REPORTABLE CASE NO 15584/2007

Transcription

1 REPORTABLE IN THE HIGH COURT OF SOUTH AFRICA DURBAN AND COAST LOCAL DIVISION In the matter between: HEATHER WENDY SMITH CASE NO 15584/2007 Applicant and CHARLES PARSONS N.O. FRITZ ALBERT VOLKER N.O. JEREMY ALAN SMITH THE MASTER OF THE HIGH COURT First Respondent Second Respondent Third Respondent Fourth Respondent JUDGMENT delivered on 29 January 2009 LUTHULI AJ: Introduction [1] The applicant seeks an order in terms of Section 2(3) of the Wills Act 7 of 1953 directing the Master of the High Court to accept the document annexed to the Notice of Motion, marked A ( the suicide note ) as an amendment to the Last Will and Testament of the late WALTER

2 2 PERCIVAL SMITH (Identity Number) ( the deceased ) for the purposes of the Administration of Estates Act [2] The first and second respondents (the executors in the deceased s estate) and the fourth respondent (the Master of the High Court), do not oppose the application. The third respondent (the deceased s son) opposes the application. [3] There is also a conditional counter-application by the third respondent in the event of this Court finding that the suicide note was intended to be an amendment to the Will of the deceased. The third respondent seeks an order declaring that the bequests in favour of the applicant were conditional upon the applicant not applying for or obtaining any benefits from the Pension and Provident Funds of which the deceased was a member and that the applicant is not entitled to the bequests because she applied for benefits from the Transnet Pension Fund of which the deceased was a member and was awarded an amount of R and she also applied for benefits from the South African Airways Flight Deck Crew Provident Fund of which the deceased was a member. Alternatively, the third respondent seeks an order declaring the applicant to be unworthy (indignus) to receive any benefit in terms of the suicide note. Background to the application [4] During his lifetime, the deceased was employed as a pilot by the South African Airways and owned the immovable property in which he resided at.

3 3 [5] The deceased s wife, Ruby Smith, died on 4 September The applicant and the deceased met during October 2002 and subsequently formed an intimate relationship with each other which culminated in them living together in the deceased s house in Amanzimtoti. Despite having the same surname, the applicant and the deceased were not related. At the time the deceased was approximately 50 years old and a senior pilot with South African Airways. The applicant was approximately 32 years of age and employed as a customer supervisor with British Airways/Comair at Durban International Airport. The applicant moved into the deceased s house during January [6] The deceased executed his Last Will and Testament on 7 May In the said Will the deceased appointed the third respondent as the sole heir to his entire estate. [7] During the period February 2004 to 5 December 2005, the deceased and the applicant were separated from each other and the applicant went to live abroad in the United Kingdom. During March and October 2005 the deceased paid for the applicant to holiday with him in the Republic of South Africa. During November 2005 the deceased visited the applicant in the United Kingdom. The purpose of these holidays and visits was to facilitate reconciliation between the parties. The deceased persuaded the applicant to return to live with him in Amanzimtoti. The applicant returned to the Republic on 5 December 2005 and resumed cohabitation with the deceased. During January 2006 the third respondent left for the United States of America in order to study at the

4 4 Newbury College on a tennis scholarship. On 29 May 2006 the deceased signed the beneficiary nomination form appointing the third respondent as the sole beneficiary of the Transnet Pension Fund. [8] The deceased committed suicide on 25 February The suicide note addressed to the applicant was found on the kitchen counter in the deceased s house. [9] The suicide note was lodged together with the deceased s Will by the first and second respondents acting as executors of the deceased s estate with the Master in terms of the provisions of the Administration of Estates Act On 16 March 2007, the Master rejected the suicide note as being a valid amendment to the existing Will on the grounds that: The purported will dated has not been accepted because it is not signed on each page by the Testator in terms of section 2(1)(a)(v) of Act 7 of 1953 as amended, neither is it signed by witnesses as required by section 2(1)(a)(v) of Act of (sic) 1953 as amended. The suicide note [10] The suicide note is a handwritten document. It consists of two pages. It reads as follows:

