A South African woman has won a legal battle to have her late partner’s handwritten will recognised by the Master of the High Court, after his children challenged the document, claiming it was not authentic and that he lacked the mental capacity to make it while hospitalised.
The South Gauteng High Court in Johannesburg ruled in favour of the woman, finding that the deceased had intended the handwritten document, signed on December 25, 2020, to serve as his will, despite it not complying with the formal legal requirements for executing a will.
Acting Judge KD Iles ordered the Master of the High Court to accept the document as the will of the deceased for purposes of administering his estate.
Hospital-bed will
The dispute centred on a document the deceased prepared while hospitalised during the Covid-19 pandemic in December 2020.
According to court documents, the woman and the deceased had been in a relationship since 2015 and began living together in 2016. Their families entered into lobola negotiations, which were finalised in March 2017.
However, because the deceased was still married to his first wife at the time, their customary marriage was invalid. The couple lived together until his death and had three minor children.
The deceased also had three children from his previous marriage and another minor child.
The woman told the court that on Christmas Day 2020, the deceased handed her a notebook containing a handwritten document he had drafted and instructed her to have it formalised through his legal insurer, LIPCO.
She said the deceased had signed the document on that day.
When she returned to the hospital on January 3, 2021, the deceased allegedly asked medical staff to witness the document, but they declined.
The following days saw further attempts to get the will witnessed, including by a hospital employee and a former colleague of the deceased.
The former colleague signed the document on January 8, 2021, although he did not witness the deceased signing it.
The deceased underwent a medical procedure later that day and never regained consciousness. He died on January 13, 2021.
His children challenged authenticity of will
The deceased’s three children from his first marriage opposed the application, disputing whether their father had written the document and whether he had been mentally capable of making a will while in hospital.
They also accused the woman of fraud, arguing that she stood to benefit from the estate.
The court heard competing handwriting expert evidence. The woman’s expert concluded that the handwriting on the document matched that of the deceased, while the respondents’ expert criticised the methodology used to reach that conclusion.
Judge Iles said the court could not determine which expert to prefer on the papers alone.
However, she found that the children had not positively stated that the handwriting was not their father’s, despite potentially being familiar with it.
The judge also found that the woman’s account was supported by affidavits from the two witnesses who had signed the document, as well as WhatsApp messages exchanged between her and the deceased.
The fraud allegations were described as conjecture, with no evidence presented to substantiate them.
The court therefore concluded that the deceased had authored the document.
Court finds deceased intended handwritten document to be his will
A key question was whether the deceased intended the handwritten document to operate as his will or merely as instructions for a lawyer to prepare a formal will.
The children argued that the deceased had wanted LIPCO to formalise the document and bring it back for his signature, meaning it was not intended to be his final will.
However, Judge Iles found that the document was headed “Will”, contained detailed instructions on how the deceased wanted his assets distributed and ended with his signature and the date.
The judge said the document largely read as a will rather than instructions to someone tasked with drafting one.
The deceased’s attempts to have it witnessed in hospital further supported the conclusion that he intended it to operate as his will while awaiting formalisation.
The court found that his intention was to have a valid will in place in case he died before the legal insurer could formalise it.
Court rejects claims deceased lacked mental capacity
The children also argued that their father had been extremely ill and was not in a condition to make a will.
However, Judge Iles found that the allegations were vague and unsupported by medical evidence.
The court noted that the document demonstrated the deceased’s ability to recall the names and identity numbers of relatives, identify his assets and provide instructions about their distribution.
He had also communicated with the woman via WhatsApp and arranged for the document to be witnessed.
The judge said there was no evidential basis to conclude that the deceased lacked the mental capacity to form the necessary intention when making the will.
Although the woman succeeded in having the handwritten document recognised as the deceased’s will, she failed in her bid to be declared executrix of his estate.
Judge Iles explained that the appointment of executors falls within the powers of the Master of the High Court under the Administration of Estates Act.
The court therefore dismissed that part of her application. – IOL News
