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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

FLYNOTES: WILLS AND ESTATES – Will – Testamentary capacity – Contesting validity of wills executed – Improper and undue influence – Plaintiff as natural heir of deceased revoked as beneficiary – Deception – Instigation of animosity – Improper agitation of deceased to question suitability plaintiff to inherit – Conduct tantamount to coercion – Reckless conduct of executor during signing of impugned wills – Improper handling of administration of deceased estate – Wills declared invalid – Wills Act 7 of 1953, s 4.

 

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

CASE NO:70352/16

(1)      REPORTABLE:  YES / NO

(2)      OF INTEREST TO OTHER JUDGES:  YES/NO

(3)      REVISED.

(4)      SIGNATURE:N V Khumalo J

DATE: 26/08/2024

Electronically delivered

 

In the matter between-

M[...] E[...] K[...]                                                           FIRST APPLICANT

 

A[...] I[...] B[...] (BORN K[...])                                      SECOND APPLICANT

 

 And

 

MORRIS POKROY N.O                                               FIRST RESPONDENT

 

W[…] E[…] M[…] G[…] K[...]                                     SECOND RESPONDENT

 

THE MASTER OF THE HIGH COURT                       THIRD RESPONDENT

This judgment was handed down electronically by circulation to the parties’ representatives by email. The date of hand-down is deemed to be 26 August 2024.

 

JUDGMENT

 

KHUMALO N V J

Introduction

 

[1]        “Every person at the age of sixteen (16) or more may make a will unless at the time of making the will he is mentally incapable of appreciating the nature and effect of his act, and the burden of proof that he was mentally incapable at the time shall rest on the person alleging same.”[1]

 

[2]      The right of an individual to will her property to whomever she chooses rests on the assumption that the individual has some measure of ability to exercise judgment in making those choices[2] (testamentary capacity), that is, deciding upon the contents of the will, its approval and the signing thereof at the time of execution, which is a fundamental requisite that determines if effect can be given to a will. Such is presumed until the contrary is proved.

 

[3]      The Plaintiff in this action, Miss M[...] E[...] K[...], a chartered accountant and a retired pilot is contesting the validity of several wills executed by her deceased father, Mr A[…] K[...], (referred to as “the deceased” or “the testator” alternatively) a few months prior to his demise after he was diagnosed with pancreatic cancer and in terms of which the Plaintiff was excluded and in her stead an ex-wife divorced from the deceased for 17 years was appointed as a beneficiary. The wills revoked a will which included the Plaintiff as a beneficiary that was executed by the deceased prior to his diagnose. The deceased’s testamentary capacity at the time of execution of the impugned wills is put in issue. The testator’s attorney at the time of execution of the will is accused of failure to act in the deceased’s best interest to the detriment of the Plaintiff.

 

Parties

 

[4]      The Plaintiff is one of the deceased’s only two daughters and offspring born to the deceased and his first wife I[...] K[...] to whom he was married in 1963 and divorced in 1972. The deceased’s other daughter, Ms A[...] I[...] K[...]- B[...] brought this action together with the 1^st Plaintiff as the 2^nd Plaintiff. She however withdrew her action prior to the date of trial. She is, referred to only as “B[...]” for purpose of convenience with no derogation intended but for convenience. The reference to Plaintiff hereafter relates only to the 1^st Plaintiff.  

 

[5]      The Plaintiff’s action is brought against Mr Morris Porkroy, the 1^st Defendant, who was the deceased’s old friend and attorney for more than 40 years. He was the drafter and the nominated executor of all the deceased’s wills. On the demise of the deceased he was appointed as an executor of the deceased’s estate in terms of the last will dated 25 February 2016. He is cited also in his capacity as such.

 

[6]      The deceased’s widow, Ms W[...] M[...] K[...], is the 2^nd Defendant. She was married to the deceased in 1993, which was the deceased’s fifth marriage and divorced on 25 September 1998, after 5 years of marriage. They remarried on 25 October 2015 after being divorced for 17 years. She is named as a beneficiary in the last three wills contested by the Plaintiff.

 

[7]      The Master of the High Court, the 3^rd Defendant, is the Government official who is entrusted with the supervision of the administration of the deceased estates and cited in his capacity as such.

 

Factual Background

 

[8]      On 14 May 2014 the deceased, who was a divorcee and unmarried at the time, executed a will (the “1^st will”) in terms of which he bestowed all of his estate in equal shares to his only offspring, the Plaintiff and B[...]. On 28 August 2015 the deceased was diagnosed with pancreas cancer. Three days thereafter, on 1 September 2015, the 2^nd Defendant, from whom the deceased was divorced for 17 years and had relocated to Pringle Bay (Margate) reappeared and moved into the deceased’s home. Five weeks after the 2^nd Defendant’s reappearance, that is on 8 October 2015, the deceased revoked the 14 May 2014 will (the 1^st will) by executing another will (“the 2^nd will”). He in terms of the 2^nd will bequeathed his whole estate on the 2^nd Defendant, B[...] and the deceased’s grandson W[...] B[...] (“W[...]”) in equal shares to the total exclusion of the Plaintiff. W[...] is B[...]’s son.

 

[9]      The deceased and the 2^nd Defendant remarried on 25 October 2015, seven weeks after she reappeared.  On 18 January 2016, the deceased executed another will (the 3^rd will) renaming the Plaintiff, B[...] and the 2^nd Defendant as beneficiaries in equal shares and excluding W[...]. The deceased revoked the 3^rd will and executed a 4^th will on 25 February 2016, 3 days before his demise, leaving his whole estate to the 2^nd Defendant and B[...], again disinheriting the Plaintiff and W[...]. The 1^st Defendant was appointed executor of the deceased’s estate in terms of that will.

 

[10]    The Plaintiff seeks an order directing the 3^rd Defendant to accept in terms of s 2 (3) of the Wills Act 7 of 1953, the 1^st will of 14 May 2014 as the last will and testament of the deceased. The Plaintiff further seeks the removal of the 1^st Defendant as executor.  

 

[11]    The Plaintiff in support of the relief sought made the following allegations in her particulars of claim, as amended, that:

 

[11.1]  The 4^th will was made at the behest of the 2^nd Defendant who was not satisfied with the 3^rd will and thereby had noted that by manuscript she made on the said will.

 

[11.2]  At the time of the making of the 3^rd and the 4^th will, the deceased was suffering from aggressive cancer of his pancreas and was a regular user of a drug commonly known as morphine whilst over indulging in alcohol beverages.

 

[11.3] Due to the deceased’s condition it was easy to influence him. The 2^nd Defendant acquired an influence over the deceased which weakened the deceased’s resistance and made his will pliable.

 

[11.4] The 2^nd Defendant used her influence in an unscrupulous manner in order to prevail upon the deceased, and unduly influenced him to agree to make the 2^nd to the 4th wills. Whilst exercising his own will, the deceased would not have executed the 2^nd and the 4^th will, made 4 days before his demise. He would not have changed his original will and made the new wills.

 

[11.5]  The 2^nd Defendant exhibited severe animosity against the Plaintiffs, particularly the 1^st Plaintiff, when 2^nd Defendant relocated from Cape Town and remarried the deceased on October 2015.

 

[11.6]     The Plaintiffs would have inherited less in terms of the 3^rd will had it not been recalled by the 4^th will and the 2^nd Defendant had no spes whatsoever to receive a benefit in terms of the will, neither had the Plaintiff received any benefit from the estate of the deceased.  The 1^st will is a copy of the original regular will.

 

As against the 1^st Defendant

 

{11.7] The 1^st Defendant was fully aware that the deceased was suffering from aggressive cancer of the pancreas and a regular user of morphine whilst also over indulging in alcohol beverages, during the execution of the three wills. He nevertheless allowed the deceased to execute the 2^nd and the 3^rd wills.  By the exercise of reasonable care the 1^st Defendant as the deceased’s attorney who has known the deceased for years, should have advised the deceased not to take such drastic steps as to disinherit one daughter in preference of a previously divorced wife in the physical and the mental condition the deceased was at the time of executing the 2^nd to the 4^th wills.

 

[11.8] As a result of the 1^st Defendant’s negligent and incorrect advice, allowing the deceased to execute the two wills, the 1^st Plaintiff is suffering damages as she has been completely disinherited.

 

[11.9] From the Psychiatrics’ point of view the deceased was not in a position to execute the 2^nd and the 3^rd will, as is clear from the report by Dr Franco Colin, a fact that a prudent attorney like the 1^st Defendant ought to have been aware of.

 

[11.10]          The 3^rd Defendant has as a result accepted the 4th will of the deceased as the legally executed regular last will and testament.

 

[12]     The 1^st Plaintiff is on that basis seeking an order that the 3^rd Defendant disregard the 2^nd, 3^rd and 4^th wills and accept a copy of the 1^st will in terms of s 2 (3) of the Act as the legally made and regular last will and testament of the deceased. Also an order that the 1^st Defendant be removed as executor of the estate.

 

[13]       The 1^st Defendant in response denied that he was negligent and pleaded that:

 

[13.1]  The 1^st, 2^nd and 3^rd wills were each revoked by the subsequent execution of further wills and the deceased executed the 4^th will, which is accordingly a valid will and remains valid.  

 

[13.2] The disinheritance of the 1^st Plaintiff was the deceased’s express will and wish due to the 1^st Plaintiff’s unacceptable conduct towards his illness and his marriage to the 2^nd Defendant. The allegations that the deceased was influenced to execute the 3^rd and 4^th will are denied. At the time of the signing of the two wills the deceased was fully compos mentis and knew exactly what he wanted and intended in executing the wills. The two wills express the will and wishes of the deceased.

 

[13.3]  The 1^st Defendant was not aware of the fact that the deceased was a regular user of morphine and also that he was allegedly over indulging in alcoholic beverages or suffering from aggressive cancer. As a result, he had no reason to believe that the deceased could not validly execute the 2^nd, 3^rd and 4^th will.

 

[13.4]  The deceased’s relationship with 1^st Defendant was one that the deceased shared his most intimate concerns regarding his family, life and relationship with his children and the 2^nd Defendant. He considered the 1^st Defendant to be his confidante. The deceased excluded the Plaintiff from his 2 and 4 wills out of his own will and against the advise of the 1 Defendant which advise the deceased refused to follow and instructed the 1^st Defendant to draft the 4^th will to expressly exclude the 1^st Plaintiff.      

 

[14]     The 2^nd Defendant on the other hand in her Plea indicated that she returned or relocated to Pretoria from Cape Town on 1 September 2015 at the special request of the deceased after they have agreed to remarry, which they did on 25 October 2015 due to the love they had for each other.  

 

[15]     She admitted that by the time the deceased executed the wills he suffered from cancer and was under medical treatment when she took over the responsibility of caring for him.  

 

[16]     In replication the Plaintiff denied the 1^st Defendant’s allegation that the deceased was fully compos mentis and to have known exactly what he intended in executing the 2^nd 3^rd and 4^th Wills.  The Plaintiff as a result joined issue with the 1^st Defendant.  The Plaintiff also alleged to have taken note of the 1^st Defendant’s bare denial of the report by Dr Kahn Colin without adducing evidence to the contrary or filing a contrary report.     

 

[17]     The 1^st Defendant persisted with the Special Plea that all the beneficiaries to the wills challenged have to be parties in that matter as the court cannot set aside the 2^nd will unless W[...] B[...] is joined in the matter.  

 

[18]    In summation the Plaintiff alleges the deceased’s mental state or capability to appreciate the nature and effect of his act (compos mentis) during the execution of the three wills was due to a diminished mental capability, resultant from the use of morphine, his health state, the use of alcohol and undue influence by the 2^nd Defendant compromised which she alleges nullifies their validity.

 

Issues to be determined

 

[19]     The issue that was to be determined at the trial was whether the deceased was indeed non compos mentis (not of sound mind, lacking the ability to understand the nature and effect of the will-making act) as a result of the named factors at the time of execution of the 2^nd, 3^rd and 4^th will, consequently unable to execute a valid will.

 

[20]    “…The judge’s findings about testamentary capacity and knowledge and approval are in essence, findings of fact, based on appreciation of the evidence as a whole.”[3] The court has to establish the factual issue taking into consideration the whole evidence led. As provided in s 2 of the Act, the onus is on the Plaintiff, as the person alleging, to prove on a balance of probabilities that the deceased lacked testamentary capacity, not being in a legal state to execute a valid will[4], as a result of the effect of the stated factors, that is, aggressive cancer, use of morphine, indulgence in alcohol and undue influence as alleged. This stems from a presumption that the will was properly executed.

 

[21]    Prior the commencement of the trial the 1^st Defendant made the following submissions to pretrial questions raised, that:

 

[21.1]  Although he was aware of the deceased suffering from cancer, he however was not aware of the extent thereof.

 

[21.2]  He had no knowledge that the deceased used morphine or indulged in alcohol and consequently does not admit same. He was not aware what medication the deceased used.

 

[21.3]  He was aware that the 2^nd Defendant made some notes on the 3^rd will but was not aware as to when they were made. 2^nd Defendant did make some of the notes at the specific instance and request of the deceased.

 

[21.4]  He did not know the reason why the deceased executed a further will on 25 February 2016.

 

[22]    In answer to the Plaintiff’s pretrial questions, the 2^nd Defendant alleged to have had a good relationship with the deceased youngest daughter, B[...] and not to have had a relationship with the Plaintiff. The parties agreed that the Plaintiff had a duty to begin.

 

[23]    At the beginning and during the trial, the existence of the 2^nd will became a bone of contentment as at the time it was not dealt with in the Plaintiff’s particulars of claim, although it is common cause that it existed. Its existence and relevance was canvassed with the Plaintiff. Seemingly the Plaintiff was not aware of its existence until the date of trial. As a result, following the parties’ closure of their cases, the Plaintiff moved for an amendment of her particulars of claim to include the 2^nd will. It also resulted in the Defendants bringing up a misjoinder Application, as W[...] was not joined in the action. During his testimony W[...] had indicated his disinterest in the action and not having any issue with not being joined in the action or considered for the purpose of inheritance. The amendment was as a result granted and the misjoinder application dismissed.

 

Evidence led on behalf of the 1^st Plaintiff

 

[24]   The evidence on the common cause facts that have already been mentioned with reference to the pleadings will not be repeated. In her testimony, in dealing with the implausibility of her exclusion the Plaintiff briefly touched on the deceased’s history, their relationship and her last interactions with the deceased during the final days of his life that were partly captured in a recording. According to the Plaintiff’s testimony the deceased was born in the Netherlands in 1941, during the war. His family emigrated to South Africa when he was 14 years old. He qualified as a mechanic and worked in his father’s business. At age 21 he married their mother, I[...] K[...] who was 20 years old. Their offspring that is the Plaintiff and B[...] were born on 21 December 1963 and 30 December 1966, respectively. The deceased was also a motor racer during weekends, winning a lot of trophies and as a result got a lot of attention from the ladies, abused alcohol, not taking the death of his mother well. He turned into a rebel and was divorced from their mother when the Plaintiff was 9 years old and B[...] 6 years old.  

 

[25]    The Plaintiff was then sent to boarding school, where she was joined by B[...] the following year. Following the divorce from I[...] the deceased had several women in his life. He was then married to one Ms Y[...] K[...] for a short while. He then met Ms N[...] who had two children and had just lost her husband. It was after their mother refused to reconcile with him, that he met N[...] whom he later married, being his third marriage. N[...] taught him how to do business. He, subsequent to marrying N[...] owned quite a few businesses, his main one being Zambesi Motors that was located in Mountainview, then in Springs and Pretoria East. The Plaintiff and B[...] stayed with them in the house. The Plaintiff spoke of fond memories as a family, their dad fetching them from boarding school and spending time with them at their home’s swimming pool.

 

[26]    The deceased divorced Ms N[...], when the Plaintiff was at Varsity. She remembers around that time she was only about 20 years old when she received a call that her father was involved in an accident in Durban. He was found near the railway station in his underpants bleeding from his head with a broken skull. The Plaintiff flew to Durban and flew back home with the injured deceased. She got him into a hospital where his skull was mended. Ms N[...], although divorced from the deceased continued working in the deceased’s businesses for the next 17 years. The deceased would, every time he separates or get divorced, invite the Plaintiff to stay with him.

 

[27]    The deceased then met Ms T[...], C[...], who was 24 years younger than him. The Plaintiff expressed her concern to the deceased about her being so young and that she might want to start a family. The deceased married her anyway instantly, being his 4^th marriage and thereafter had a vasectomy.  He later reversed it during his marriage to his 5^th wife, the 2^nd Defendant. It was the only time she again saw the deceased in hospital. C[...] built her own house and the deceased continued to stay at the farm. Deceased had bought the Plaintiff a car when she turned 18, therefore she constantly visited him at the farm. The deceased was always busy running around doing business, although very stingy with his money.

 

Deceased’s marriage to 2^nd Defendant (the 5^th wife)

 

[28]    According to the Plaintiff, one time at an auction they noticed a beautiful lady with her daughter tracking the deceased. The lady waved at the deceased when she was leaving. The deceased took the Plaintiff to go and visit the lady in Springs, that was the 2^nd Defendant. The next thing she knew the 2^nd Defendant and her daughter moved in with them. She subsequently heard that the 2^nd Defendant got pregnant and the deceased felt obliged to marry her. She struggled to have a relationship with the 2^nd Defendant. It was cordial but she nevertheless was impressed by the 2^nd Defendant as a doctoral degree scholar, taking in everything the 2^nd Defendant was saying. At the time, she seemed a wonderful lady. She could not believe this well- educated lady could be after her father. She shared her results with the 2^nd Defendant when she changed from chartered accountancy to aviation, training as a pilot. She had just got her commercial rating and still had to do her practicals when the 2^nd Defendant moved in.

 

[29]    The Plaintiff had passed her board exams as a chartered accountant but had not started practicing as one. She instead worked as a financial manager in Tzaneen, when she was introduced to a man who came and fetched her in a helicopter. She was from then on hooked and introduced the man to her mother and the deceased. She and the man would come to the deceased’s game farm in Magoebaskloof and spend time with them. B[...] as well would come and visit. The man passed on. The deceased then in exchange of her jewelry helped her with a loan to finish her commercial practicals. The deceased also assisted her to gain more flying hours. Sometimes he would help with logistics of charging batteries. She on several occasions took the 2^nd Defendant and her daughter for flips around the airport just to charge the battery.