5 5 Dear Heather, Thanks for all you have done & Tried to do for me I m sorry I ve been miserable I do love you, but this depression & continuous pain & battle with my health is no longer Tolerable. If I ve hurt you it has not been intentional Please forgive me. I love J more that I can express & I m sorry if I have not been the best Father to Him. God knows I ve Tried. Forgive me J. Heather you can have this house, you will obviously? sell it & should meet all your future needs. Also I authorise Standard Bank to give you immediate access to Plusplan there is R570,000 which will not leave you battling. My love(& forgiveness) to your folks they are fine people. There is also several thousand Rands in the bottom drawer of safe. Forgive me it s not your fault. Move on, I pray you will find happiness that I couldn t give you. God forgive me. Lastly please Tell Barry & SAA it s no reflection on our pilot body wonderful people. I have just had enough of fighting this health on a daily Basis. God Bless you always, my blessings upon Jeremy for his future He is strong & will come through OK. Please look after Him for me. My will is in the Brown envelope in the safe. I leave everything else to J as stated therein. Bless you Wally xxx Sunday 25/02/07

6 6 Grounds on which the third respondent opposes the application [11] The third respondent has challenged the applicant s right to benefit from the deceased s estate on the following grounds: - a) There is no proof that the suicide note was written or executed by the deceased. In the event that it is found to have been written by the deceased, the benefits granted to the applicant in terms thereof were not intended to be a testamentary disposition but rather a donation. However the same did not comply with the strict requirements necessary for valid executory contracts of donations. b) The deceased did not intend the suicide note to be an amendment to his Will. c) Alternatively, the disposition was a conditional one in the sense that the applicant would not get more than what is set out in the suicide note. The applicant breached this condition by claiming further benefits as a dependant of the deceased from his pension and provident funds. d) Further alternatively, the applicant is unworthy to inherit as a result of her conduct after the death of the deceased in forging his signature on a cheque, attempting to forge his signature on travelers cheques and using his credit card. The issues [12] The issues to be decided in this application are:- a) Should the Master be directed to accept the suicide note as a codicil to the deceased s Will in terms of section 2(3) of the Wills Act 7 of 1953?

7 7 If so:- b) Were the bequests in the suicide note conditional upon the applicant not applying for or obtaining any benefits from the deceased s pension and provident funds? c) Is the applicant unworthy to receive any benefits in terms of the suicide note? [13] Issues (b) and (c) are raised in the third respondent s conditional counter-application. If issue (a) is decided in favour of the third respondent then the counter-application falls away. The applicable statutory provisions [14] The application is brought in terms of section 2(3) of the Wills Act 7 of 1953 (the Act) which provides:- If a court is satisfied that a document or amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 1965(Act 66 of 1965), as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection 1(1). [15] Section 2A of the Act is also relevant to this application. It provides as follows:- If a court is satisfied that a testator has

8 8 (a) made a written indication on his will or before his death caused such indication to be made; (b) performed any other act with regard to his will or before his death caused such act to be performed which is apparent from the face of the will; or (c) drafted another document or before his death caused such document to be drafted, by which he intended to revoke his will or part of his will, the court shall declare the will or the part concerned, as the case may be, to be revoked. [16] It is common cause that the suicide note is not signed on each page by the deceased and witnesses as required in section 2(1) of the Act. It follows that the suicide note can only qualify as a testamentary document if the provisions of section 2(3) of the Act are complied with. Section 2(3) requires that the document must have been drafted or executed by a person who has subsequently died. The other requirement is that the document must have been intended by the deceased to have been his or her will. (See Van Wetten v Bosch 2004(1) SA 348(SCA) at 354; para 14) [17] It seems to me that the subsection must be strictly, rather than liberally or flexibly interpreted and that the applicant has a strict onus which is not easily discharged, to prove that the requirements of section 2(3) have been satisfied. In Kotze v Die Meester 1998(3) SA 523(NC) at 529, the court emphasized the proof required to discharge the onus on an applicant as follows:- Die word oortuig wat in art 2(3) gebruik word, moet teen hierdie agtergrond vertolk word. Voordat die artikel A aangewend kan word om n gebrekkige testament die status van n geldege testament te gee, moet daar bewyse van die testateur se

