-related involutional change to the cerebral cortex (age-related brain shrinkage). The hospital records show that by 22 June 2006, the deceased was 'fully conscious and communicating well with staff and visitors', although prone to wetting her bed.

[6]

On 30 June 2006, the deceased was transferred to Netcare Rehabilitation facility where Dr Mochan and a team of specialists, including a patient counsellor and a physiotherapist, attended to her. She eventually regained full continence. According to the Netcare records, by 5 July 2006 the deceased was only partially orientated to time and place and only knew the day of the week. Furthermore the Netcare records indicated that the deceased's short term memory and concentration had been affected by the stroke. The following week, 12 July 2006, her cognitive function was still impaired, indicating 'no rapid improvement' of cognitive function.

[7]

On 12 July 2006, the deceased's husband, daughter, son and grandsons attended a family meeting with Netcare personnel, presumably to discuss the deceased's condition and what she would need after her discharge to improve her concentration. According to the Netcare records, by 17 July 2006 her cognitive function had improved and she was orientated to time but still required verbal cueing, and made mistakes when working independently. It is recorded that the medical team continued to work on daily basic concentration tasks.

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Saldulker JA and Baartman AJA (Navsa ADP, Leach JA and Tsoka AJA concurring)

[8]

By 19 July 2006, the same records show that the deceased was fully orientated to time and place. The Netcare staff continued to treat and assist her with the aid of creative activities to improve her concentration. The medical advice was that the deceased could go home for a weekend. It was suggested that the services of a caregiver should be procured for the visit. On 26 July 2006, the deceased went home, for the weekend, but with no arrangements for a caregiver, which left her husband to shoulder the burden. Upon her return to Netcare, the deceased remained fully orientated and the medical team continued to engage her in activities to improve her concentration although she was reported to be occasionally incontinent. Thereafter, Netcare personnel recommended home alterations such as 'grip rails and a bath board' to prepare for the deceased's homecoming and to facilitate her mobility which had become impaired. It was uncontested that the first stroke left her partially paralysed on the left side of her body. On 1 August 2006, the occupational therapist made several other recommendations regarding further alterations to be effected in anticipation of her discharge. On 4 August 2006, she was discharged, a week prior to the planned date, mainly due to her uncooperative and obstructive behaviour. On the day of her discharge, the deceased's husband committed suicide. She was informed of this fact whilst awaiting transport home.

[9]

As indicated earlier, on 19 August 2006, the deceased was admitted to Milpark Hospital and treated for dehydration and gastroenteritis. On 22 August 2006, the deceased was discharged from Milpark but taken into Panorama frail care facility (Panorama) at the instance of her children. It was envisaged that her stay at Panorama would be temporary, pending the contemplated alterations to her home to address the disabilities brought on by her medical condition.

[10]

It was noted that at Panorama, the deceased was difficult, uncooperative, refused treatment, accused personnel and patients of stealing her property, refused to eat and periodically wet her bed. It is common cause that she was unhappy, dissatisfied with her admission to the facility and took the view that she was well able to take care of herself. The Panorama records include a note in which the

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Saldulker JA and Baartman AJA (Navsa ADP, Leach JA and Tsoka AJA concurring)

deceased's behaviour and physical condition were considered to be 'an indication of starting dementia.'

[11]

On 15 September 2006, Dr Rowji consulted with the deceased and found her severely emotionally distressed. Dr Rowji increased the dosage of the anti-depressants which he had previously prescribed. It is uncontested that Dr Rowji favoured the deceased's continued stay at Panorama. On the day she consulted with Dr Rowji, the appellant signed her out for a weekend visit at the latter's home. It is necessary to record that but for a few days between the first stroke and her death, the deceased spent all her time outside the hospital and rehabilitation facilities at the appellant's home. On 19 September 2006, after an appointment had been arranged by the appellant, the deceased met with Mr Johan Van der Merwe, an ABSA broker, for the purposes of instructing him to draft the disputed will which is the subject matter of the present litigation. Van der Merwe requested the relevant ABSA department to draft the will in accordance with the deceased's instructions to him. He received the following typed document which according to him was in line with her instructions:

'Ek bemaak my boedel soos volg:

1.1 Die vaste eiendom bekend as St. Helenslaan 82, Mayfair-Wes, aan my dogter MARIA JOHANNA MAGDALENA KRUGER.

1.2 Die vaste eiendom bekend as St. Helenslaan 81, Mayfair-Wes, aan my kinders CATHARINA CLIFTON en GERT ABRAHAM KRUGER.

1.3 Die vaste eiendom bekend as 3de Laan 12A, Westdene, aan my seun ROELOF JURGENS JOHANNES KRUGER.

1.4 Die motorvoertuig aan my pleegkind PIETER KRUGER (GEBORE 03/06/1967).

1.5 Die kontant in my boedel gevind, soos volg:

1.5.1 50% (VYFTIG PERSENT) aan my susterskind ELIZABETH ALETTA MAGDALENA VAN NIEKERK (GEBORE 27/05/1963).

1.5.2 50% (VYFTIG PERSENT) aan sodanige van my...