 

[30]    She opened her results with the 2^nd Defendant and had passed on her first attempt. She started at Wonderboom airport with her commercial licence to become an airplane pilot. She then went to Ramsgate with the 2^nd Defendant when she was finishing her doctorate. The 2^nd Defendant made her stay at the bottom of her house where the storage area was whilst she worked on her computer the whole day on her doctorate. One day the Plaintiff came back and could not access the house or the backroom where she stayed. She had to sleep with the helper and her boyfriend. According to the Plaintiff she noticed for the first time that there were actually other bedrooms upstairs, when the deceased came to fetch her. On that day the deceased left with her without talking to the 2^nd Defendant.  

 

[31]    The friendship between Plaintiff and the 2^nd Defendant was according to Plaintiff still cordial, when one day the 2^nd Defendant was not expecting the Plaintiff to be back she overheard the 2^nd Defendant who had her daughter on her lap, talking to her parents, accusing the deceased of having slept with her, when the Plaintiff walked in. The 2^nd Defendant dropped the phone as soon as she saw the Plaintiff. The Plaintiff says she was shocked and their relationship then changed. The 2^nd Defendant did not keep any food in the house and no meals were prepared. The 2^nd Defendant would call her to come and put the toilet lid down.

 

[32]    The 2^nd Defendant demanded that Plaintiff pay for petrol that her father’s business used to pay for her. She then one day walked into the business and told the 2^nd Defendant that the matter can be sorted out, they must call the deceased. The 2^nd Defendant got upset and ended up being involved in a car accident. The deceased got angry with the Plaintiff, she left their house to go and live with B[...]. The 2^nd Defendant also fired and replaced the 3^rd wife, whom she let off with a month’s salary. The matter ended in court and lasted for a very long time, handled by the 1^st Defendant. The deceased was divorced from the 2^nd Defendant in 1998.

 

[33]    In 1997 B[...]’s child, W[...], the deceased’s first and only grandson was born. The Plaintiff was with Sunair at the time. The same year in 1997 the deceased and 2^nd Defendant had a fire at the farm. Deceased sold his business and they divorced in 1998. They auctioned a lot of things and sold the farm for R1,6 Million. Half of the proceeds was given to the 2^nd Defendant as a settlement. The deceased bought another farm which he later also sold. The Plaintiff then left Sunair and was employed by Air Mauritius from 2000 to 2012. The Plaintiff flew back to the country in 2001 for the celebration of the deceased’s 60^th birthday which was held at the farm and attendant by, amongst others, the 2^nd Defendant. Another encounter with the 2^nd Defendant was when the 2^nd Defendant called to tell them that the deceased was very sick and near death. They rushed to go and fetch the deceased from the farm. It was B[...] who had to deal with most of the happenings on the deceased. There was also a situation where the deceased ran into the 2^nd Defendant’s family in Rustenburg, he drank himself into a stupor after seeing the 2^nd Defendant. They had to rush the deceased to hospital.

 

[34]    In 2006 the deceased, as a divorcee bought a game farm and sold it, having received an offer he could not resist. He then bought a big luxurious house in Waterkloof. The Plaintiff stayed at the house during her trips from Mauritius. She also had I[...], the deceased and B[...] visit her in Mauritius and also at the deceased’s house. I[...] was on her own and retired at the time. The Plaintiff would take I[...] on trips to Mauritius. The deceased was also on his own. The deceased however would put ads in the newspaper where he would meet ladies. She met one of the deceased’s ladies during one of her visits from Mauritius and they became friends.  

 

[35]    The deceased inherited money from his overseas relatives and bought a house that B[...] lived in at Fuller Place in Montana. He wanted the 2^nd Defendant to come and live with him but she only came and arranged the house. She said with a small child she could not do that. The deceased later sold the house and bought one in a small holding. In 2009 he sold the house and made a loss. He then bought a home close to the 1^st Defendant where she also visited him when she came from Mauritius. One day when she got there the deceased looked like he was in an accident. He was not saying anything and did not look good. She asked B[...] and the 1^st Defendant to check on the deceased.

 

[36]    The deceased asked their mother I[...] to come and stay with him because they were both lonely. The mother would look after the house and prepare meals whilst he would visit his farmer friends. The Plaintiff lived with them when she came from Mauritius and stayed in the spare room. She was delightful to see them both happy and have meals with all of them.  They got along quite nicely when in 2009 the 2^nd Defendant came and moved into the deceased’s bedroom. The deceased’s attitude towards their mother then changed he became very hostile towards her. He one day told them he was going to Cape Town with the 2^nd Defendant for two weeks but came back after 2 days and locked himself in the bedroom. He was so depressed.  I[...] called B[...] to come and talk to him. When the deceased came out of the bedroom he was very rude to I[...], that is when I[...] decided to move out to go back to her flat. The deceased made sure she was comfortable.

 

[37]    The deceased visited the Plaintiff in Mauritius and in 2011 he asked for tickets to London. She and the deceased flew to the Netherlands where they met family, attended family functions where the deceased introduced the Plaintiff to relatives. They came back, the deceased continued to visit the Plaintiff in Mauritius. At some stage he wanted to bring the 2^nd Defendant for her birthday, but Plaintiff refused. The deceased did come with the 2^nd Defendant anyway and stayed at a lodge down the road from the Plaintiff. During their stay she bought them 2 boxes of alcohol. When she came back from her short trip she had to refill the alcohol. They invited her over for dinner where wine was ordered although they already had wine. The deceased complained to her that it was an expensive holiday for him.

 

[38]    There was an indication thereafter that the deceased was helping the 2^nd Defendant with her tax issues. The deceased was driving down to assist the 2^nd Defendant and charging for the services. The deceased wanted to take a loan to buy the 2^nd Defendant another property when she already had a property in Struisbaai. He asked for the Plaintiff’s assistance which she refused. The 2^nd Defendant asked the deceased for assistance to sell her old parents’ business that she was struggling to sustain it. She had indicated to her parents that she already had buyers. The 2^nd Defendant did not want them to know that the business was not making money.  They were also selling their Brahman cattle. The deceased was not interested and put in a low offer which upset the 2^nd Defendant. It was however sold to somebody else. She found letters written by 1^st Defendant in 2012 to remind the 2^nd Defendant that an amount of R80 0000 on the loan was still outstanding. The deceased was going to start charging interest if the money not paid.

 

[39]    The Plaintiff came back from Mauritius in 2012, and bought a property to relocate to. The deceased made sure she was settled. When she looked for the jewelry box that she had exchanged for the loan to finish her pilot training, it was gone with all the jewelry she accumulated from the time she was a kid. The deceased could not give it back to her but wanted more money to be paid. She sought counsel from the 1^st Defendant. They then agreed on a reduction of 10% of the loan. She did not realise that the deceased was under pressure cause the house they bought had a lot of defects. The deceased was fighting with the previous owner but also wrote letters in 2012 to 2^nd Defendant for payment of the outstanding debt.

 

[40]    So whilst Plaintiff was there the deceased started locking himself in the room.  He suffered from depression and Plaintiff was concerned. The deceased asked for advice from the 1^st Defendant and instead the 1^st Defendant took him to hospital in Kalafong because he had no medical aid. He got him in but the next day the deceased was discharged of his own accord. He reduced drinking from that day. He borrowed Plaintiff’s car that he bought for her. The Plaintiff had paid the deceased the value of the car less the value of the jewellery, which he accepted. She also assisted the deceased with errands whilst they were staying together. After the Plaintiff left, the deceased also collaborated with other farmers on the sale of cattle. He was however getting sicker with no energy. They got to agree that B[...] was going to move in to the deceased’s house and the deceased into B[...]’s.  The deceased was then going to help with the additions.

 

[41]    In 2015 the deceased was showing flu like symptoms that just did not want to go away. For a man who never went to the doctor, he ended up going in January 2015 and got antibiotics.  He got the antibiotics again in April 2015. He got another prescription after that one as well. In all had antibiotics three times in four months. He tested for allergies in May 2015 and was not getting better until he was diagnosed with prostate cancer. He kept losing weight and his health deteriorated. He was living at the construction site, attending to the additions of the house. They thought it was because he was working too hard.

 

[42]    The Plaintiff discovered after the deceased’s passing, that prior thereto in May 2015 he had a round trip from Eldoraigne to De Aar (Northern Cape) travelling for 8 hours and thereafter continued for another 9 Hours to Kleinmond (Western Cape and another 1 hour 30 minutes to Mingle House in Pringle Bay. Thereafter to Breda’s dorp on a totally different direction more to the South, then North of East London, Port Elizabeth and back. B[...] told her the deceased received a telephone call from the 2^nd Defendant saying whilst she tried to force entry through the garage door it fell on her and she got stuck there until the next morning. But when the deceased arrived at her doorstep to assist her, she was out on a date. The deceased drove back and when he saw B[...] he just burst out crying, took out telephone directory and scratched out 2^nd Defendant’s name saying he does not want anything to do with the 2^nd Defendant ever again. The next month in June 2015, the deceased decided to transfer the property where the sister stayed into the sister and her husband’s names. He sold the house that he revamped with additions and bought the property at 8[...] S[...] Street, which was registered in his name only in September 2015.

 

[43]    On or about 25 August 2015 Plaintiff got a call that the deceased was in hospital and not in good shape, so she needed to go home immediately. The deceased had put her name as the next of kin. She found the deceased in a wheelchair, a tiny little figure curled up in pain. His whole skin and eyes were yellow and booked in an emergency room by Dr Bond. Bond explained to them the procedure he was going to do, that is put a stent on his pancreas. The Plaintiff accompanied the deceased to the theater.  The deceased came out the theater looking much better. Since he did not have a medical aid number, he could not be admitted immediately at the hospital. He had to get a quote and pay a cash deposit before he went to hospital. Plaintiff fetched his toiletries and change of clothes. She went back to hospital with B[...] and W[...]. W[...] drove back the deceased’s car and parked it at his place.

 

[44]    The next day the deceased was discharged at his own accord as he wanted to attend the Pretoria Farmer’s Show. He could not stay there for long after an hour he came back. He was feeling weak. The doctor got the blood results on 28 August 2015 after 12h00. He called the deceased and told him the news about the pancreas cancer. The deceased immediately called and informed the Plaintiff. He also asked her to attend the follow up meeting. On 31 August 2015 the deceased was still paying his Municipality account, sorting out his car license that was expiring by August and got himself new glasses. He was still active before he went in to hospital, accompanied by the Plaintiff. She knew nothing about the disease therefore did some research compiling questions for Dr Bond. The doctor advised them that the deceased’s cancer code was too high at nearly 500, whilst an average would be 0-49. He referred the deceased to Dr Van Niekerk at Groenkloof Hospital to proceed there immediately and be there by 7 o’ clock. The deceased was in pain and walking slowly for a person who always had places to go, he was uncomfortable. He was prescribed something as a pain reliever. They had an open discussion about it. The doctor discussed the treatment and what was to be expected. He indicated that there are good rates of success they remove the cancer if not, the radiation and chemo therapy will not really work.

 

[45]    When they reached the other hospital, the deceased was jovial, light hearted and talking to all the other patients. Just before he went in his phone rang. He answered the call and said “Oh Shirley wants to come for the money.” The Plaintiff  did not know what he was talking about. He gave the Plaintiff the phone and it was 2^nd Defendant on the phone. The 2^nd Defendant told the Plaintiff that she heard about the deceased and asked her if she can come and visit. (That evidence was not disputed) They went in Dr Van Niekerk’s rooms. He looked at the scans and told them to come back the next day as he would want to do his own scans.  After that the deceased could hardly eat his food. He insisted on driving himself back home and also back to the hospital the next day.

 

[46]    The next day they met at the hospital, the deceased did the x-rays and the scans and they together took them to Van Niekerk. He was still in a jovial mood. Van Niekerk looked at the scans and explained the whole procedure, alerting them to the fact that it is a long procedure that might take 6 to 8 hours. Also because of the location of the pancreas it might be difficult to get it, as a whole reconstruction has got to be done. The deceased was very keen to go into theater but the Dr had other appointments, so the Plaintiff obtained a date for 8 September 2015 from the theater nurse, which was the next week. As a cash patient they were also going to send quotations for the services to be rendered.  Van Niekerk told the deceased to have a big breakfast and lunch as they will have to do all the tests on the day then start with the operation.  The Plaintiff went and bought the deceased pyjamas and some things he might need for the hospital.

 

[47]    On the 3^rd of September 2015 she got a call from the deceased to come to the house. She had also to come prepare the meals he required and for whatever he needed for the hospital stay. She found the 2^nd Defendant there.  The deceased asked the Plaintiff to sought out the issue of gas certificate with the technician. He gave the Plaintiff the transfer papers for the house, and the lock for the security gate to the estate.  Every now and then they had to re-register the fingerprints with the security for the entrance to the estate. The deceased asked the Plaintiff to register so that she can have full access to him whilst he is sick. He asked the Plaintiff to also register the 2^nd Defendant and to assist her in exchanging the things 2^nd Defendant bought for what he needs. She was also supposed to deposit a cheque into the deceased’s account.

 

[48]    They went out and did the errands. During that time she asked the 2^nd Defendant about her father who has dementia, her parents’ wellbeing in general and the house she left behind. How she managed to pack and leave everything just like that. She also asked her about the boyfriend. The 2^nd Defendant denied having one. The next day on the 4^th September 2015, the deceased asked the Plaintiff about why she was like that to the 2^nd Defendant. She did all the errands including transfers of monies from Coronation, the hospital admission and other transactions. The 2^nd Defendant kept on interrupting and chatting. The deceased had to ask her to give them some time whilst they were working. The 2^nd Defendant heard the bank security number. The deceased then transferred the money from his cheque account to his money market account (she suspects it is because the 2^nd Defendant heard the account number). The Plaintiff completed the admission forms, made copies and sent them.

 

[49]    On 8 September the Plaintiff arrived at the deceased’s place. She sat with the 2^nd Defendant whilst the deceased went to get ready. She then gave him the new clothes she found for him during the weekend which he was happy about. After changing he told her to go the 2^nd Defendant will take him to hospital. She was saddened because she wanted to be with her father. However, because it was her father telling her that, she accepted and left. The next day she got a call from the deceased asking her to come immediately to the hospital as he might go earlier for his operation. She found the 2^nd Defendant holding the deceased’s hands and standing very close to him telling everybody she was the deceased’s wife. When the Plaintiff questioned the deceased, he told her to just to leave it as those people were going to be looking after him. B[...] arrived and they went for tea. They discussed that they must stick with each other, making a pact against the pancreatic cancer to share with each other anything that might happen. They were going to stand and support each other. Mostly they were worried about the sudden appearance of the 2^nd Defendant into the deceased’s life due to the history they have.

 

[50]    The surgery was pushed back to 7 o’clock. The deceased told the 2^nd Defendant to go home as he did not want her to drive late at night. The Plaintiff saw the 2^nd Defendant off and she and B[...] stayed for the operation and the doctor told them that he will give them an hour by hour briefing. After an hour the nurse came and told them that everything is going according to plan. The next thing after two and a half hours, Van Niekerk came dressed in his normal clothes. He told them that he did all he could do but the cancer has spread to the main artery and not much could be done. He said he just did a palliative bypass and was supposed to refer him to an oncologist but would not do so because it would reduce his quality of life, which would lead to depression. His prognosis was that the deceased would live for 6 months.

 

[51]    They saw the deceased after recovery he was feeling good and confused. They told him the operation was done, he must rest they will come and see him in the morning. She send a text to Mr Stelman who worked with the deceased, the 1^st Defendant and the deceased’s family. She called the 2^nd Defendant as well and told her what the doctor said. She started screaming over the phone.  When the Plaintiff arrived at the hospital the next day she found the 2^nd Defendant already there by the deceased’s side.  The 2^nd Defendant had managed to slide herself in there as nobody is allowed at high care and told her that the deceased had a problem with spits, he was spitting constantly, she was therefore helping the deceased. The deceased then told them that he and 2^nd Defendant had decided to get married. She told the deceased to rest and get better before he makes such major decisions. The deceased was quite weak and was kept at high care for 3 days after the operation after which he was kept at a surgical ward.

 

[52]    On Saturday 12 September 2015, it was I[...]’s birthday. The Plaintiff had arranged a birthday party for her at Pretoria Cullinan and she went together with B[...].  In the afternoon, after the party they went to see the deceased at the hospital. The 2^nd Defendant offered B[...] a lift from the hospital. Later B[...] phoned her to tell her that the 2^nd Defendant said she saw some photos that the doctor took of the pancreas and all she could see was two tiny little spots on the pancreas. It was not that bad and the deceased was going to recover. B[...] was angry and wanted to know what is happening, if the deceased was indeed with cancer. The Plaintiff told B[...] that what she knows is what the doctor told them. The next day when Plaintiff went to visit she was told that the deceased was going to visit with the 2^nd Defendant to Pringle Bay to recover from the surgery, notwithstanding the deceased having gone through a major surgery that took more than 3 hours on 8/9 September 2015 when the stent was removed.  The Plaintiff says she just agreed and said it is relaxing at the beach, although she was worried about her and the sister not being able to visit the deceased there but nevertheless kept quiet.  

 

[53]    The Plaintiff managed to get a cancer support group and they had meeting at her house on 16 September 2015.  The Plaintiff had told the 2^nd Defendant that she and B[...] wanted to take care of the deceased and required guidance from the support group as to how they can do that. She was advised not to take away their father’s dignity and pride by trying to be his caregivers but to let him do things for himself. They must not take over his self- care, respect his boundaries and stay his daughters. The caretaker invited the Plaintiff and B[...] to phone her at anytime. The Plaintiff went to hospital and discussed the advice of the caretaker with the 2^nd Defendant who was not interested. The deceased was released on the same day the 16^th September 2023. The Plaintiff went to see him, he was up and not lying down because it was too painful, he would rather sit on the couch where he can sit up and not lean all the way to do that. The 2^nd Defendant was watering the gardens. She asked the deceased if he needed anything. The deceased told her that the 2^nd Defendant was there taking care of him.

 

[54]    2 days thereafter on 18 September 2015 she got a phone call from the 2^nd Defendant asking her to bring anemia because the deceased was struggling to go to the toilet after the anesthesia. CANSA advised her that if they are applied by a person without qualifications it can do a lot of harm, instead gave her a recipe for laxatives. Whilst she was at the chemist she got a call from the deceased who was screaming and angry as he could not find his valuables, watch, ring and bank cards. CANSA told her that the deceased has gone through a lot and he was going to have these emotional outbursts, they just have to accept. When the Plaintiff arrived at the deceased’s house there were neighbours visiting. She did not look for the things but phoned the bank to cancel the cards. She then phoned the police to ask if she should report the valuables as missing and was advised against that as they will/might reappear.