9 9 bedoeling aangevoer word wat van so n aard is dat die hof met n groot mate van sekerheid tevrede gestel word dat dit inderdaad sy bedoeling was. A great measure of certainty is required to show that it was actually the intention of the testator that the document in question be his will. In De Reszke v Maras 2003(6) SA 676(C) at 688H-I, the court stated that although the document in question appeared to be the intended testamentary disposition of the deceased, it could not be said unequivocally that it was the genuine and final expression of the deceased s intention for the disposal of his estate. The court was not satisfied that the applicant had discharged the onus of proving that the document in question was intended to be the will of the deceased as required by section 2(3). In Henwick v The Master 1997(2) SA 326(C), at , the court said:- It is a matter of common knowledge that what the Legislature sought to achieve by introducing s. 2(3) into the Wills Act was the implementation of a testator s genuine intention. While the Court may in special cases push technical formalities to one side, it should not adopt a more relaxed approach to the real question, namely the testator s intention. It seems to me that one is in a sense disregarding technical requirements intended to prevent fraud, it becomes at least as necessary as ever to apply caution when determining the intention of a testator fortiori is this case when the determination of intention obliges the Court to carry out the peremptory requirement of the section that the Court shall order the Master to accept the document. In Schnelter N.O. v Die Meester en Andere 1999(4) SA 1250(C) it was held that what had to be decided was whether, on the basis of the facts as set out and the circumstances surrounding the drafting of the document, it could be convincingly be said that the document was meant to be the deceased s will. In Anderson and Wagner N.N.O. v The

10 10 Master 1996(3) SA 779(C) at 785G, the court concluded that section 2(3) must be strictly, rather than liberally interpreted. In Bekker v Naude 2003(5) SA 173(SCA) at 179, para 19, the court held that it was clear from the history of section 2(3) that the Legislature had deliberately incorporated the stricter requirement that the document must have been personally drafted by the deceased. The question as to the interpretation of section 2(3) has been settled by the Supreme Court of Appeal. It must be strictly, rather than, liberally interpreted. (See Bekker v Naude supra). Was the suicide note drafted or executed by the deceased? [18] The document in question must have been personally drafted or executed by the deceased. Mr Harcourt, for the third respondent, argued that this requirement does not only relate to the factual issue as to whether or not the deceased wrote the suicide note but also relates to the factual issue as to whether or not the deceased signed the suicide note. Taking this argument further, Mr Harcourt submitted that the two requirements stated in Van Wetten v Bosch supra overlap and that sign does in fact mean execute. He submitted that there are two methods of executing a will, namely by signing (section 2(1)(a)(i)) and by the making of a mark in the presence of a commissioner of oaths (section 2(1)(a)(v)). Mr Harcourt further submitted that in the present case the deceased did not sign the suicide note, he just wrote his nickname or shortened first name Wally and never appended his signature.

11 11 [19] Mr Harcourt argued on the basis that the suicide note was written by the deceased. There is no evidence in the papers to suggest that the suicide note was not personally written by the deceased. In fact all the evidence points to the fact that it was personally written by the deceased. I am not persuaded that the suicide note must have been drafted and in addition executed by the deceased. In my view it is sufficient for the purposes of section 2(3) if the document is personally drafted by the deceased. The issue of execution (which includes the signing of the document) only arises if the document is not personally drafted by the deceased. The issue of writing a nickname or shortened first name on the suicide note may well be relevant to the second requirement as stated in Van Wetten v Bosch supra. I am accordingly of the view that the evidence shows that the suicide note was personally written by the deceased. I find that the suicide note was drafted by the deceased as contemplated in section 2(3). Was the suicide note intended to be an amendment to the deceased s Will? [20] The second requirement in Van Wetten v Bosch supra is that the document must have been intended by the deceased to have been his or her Will. In that case the court stated as follows (at para 16):- [16] In my view, however, the real question to be addressed at this stage is not what the document means, but whether the deceased intended it to be his will at all. That enquiry of necessity entails an examination of the document itself and also of the document in the context of the surrounding circumstances. (My underlining)

12 12 The requisite intention has also been dealt with in other cases. In Anderson and Wagner N.N.O. and Another v The Master and Others supra it was stated that the intention must have been that the document should itself constitute the deceased s Will or an amendment of his Will, as the case may be. In Thomson v McLoughlin and Pike N.N.O., (unreported DCLD Case Number 9951/2006) at para 29, the court stated that the intention must be that the particular document is intended by the deceased to be his Will. In De Reszke v Maras 2006(2) SA 277(SCA) at 282 (para 11) the court stated that the intention must have existed concurrently with the execution or drafting of the document. To summarise: The court must be satisfied that the deceased clearly intended the document in question to be his or her Will containing final instructions on the devolution of his or her estate. [21] In the present case the crisp question to be decided is whether at the moment when the deceased wrote the suicide note he had the intention that the suicide note itself should constitute an amendment to his Will. That will require this court to examine the suicide note itself and the suicide note in the light of the surrounding circumstances. [22] The format, structure, content and wording of the suicide note is not of the type that is normally found in testamentary documents. It is in a letter format. It starts with Dear Heather and ends with Bless you Wally xxx. It is personally addressed to the applicant. It is not addressed to the executors. A large portion of it reads like an expression of remorse and contrition addressed to the applicant, third respondent,

13 13 applicant s parents and pilot body. There are also statements reading as follows:- Heather, you can have this house, you will obviously? sell it & should meet all your future needs. Also I authorise Standard Bank to give you immediate access to Plusplan there is R579,000 which will not leave you battling. There is also several thousand Rands in the bottom drawer of safe. My Will is in the Brown envelope in the safe. I leave everything else to Jeremy as stated therein. The suicide note appears to have been read over after it was written and alterations made, for instance, the question mark squeezed between obviously and sell. In this connection, the handwriting expert noted the following:- Punctuation It is noted that the commas and full stops vary in intensity from reasonably light pressure to heavy pressure. The heavier pressured marks show indications of being over-written, in my opinion, indication that the author re-read the letter and rewrote the marks whilst checking what he had written [23] The loose language used in the statement Heather, you can have this house is just peculiar if intended to be a bequest. One would expect if no formal language like I bequeath phrase, a more direct phraseology such as I leave you this house. The phrase you can have is more in the nature of an explanation than a testamentary direction. It is also significant to note that at the end of the suicide note there is a sentence which reads:- I leave everything else to Jeremy as stated therein. (My underlining)

14 14 In the last mentioned sentence the deceased used direct language instead of the loose language used in connection with the house. One wonders if it was intended as a bequest, why it was directed to the legatee rather than the executors. That is in itself unusual. Are the words Heather, you can have this house the words of someone who intends to bequeath his house? Are these the final instructions regarding the house? Immediately thereafter there is a statement Also I authorise Standard Bank to give you immediate access to Plusplan there is R579,000 which will not leave you battling. If the deceased intended to give the applicant immediate access to his bank account, did he intend that to happen immediately after his death? Did he think that the suicide note was an instruction to Standard Bank to give the applicant access to the deceased s account? Was it an authorisation which would have fallen away on his death? The evidence shows that the deceased was an astute businessman who had executed a valid Will in Was the suicide note meant to be a codicil itself or did he intend to execute a formal codicil to his Will and a separate formal instruction to Standard Bank but under enormous stress he was under forgot about it being distracted and preoccupied with the physical arrangements to take his own life and the imminent return of the applicant from work? We do not have answers to all these questions. The statement regarding several thousand Rands in the bottom drawer of safe cannot be described as a bequest. In this statement the deceased simply brought to the attention of the applicant that there was some money in the safe. Mr Pammenter, for the applicant, conceded (correctly in my view) that this is not a bequest.

15 15 [24] I now turn to the circumstances under which the suicide note was written. It is not disputed that at all material times the applicant was living together with the deceased. According to the applicant they lived together as husband and wife. The applicant s evidence is that they shared the same bedroom and bed, socialised and went on holidays together, entertained friends and colleagues at the house in Amanzimtoti, attended the same church and looked after each other in times of illness. For all practical purposes they lived as normal married people would have done. The third respondent also lived with them until he went to study in the United States of America. The deceased was an air pilot. He regularly underwent medical examinations every six months and the last examination was in February shortly before he died. He always received a clean bill of health. He was a person of sober habits and did not regularly consume alcohol nor did he use any narcotic substances. He did from time to time complain of stiffness and pain and being tired. He had difficulty in sleeping soundly and was often irritable and moody. That would often result in argument if things did not suit him. He also suffered bouts of depression which normally coincided with his feeling unwell. At times the relationship between the deceased and the third respondent was strained, particularly when the third respondent did not keep him informed of his progress at college or did not respond to his communications with him. The deceased was extremely prudent when it came to financial affairs and what he perceived as wasting money but he was not stingy when it came to providing for the applicant s needs. Save for the denial of the allegation that the applicant and the deceased were living together as husband and wife, the