 

Isolation

 

[55]    The Plaintiff tried to make an appointment to see the deceased after that but was told not to come that Friday, but can come after church. She arrived after church and the deceased told her that they had visitors that 2^nd Defendant wanted to get to know she must come another time. She went in since she was already there. The deceased had a very dirty blanket and the dogs were locked in and very smelly. She tried to understand why the deceased would think that valuables that were in 2^nd Defendant’ possession were stolen by her and figured out that it was probably because she went to the toilet first before she left.  The deceased told her and the 2^nd Defendant to make sure they did not put these things somewhere because B[...] knows of a police man who can come and conduct a search. The deceased then told her that he wanted to transfer ownership of his house to her upon which she advised him to first think of his recovery and getting better, they can discuss that later.

 

[56]    The deceased also asked her to check with Sandfontein Funeral Plot, for a plot for his burial.  She said she did not know anything about that and had asked for advice from three funeral parlours. She explained to the deceased the possibility of being buried with other people and the deceased immediately said he wants to be buried with his mother.  The 2^nd Defendant started making noise telling them this was not the time to be discussing these things. They both ignored the 2^nd Defendant. The Plaintiff got the deceased some meals from SuperSpar that he likes to eat and the deceased called the 2^nd Defendant to indicate to her what he likes.  The Plaintiff then got a call from the deceased informing her that the new bank card was ready for collection, she must go and collect it. She drove all the way to Menlyn to collect the card. She then heard that the next day the deceased and 2^nd Defendant drove all the way from Eldoraigne to the bank in Menyln to activate the card. At some point when the Plaintiff tried to get hold of the deceased and his phone had a funny ringtone. He got it checked at MTN but she was accused by the 2^nd Defendant of sabotaging the deceased’s phone.

 

[57]    On 25 September 2015 B[...] called and informed her that the deceased was readmitted at a hospital. It was significant as he needed his card to be admitted as he pays cash. The next day 26 September 2015, the Plaintiff visited the deceased at the hospital and found him in a very deep depression. He did not want to talk, so the Plaintiff started talking to the guy in the next bed who was from T[...]. The deceased then also started talking and opening up to the Plaintiff. He told her that he has a blockage and could not urinate so they put a catheter. He wanted to see the Doctor as he did not believe that the cancer medicine is the only medicine they can prescribe for him and he was on the maximum dosage. The deceased asked Plaintiff to ask the 2^nd Defendant to bring him pain medication when she comes to hospital as what 2^nd Defendant gives him helps him a lot. Plaintiff asked him to discuss the pain management with the hospital. He refused. He wanted the medication from 2^nd Defendant. She called the 2^nd Defendant as instructed.

 

[58]    The next day on 27 September 2015, the Plaintiff arrived with B[...] at the hospital, only to find that the deceased has been discharged. They went to the deceased’s house and met up with him and 2^nd Defendant. She thereafter attended W[...]’s matric party and whilst they were at the parade, the deceased called and asked to see them. They went there after the event and when she arrived the 2^nd Defendant told her that she missed the pictures. The kids were in a hurry to leave and showed some discomfort. The deceased did not want any pictures taken and was annoyed. They sat down and the deceased asked the Plaintiff about his valuables, when the Plaintiff told him that she had no clue, he produced his watch, bank card, identity document and ring. He said they were right at the back in one of the drawers. The 2^nd Defendant was a bit unstable in her legs and started yelling at the Plaintiff’s face calling her a bitch. According to her the 2^nd Defendant smelt of alcohol. She stood up gave the deceased a hug and told him to call if he needs anything.  She informed her mother, the 1^st Defendant, CANSA about the deceased finding his valuables. She was so relieved. B[...] told Plaintiff that they stayed as 2^nd Defendant started to cry. She asked the Plaintiff not to contact or upset the deceased in any way.

 

[59]    At deceased’s follow up meeting with Dr Van Niekerk, the Plaintiff had asked to be present. She was told that his wife was going to be present so it was not necessary for her to be there. She was not happy with that. CANSA told her as the deceased’s daughter she had a full right to attend the meeting but must just keep quite and listen. She met them at the hospital whilst she was there arranging for payment for the anesthetist. The deceased was in a very bad condition and the clothes he was wearing looked like were from a laundry basket. He came in and set next to the Plaintiff. The nurse came and took out the stitches. The wound was healing nicely and they went to the Dr’s room. The deceased indicated that he would want to go to Groenkloof for Oncology. He was referred to Dr Slabbert and Viagra prescribed at his request. Dr Van Niekerk advised the deceased to take things slowly before he decides what to do with his health. The appointment with Slabbert was for Friday 5 October 2015. She hugged both the deceased and 2^nd Defendant and wished them well telling them she will see them soon. The deceased had been put on an anti-depressant called Lexamil on 25 September 2015 when he said he could not urinate and was very depressed. He also could not eat. He was put on sleeping tablets not quite sure if it was the Alsona. However, when he was discharged he was just given the stilpaine but when in hospital he was given morphine to relieve the pain.

 

[60]    On the 5^th of October 2015 the Plaintiff did not attend the hospital because she did not believe that the deceased needed the chemo and radiation treatment, as per the advise of the doctor, it was going to reduce his quality of life and not assist in any way. The Plaintiff and the 2^nd Defendant did not agree with sitting with cancer patients in oncologist rooms saying it would make them more depressed. Unfortunately, the deceased started with the radiation, he was referred to Dr Inge the radiologist and battling with the payments. She understood from the people at the hospital that the deceased did not want to do the radiation. The sister battled to calm him down. He had a plan drawn up. He was having major radical radiation medical treatment, seven of them whilst he was on tablets with the Oncologist. She did not expect the deceased to start right away because of the advise by the doctor to wait for at least two months. B[...] however told the Plaintiff that they will start with the two little marks that they saw on the pancreas.

 

[61]    She afterwards saw that a will was drawn and was signed at the 1^st Defendant’s office on that day of the radiation. Straight away there was a contract, a prenuptial contract. She received the will in 2020 on consultation with an expert, otherwise she was not aware of its existence.  The will that existed prior to that one was concluded in 2014 when B[...] and the deceased swooped houses. The deceased gave it to B[...] to keep in the safe. The deceased wanted both daughters to inherit in equal shares. It had the brother in law id number and dated 2012.

 

[62]    Plaintiff said on 22 October 2015 she got a call from B[...] informing her that the deceased and the 2^nd Defendant were getting married on that Sunday. The 2^nd Defendant had asked B[...] to present herself at church and to bring 4 copies of her Id. The Plaintiff phoned the minister at the church who confirmed that it was correct. Although Plaintiff told the minister that she does not approve, the Minister said she was marrying them as a servant of god. They told her that they are in love and want to get married. She did not know the couple. The deceased had expressed his wishes to get married as soon as he gets better, however she received a phone call from the 2^nd Defendant that they are so much in love they do not want to wait, asking for the first opportunity available. The minister told her that the only way she can stop the marriage would be the legal path. She called the 1^st Defendant who told her to keep her integrity and dignity by not interfering and staying away from it. They got married that Sunday after the service and she was not invited. B[...] had told the Plaintiff that she spoke to the deceased about it and he was all alone doing his laundry. He had nothing to wear all being in the basket. The deceased told B[...] that he did not want to stop it now as it was already all too late. He said they were basically friends with the history of cattle breeding and shows and know the same people.  They also could not consummate the marriage so didn’t understand why they had to get married. The deceased’s sister was also disappointed and was also not going to attend the wedding. She was extremely disappointed.

 

[63]    After the wedding B[...] said the liquor was not hidden anymore but openly displayed.  She asked CANSA what the effect thereof was and she said it will just make the deceased very, very sad. They have neighbours Peter and Hellen who used to live next to the deceased and I[...]. They reported to have seen the deceased at Dischem on 25 October 2015, he actually fainted whilst he was there and it broke Plaintiff’s heart to hear that. The Plaintiff called Sharon Venter from CANSA who responded that since the deceased is married she cannot visit the deceased as per the Plaintiff’s invitation or assist with the treatment but will have to go through the wife. She said she was going to visit them and tell them that the Oncologist wants a feedback. She said what she found was chaotic. The dogs were barking, the deceased was screaming and there were people viewing the place as the deceased had put it on the market. The deceased said to Venter they were leaving for Pringle Bay where the deceased was going to recover. Her services were not needed anymore.

 

[64]    On the 9^th November 2015, the guy across the road made an offer to buy the house. He paid the deposit on 11 November 2015 and asked for some time to pay the rest by January 2016. The deceased went to friends of theirs from Verde Trading for advise, calling on one Lucinda to come and give him a quote on the furniture. Lucinda told the Plaintiff she found a very unstable woman smelling of alcohol crying and refusing to let her in the house. The 2^nd Defendant was screaming that the Plaintiff wants to destroy the family. She said as she did not want to come between daughters and their mothers she left. She was told the deceased later went to the shop and asked them to come and see the furniture and give him quotations. They however came to do the inventory, agreed on the prices and when goods can be collected.  The first items were collected on 21 December 2015, leaving just the basics for him.

 

[65]    On 25 December 2016 the deceased and 2^nd Defendant went to church and thereafter went to visit the deceased’s sister in Irene, where the whole conversation was about a will and the 2^nd Defendant telling the sister how she was going to take care of all the deceased’s assets and make sure that his children were well looked after. The Plaintiff and their mother were at B[...]’s place when the deceased and the 2^nd Defendant arrived. The deceased had lost a lot of weight and was happy to see I[...]. He came and sat next to her and the Plaintiff. The 2^nd Defendant then joined them. The 2^nd Defendant wanted the deceased to discuss the jewish burial with them. However, the deceased did not feel like it and they only exchanged gifts. He was tired and asked to be excused so as to go and rest.

 

[66]    On the 10 January 2016 the Plaintiff got a call from B[...] who informed her that the deceased was left by himself.  He asked to be left alone as he had a lot to think about. The Plaintiff went to see him and he told her that the 2^nd Defendant’s mother had a colposcopy and she had to go back to Cape Town. He told her he went to the airport and was so much in pain he could not get out of the car, and coming back he got lost. He indicated that with that pain, at his age and state now it seems he is going to pick up smoking. The 2^nd Defendant knew where to get it in Cape Town and was going to bring some for him. He said he has severe pain and the Plaintiff reminded him that the last time he was in pain he went to see Dr Bond who helped him. She questioned the 2^nd Defendant now being against the chemo and radiation allegedly because the deceased is now totally healed and not sick anymore. The deceased in response accused the Plaintiff of not wanting him to leave and or get better. He said there was nothing wrong with him, he just had a pick up condition.

 

[67]    He showed the Plaintiff a tin of Ensure which is what he was eating, two spoons thereof. He was severely malnourished. CANSA spoke to the 2^nd Defendant who said that there was nothing to be concerned about as the deceased was absolutely fine and the pain under control. The deceased had an appointment with an oncologist and radiologist on 18 January 2016. By that time the 2^nd Defendant was back from Cape Town. In the report for the imminent treatment they were referred to an Oncologist in Cape Town Somerset West as they were moving. The deceased was given a reference number.  The Plaintiff saw some documents at the house drawn up by Mott and Stevens notifying them of the new address. They were supposed to get the money for the house on 20 January 2016. The deceased also went to sign a new will at the 1^st Defendant offices on 18 January 2016. He then went to the pharmacy to buy some energy drinks and back to Dr Bond with whom he had an appointment at Unitas. 

 

[68]    Dr Bond booked the deceased for a stent on 25 January 2016 which was the following week.  The Plaintiff went and questioned Dr Bond about a need for a stent in this late stage of the deceased’s life. Bond’s answer was that he has a duty to help any patient with pain relief and manage their pain. CANSA could trace the pain through the scans done. On 25 January 2016 after they did the blood works, Bond showed her the results of the blood test, the cancer count was higher than it was in August and had spread. After the procedure of the 8^th February 2016, the Plaintiff went to Bond’s rooms and Bond told her that he did place a stent, but will send the deceased home rather as the hospital is not a good environment for a person on this late stage of life. He said he must just take a liquid diet and has given him syrup morphine for the pain, that is pain management. He has also done a nerve block which is another procedure to relieve the pain. She asked the doctor why he did not prescribe the morphine that he can take himself if he is in pain. He said it was too late for that procedure it was not going to work anyway. She saw the 2^nd Defendant but she then just disappeared. The deceased was too weak for the procedure and just lying there and tired. She thought maybe the 2^nd Defendant did not want to speak to her and decided to leave.

 

[69]    The deceased was released only on antibiotics and they were told that the deceased has a bout of an infection, warning that it is not serious. She realized from looking at vouchers in the house that 2^nd Defendant went shopping at Sandton City, got a new contract from MTN and bought a new phone. The 2^nd Defendant’s daughter is a teacher in Sandton as well. She then heard from B[...] that the deceased and 2^nd Defendant called Dr Bond more often for advice and he suggested that she bring the deceased in as he could not do telephonic consultations. They made an appointment and were given the 18 February 2016. She found them there waiting for another scan, the deceased had a drip on his arm, empty. The deceased told her that he did another blood test and waiting for results upon which they would know what scan to do. She enquired about the procedure at the reception and when she came back the deceased told her that she was too late as he must drink 5 glasses of that stuff before so they can see something in his tummy when they do the scan.  He was wearing a size 32 Jean which he was struggling to pull up when he previously weighed 91kg.

 

[70]    She remembered that when she and B[...] visited the deceased in January 2016 when he was admitted, the deceased could not look them in the eye. He was very evasive and depressed. He didn’t want to talk to them. They agreed that they should get somebody to come and pray for the deceased. The Plaintiff felt like he was hiding something or feeling guilty. Christine Lewis from the church prayed for him and he was listed on 4 October 2015 at church. When the deceased was out of hospital on 8 February 2016, he phoned the Plaintiff’s mother and told her that he was in so much pain and asked her to pray for him but to tell the Plaintiff to stop sending people to come and pray for him.  He said the church was going to make a case for slander against the Plaintiff because there was nothing wrong with him. On 18 February 2016, after the Dr’s visit the deceased phoned I[...] asking if the Plaintiff and B[...] were truly his daughters. I[...] told the deceased they were but he could do the DNA tests if he wants. The deceased said the two were so different from each other, the young one thinks like he thinks but the old one is totally different. He asked if the older one was his child. I[...] was very upset as there were never ever any issues about them being the biological children of the deceased.

 

[71]    Next when she visited, the Plaintiff looked at the deceased and said to him, “I forgive you.” He then said to the Plaintiff that the 2^nd Defendant was going to inherit some money and she said to him who else besides 2^nd Defendant and her daughter. The 2^nd Defendant interrupted and said her daughter does not need to inherit anything, she is her father’s only biological child. The Plaintiff left. She set up an appointment with the doctor, phoned B[...] and told her the terrible news about the deceased that they are waiting for the scans but also told her that 2^nd Defendant is going to inherit everything. Whilst they were sitting there the deceased said to the Plaintiff she must buy him a sports car, a red one. At B[...]’s request she asked the doctor if there was anything they could do. He gave them a script for morphine and told them to register him with Hospice in Centurion. He said the biggest problem they had with the deceased was the total disbelief of his condition. He was in denial. The Plaintiff got up and went to register the deceased with Hospice. She filed the documents with the hospital and asked it to be faxed as soon as the doctor has completed the form.

 

[72]    She was later phoned by Dr Bond. Bond had shown her the scan on the 18^th February 2016. It indicated air bubbles in the liver which she googled and found out that it means cancer in the liver. Bond explained that the cancer has spread so much that he can’t help the deceased anymore, the prognosis being that he had a few days to live. The Plaintiff called everybody, CANSA who offered help to go and deliver the news to the deceased, the deceased sister, the 1^st Defendant and relatives in Canada and B[...]. CANSA then phoned the 2^nd Defendant who was extremely upset because CANSA did not phone her to make the appointment. So  2^nd Defendant told them that they were going into town, they had things to do. The Plaintiff told the 2^nd Defendant that she had some results from the doctor, the news and insisted that they were coming. She later learnt from CANSA that they were not coming and she went alone.

 

[73]    At the deceased’s house. She set down with the deceased who wanted to know what Bond said. The 2^nd Defendant sat next to the deceased. The Plaintiff told the deceased that Bond was happy with the stent and told him about the prognosis which upset the 2^nd Defendant. She said it was difficult to explain what happened. The 2^nd Defendant slammed the doors and came charging, criticizing the Plaintiff for telling the deceased how much time he had to live saying the Plaintiff had no right to do that. Plaintiff asked the deceased if he believes that a person that loves him would react to the news like the 2^nd Defendant did.  The deceased ushered the Plaintiff out. The Plaintiff then asked the deceased how he would like her to look after the 2^nd Defendant after his demise, if he wanted her to buy the 2^nd Defendant a new car. His answer was that he would like the Plaintiff to do good with his money. He said his wishes was that the Plaintiff takes care of their mother, making sure that no hardships visits her. She complained to the deceased about past incidents when she never had time to speak to the deceased with the 2^nd Defendant always interjecting talking, inter alia, about how old her car was and needing a new car. She blamed the 2^nd Defendant of always taking over the conversation when they were with the deceased. The deceased told her to leave, which she did after giving him a hug. The Plaintiff says she felt emotional and went to sit in her car.

 

[74]    After a while she went to B[...]’s school and told her to go and see the deceased as he had not much time to leave. According to her B[...] went to see the deceased a day before W[...]’s birthday which was on 20 February 2016.  B[...] had tried to phone the deceased there was no response. She therefore took W[...] and his friend to see the deceased and they also brought the deceased a milk tart as he had asked for a piece of the birthday cake. B[...] told her that everything was chaotic, the deceased was lying in pain looking for his morphine and they did not know where it was. The 2^nd Defendant could not assist him because she could barely stand, she was falling all over, could not hold her balance. The kids were upset. W[...] told the deceased they couldn’t find it and the deceased went crying to his bed. B[...] told the Plaintiff what was happening.

 

[75]    The Plaintiff decided to phone the 2^nd Defendant’s sister a Professor at Pretoria University and informed her that the 2^nd Defendant was not coping she must go and assist her in looking after the deceased. She told the sister that the deceased needed his morphine and the 2^nd Defendant did not know where it was. The sister told Plaintiff that she speaks to the 2^nd Defendant twice or thrice a day and very much aware of what is happening in that house. The next day, B[...] went to see the deceased and found that he had an injury on his right arm, apparently he fell and needed stitches. B[...] realized that on 19 February the 2^nd Defendant went to buy some plasters. The deceased also had gashes on his knees as always when he sits up from the table he would hit his knees against the table. B[...] also noticed that the deceased’s legs were swollen. The Plaintiff did not want to tell B[...] that the swollen feet occur if a person is about to die. B[...] spent two hours there recording some of the events that were taking place. The deceased was taking some of the tablets and some medicine with alcohol, saying it helps a bit.

 

[76]    On the 22 and 23^rd February 2016 they visited the deceased again. The door leading from the garage that they usually used was locked. Somebody had to open for them from the inside. The deceased had just woken up. The arrangement was that 2^nd Defendant would give them some time alone. They sat with the deceased but he was a little bit tired, so they decided to leave but he stopped them. So before 2^nd Defendant left she rented about how hard it was for her to look after the deceased, she has been in so much pain and stress and the abuse she had to go through, she has got a hyper mobility syndrome and has been in pain for three 3 days. The deceased asked the 2^nd Defendant to give them a chance to have a chat.  The deceased then asked the Plaintiff for a glass of water to mix with the alcohol in his glass which he said was too strong. After ten minutes he said he wanted to lie down and walked with them to the door.  

 

[77]    She had a call from Sharon and asked her if she had spoken to the deceased and she confirmed to have done so on Tuesday and gone through all they need to know and left the nappies with the 2^nd Defendant, what to look for when he has pain and what medication not to administer sort of a priority list of what need to happen. The deceased asked them to leave. He was annoyed with the noise. There was a denial of the deceased’s condition and saying he just needs some time to recover as well saying she does not need any assistance. Sharon had brought somebody with her to stay and help who could sleep on the couch. The help was refused by 2^nd Defendant. B[...] then told Plaintiff that the deceased was trying to get hold of 1^st Defendant, trying to cancel a purchase of a car as he would never have the pleasure of driving it. On 24 February 2016, the Plaintiff went to Mercedes Centurion to cancel the purchase and could not succeed. B[...] then told the Plaintiff that the next day on the 25^th February 2016 there was another meeting with the 1^st Defendant, so she did not go to see the deceased. Apparently another will was signed on that day. B[...] then reported to her that when she went to the deceased on 26^th they had to pick him up from the floor, he collapsed between the seats and the 2^nd Defendant called them in the middle of the night.

 

[78]    On the 28^th February 2016, the Plaintiff met up with the sister and they went to visit the deceased. They found him lying sideways on the couch and calling for his sister. The 2^nd Defendant had a glass full of water and poured all of it on the deceased.  The deceased was crying that he was feeling pain whilst she was trying to rub him. The Plaintiff reckoned they phoned Sharon to send somebody to bath the deceased, he has not been bathed for days and wearing the same T-shirt that he had in the 80’s for weeks. The deceased could not sit up he was just lying on the couch with his bottom halfway on the couch lying on the footrest. They sat with him for about 10 minutes and then left to go to B[...]’s house that is around the corner and spent the whole afternoon there.  

 

[79]    In the early hours of the morning at 1:18 she got a call from B[...] telling her the news of the deceased’s demise. B[...] arranged with 911 to come whilst she arranged with the funeral parlour to collect his body. She was escorted by the police to the deceased’s house and also arranged for Sonja Smith to be allowed through to get the deceased’s body. They came through and forms completed by the 2^nd Defendant. Whilst they were waiting in the kitchen for his body to be removed the 2^nd Defendant was standing in the kitchen, making small talk about what she would like to have whilst waiting for the body to be removed. The 2^nd Defendant followed to the funeral parlour and her daughter was going to join her. The Plaintiff and B[...] went to B[...]’s house and sat there. She went home at 6:00 that morning and got a call from Sharon apologizing as to the manner in which the deceased passed away saying it could have been better and prettier. Sharon said she got a call in the middle of the night and they have been phoning through -out the week to find out how the deceased was doing and every time assured that his pain was under control and the 2^nd Defendant did not need assistance.  

 

[80]    The next day the Plaintiff attended to the forms to be completed by the Doctor for the funeral parlour which were left at the hospital for the Dr to complete. The Plaintiff received a call from the deceased’s bank manager Chris Rogers to advise that the account is frozen they will have to pay for the funeral and claim reimbursements. They arranged for the burial and attended to the grave number. The 2^nd Defendant was to attend to the service for which she already had an appointment. The Plaintiff informed all the chemists and confirmed with the 2^nd Defendant that the Plaintiff and B[...] were going to be pallbearers. They informed the Wierda Park Traders who wanted to fetch the furniture immediately but agreed to fetch it a day after the funeral. She picked some flowers to put on her granny’s grave which reminded her that on 23^rd February when she went to visit the deceased she brought flowers in a vase and the flowers were thrown away, vase and all.  The funeral was attended by many people including the deceased’s living relatives, people from the bank, her mother I[...] and most of her relatives, the minister who married the deceased’s sister in 1988 and the deceased to his 4^th wife.  The 2^nd Defendant came to the Plaintiff, she wanted to give the Plaintiff a hug which the Plaintiff didn’t understand why. The 2nd Defendant wore the dress she bought a day before she was married to the deceased.

 

[81]    The Plaintiff confirmed that the 1^st will dated May 2014 was kept in a safe at B[...]’s house, which house was still in the deceased’s name. The 2^nd will was discovered during the insolence and insubordination of the people when they picked up all his stuff and deceased’s belongings recovered. The 2^nd Defendant said she only became aware of it when her legal representative showed it to her. She can confirm its existence she saw the date on it, it was in 2^nd Defendant’s hand writing dated 8 October 2015, the same date the prenuptial was signed. They took all the deceased’s belongings in the house and donated that at the hospice. The income statements and the balance sheets she took them to her house and started working on them. They found a Will dated 15 January 2016 in the cupboard. It also was in the 2^nd Defendant ’s handwriting noting that special inheritance to her, the ring, watch and motor vehicles.  On reading the will itself it was written in Afrikaans, “ spesifieke motor/s asook juweleries” , specific the wedding rings and the watches. On paragraph 4.1 to 4.3. There was a big question mark on paragraph 4.3, 4.4 and 4.5 as it all refers to a trust when there was no trust formed in the will but reference to only specific inheritance. It read “Ek bemaak die restande van my boedele, insluitent alle aan my en enige beliggings in trust aan my dogter A[...] I[...] B[...] en aan my eggenote” …”. The eggenotte referring to the 2^nd Defendant.

 

[82]    The Plaintiff was not aware that there was another will dated 25 February 2016. Although B[...] was suspicious that something was going on she always believed that the 1^st Defendant knew what was going on and told B[...] that he was going to look after the deceased’s best interest. So when they found the 3^rd will, and there were some writing on it, the Plaintiff told B[...] to approach the Advocate in their school committee. If she was not willing, she was going to approach them. The Plaintiff made an appointment and they met with the attorney who whilst they were at her office called the 1^st Defendant to check if there were any other wills and if there will be any reading of such a will or wills.  A meeting was arranged to take place on 8^th March 2016 at 1^st Defendant’s office.

 

[83]    As they were at 1^st Defendant’s office she got an instruction to invite the 2^nd Defendant as well. Since 2^nd Defendant was not answering their calls and they did not know what happened to her, they arranged for another meeting. On the day of the next meeting the 2^nd Defendant was already there as the Plaintiff was ushered into the boardroom. The 1^st Defendant then laughed at the Plaintiff asking her what she was doing there as she is not inheriting anything, like his wife who was left out in her father’s will. B[...] nearly had a heart attack and was calmed by the Plaintiff. The 1^st Defendant said he does not know why she was left out, but he tried his best, however the deceased was adamant, he did not want the Plaintiff to be in his last will and there was no reason that he was aware of. She then asked the 1^st Defendant why he was not at the deceased’s funeral because they were friends. He said on that day he was on medication and had told B[...] about Warfarin. The Plaintiff was therefore excluded in the (4^th) last will. She noticed however in the 4^th will the inclusion of the registration number of the car and all the handwritten things inserted in the previous will. It read “As n spesiale bemaking, bemaak ek hiermee al my roerende bates and insluitende my horlosie en ring en motor voertuig met registrasie nommer 0[...] G[…] aan my eggenote W[...] E[...] M[...] G[...] K[...].” That is the 2^nd Defendant.

 

[84]    With regard to the medicine the deceased took she went to Dischem and all other pharmacies and got a printout of all the medicines dispensed, although she couldn’t testify on what medicine the deceased actually took and when. They took out the curtains and the linen smelt so much of alcohol that they realised that there is no way they were going to rescue it and donated it to the SPCA. Clothes that B[...] bought for him still had labels on. They were taken to the SPCA. She went through his statement that also had Tops Super Spar statements. There was alcohol bought on the 19^th February that is the day the Plaintiff told the deceased that he had a few days to live. A liter of whiskey was bought on the deceased’s account. Three days later, on the 22 February 2016 at 14h00, the date that CANSA came to give them support there was another liter of Whiskey purchased at Tops. On the 25^th February 2016, the date the 4^th will was signed there was a bottle of Red Wine, White Wine and two different kinds of liters of whiskey bottles bought. The Spar receipt for the purchases on the last 10 days of his life were attached and identified. She was aware of an incident when the deceased had liquor next to his seat which he asked her to dilute the alcohol in his glass with water as it was too strong.

 

[85]    The Plaintiff was referred to the Liquidation and Distribution account in the deceased’s late estate drafted by her attorney Rynard Kruger.  She explained that Kruger helped her because of an estate duty payable one year after one has passed. She did not know how to do that even though advised at the Master’s office, which she visited a day after the deceased passed.  She completed the forms and attended to the stamps and to the police. The deceased’s tax where done by the accountant. She queried one annuity which did not pay anything on his death, that was from Momentum. On the Distribution List on page 83, the Plaintiff explained that she told the attorney that the deceased told them many times that when he passes away as he feels that he was an absent father, he fell guilty and understood that money will not bring back the lost years but what he wanted was that in their old years when they need some capital they can thank him for leaving them some money. She therefore did the distribution half/half.

 

[86]    She lodged the account even though her attorney advised her that it might not be accepted. She did that for the estate duty tax was due. She also went to the bank with a letter obtained from the Master’s office to obtain the closing/final statement. At the bank she discovered that there was a lot of money missing from the account and indicated that a double payment had occurred for a purchase of a Mercedes Benz for R860 000 on 18^th February, the date when the deceased was doing his CD scan. as two hours thereafter the money was paid in by an agent. The money was refunded the following month in March 2016. The Plaintiff also said as the deceased had a personal loss on the farm operations she wanted to know how it affected the estate. The bank pointed out that the loss was on income from investments. So they scanned all his medical bills and scanned his personal income tax of zero and said no tax due. She therefore informed the attorney that everything sorted but liquidation and estate duty tax which has a penalty of 6% if not paid was still outstanding and needs to be submitted with the list of creditors so that the 1^st Defendant can be able to make the necessary payment to the tax man. She then had to assist her mother who had taken ill at the time in August.

 

[87]    She had seen a Liquidation and Distribution Account that has now been advertised on 20 November 2020, which she came across whilst browsing on the internet. She bought the paper and asked B[...] if she was aware of that, which she was not. On the Monday morning she met Judge Molopo at the Master’s office who told her that they cannot give her advise. They therefore decided on the urgent application to interdict the distribution. They got the order against the 1^st Defendant to give the Plaintiff all the financial records on the account from the day the money was paid to him until mid-January 2016. The 1^st Defendant on receipt of the financial records, did an assessment and discovered that 2 statements were missing. Also that the deceased not only had one account but had several accounts 4 in total.  She was able to trace that through the last account, that is account number 4. Monies were invested in that account for a year then reinvested for 6 months, then eight days at 3% interest. The balance then R15 352. 44. The amount was only reinvested and was to mature on 12 December 2016. The ad in the paper was placed on November 2016. The money was free on 12 December and re-invested for another two months.   

 

[88]    The deceased had also signed for the property to be sold in November 2015 and due date for payment was January 2016.  The Plaintiff phoned the attorney handling the sale and transfer who apologized for the emotional unnecessary stress that the deceased had to go through in the last 6 months trying to recover the money.  The Plaintiff could not find the title deed but got copies of the title deed and the purchase agreement from the transferring attorneys. They refused to give her the originals. The Plaintiff told them that she and B[...] would like to keep the house which was sentimental to them.  They wanted to spend some time alone where their father passed away. Anyway there was cash available in the estate so there was no need to sell or get rid of anything so as to pay the estate duty. They then received a letter from the master’s office asking them to approve the sale which they refused. She then one day got a call from B[...] saying that she is at the property wanting to know what the Plaintiff had done as there was somebody at the house who has bought the property. She phoned the attorneys and they told her that the transfer went through in August 2016.  Attorney informed her that she spoke to Frik Hennop, probably who managed to convince the master that their consent was not required since there was an agreement already signed in 2015 prior to the demise of the deceased.

 

[89]    Frik Hennop was not known to her but she remembers that when the deceased passed away she had to get a document from Dr Bond at Unitas. The receptionist told the Plaintiff that there was a medical bill for R4000 upon which the 2^nd Defendant advised them that a certain Mr Hennop be contacted, who will sort out all the medical bills. They showed her a letter that advised them that they must expect speedy payments and therefore this should be an easy estate to wind up. The Plaintiff phoned Hennop wanting to know who he was. Hennop told the Plaintiff he was present at the signing of the will, he signed as a witness asked by the 1^st Defendant. Thereafter he was asked by the 1^st Defendant to assist him in the winding up of the estate. Plaintiff also noticed that the 2^nd Defendant kept on inheriting more and more. In the wills the 1^st Defendant was the executor failing which it is one of the children.  However, the final will states that B[...] would be handling the deceased’s affair. Their father had however told them that his daughters will be handling his will and did not want strangers doing it.  The 1^st Defendant has been the deceased’s attorney since the Plaintiff was a little girl and in the nineties when the deceased was married to the 2^nd Defendant.

 

[90]     Under cross examination it was put to the Plaintiff that the 1^st Defendant, although appointed as an executor used an agent Mr Hennop for the groundwork. Plaintiff indicated that she tried to meet up with Hennop to establish his relationship with the 1^st Defendant but could not as he operates from his flat. When she received the will she wanted to contest it. She approached the master’s office who told her that the estate was not reported, no executor appointed and told her what to do.  The deceased had told her that the 1^st Defendant arrived with a clerk from his office and was not sure if that was the attorney or the clerk in the office of the 1^st Defendant.  It was put to her by Counsel without indicating if Mr Hennop was going to testify that since the matter was placed on the roll to proceed, Mr Hennop informed the person who he has commissioned to advertise, of the matter not proceeding and that person erroneously proceeded to advertise the L & D account. The advertisement was therefore placed by mistake.   The Plaintiff pointed out that even though an undertaking was made in 2016 not to proceed with the estate, the attorney had proceeded to sell the property so the agreements made were not complied with. The 1^st Defendant also proceeded to register himself as executor after they indicated that they are contesting the wills.

 

[91]    The Plaintiff could not deny that the will of 8 October 2015 was attached to the Plea and confirmed having not been aware of its existence.  She confirmed that she was only aware of the Antenuptial contract concluded by the deceased and the 2^nd Defendant on that day.  She confirmed that in her particulars she only wanted to set aside the two wills that of 15 January 2016 and 25 February 2016.  It was then put to her that the will she wants to be recognized as the valid will was superseded by the will of 8 October 2015 and therefore cannot be valid.   

 

[92]    The Plaintiff admitted to have had a fairly good relationship with the 1^st Defendant who was introduced to her by the deceased.  The deceased had a lot of interaction with him. His name came up frequently when she visited the deceased. She however did not have a personal close relationship with the 1^st Defendant.  She agreed the relationship between the 1^st Defendant and the deceased went on for quite some time spanning a period of 40 years. She however lost trust in the 1^st Defendant when he walked into his office and he told her that she was disinherited, the will has been changed again, which was a big shock to her. When they have had discussions with the deceased and he had always voiced his wish that his daughters inherit from him. The Plaintiff said she did not expect the 1^st Defendant to be in possession of so many wills and also to be aware of the wedding. The 1^st Defendant just told her to accept it and stay quiet.

 

[93]    It was indicated that the 1^st Defendant was going to deny what is alleged he did on 8 March 2016, the date the Plaintiff and B[...] went to see him at his office to check on the will. It was put to her that the 1^st Defendant actually sympathized with the Plaintiff as his own wife was also disinherited by her father. The Plaintiff confirmed that the 2014 will was signed but undated.  Also that the 2^nd will was signed on 8 October 2015 and the deceased and 2^nd Defendant married on the 25^th October 2015. In terms of that will she inherits nothing. It was put to the Plaintiff that the deceased approached the 1^st Defendant with marriage in mind and two things happened, the 1^st Defendant drafted the antenuptial contract and the 2^nd Will. The Plaintiff said she was not aware of that and on that day they had an appointment with the radiologist. So they did not plan it. She thought they had left.

 

[94]    She thinks that what made the deceased change his mind was that after the news of his imminent demise. The deceased phoned the Plaintiff to say that his valuables were missing and asked her if she knew where they were. He was asking her because when he was discharged from hospital on the 16^th of September 2015, she visited the deceased. She went to the guest toilet before she left. She did not know how a change of heart happened in January 2016. The deceased had included her for a 1/3 share. The Plaintiff response was that she was not involved in the preparation of the wills. However, what upset her is that somebody was speaking on behalf of the deceased. She indicated to have discovered the 3^rd will a day after the deceased’s funeral and because of the writing on it she became suspicious of other people’s involvement in drawing up these wills. It was put to her that the notes were made for the purpose of drafting the 4^th will. Also that in the 3^rd will she was included but then in the 4^th will she was excluded again which means something happened again and asked what was it. The Plaintiff explained that she went to B[...]’s school on 19^th February 2016 and informed her that the deceased was left with a few days to live she must go and see him.