16 16 aforementioned facts are common cause or not seriously disputed by the third respondent. [25] The following facts are also not in dispute. On 25 February 2007 the applicant left home at approximately 9h00 to go to work. They kissed each other goodbye and being a Sunday, the deceased indicated that he would go back to bed and have a late lie-in. He did complain of persistent stomach ache, for which the applicant had bought over the counter medication for him the previous day. Whilst at work, the applicant was informed by one of the staff that the deceased had called to speak to her. When she called back at approximately midday, there was no response. After a while she called again and the deceased answered the phone. He sounded out of breath as if he had run to the phone. When she enquired whether there was anything the matter, he said that he was just tired of everything and was feeling despondent because the third respondent had not responded to his s. She told him not get upset and to remain calm. She told him that when she returned from work, which would have been just after 14h00, she would make lunch and thereafter they could go for a walk on the beach and get some exercise. The deceased replied that that would be fine. He told her that he loved her and would always love her. She returned the fondness and they finished the call. When she arrived home just after 14h00 she discovered to her absolute horror that the deceased had committed suicide. He had shot himself in the bathroom. She became hysterical. She contacted their neighbours for assistance. The South African Police Service and Netcare 911 were summoned and attended the scene. The suicide note was found on the kitchen counter. There was also a cross which was made of crocheted material placed on top of the suicide note.

17 17 [26] The third respondent s contention is that at the time when the deceased died, the applicant and the deceased were not living together as husband and wife in that they were not sharing the same bedroom and bed. The third respondent has no personal knowledge of this but relies on affidavits made by other persons who aver that they got this information from the deceased. He contends that the relationship between the deceased and the applicant was akin to master and servant. Her remuneration consisted of provision of accommodation and food. I am of the view that it is not necessary to make a finding regarding the question as to whether or not the deceased and the applicant shared the same bedroom and bed. It is not necessary to make any finding as to whether or not they lived together as husband and wife. It shall be assumed that the applicant and the deceased had a relationship akin to husband and wife. [27] Dr Andrew Jones, a chiropractor, deposed to an affidavit wherein he stated that the last time he saw the deceased was at his practice on Wednesday, 21 February 2007 when the deceased stated that he was depressed. While at his practice the deceased told him that he had already taken out his gun with the intention of using it to commit suicide, but had put it back in the safe. He told the deceased that in his opinion no-one has the right to take their own life. They did not get into further conversation but planned to meet for lunch the following Monday, 26 February 2007 at 12h30 so they could talk more about why deceased was feeling depressed. In response to these allegations the applicant replied by expressing deep disappointment that Dr Jones did not deem it

18 18 necessary to advise anybody that the deceased was contemplating suicide. There is nothing to gainsay Dr Jones allegations in this regard. [28] A copy of the report on a medico-legal postmortem examination on the body of the deceased, which is annexed to the applicant s replying affidavit, records the cause of death as perforating contact gunshot wound of the head. On the external appearance of the body and condition of the limbs, the gunshot entry wound in the right temporal region of the head and the gunshot exit wound in the left temporal region are noted in paragraph 4. In addition the following is noted: (3) Two parallel, horizontally-orientated linear abrasions measuring 20x1 mm on the anterior aspect of the left wrist. (4) 25mm superficial incised wound in the anterolateral aspect of the left wrist. This wound is horizontally-orientated with pointed edges. (5) 25mm superficial incised wound in the lateral aspect of the left wrist. This wound is horizontally-orientated with pointed edges. At the end of the post mortem report the following additional observations are made: 1. History of suicidal shooting as per SAPS 180 form. 2. In view of the history, the probability that the injuries described as (3), (4) and (5) in paragraph 4 were self inflicted must be considered. According to the statement of a police officer who attended the scene on 25 February 2007, he saw the body of the deceased, a knife and two razors in the bath tub. [29] The suicide note is dated 25 February We know from Dr Jones that the deceased told him on 21 February 2007 that he had taken his gun out of his safe with the intention of committing suicide and