 

[95]    B[...] had a lot of conversations with the deceased about when, what was going to happen when he dies. B[...] told the deceased that when he dies she does not want anything to do with the 2^nd Defendant, she was tolerating her presence since the deceased is alive because that is what the deceased asked of her. She did not want to be constantly looking behind her back and asked the deceased not to let anything in his will oblige her to do so. The Plaintiff denied making it clear to the deceased that she despised the 2^nd Defendant but pointed out that it was B[...] who went to the deceased with W[...] and told the deceased that she does not like the 2nd Defendant. She was however the one who was disinherited. She said that is why she was in court. The deceased actually told B[...] that the 2nd Defendant messed up their lives for the past 20 years and wished she never came. Even his death was messed up and he would like his children to be looked after one day.  But they have always told him that they were not interested in his money they wanted to spend some time with him and have a relationship with him which is more important to her and B[...].

 

[96]    Plaintiff also denied that the deceased’s house was already sold at the time of the passing of the deceased and the executor could not do anything but let the transfer proceed. According to Plaintiff there were monies still owed although an offer to purchase was signed and accepted and a deposit paid. It was a cash sale and the money was not yet paid which was promised to be paid by January 2016 and was not yet paid at the time of deceased’s demise nor in March when she did the enquiries. She said she told the transferring attorneys that they were no longer interested in continuing with the sale. It was pointed out that the transferring attorneys did not tell the 1^st Defendant that but instead told the 1^st Defendant that the Plaintiff said they will be contesting the will and asked if he knew why that was so. Also that the 1^st Defendant was going to say he was performing his duties and he had received in August 2016 a letter from the transferring attorneys indicating that the seller was putting pressure on them to transfer the property threatening legal proceedings. He therefore had no choice but to proceed with the transfer and invest the money accordingly.

 

[97]    On the liquidation and distribution account that Plaintiff signed on 07 September 2016, she was asked as to the reason why it was done as there was already an executor appointed. She said she lost trust in the 1^st Defendant and wanted the actual balance of the deceased’s estate as of 28^th February 2016 and wanted it to be known to the master. She wanted to know the value of all the deceased’s assets at the time of his death. It was pointed out that she submitted the L & D knowing that it is wrong as it included a property that was already sold. The Plaintiff indicated that at the time of the deceased’s death the property was not yet sold. The other party had not come to the party yet although there was an offer to buy. She therefore used the municipality valuation for its value. She continued to advertise the L & D because they had a dispute with the appointment of the 1^st Defendant as the executor. The creditors had to be notified and to sort out that tax issue. The master’s office told her the death has not been registered or reported and gave her forms to complete and she had to list all the assets. She told them there is tax duty and she wanted to help the 1^st Defendant because he did not have the list of assets.

 

[98]    In the L & D four medical bills of Doctors that were not paid were left out.  She advised the attorneys that she does not trust the 1^st Defendant to be appointed executor and the attorneys were going to the master and to the 1^st Defendant to indicate that. In the meantime certain things needed to happen after the death.  Plaintiff said she went ahead and placed the ads, she signed the L & D in September 2016 and advertised same in the GG. She confirmed it was after appointment of executor. She knew the attorneys were not the executor and were still going to court at that time. She signed the L & D as the next of kin, the daughter of the deceased. She confirmed to have approached FNB Private wealth and introduced herself to the private wealth person Mr Wassenhoef. He came to her house to reintroduce himself and had a different plan as to what to do. It was pointed to her that the 1^st Defendant again pointed out to Mr Kruger, Plaintiff’s attorney that the Plaintiff acknowledged that 1^st Defendant was the sole executor, however she wanted and continued to interfere in the executor’s duties. She had no locus standi to take over any administration of any money which message she admitted was conveyed to the bank by the 1^st Defendant. According to the Plaintiff the 1^st Defendant was under immense pressure as the bank has transferred everything to another estate account which was bearing good interest and did not understand why it had to be transferred to another state account.

 

[99]    On the suggestion that B[...] owed money to the deceased and had signed a memorandum to that effect, she disputed that and stated that B[...] was trying to protect herself as 1^st Defendant always mentioned the transfer funds that she wanted them to pay back as a result the document dated 25 February with 24 taken out was referred to which is a document that the deceased signed releasing B[...] from the debt.  It was pointed out to her to have been dated the same date the last will was signed and handed to the deceased on 24 February 2016 a day before the will was signed. The deceased then signed it on 25 February 2023. B[...] knew that the deceased had a short time to leave. The Plaintiff confirmed to have told B[...] on the 19^th February 2016 of the deceased’s imminent demise.  It was put to Plaintiff that the deceased had told B[...] that he was going to show it to the 1^st Defendant. The deceased did show it to the 1^st Defendant in front of whom he signed the document and who witnessed the signing. The Plaintiff indicated that she cannot testify to the deceased’s state of mind as she is not a doctor. However, she was aware of when and what medication was issued and the amount but as to whether he took it and how much she cannot testify to that. 

 

[100]   It was pointed that according to the particulars of claim the Plaintiff wants the 3^rd and 4^th wills of January and February to be nullified or set aside because “the deceased was suffering from aggressive cancer of his pancreas and a regular user of morphine whilst he was overindulging in alcoholic beverages.”  She confirmed that she always saw the deceased with a glass next to him, full of whiskey.” The Plaintiff said she was aware that morphine is half syrup, and 70% alcohol with a tiny bit of morphine. The Plaintiff pointed out that the deceased was very lonely and of very poor health, he was dying, somebody came into his life and just took over. The deceased’s friend of forty years could not see how he degenerated, lost weight even when there was so may requests for will changes so close to his death that the Plaintiff expected the friend to take due care of the deceased.  She collected the morphine from the pharmacy on 28 February 2016 and B[...] also collected some which she says she returned it the very next day unopened and unused. The deceased only had 1 tiny bottle of morphine and the rest was withheld from him.  Little morphine was issued to the deceased on 8 February 2016. He had a prescription for 6 months and B[...] only collected it on the 28^th February 2016.

 

[101]   She said in relation to the particulars of claim she has uncovered a lot more information since their issue, she does not know how much and when the deceased took the morphine but can testify to the invoices and the medicine that was issued to him and all the alcohol purchases. It was pointed out to her that she said in the particulars the morphine was taken by the deceased at the time of making the wills which is 15^th January and 25^th February 2016 and referred to Dr Bond’s report, attached by her so her own expert that, 1 milligram per milliliter of morphine was actually initially prescribed on 4 February 2016 and again on 18 February 2016. She confirmed that there was no morphine prescribed or administered in January when the January will was executed or signed. He was actually on oxycoton and oxynorm which is an opiate. It was put to her that their expert Prof Shellock will say a dose of I milligram per milliliter was very low for every 4 hrs. And on the day of the signing of the 4^th will on 25 February 2016 the deceased specifically said he was not going to take his morphine in the morning and he only took his morphine after the signing of the will. The Plaintiff said what she knew was that the deceased was supposed to go to 1^st Defendant’s office but couldn’t do the journey.

 

[102]   It was put to her that the deceased desperately wanted to change his will and evidence was going to be led by witnesses to the will that the deceased was very sick but he was having a normal conversation, there was nothing wrong with his mind. The Plaintiff pointed out that the deceased was not eating and severely malnourished. It was put to her that Shellock as an oncologist was going to testify that the pancreas cancer or enzymes that are used to digest the food, the moment that the pancreas attacks or has the result that the enzymes are not manufactured as they should or not manufactured at all, the problem is that a person’s food does not digest, so a person at some point dies of hunger. So the fact that he lost weight was a natural effect of his illness. He could not eat and that was confirmed by the Plaintiff that she just saw skin and bones, especially when the deceased lifted his head she could see hipbones and it was upsetting.

 

[103]   It was put to her that the deceased was however not malnourished by the 2^nd Defendant as the Plaintiff would like to put it. She said that the pancreas breaks down the food to be absorbed in the system. In relation to denying that the 2^nd Defendant was not nourishing the deceased she said what she knows is that the 2^nd Defendant was stumbling on her feet and slurring out her words whilst the deceased was crying of pain. She also went shopping to Johannesburg. She confirmed that the deceased was a frequent alcohol user and since the passing of his mom in 1966 he liked brandy. She has also read on the internet that hard drinking can be one of the triggers, a cause of pancreatic cancer. She did not know anything about the deceased acknowledging to the CANSA nurse that, that was the cause of his cancer. It was put to the Plaintiff that although the deceased was a heavy drinker he stopped drinking in total in September 2015.  The Plaintiff said in May 2015 after his round trip to Cape Town, the deceased undertook to B[...] to stop drinking and he did for a while and when asked when exactly she said in May 2015. She could not dispute that the deceased in September had stopped drinking and even had the non- alcoholic champagne or sparkling wine at his wedding as she was not invited.

 

[104]   Regarding alcohol in the house it was put to her that the 2^nd Defendant used to drink whiskey and wine sometime, she never stopped drinking after the deceased was diagnosed with cancer as she did not need to. Also that the deceased did not consume alcohol between the period January and February until he passed away.  The Plaintiff said when the deceased started to drink again it was after he was in hospital for the 8-hour operation that did not go well. He went home and was refusing to see the Plaintiff as he had secretly started to drink again and he was embarrassed and had hidden that to the Plaintiff. After the wedding that is 25 October 2015 he openly left his glass like that, they could all see it. On 23 February 2016, she visited the deceased, he told her the drink was too strong they must pour water to dilute it for him. It was put to her that it was coke that he needed to be diluted therefore going to be denied. The Plaintiff pointed out that it is on tape, which can be produced.

 

[105]   The Plaintiff indicated not to know a Mr Potgieter but to have seen from the financial records of the deceased that the deceased extended a loan to a Mr Potgieter which was indicated to have been recovered. It was put to her that Potgieter was the deceased’s old friend with whom the deceased did business and they were also drinking friends. She said she has never met Mr Potgieter even though she was staying with the deceased frequently from 2012 to 2015. It was put to her that Mr Potgieter and the deceased used to sit once in a while and drink a bottle of whiskey and finish it. Potgieter visited the deceased when he was sick and was only offered coffee or tea there was never any drinking. It was put to her that the deceased had a lot of friends as a people’s person. The Plaintiff could not comment to that. Further it was put to her that the people who were there when the last will was signed will all testify that there was no indication of alcohol being present that day. Plaintiff indicated that she just knows that the 2^nd Defendant was always involved driving him to all the appointments, visiting his friends and buying medicine, taking over his life. She had his bank card. She also paid herself a salary of R2 500 from the deceased’s account. So she agreed with him that she will look after him but be paid an amount of R2 500 per month for doing so charged under medical bills.

 

[106]   She also pointed out that the 2^nd Defendant was totally involved in the deceased’s life when he prepared, visited and made the wills.  It was pointed to Plaintiff that the purchases of the alcohol on 25th Feb 2016, the day of signing of the 4^th will was at 13:25 and 13: 00 when the will was signed in the morning. Plaintiff pointed out that a purchase was made on 22 Feb 2016 of a bottle of whiskey, three days before with liters and liters of whiskey bought. She was corrected that only 2 bottles of whiskey bought, on which she did not deny, on 19 and the other on the 22^nd February for the 2^nd Defendant.

 

[107]   Plaintiff confirmed that the deceased was a hardkopig man who already by the age of 57 had divorced five times and still managed to work very hard and could not be messed with. Plaintiff denied the fact that the deceased was married to five women six times means that he was difficult but instead he was jovial, communicated very well with women and charming. It sometimes was embarrassing to the Plaintiff and B[...] as he would flirt with one of B[...]’s colleagues. It was put to her that the 1^st Defendant was going to testify that the deceased was very difficult sometimes he would do his own thing follow his own way and not listen to him as his attorney. The Plaintiff on the deceased being influenced she said she just saw the deceased being sick the whole of 2015, lonely with flu symptoms that didn’t want to go away, alone and lonely, losing weight and  being diagnosed with cancer, vulnerable and his ex-wife after being divorced for 17 years suddenly arriving and deciding to stay with him for the operation, and taking over his life.

 

[108]   The Plaintiff pointed out that if the Defendants had a problem with her L & D of 20 November 2020, the Defendants could have objected. It was pointed to the Plaintiff that in the 3^rd will of January 2016 there is reference to a trust and it was pointed by her through her counsel that there is no trustee mentioned. However, in the next page 8 para 2.1 it is stated that “I appoint as executor of my will and administrator of my estates and as trustee of my trust Mr Morris Porkroy.”  He was going to be a trustee in terms of the will. It was going to be a testamentary trust therefore there is no basis for Plaintiff to say there was no trustee for the trust to be formed. She understood that the money was going to be in trust for 10 years after that straight forward distribution in equal shares. On the January 2016 will there was 2^nd Defendant’s writing on paragraph 4 page 9. It was put to the Plaintiff that it was not the original, the original was with the 1^st Defendant and it had no writing. The Plaintiff confirmed that she is not sure what was on the original but however when they were at the office, the will presented it had what was added in writing to the January one.

 

[109]   It was pointed out that paragraph 4.1 was amended to be the new paragraph 3 on page 14 to specify the vehicle which was the deceased’s instruction to 1^st Defendant to include the vehicle and the 2^nd defendant wrote that at the instruction of the deceased. The 1^st Defendant duly amended the 4^th will in accordance with the instruction so confirming that they were actively involved in the amendment of the will. The Plaintiff agreed with the suggestion and said the 2^nd Defendant actually lived there, present all the time and was actively involved in the drafting of the wills. She confirmed that she was excluded. It was pointed out that there are no notes to the Plaintiff’s exclusion its only around the assets and that deceased verbally told the 1^st Defendant to exclude the Plaintiff and the exclusion not written by anybody, which the Plaintiff could not confirm except to say she only knows of the wishes of the deceased for the sisters to share. According to Plaintiff it was B[...] that made comments about closing the book with the 2^nd Defendant and not wanting anything to do with her. She got along with the deceased.  The deceased had two biological daughters and has wished equal shares for his daughters before the illness diagnosed and limited life expectancy on 9 September 2015.

 

[110]   It was put to her that the testimony by 2^nd Defendant was going to be that it was not uncommon for the deceased to give instructions to another person when there is paperwork to be done, which he did not like doing, this time to 2^nd Defendant and say that complete this form, fill in this paper to the bank, fill this form for the pharmacy which is how the deceased worked. Plaintiff denied that the deceased has ever made her fill in any forms or complete any papers of whatever kind for him which he was able and willing to do.

 

[111]   On the deceased meeting the 2^nd Defendant for the first time she indicated that it was the 2^nd Defendant’s parents that were farmers, farming in cattle and Plaintiff not aware of the 2^nd Defendant being involved in cattle. It was put to her that the 2^nd Defendant had her own stud of cattle when the 2^nd Defendant and the deceased fell in love and got married, staying married for six years until their divorce. The 2^nd defendant divorced the deceased because of his excessive drinking in 1998 (which is 5 years, not 6). After they got divorced, two weeks thereafter the deceased tracked the 2^nd Defendant down where she had other work or business with a bunch of flowers pursuing her again. Plaintiff denied the deceased being a flower buying person or perfumes and only remembered an incident of someone who bought the flowers for him to take on valentine’s day because someone broke his heart. She was working in Mauritius from 2000 to 2012 and had limited contact with the 2^nd Defendant who came to Mauritius once for 5 days.

 

[112]   It was put to her that after 2 years of dating again the deceased and 2^nd Defendant moved back together in a farm for 3 years at the time the Plaintiff was in Mauritius. They continued in a long distance relationship which the 2^nd Defendant referred to as “living apart together.” She came back in 2002 to attend the deceased’s 60 birthday and was not aware that after their divorce they were now in a secret relationship until he was diagnosed with cancer. What she was aware of is that she once came back from Mauritius and the deceased was suffering from a rib injury and he said he was trying to stop the 2^nd Defendant from removing his cattle from the farm and she hit him with a truck. The injury took some time to heal. The 2^nd Defendant was called out to take him to hospital and she didn’t. The 2^nd Defendant was also in the Cape with businesses and the deceased would go down or she will come up. He however had other relationships, one with a woman with two sons and had a key to her apartment. He lived with the woman with whom he had a very good relationship. The Plaintiff’s mother also had a relationship with the deceased from 2009 to 2011 living together in the estate until 2^nd Defendant came back and stayed in his bedroom. That is when the depression started with deceased locking himself in the room and leading to some tension between the deceased and the mother. The Plaintiff sorted out accommodation for the mother. When the Plaintiff relocated in 2012 she lived with the deceased who helped her to relocate. He had already built the new house and a new car she did not know about.

 

[113]   It was put to her that the deceased and 2^nd Defendant had an open relationship so she was aware of the deceased having other relationships and she also had two relationships during that time. However, there was contact right through. She therefore did not just appear from nowhere when he had cancer they had contact over the years. The Plaintiff said the 2^nd Defendant got keys to the Mini mart and to the Pringle Bay property in 2005. The deceased said the 2^nd Defendant would then contact the deceased for business advice. The deceased would sometimes drive there to assist the 2^nd Defendant. The Plaintiff suggested that since it is a long drive the deceased should consider flying and start charging the 2^nd Defendant for the advice. She got a message that the 2^nd Defendant was actually not making any profit but losses. She had books to prove that the deceased was advising the 2^nd Defendant on her businesses and statements prepared by the deceased that indicate that in 2010 the 2^nd Defendant was suffering a loss. The deceased was a kind of man if you ask him something he would assist. She approached the deceased for money not wanting her parents to be aware that she was struggling. She wanted to get rid of mass mart. The 2^nd Defendant‘s parents expected an offer and the deceased made a very low offer being not interested. The deceased was struggling to recover a loan extended to her.  A lawyer’s letter was written for repayment of the loan.

 

[114]   It was put to Plaintiff that the deceased asked the 2^nd Defendant a lot of times to marry him but she refused as when they were married he misbehaved and when they are not he had a proverbial sword over his head and had to act in a more decent manner. So this way the relationship continued until he was diagnosed with cancer on August/September 2015. The Plaintiff responded that she witnessed the deceased have a cordial relationship with the woman he had married who was 23 years younger than him. The deceased also stayed with the Plaintiff’s mom for some time long after they divorced. He had a cordial relationship with all his wives. It was put to her that when the deceased was diagnosed with cancer he called the 2^nd Defendant whom he called Saartjie to come home.  According to her the 2^nd Defendant came to visit. But instead she moved into the deceased’s bedroom when two guestrooms were prepared for her and whilst the 2^nd Defendant’s sister stayed down the road.