19 19 put it back in the safe. However, I shall accept that in all probability the deceased wrote the suicide note on Sunday 25 February We do not know whether the deceased went back to bed and had a late lie-in. We do not know if he commenced with preparations to take his life soon after the departure of the applicant at 9h00. What was he doing before and after his midday call to the applicant? Why did he not answer the applicant s first return call? We do not have answers to these questions. [30] The objective evidence in the post mortem examination report shows that the entry gunshot wound was on the right hand of his head. That means that the deceased shot himself with his right hand which indicates that he was right-handed. That is significant. It would seem that the deceased bungled his first attempt to end his life by slashing his wrists, because he should have used his left hand to cut his right wrist first because then he would still be able to use his dominant (right) hand to slit the left wrist. Having slashed the left wrist twice and inflicted two abrasions, the deceased did not have the strength to slash his right wrist. That would explain the second method of suicide by shooting. What was the deceased thinking when he slashed his wrists? Was he thinking rationally or logically? It does not seem to me that he was thinking rationally. [31] When the deceased purported to authorise Standard Bank to give the applicant immediate access to his account, was he thinking rationally? It is inconceivable that he could have possibly thought that the bank would act on that authorisation where the document was not even signed by him using his normal signature (of which he must have

20 20 given a specimen to the bank). It also seems unlikely that the deceased, having dealt with his wife s estate in 2002, could have thought that he could give instructions to the bank as to what was to be done with his bank account after his death. Whether the deceased intended to execute a contemporaneous formal document giving authority or instructions to Standard Bank but never got round to executing such separate document before taking his own life, is a matter of speculation. It is inconceivable that an ordinarily intelligent and educated man who was highly disciplined as to his financial affairs could conceivably have thought that his authorisation of Standard Bank to give the applicant immediate access to his account would be acted upon by Standard Bank. [32] The last statement reads: My will is in the Brown envelope in the safe I leave everything else to Jeremy, as stated therein. It would appear that the deceased stated an intention that his existing Will should remain valid but the word else points to an intention that it be amended. Mr Pammenter submitted that this statement shows that the deceased clearly intended that the suicide note be his Will and that he contemplated imminent death and could hardly have thought of having an attorney to amend his Will. Mr Pammenter further submitted that the deceased intended the applicant to benefit from his estate in respect of the assets specifically mentioned in the suicide note and intended that those assets would not devolve upon the third respondent. All factors considered, I do not think that the suicide note clearly and unambiguously shows that it was the intention of the deceased that the applicant should benefit in respect of the house and money in the bank

21 21 and in the safe. Even if there was such an intention to benefit the applicant, it does not seem to me that that the deceased unequivocally intended the suicide note itself to be an amendment to his Will. He did not use his formal signature to sign the suicide note. He used his affectation Wally which is a shortened form of his first name Walter. He was in the habit of signing his personal letters and notes as Wally. He had executed his Will in 2003, which bears his formal signature. Did he really think that a suicide note expressing remorse and contrition addressed to the applicant and not formally signed could possibly in itself amend the formal typed, signed and witnessed Will mentioned in the suicide note? One is simply left to speculate. [33] In regard to the statement that the applicant can have this house mention has already been made of the peculiar phraseology used by the deceased. He chose not to use direct phraseology such I leave you this house. What was he thinking? Did he think that this was a bequest? In the absence of direct and unambiguous phraseology showing a clear intention to make a testamentary disposition can we really say that the deceased intended make a bequest? Again one is left to speculate. [34] The deceased had been contemplating suicide since he took his gun out of the safe four days earlier on 21 February 2007 and had done nothing to formalise instructions to his bank or execute an amendment to his Will. We are left to speculate as to whether or not he intended the suicide note itself to be his Will or under enormous stress of his anticipated death he was distracted and did not get around to executing other documents in more formal terms before taking his life. His

22 22 behavour at the time he wrote the suicide note was irrational. It is inherently dangerous to try and draw conclusions from irrational behavour. Conclusion [35] I am of the view that the applicant has not discharged the onus of proving that the deceased intended the suicide note itself to be an amendment to his Will. The form, nature and content as well the concerns surrounding its drafting and signing make it suspect. I am unable to say unequivocally that it is the genuine expression of the deceased s intention concerning the disposal of his estate. [36] I am therefore of the view that the relief sought in paragraph 1 of the Notice of Motion should not be granted. It therefore follows that the third respondent s conditional counter-application falls away. Order [37] The application is dismissed with costs. Date of hearing: 24 and 31 October 2008 Date of Judgment: 29 January 2009 Applicant s Counsel Adv C J Pammenter S C with him Adv P C Prior Instructed by Anthony Whatmore & Co Third Respondent s Counsel Adv A W M Harcourt

23 23 Instructed by J H Nicolson Stiller & Geshen