 

[115]   It was also put to Plaintiff that deceased told the 2^nd Defendant that he wanted a younger wife so that they can look after him in his old age. So when he got sick he married the 2^nd Defendant, he wanted her to be there. Plaintiff pointed out that the deceased had married a woman 24 years younger than him so the 2^nd Defendant was only 14 years younger, he always married down in age. It was the 2^nd Defendant who insisted to stay there and dismissed the Plaintiff’s services.  She did not want to see the Plaintiff there. She completed forms that the Plaintiff had done already, insisted on seeing the doctors’ rooms. She asked the deceased if she could stay for the operation. She wanted to be there for him. In other words, not the other way around. It was put to her that the deceased knew that he has a limited time and wanted a few things done, including marrying the 2ⁿ Defendant, and being buried with his mother and a third thing that is forgotten. The Plaintiff did not comment on that. (It was the Plaintiff who suggested the double burial to the deceased which the 2^nd Defendant did not appreciate) 

 

[116]   Furthermore it was put to the Plaintiff that the 2^nd Defendant is going to deny that she ill-treated, neglected or poured water over the deceased. The Plaintiff said she could only testify to what she saw, which is injuries on the deceased body and did not know what happens behind closed doors. She said she witnessed the deceased’s personality change as soon as the 2^nd Defendant walked through the door, he was walking on egg shells, trying not to upset her. The same deceased who was flirting with the nurses when he was at the hospital on 25 and 26 August 2015 when he checked himself into hospital. His personality just changed.

 

B[...]’s testimony

 

[117]   B[...]’s testimony was that when the deceased divorced their mother I[...], she and the Plaintiff were 3 and 6 years old respectively. He got married to another woman with their mother going through struggles with regard to maintenance and seeing the deceased until he married the third wife when a relationship developed again with the deceased. The deceased asked for B[...]’s opinion before the deceased married the 3rd wife, C[...], who was way younger then him. She had thought it would not last as she would want children whilst the deceased was adamant that he did not want any more children. The deceased was married to C[...] for four to five years and to the 4^th wife for 9 years. After C[...] the deceased asked the Plaintiff to stay with him. He could not be on his own. They stayed together until the deceased met the 2^nd Defendant whose parents were farmers.

 

[118]   B[...] corroborated the Plaintiff on how the two met, the 2^nd Defendant being introduced to the deceased by her father. She said when the deceased introduced the 2^nd Defendant to her she was skeptical as she did not believe that the 2^nd Defendant was the right person for the deceased. B[...] was at college at the time. The deceased visited her at the college and asked her what she thought of the marriage. The 2^nd Defendant had told the deceased that she was pregnant and he had thought that was the right thing to do to marry her. She told them later on that she had a miscarriage. The 2^nd Defendant had a daughter with whom she moved into the deceased’s house and also stayed with the Plaintiff. There were quite some problems when they stayed with the Plaintiff, the latter had to leave the house. The 2^nd Defendant was saying things about the deceased at his business, the shell garage, that the deceased gave her genital sicknesses. The Plaintiff stood up for the deceased. The 2^nd Defendant skipped a red robot and made an accident. She blamed it on the Plaintiff.

 

[119]   All the time they have known the 2^nd Defendant there was something going on between her and the Plaintiff. The marriage did not last long. There was a lot of years when they were apart.  Shortly after the divorce she came and stayed with the deceased at the farm for a while and they separated for a while for nearly 20 years or over 17 years not being part of each other’s life. When she came back she just went on to live with the deceased. They knew each other and the 2^nd Defendant would ask for advice from the deceased and also borrowed money. The deceased would be in a car or a flight to go and help her, that is his personality, he did not like people to suffer. The deceased told her about it. She knew they were not together because the deceased had other girlfriends that he introduced her to. She collaborated the Plaintiff’s evidence about I[...] selling her house and happily staying with the deceased. Everything going so well, with W[...] and herself happy too until when the 2^nd Defendant suddenly turned up, the deceased and the 2^nd Defendant locked themselves in the bedroom. She told the same story as how it ended after the deceased went to Cape Town and coming back being a different man, drinking too much, fighting with I[...] who then moved out. 

 

[120]   There were other incidents were the 2^nd Defendant had phoned her to come and help the deceased because he was dying or would phone her to tell her how bad the marriage was. She one time had to take her sick child to T[...] to their farm to help them and was at the hospital the whole night because the deceased felt the 2^nd Defendant was not good for him. The Plaintiff took him to all his appointments and made sure that everything was going right. She was there for the deceased doing everything. Also, at the time when the deceased fell from the train and his skull was broken. The Plaintiff went to Durban to fetch the deceased. They did not think the deceased was going to survive. The Plaintiff was still very young at the time. So always when she was concerned about the deceased, the Plaintiff has come and helped him. B[...] was working and the Plaintiff was not working so could do that stuff. However, the Plaintiff had just started with her studies and to work when the Plaintiff went to fetch the deceased from Durban and saw to it that everything was ok. B[...] was not sure when the Plaintiff had time to do all that. The deceased was badly affected by the accident. He thereafter could not stand the noise and told the nurses his shoes made his head sore.

 

[121]   The 2^nd Defendant came just after the deceased was diagnosed with cancer. They one day found her at the hospital, she was not aware that she knew of the diagnosis. The deceased asked the Plaintiff to assist the 2^nd Defendant with her bags. The deceased told B[...] and the Plaintiff that the 2^nd Defendant was there, for the money. On the day they were at the hospital before the deceased’s operation, the 2^nd Defendant stayed there by the deceased’s bedside. The 2^nd Defendant kept on holding the deceased’s hands and kissing him. However, B[...] and the deceased had a close relationship that they just had to look at each other and knew what the 2^nd Defendant was up to or trying to do. The Deceased also liked to send people away so that he can discuss something in their absence. So the 2^nd Defendant was sent away by the deceased, saying that the 2^nd Defendant must go home early as he does not want her to drive in the dark. After the 2^nd Defendant has left the deceased told B[...] why 2^nd Defendant was there. The 2^nd Defendant never went back to Cape Town. After the operation the doctor came and told them exactly what was happening with the deceased, that he cannot help him and has maybe up to six months to live.

 

[122]   After the deceased was discharged they went home and had a discussion as to who was going to look after him. The 2^nd Defendant wanted to be there, wanted to stay. The deceased’s house was close to her house. After the deceased sold his farm he wanted to stay near her and her family. He came and stayed at Eco-Glen, in their security estate. The deceased wanted to stay close to them so that he can see the only grandson he had and adores very much, grow and also wanted them to be safe. They exchanged keys so that if the deceased had any problems the Plaintiff could go in and help and if she has problems he can also come and help. That is how close they were.  When the deceased was sick in hospital his grandson cut the grass at the deceased’s house. The grandson had to go through the house. She would also go to the deceased’s house, by going through the garage to go into the house. The deceased would know when she would be coming.

 

[123]   After the deceased was diagnosed with cancer she did it more often. It was then that the 2^nd Defendant came to stay with the deceased and they would buy a lot of alcohol. So 2^nd Defendant was not concerned that the deceased has just been diagnosed with cancer and had a huge operation. She was afraid that it was going to happen again as it was proven over the years over and over again. So the first time she went inside the house and she saw a glass full of alcohol next to the deceased she knew that they were going down that road spiraling downwards again. She knew about the huge amounts of alcohol the deceased and the 2^nd Defendant bought. When the deceased went down with depression he usually would drink again. He was however winning this time before he was diagnosed.  It was going good and knew about that because she visited him more often. But when she came and saw the bottles of alcohol, and one day the deceased asked the Plaintiff to pour in a little bit of coke because it was too strong for him she knew that it was alcohol. At one time she was very upset because they had phoned W[...] to buy alcohol for them. She found out because she one time phoned the deceased and 2^nd Defendant from Dischem to find out if they needed something from there.  They told her that they forgot to ask W[...] whom they have sent to buy them alcohol to also bring coke, and asked her to bring it. It upset her tremendously.

 

[124]   Prior to that, the deceased became ill and told B[...] he had a stomach ache. She took him to the doctor, thinking that he had something else. The deceased did not get better, and was therefore tested to see if it was an allergy reaction. She phoned the Plaintiff as still the deceased was not getting better.  The Plaintiff took the deceased to the specialists and that is when they realized that he has got cancer. 

 

[125]   In relation to the wedding she was very upset as the deceased always discussed with her any potential marriages wanting to know her opinion. However, this time she was informed by the 2^nd Defendant who told her that she needs to go and get her documents certified as they were getting married and the deceased insists that B[...] be at the wedding. She was hearing for the first time of the word wedding. When she told the 2^nd Defendant that she knew nothing of it, the 2^nd Defendant screamed at her and told her that there is nothing she can say. They have already made all the preparations and getting married that Sunday. The 2^nd Defendant told her she was the only one invited, neither the Plaintiff not her son was invited.  If she wanted to bring somebody she could bring her husband. At the church on Sunday the deceased was shivering like a leaf in the wind and struggling to stand up. She took him aside and they sat on a bench. She asked him not to get married and he was worried about how it was going to look if he doesn’t since everybody was there. On the Saturday before the wedding B[...] went to the deceased’s house and wanted to speak to him about her concerns, but the 2^nd Defendant was there all the time.

 

[126]   She was concerned because from the day they had married the first time the 2^nd Defendant told her and also the Plaintiff that she was going to make sure that her and the Plaintiff inherit nothing from the deceased. The other time she said that was when W[...] was small and the deceased had taken him on a ride on a tractor. The 2^nd Defendant started talking badly about the Plaintiff. She defended the Plaintiff then the 2^nd Defendant vowed to make sure that she does not inherit anything as well. So she was overwhelmed by all this. Some people were concerned wanting to know how she felt about the wedding. The 2^nd Defendant overheard her saying that you do not marry a man on his deathbed. The 2^nd Defendant then reminded her of what she had said about the inheritance and told her that she will make sure it does happen, she inherits nothing. As to the Plaintiff everybody knew that the 2^nd Defendant despised the Plaintiff. The 2^nd Defendant had made sure that the relationship between the Plaintiff and the deceased was terrible. B[...] said when she came to visit she will come in first and tell them that the Plaintiff was there they would like to talk to the deceased alone. The 2^nd Defendant would then excuse herself and go to the bedroom. If the 2^nd Defendant came back whilst they were talking the Plaintiff would excuse herself. It upset her as the Plaintiff did not have much time with the deceased. The deceased also did not like it and told B[...] that he preferred the Plaintiff to visit him when the 2^nd Defendant was not there or rather phone him. He did not like the fighting and the noise as he was in pain.

 

[127]   The last ten days before the demise of the deceased, she was upset about the way the deceased was cared for. He was left sitting in the couch but sliding down. It was not easy to put him up straight or to move him up. They struggled with him. He was also not bathed for days and smelling. One day when she was there she realized that the deceased had a hole on his arm which looked like a poke hole. The deceased told them he fell. She therefore asked the Plaintiff to get help for the deceased. The Plaintiff phoned the Hospice to try and get a bed for him but the deceased did not want to go to hospital so they tried in vain to get a bed for him for use at home. One of the days B[...] was there the deceased begged her for morphine and she couldn’t help him as the 2^nd Defendant had hidden the morphine and told B[...] that she will decide when to give the deceased the morphine. The explanation was that the deceased would take too much or take it with alcohol. One time during the visits when the deceased was begging for the morphine, the 2^nd Defendant brought it in a syringe. The deceased went backwards when the 2^nd Defendant came closer to him with the syringe and shouted “not in my face.” He looked a little bit confused. B[...] couldn’t understand what was going on. The 2^nd Defendant also during that time one day called B[...] and the Plaintiff because the deceased had fallen, he was lying on the ground next to the chair, curling with pain not wearing any clothes except for a t shirt. B[...] and her husband picked him up and helped him back to the chair.

 

[128]   Although the 2^nd Defendant had undertaken to look after him right from the first day when the deceased came home after the 1^st operation. The 2^nd Defendant poking fingers at B[...] had undertaken to look after the deceased after B[...] had offered to do that by either taking leave or relieving the 2^nd Defendant in the afternoons so that she can do her rounds. Most of the times when they came to see the deceased in the afternoon he would be left alone and they would not find the 2^nd Defendant at home. The 2^nd Defendant would be gone for a long time already leaving the deceased at home alone and without pain medication. She got the deceased a bedpan which was never used. B[...]’s husband and W[...] offered to come the next day and put the deceased under the shower but the deceased refused saying he cannot handle the pain. The 2^nd Defendant had refused the hospice help.  Also when they were at the house they were not allowed to go anywhere. They were not allowed to go to the kitchen or use the toilet because the 2^nd Defendant would be upset.  The sister once used the toilet and she was accused of being responsible for the disappearance of the deceased’s valuables. The Plaintiff’s flowers bought for the deceased were thrown into a dustbin and B[...]’s were removed.

 

[129]   Regarding the wills B[...] said she was only aware of the 1^st will which she has kept in her safe for some time at deceased’s request before he was diagnosed with cancer.  The deceased requested the will back after his diagnose and the first operation and also 2^nd Defendant’s return. She knew nothing about the 2^nd will and heard from the Plaintiff about it who also was informed of it by the deceased’s sister. It did not worry her so much. She thereafter then heard that since the 2^nd Defendant came, there has been three different wills. She also confirmed that during her visits at the deceased’s house she recorded some of the conversations she had with the deceased. In one of the recording indicated to be of Friday 19 February 2016, she was telling the deceased how upset she was about the wedding then the deceased replied that he was upset that the Plaintiff was not at the wedding because the Plaintiff did not like him. She then told the deceased that the Plaintiff was not invited to the wedding and 2^nd Defendant had told her to make sure that the Plaintiff is not there. The deceased thought the Plaintiff did not care about him. It happened also that a day before W[...]’s birthday, they went to visit the deceased. They found him alone and in pain, his condition made B[...] very angry and she told the deceased that if he passes away, the 2^nd Defendant must go back to Cape Town, she does not want anything to do with her.

 

[130]   There was also a time that deceased was trying in vain to get hold of his attorney of 40 years, the 1^st Defendant so as to cancel a purchase of an ML vehicle the deceased bought.  The deceased was very happy to see them and did not want them to leave. Usually when they are there the 2^nd Defendant would be there. So they could not discuss the things she wanted to discuss with the deceased and how she felt about the whole situation. The 2^nd Defendant had told them that the deceased was drinking alcohol. He would wake up at night and go to the cupboard to get the alcohol. The 2^nd Defendant therefore hid his pain medicine, the morphine, so that he should not drink it with alcohol and she decided when to give it to him.  She did not want him to get used to the medicine. At the end, on the last of the few days, the deceased told her that he does not have anymore. She then bought him more of the medicine. Sadly, on the day he passed away it was found unopened. She took it back to the pharmacy. On 21 February 2016, he asked for pain tablets and it was the syringe story. All this time the 2^nd Defendant had told the deceased that he was actually not sick. The deceased then confronted B[...] and wanted to know why she keeps on saying he was sick when there are only two dots shown on his sonar. B[...] was disappointed.

  

[131]   According to B[...], the Plaintiff was not welcome there so she asked the 2^nd Defendant to let the Plaintiff come in and see the deceased. The Plaintiff had to wait inside the garage.  2^nd Defendant then went to the bedroom. However as soon the Plaintiff was there and started to talk to the deceased, the 2^nd Defendant came back and kept on interfering. The Plaintiff than calmly just stood up and went to stand on the verandah, when the Plaintiff came back, the 2^nd Defendant gave the deceased a long kiss just to irritate the Plaintiff and went to the bedroom. Just when they were in the middle of the conversation she would come back again.  The Plaintiff was talking to the deceased about people who wanted to look after him when the 2^nd Defendant barged in and told the Plaintiff that everybody is welcome and even I[...] can come and visit. The Plaintiff was upset because it looked like she had an appointment and that didn’t work. At least B[...] had a key and the sister did not’ have to wait at the garage. The deceased was happy to see B[...] and spoke highly of the Plaintiff. He was very proud of the Plaintiff’s achievements. At some stage the deceased was telling everybody about the Plaintiff’s accomplishments and she felt left out. The Plaintiff was always there for the deceased and suddenly she could not do so anymore and she has to make an appointment to see the deceased. B[...] had to take her through. The Plaintiff was therefore upset.     

 

Money owed and Will

 

[132] On 24 February 2016 B[...] was there at the deceased’s house when the deceased informed her that he was going to change the will. He told them he changed it but was going to change it again and his attorney the 1^st Defendant was getting tired of him. The 1^st Defendant was going to come to the house. The deceased said he asked the 1^st Defendant to come to him. He asked W[...] what he was going to do with a R4 Million-rand inheritance. He then said maybe he should give the whole estate to B[...] because he knows that she will give it to all the people around her that need it. She told him she just wants time with her father and he can do whatever he wants with his money and is not interested in the money. She then heard that the deceased had to go to the 1^st Defendant but he could not go. He was not feeling well. The 2^nd Defendant made another appointment.

 

[133]   She confirmed that the 1^st will dated the 14 May 2014 was the one she kept in her safe. In terms of that will B[...] and the Plaintiff would have been equal heirs. She knew nothing of the 2^nd will that was dated 8 October 2015.  She heard about the 2^nd will from the Plaintiff who also had been informed about it by the deceased’s sister that in term thereof W[...], her son and the 2^nd Defendant were also going to inherit and the Plaintiff was excluded. She did not know anything about the 3^rd will dated 18 January 2016. According to that will, she, the Plaintiff and the 2nd Defendant could have inherited from the deceased. She also was not aware of the 4^th will signed on 25 February 2016 in terms of which the 2^nd defendant and herself are the only heirs. She however thinks that what represents her father’s will is the 1^st will. Even though her son is not mentioned she knew how the deceased felt about her son and knew she would look after her son. So she was satisfied with the 1^st will that it represented the deceased’s will. At the 1^st Defendant’s office, just before the 1^st Defendant came she caught the 2^nd Defendant’s eye and she winked at her. She knew that she was not going to be written out of the will. 

 

[134]   B[...] confirmed that she owed the deceased an amount of R130 000. She also confirmed that she swopped houses with the deceased and the money was for the transfer fees that she could not afford. She was supposed to pay the money back to the deceased. It was however long before he was diagnosed that they agreed that she no longer owes the deceased anything but if she wants to pay it back she can. When she heard suddenly that the 2^nd Defendant said she owed the deceased money she asked the deceased if anything has changed. The deceased said nothing has changed.  She however put it in writing and asked the deceased to sign, knowing the 2^nd Defendant. She could not remember the date but the recording referred to 24 February 2016.    

 

On alcohol

 

[135]   According to B[...] the deceased and the 2^nd Defendant did not know when to stop when they started. They would drink so much that they would pass out. Whilst they were at the farm, the 2^nd Defendant one time called her alleging that the deceased hit her.  Whilst the deceased said the 2^nd Defendant fell asleep in the bathroom. She stumbled forward and hit her jaw or her head on the side of the bath. It was very bad. Another time she had to drive all the way from Centurion to the farm in the Waterberg to take the deceased to hospital. He was not doing well and put on a drip. The 2^nd Defendant was not doing well as well. One time the deceased asked W[...] a day before his birthday to bring him a slice of his cake or a milk tart on his birthday. W[...] and the girlfriend went over to the deceased’s house and they could not stay, both of them upset. They told her the deceased was crying for his medicine and the 2^nd Defendant could not give it to him. They looked all over for it and could not find it. She took it they were drinking. She was also aware that on the day of the deceased’s funeral there was a lot of alcohol.

 

[136]   She confirmed not to have seen the deceased on the morning of 25 February 2016 the day the will was signed, as she was at school. On the day she saw the deceased on 24 February 2016, he was a little bit confused. He would talk about stuff and then stop not sure what he was talking about. He was not smelling good. After he passed on she had to wash his blankets a few times because of the stench. He smelt very badly because for some time he did not have a bath. She would not sit close to him.  Also because he was in pain he would say she must not touch him, he will touch her.  She has also seen the 2^nd Defendant put a glass of alcohol next to the deceased who will then drink the alcohol. She could also smell the alcohol from his breath. It happened very often.

 

[137]   Under cross examination B[...] testimony was that on the 24 February 2016 when the money owed to the deceased for the transfer fees was discussed she already had the documents for the deceased to sign so that nobody knocks on her door after his passing. She indicated that it was a matter that was coming a long way but did not confirm if that day she was comfortable that the deceased knew what he was doing. She kept on hearing that she owed the deceased money and that was not the deal she had with the deceased and wanted to put everything to rest. She drafted the documents because she was fed up (although it had legal consequences) and she asked the deceased to sign it on that day.  She accepted that if the deceased signed it and he was not in a legal state of mind to do so then it is not worth the paper it is written on. She confirmed that she still did not think the deceased was in the right state of mind and he was in a lot of pain. She asked him because of the 2^nd Defendant who kept on saying she owed the deceased money when the 2^nd Defendant was the one who owed the deceased money. She confirmed the conversation she recorded between the deceased and her son W[...] when the deceased was advising W[...] how he can buy a house with the R4 Million without getting into a debt and how much he will pay for the transfer costs. B[...]  admitted that the discussion was that of a normal person with full cognitive functions and the deceased was making sense.

 

[138]   It was put to her that the deceased also said to her he had changed his will and changed it again. He was going to change it again. He said that to her three to four times. The deceased further said the 1^st Defendant must be tired of him but he was going to change it again.  It was further put to B[...] that in actual fact the instruction was already issued out to the 1^st Defendant 6 days before (that is on 18 or 19th February) to change the will, the deceased arrived at the 1^st Defendant’s office and gave instructions for the will to be changed. The only thing missing was the signing of the will (to be testified to by 1^st Defendant), being clear of what he was going to do and he indeed signed the next day.  It was put to B[...] that 5 or 6 days before then the plan was that the deceased was going to go to the 1^st Defendant’s office on 25 February to sign the will but instead the deceased asked the 1^st Defendant to come to the house as he was not feeling well. They found the other witness (Mr Puth) at the house who is the estate manager. B[...] said she did not know what motivated the deceased to change his will. She said she was not convinced that the deceased knew what he was doing because he was distraught, asking things like if the Plaintiff was really his daughter. That was not really her dad that she knows.

 

[139]   On the transcript she confirmed that it was completed on 7 June 2016. B[...] recorded the conversation on her cellphone also the people at the wedding and she said she did that for the Plaintiff who was not invited. She was very cross and she switched on her recording. She did not record the proceedings when the wedding started as she was waiting for the Priest to ask if there was anything anybody wanted to say but she did not. She was waiting because the deceased was in agony. She could not confirm if she had the full discussion and its context recorded because she did not read everything.  Plaintiff made the notes. It was put to her that it cannot be admitted because it is not known what was said before and sometimes after and therefore no context can be attributed to the conversation. After all the discussion cannot be a clear reflection of what was said in that house that day. The Defendants were prepared to accept the typed and unedited version they had, but were not prepared to accept that it is in full context of what was said and they do not admit that the handwritten amendments are correct. B[...] said when she came in she could see the state of the deceased, she was not taken care of, not bathed, skinny. The 2^nd Defendant was not there and she would hide the deceased’s medicine.  From October 2015 until the day the deceased died, he was neglected.

 

[140]   She was also referred to a conversation of 21 January 2016 wherein she said she was there for the deceased who is the most important person in her life when the 2^nd Defendant also confirmed that the deceased is important to her too and that is why she was there but that the deceased did not want to go to hospital. According to the recording B[...] then confirmed that the hospital is not a place for him, he should not go. The 2^nd Defendant also confirmed that the deceased did not want to go to Hospice. Then B[...] pointed out that the Plaintiff did not want that for him. The 2^nd Defendant then said the deceased can just stay there with her.  The 2^nd Defendant said they are going to stay there as long as they want and the deceased at peace with that. B[...] pointed out that it is going to be difficult. 2^nd Defendant said that they ask R250 00 for each day they come out to help. The deceased was going to stay. It was put to B[...] that if the relationship was strained to the extent that is alleged by her and the Plaintiff, the discussion would not have occurred.  Also if the deceased was not cared for as they allege they would not have left him there in that manner.

 

[141]   B[...] denied that she was under the circumstances satisfied except for the bed. She said the discussion was about whether or not they should get a person to help him wash, go to the bathroom, feed him which they wanted for him but the 2^nd Defendant kept on saying the deceased does not want to go to hospital. So they said they did not want him at hospital, because he did not like hospitals but they wanted him to be cared for properly at home, to be comfortable, have a bed instead of a couch.  It was put to B[...] that the deceased found it difficult to sleep on his bed and found the couch more comfortable and that is why he slept there. The 2^nd Defendant will testify that the bed was actually ordered and was to be delivered on 1 or 2^nd of March and unfortunately the deceased passed away. B[...] reiterated that they saw that the 2^nd Defendant was struggling and wanted to help their father.

 

On the alcohol

 

[142]   It was put to B[...] that there is nothing said about the alcohol in the typed recording, so she and the Plaintiff tried to bring it in but there is nowhere that alcohol or word whiskey is mentioned except for the handwritten note by the Plaintiff. The fact that he was drinking alcohol therefore disputed as he was suffering from pancreas cancer which inhibits the production of enzymes that helps with the digestion of food. Counsel made submissions that cancer causes the pancreas to malfunction and not produce the enzymes as accepted. The sufferer struggles with eating and the digestion of food. Also with drinking and would preferable for water eat ice cubes because they cannot retain water. They would therefore not be able to drink alcohol in large quantities. The version of the 2^nd Defendant being that the deceased stopped drinking when he was diagnosed with cancer. B[...] was adamant she saw the deceased drinking.

 

[143]   B[...] was then referred to the recorded discussion she had with the Plaintiff expressing how much she hated the 2^nd Defendant and would not want anything to do with her after the deceased’s passing due to the bad influence she had on the deceased. It was also pointed to B[...] that the deceased’s response was that he did not want to hear anything about the 2^nd Defendant and he then cried. You know daddy is a sucker for crying. She said she was referring to the discussion they had when she was 21 years old. It was put to her that the Plaintiff said she felt nothing for the deceased, nothing as he feels nothing for their pain. She indicated that, that was said after a fight the Plaintiff had with the 2^nd Defendant. The deceased was taking the 2^nd Defendant’s side. And did not want to listen to the Plaintiff. She was asked about the fight that the deceased had with the Plaintiff around the 18^th or 19^th February 2016, after Plaintiff visited Dr Bond, due to the fact that the Plaintiff came back and told the deceased what Bond had told her. B[...] argued that it was more of the 2^nd Defendant who was upset rather than the deceased.

 

[144]   She also indicated that a day before the deceased signed the Will, on 24  February 2016, B[...] had asked that the Plaintiff be allowed to come in and see the deceased to keep peace. She was told that it implied that there was no peace between them at that stage. She said they were planning to go to the 1^st Defendant the next day at 10h00 as indicated by the 2nd Defendant. She could remember that the 2^nd Defendant was saying he was not going to give the deceased his medicine at 6 as they have to be at the 1^st Defendant by 10:00. B[...] agreed the deceased was in pain and they consciously decided he was not going to have the morphine until he signed. He ended up with the 1^st Defendant coming to their place as the deceased was too weak to go there.

 

[145]   B[...] confirmed that the Plaintiff always stayed with the deceased and assisted him during the periods that he did not have a wife. The first wife, I[...] also stayed with him to assist him. Once he got married he always pushed the children aside. B[...] pointed out that when the 2^nd Defendant came for the last time the deceased commented to them that the 2^nd Defendant was there for the money. It was put to her that 2^nd Defendant’s testimony was going to be that, when the Plaintiff and B[...] visited the deceased at the farm the deceased also said to the 2^nd Defendant, she and the children were there for the money, which B[...] denied.

 

[146]   It was also put to her that the 2^nd Defendant is going to deny that deceased drank alcohol and asked it to be mixed with coke but in the last couple of days preferred to drink coke mixed with water. B[...] denied that and reiterated that they could smell the alcohol. It was also put to her that the 2^nd Defendant still allege that the old t-shirt the deceased was wearing was due to him preferring that t-shirt not because he was being neglected. B[...] confirmed that they got back the clothes they bought for him still in tags, however commented that 2^nd Defendant could have washed the T shirt at least. The 2^nd Defendant was also going to testify that when the deceased fell and B[...] was called at night to come and assist it was because of the couch that was a little bit slanted because he preferred sleeping and sitting on it. He tried to go to the bathroom and he slipped. He liked to walk around in the house without underwear. According to B[...] both of them did and he was bought a bedpan. B[...] also said she was not aware of the October will.

 

[147]   On re-examination she said the deceased told her on the 19^th January 2016 that he had sold most of his belongings and had made sure that she and the Plaintiff will thank him for looking after them in their old age. He also said he would like B[...] to give effect to the will. According to her it was strange because the 1^st Defendant was the executor of the 1^st will and other wills and the deceased knew the 1^st Defendant for many years. The deceased told him that he was friends with the 2^nd Defendant and in contact with each other. It was 17 years since he divorced the 2^nd Defendant. B[...] said he asked the deceased why he wanted to marry the 2^nd Defendant. Deceased shrugged his shoulders and pointed at the 2^nd Defendant, saying the 2^nd Defendant wanted to get married, he did not care. The deceased said he thought about the 20 years she was in his life, she came and fucked up his life.  He also lived his own life but was full of sheet.

 

W[...] H[...] B[...]. 

 

[148]  W[...], who is an internal auditor, testified that he was loved by the deceased, his grandfather and he also loved the deceased who stayed up the road. He could go and see him anytime except when the 2^nd Defendant came. He could not just go there anytime anymore. He used to go and mow his lawn and sort out his garden by making sure the garbage bins are sorted. He would then go in and greet him. He confirmed that the deceased drank alcohol and was once sent by the deceased and the 2^nd Defendant to go and buy alcohol at a bottle store. He had also seen the deceased drink and get drunk, even after he was diagnosed with cancer. He has seen the 2^nd Defendant drink wine or any alcohol. She has also seen the 2^nd Defendant being off balance, off her feet, with a slurry speech and walking into walls due to drinking alcohol. The deceased would all the time apologise and make excuses on her behalf. He also visited the deceased on his birthday, he had asked him to bring him a slice of a milk tart which was both their favorite. They found the 2^nd Defendant drunk.  The deceased was apologizing that they had to see this and continued to make excuses for her. He also once went to see him on his way to the matric dance. They were talking and had come to take photos but the 2^nd Defendant was all over and making it awkward for them because they did not feel that she was part of them.

 

[149] Under cross examination it was put to him that the 2^nd Defendant suffered from a condition called hyper mobility syndrome, meaning her joints are a little bit loose more than that of an average person. It also had an effect such that she does not walk like a normal person. So if the 2^nd Defendant was unstable on her feet it was because of that condition. This was not put to the Plaintiff or B[...]). W[...] accepted that the deceased could be hardheaded and stubborn sometime. He spoke his mind but was willing to listen sometimes. It was difficult to influence a person like that. However, the 2^nd Defendant came into his life and that changed. He visited the deceased about or during the times he signed the wills he was not the same person anymore. He has not seen any of the wills but heard of the 8 October 2015 will, the 2^nd will. He is also not sure on the actual date the wills were  signed or whether he visited the deceased on any of those days. He was also not aware that he was named in the 2^nd will to inherit a third of the deceased’ estate with his mother and the 2^nd Defendant, but heard that he was a beneficiary. He also did not believe that the 2^nd Defendant could have been preferred over the Plaintiff.

 

[150]   He was also not worried that in terms of the 3^rd will he was left out because he knew that everything would have ended with him as both his mother and the Plaintiff would have looked after him. He also did not believe that the deceased could have left out the Plaintiff substituting her with the 2^nd Defendant because he has always said to him everything will end up coming to him which is not possible with the 2^nd Defendant inheriting a third of the inheritance. He also did not believe that the deceased decided to get married but was sure he was influenced/coerced. He suggested that maybe the deceased thought by marrying the 2^nd Defendant he was calming her down and protecting the people he loved. He denied that the deceased was rational in that decision. He denied that the deceased stopped drinking when he was diagnosed with cancer.

 

Dr Kruger ( the Pharmacist)     

 

[151]   Dr Kruger who is a pharmacist compiled a report based on his qualifications and knowledge of pharmacology. The information he had was that the deceased was using morphine for a week when he changed his 3^rd will (which one?). He was required to look at whether the use of morphine could have affected the deceased’s cognitive processing of the will, therefore assessing the morphine as medication and the effect of its use. He pointed out that morphine is an opioid, a very strong painkiller that is used for extreme type of pain like cancer, maybe after surgery. It affects the central nervous system which mean it affects the whole cognitive process which is how it dulls the pain. It also like any medication have side effects which are constipation, drowsiness or decreasing the level of one’s alertness. He drew an analogy of like when one takes a tablet for allergy, as an anti- histamine it normally causes drowsiness so it affects one’s ability to think and to react clearly and therefore there is often a warning on this medication to not use it while driving or operating machinery. If one thinks that, morphine is also at the top of the ladder of these depressants therefore obviously the side effect profile will be more enhanced.

 

[152]   Morphine is also used for a number of other indications with therefore a number of possible side effects that it can have which is usually the reason why this medication is top, not so much to stop the overdose, but the effect of high dose which it causes too much constipation, cardiovascular effects or amnesia or agitation and it could affect the memory as well. In literature it is mentioned that it could also have a negative impact on anti- retrograde and retrograde memory so when using this medication one does not remember as well as you should and it must be clearly stated that these side effects can happen at a therapeutic level. It does not have to be an extremely high dose for these side effects to happen. It can happen at the onset of that.  Again there, his analogy that if one takes medication at a very safe dose which is the recommended dose, like a normal headache tablet it could have a side effect, so it does not need to be at a maximum dose for these side effects to happen. It could also lead to anaemia, hiccups and hyperventilation. The mentioned side effects are not important for what was there in the deceased’s scenario.

 

[153]   Dr Kruger also raised the matter of drug interactions indicating that there is always interactions between the medicine and the patient, with other medication the patient is taking, food and the specific drug. These interactions can lead to either the medication having an enhanced effect, in other words it can have a stronger effect or a weaker effect. Weaker effect if it be excreted quicker through out of the body. In this specific instance of Mr K[...] there was an issue of a number of other medications he has been using. There is a list of the medications classified under a heading, sub-heading, other medication used by Mr K[...], drug -drug interactions and then the medicine listed under that. There is also a classification under a heading “self- medication” with all the medicines which he used to self –medicate which are not necessary self -medication but prescription medicine. 

 

[154]   The specific drug that deceased used that would cause an interaction would be ( xi), Ultracet, (xii), paracetamol, (xiii), Temgesic, (xiv), Stilpayne, (xv), OxyContin and then obviously the drug that he has been using, that is morphine. There are also a few other medications but these are the ones important in terms of drug interactions. All have a central nervous system depressant effect, which is an additive effect in one’s cognitive ability to react, think, drive, talk and make decisions, if used simultaneously. In terms of the drug interactions as reported by Ms Sharon Venter, the nurse that was treating the deceased, the treating surgeon Dr Bond started the deceased on morphine on 9 February until 19 February 2016 then stopped all treatment of medication as the deceased was terminal. It meant from 9 to 19 February, and that is why he was bringing this topic in with deceased’s drug interactions, the deceased was using probably a number of central nervous system depressants, painkillers, as highlighted, and morphine which was of concern that the simultaneous use of this medication could have influenced the deceased’s cognitive abilities and his abilities to think rationally.

 

[155]   It is clearly stated that morphine is to be used with caution and in reduced dosage in patients who are concurrently receiving other narcotic or drugs. The deceased received a normal therapeutic dosage of morphine for treating his pancreatic pain however his body weight which was accordingly normally in the region of more than 90 kilograms had dropped to below 40 kilograms. The deceased was also an elderly patient. It is generally accepted in medicine that one has to adapt dosages for elderly people and for people whose weight is compromised, So, there are dosage weight adjustments that are done and in his opinion, looking at the list of medication none of this was done in deceased’s instance.

 

[156]   According to Kruger the next factor that needed some consideration is the document that alluded to studies that investigated the relationship between dosage regimes of morphine and a person’s state of mind that clearly state that a patient receiving a normal dosage of morphine will experience some degree of retrograde as well as anti- retrograde memory loss. The deceased used the normal recommended dosage for a normal patient. The other factor that needed some consideration is the liver as an organ that normally excretes medicine from the body. So if one suppresses liver function it could mean that the medication levels might be higher as the liver does not have the ability to excrete the medication as quickly as it should be. This is shown in the pathology report of Ampath (Drs Du Buisson, Kramer, Swart Incorporated) on the deceased which is on the last page of Dr Bond’s report with reference “liver function,” it is indicated whether the medication levels were higher or lower, clearly that the deceased’s liver function was inhibited, his ability to excrete this medication was inhibited. He further indicated that as it is also believed that the deceased was using alcohol for quite some time and alcohol also gets metabolised by the liver. So the more drugs and alcohol there are to be excreted by the liver the more pressure there is on the liver and the less functional it is.

 

[157]   Kruger’s conclusion was that the deceased had been administered morphine and was under its influence for about seven days (18 or 19 February 2016) when he apparently changed his will. If the deceased had experienced some of the common side effects caused by morphine it is possible that he may have experienced a compromised state of mind and that this further could have been exaggerated by the concomitant use of alcohol bought on 19 February 2016.  In addition to that, the combination of the deceased’s advanced age, his low body weight and use of central nervous system depressants over a period of time together with morphine had led him to be less able to make a rational decision as would anyone in that situation, on his case added to the fact that pancreatic cancer on its own also decreases one’s ability to think rationally and then decide on major decisions that one has to make.

 

[158] On Professor Shellock’s report, he commented that Shellock has put a lot of weight on the tolerance aspect of medication where one gets used to the specific effects and side effects of drugs, which is indeed true. However, he said two questions remains. Which is the fact that the deceased’s dosage was 30 milligram per day and according to the American Food and Drug Administration(“ FDA”), the tolerance starts at 60 milligrams per day. That is the significant levels where tolerance would have an effect and there is documentation on studies to attest to that. Secondly that, in order to develop tolerance towards a drug there is a specific timeframe that is necessary for that tolerance to develop. He was of the opinion that the timeframe that the deceased used the morphine was not enough for him to develop tolerance.

 

[159]   Further on Shellock’s report where she mentions the fact that an increased inter patient variability in morphine metabolism could occur in other words patients could react differently to morphine and neither of them knows of which group of patients was the deceased, whether he was able to react strongly to that or not Kruger said the indications show that in his opinion he was affected of that. On Dr Colin’s report, Kruger’s comment was that he is a well-respected and learned colleague. He concurs with his opinion of his finding in terms of his own knowledge of pharmacology and the effect it has on a patient. He indicated that Pharmacology deals with the effect that medicine has on the body and also the effect that the body has on the medicine, in other words how the medicine gets distributed, absorbed, excreted. In this case the effect that medicine has on the body is of primary importance. His field of study was the extraction of anti-bacterial compound and the application of that in practice so it was an antibiotic that can be used for patients so it was as defined in the field of pharmacology.

 

[160]   It was put to Kruger that according to Dr Bond’s report the deceased was prescribed morphine on 4^th February 2016. He would have been on morphine for 20 to 21 days on the date of signing the will. (B[...] & Bond’s testimony was that it was administered on 4 but prescribed only on 18^th) He agreed that in relation to tolerance the fact that he was on morphine for 19 days increases the possibility of tolerance developing but to a very small extent. He for example referred to people abusing drugs that it normally takes a long period of time unless it is something of a specific nature for tolerance to develop. His comment on the indication that according to Prof Shellock the tolerance is individual specific, was that it depends, differs from individual to individual, but in general tolerance expected to develop from 7 to nine days and longer. He argued that there are various degrees of tolerance and not a question of either tolerant or non-tolerant, which develops over a period of time. It gets worse and worse as time progresses to the extent that the doses have to be increased to expect the same outcome. He also could not agree that the deceased used it continuously from the 4^th because he was on other analgesics as well and the pain could have been treated differently. In other words when the pain was very severe one could have used morphine and then withdrew the morphine and used the other painkillers, the Stilpayne, Temgesic and Tramadol for those specific instances, because he was also on three other opioids so tolerance is conditional, is aggravated because of the simultaneous other use of the other opioids.

 

[161]   It was put to him that Dr Shallock will testify that since the deceased has been using the three opiods, if he used that before he used the morphine that might also lead to a tolerance developing because those opioid derivatives can already lay a basis for tolerance. Kruger disputed that tolerance could develop to such an extent that he not have any side effects, as any central nervous system depressant has an effect on that and in his view even the simultaneous use of all the drugs being the opioids. In his opinion, it is not a matter of tolerance developing in such a relative short space of time that there would not be side effects in terms of the patient experiencing an inhibition of cognitive abilities, which is the crux of the matter. He refused to concede what was put to him that even though it is not seven days, it is now three weeks and since there were other opioids either used simultaneously or before the use of morphine that could have increased the likelihood of tolerance. He highlighted the fact that tolerance does not necessarily work in the way that if you increase the dose, tolerance will happen quicker. He reiterated that tolerance is a relative position, that happens over a period of time influenced by the individual, his health condition, the dosage prescribed, and other factors that he has already mentioned, like weight and age. So he disagreed saying that tolerance usually develops with drug dependent people over a matter of a much longer time simply more than a week or three weeks but not saying that it was three weeks in deceased’s instance. His understanding of the last paragraph of Dr Bond was that he used it on 4 February 2016 and there could have been an intermission between that and the 18^th February 2016.

 

[162]   On the allegation that his report is not patient specific but speculative on what might have happened to the deceased, he confirmed to have seen the results of what the deceased had used. He pointed to the fact that his 35 years’ experience administering medication to patients and as a qualified Drugwise counsellor led him to make certain assumptions. He would however in this specific case concur with the statement that one can never ever have all the evidence on a specific patient because we all differ in how we metabolise drugs, how it is excreted and what the effect is. He conceded that his report is based not specifically on cases like those of the deceased which was from normal to worse. Whilst comparing it with normal persons is the worst case scenario or the best case scenario. He pointed out that a person with pancreas cancer experiences severe pain.

 

[163]   It was put to Kruger that Shellock’s testimony was that the pain becomes a physiological antagonist to the central nervous system. Also suggesting that if a person is without pain and uses morphine, the morphine does not go to those receptors where it is supposed to go because there is no problem, then there will be in general more side effects but when a person experiences pain and morphine is induced and does what it is supposed to do, stop the pain there are usually less side effects. Kruger disagreed indicating that the side effect profile would be the same for a person without pain using morphine and a person having pain using it. The differentiating factor is genetically predisposed plus to health factors as he had mentioned before like weight, age, state of the liver and so on. He indicated that there is a psychological and a physiological aspect. Also that when one works with the central nervous system, not only a reduction of pain is experienced, but also other effects like drowsiness, sedation or anxiety. When talking morphine specifically and using the drug, there are other psychological and physiological aspects that are experienced and that is what is called the side effect profile. The patient could experience constipation, itchiness, and a number of other side effects which he has mentioned before. They agreed that the dose was never increased.  (which means it stayed T 30ml).

 

[164]   Kruger accordingly again pointed out that in deceased’s instance, tolerance did not develop because the dosage was not increased. The patient was responding to the pain treatment at the same dosage. Furthermore, with reference to this specific case it was put to him that there were no dosage intervals, there were always maximum doses and minimum doses. The exact dose was not available, but the expectation that the deceased was using the medication automatically infers that he was given the medication at whatever dose and it is a logical assumption that there are so many opioids that he has been prescribed that it is improbable that he was given all of them at the same time according to him it does not deter from the fact that there was a concurrent use of different opioids which could have affected his cognitive ability. He confirmed that reports state that the deceased stopped all other medication and was prescribed only the morphine on 18 February 2016.

 

[165]   Mr Kruger enquired on the date the instruction was given to change the will and the time he had to think about the will and what he wants in it.  Whether his thought processes at the time where influenced by simultaneous intake of the opioids. According to the Defendants it was 5 or 6 days before the 25 February 2016. The whole process being said to have started on 18 February 2016.  According to Kruger the physical drawing up of the will and the signature process was probably in that last week but the thought process of what he wants in his will and giving the instruction, for the writing of the will must have taken place while the deceased was under the concurrent use of the different opiods.  Whilst accepting that before the signing of the will the opiods were stopped but it was not before the will was drawn up. The thought process that goes into the drawing up of the will and in that process the deceased was under the influence of the opioids. As to what extent he was influenced depends on other evidence that he didn’t have.

 

[166]   On the other will that was signed on 16 January 2016 he accepted that there was no morphine used however he was on other opioids as listed that could have, similar to morphine, influenced his cognitive abilities. as well as the use of alcohol. Professor Schallock also referred to the fact that in patients with cancer, cognitive impairment is frequently associated with other neuro psychological complications. Kruger said what he understood of this is that on top of the opioids the deceased was using he was already cognitively impaired due to cancer, so the opioids that he was using before morphine or morphine impaired his normal, well, his cognitive ability even more. Professor Schellock admits that an “Advanced age pancreatic cancer itself inhibits the cognitive abilities, which is a compounding effect and says that “Psycho motor testing appears to be more pronounced.” Thus chronic administration of opioids modifies their function. So again there, if tolerance develops within seven days why does Shellock then state here that chronic administration of opioids modifies their function. He proclaimed to stand by those points which for him was strongly.

 

[167]   Although they were addressing the same topic that opioids causes inhibition of cognitive abilities, what they were differing on is the aspect of tolerance, which is on how quickly does tolerance develop, at what doses does it develop. He noted earlier that the FDA, Food and Drug Administration of the United States, a leading body in medicine registration has it on record that tolerance will develop at 60 milligrams whereas the deceased was using 30 milligrams of that dose. Shellock’s view was that it is not necessarily cast in stone but depends again on the individual patient. Secondly that it is not necessarily with regards to their specific patient and his condition. Kruger argued that there are a hundred percent dose difference in doses in use, and what is accepted as tolerance levels and secondly the time period where one says purely in her statement that chronic use will have a result in tolerance. He therefore concluded his opinion being that there was a high possibility the deceased was cognitively impaired. The FDA guidelines is for normal adult male that weighs 70kg. (The deceased weighed 40 kg)

 

[168]   There was also an issue on the way the morphine was administered having an effect on its impact on the body. According to Shellock it was to be accepted that the deceased received syrup of morphine orally, not through a drip or something, although the Plaintiff and B[...] testified to it being administered in a syringe. According to Kruger the effect of lower absorption will only happen initially as in medicine there is a situation called the steady state of medicine. After a few dosages of oral medication administration, it will reach the same blood levels as administered through any other orifice or route of administration. So patients are normally given an injection because it works quicker, it does not have to be absorbed and is immediately in the blood stream. If it is given orally or rectally there it will also be absorbed and specifically morphine as it is not one of those drugs that orally will be any different from administering it intravenously. The doses were normal therapeutic doses.  It means the possibility of tolerance developing did not happen because they did not increase the dosage. On the fact that in the deceased’s instance the doses were not increased Kruger said that there was evidence that says that side effects in terms of cognitive ability happens at therapeutic levels. It does not have to be at very high doses.                                                       

 

[169] On the question asked by the court for clarity on effect of morphine administered to a patient with a history of depression whether it will have any worse effect. It was Kruger’s opinion that it depends on what the patient was prescribed to treat their depression. Very often with depression, anxiety is a big side effect, well, side symptom as well and if any anxiolytic medication prescribed for anxiety is used concurrently with morphine, it will aggravate the effect of the morphine and specifically the cognitive ability. It is often a case with treating depression patients to convince them to use their medication regularly because in the first couple of weeks or months they become very sleepy and so ja, that could have, because also, the anxiolytics are often, are always central nervous system depressants. Kruger could not verify if anything was prescribed for depression for the deceased. Kruger confirmed that there are actually 2 lists of medication supplied that were administered on the deceased. The one on page 119 he overlooked and therefore missed the fact that also Lexamil was prescribed which is an antidepressant. 

 

Dr Bond

 

[170]   Dr Bond a medical doctor working as a doctor in Gastroenterologist testified that: he was consulted by and treated the deceased when the initial diagnosis of pancreas cancer was made in August 2015. At that stage the deceased presented with Obstructive Jaundice. After the diagnosis was suspected, he performed an ERCT which is a camera test, an Endoscopy to place a plastic stent which is a drain in the biliary system in the bowel duct, so as to improve and relieve his jaundice. The initial procedure was successful and the deceased discharged that day to go home and to follow up with an Oncologist and a surgeon after the phytology came back showing malignancy (distortion).

 

[171]   The deceased then saw a Doctor Charl Van Niekerk at Erasmuskloof Hospital on the 31 August 2015, where he was later admitted for surgical exploration for the cancer. This took place on 9 September 2015. At the time of surgery, the deceased was found not to be receptible, the cancer had gone too far, so the surgeon concerned Doctor Charl Van Niekerk then performed a Gastrointernal bypass, which means that he bypassed the stomach to the small bowel, so that the cancer would not cause blockage. This procedure was also successful and within a week he was discharged by Van Niekerk to the care of Dr Inga Demeulenaere an Oncologist working at another hospital. The deceased saw Dr Demeulenaere on 28 September 2015, after which a chemo radiotherapy was planned.

 

[172]   He did not see the patient then until in the third week of January 2016. The deceased made contact with his rooms to say he was not well. He was therefore admitted at Unitas Hospital under his care on 25 January 2016 for investigations. They found on CT scan that the bypass that had been performed by Dr Van Niekerk was blocked. On 27 January 2016 he performed an Endoscopy or Gastroscopy to unblock the blockage by placing a stent through where it was blocked. The blockage was caused by progression of the cancer, the cancer had advanced. The deceased’s condition did not improve remarkably after the first placement of that stent, so at that stage he had pain and nausea. He decided to help the deceased with the pain by prescribing on 4 February 2016, a morphine syrup to help him with his pain.

 

[173]   They planned to revise the stent on 8 February 2016 and to do what is known as a Celiac Plexus Block to try and improve his pain control, because his pain was a dominant symptom at the time. During the second Endoscopy he had managed to put a second stent in the blockage to help drain the stomach, and performed the Celiac Plexus Block to see if he could alleviate his pain.

 

[174]   On the 18 February it was the last time he saw the deceased, he still was not improving, his condition was poor and a CT scan done at the time showed progression of the cancer and worse involvement in the abdomen and the lungs. At that stage he wrote second script for Morphine syrup for palliative care, and discussed with his daughter the Plaintiff the option of Hospice care. (If he was ok why didn’t he discuss the option of hospice with him).  The deceased’s condition in those last four weeks was very poor and had gotten worse. He was informed on the 29 February 2016 that the deceased had passed away.

 

[175]   He confirmed that the drainage of the liver was done in two ways, firstly in August 2015, with a plastic stent which was successful, and then it was done surgically by Doctor Charl Van Niekerk in September 2015. The liver function tests done in December that year confirmed that the drainage is still successful, the tests done not asked by him. It was probably Dr Inga Demeulenaere who requested the tests. At that stage he was not involved with the deceased’s care. The deceased was under the care specifically of the Oncologist. It was only a month later on 25 January 2016 when he got involved again. The blockage that happened in January, was not a blockage of the liver but that of a stomach drainage. He did not note in the deceased’s history, or in the tests they did, that the deceased had advanced liver disease. He however thought at the end, the deceased had Metastatic Cancer which involved multiple organs.

 

[176]   He saw the deceased on 18 February 2016, he was in a very poor physical state. He could not remember him being confused or in any way delirious. The tests that were done were done at Unitas Hospital which included the CT scan that showed progression of the cancer. He had the pain, the nausea, the malaise (stress, fear and inadequate sleep), a very bad sign in the patient.

 

[177]   Under cross examination he confirmed his involvement in January in the terminal phase of the deceased, that the last five weeks the deceased came to see him a couple of times in the rooms and in theatre, and during that stage the deceased’s physical status was very poor. He said he did not note that the deceased’s mental state was severely affected, in other words, cannot state whether he had any Minimal Cognitive Dysfunction. He could physically interact directly with him and talk to him but he could not comment on his mental state. He was comfortable that he understood what he was busy with and could consent to whatever he deemed was necessary to be done. He wrote him 2 scripts, one for 4 February and the other for 18   February 2016. The second was for a month.

 

[178]   On the dosage he said it depends on how the Pharmacists makes up the dosage. Because this is a Schedule 6 medication it cannot be repeated as a script, so it has to be re-prescribed if it runs out. So, he was not too sure how much sample the Pharmacist gave. It was actually prescribed a little bit less, 1 milligram per mil, being the same strength. But later then prescribed 2 to 5 mils four to six hourly PRN for one month, given a lesser dose than the second one for a month. The second one was dispensed on 28 February a day before he passed. How long it could have lasted (if until March 2016) depended on how much was given by the pharmacy, in theory yes so it depends on how much he received, but in practice he could not be sure how much they physically gave him. As this is very strictly controlled by the Pharmacies.

 

[179]   On 8 February 2023 he saw him again and placed the second stent that is the Celiac Plexus Block to get him more pain relief. He confirmed that even at that time when he had prescribed the morphine he was comfortable that his mental state was such that he understood what he was busy with and could consent to the necessary procedures. He indicated that he does not have a lot of patients for whom he has prescribed Morphine to, so it is not a regular occurrence for him which in a way should be the role of the Oncologist, but as he understood the deceased’s oncology therapy did not go through. He was more involved with the deceased in the end and with his terminal care, and something he does rarely not a regular occurrence when it is really necessary in patients, that he helps with their terminal care. A lot of the time it is done with the hospice or through general practitioners or through the Oncologist. He was involved in this specific case. On the GAMET ALT and AST functions these values were two to three times or one to three times above the upper limit of normal, therefore abnormal. He interpreted that he had the Pancreas Cancer but that the drainage was still intact, since it was much worse than what it was with the initial liver functions when first presented to him.

 

[180]   There was no interaction with the Oncologists he sent the deceased to, when he decided on prescribing the morphine. His interaction was directly with the family and the patient. There was also no follow up on what was done by the Oncologist. on whether morphine was the best thing to prescribe at that stage when he thought he was at a terminal stage, or if that was his own opinion. He said his understanding was that the Oncology care did not proceed in September/October the previous year and when he consulted with the deceased in January, the problem was of a palliative/analgesic to do with drainage of the stomach which was blocked as well as pain, the two things he focused on, and even though it had to do with cancer per se it did not have much to do with the Oncologist per se. He saw it as his job or role to alleviate suffering in the patient. His response on whether anything said about depression, was that the man was dying and he would expect him to be depressed but cannot comment further on his emotional state.

 

Mr Basson (defendant’s nephew)

 

[181]   The testimony of Mr Basson, who is the 2^nd Defendant’s niece, was more about his role as an executor of the 2^nd Defendant’s mother’s will, Mrs G[...]r who passed away on 4 February 2020 and the correlation between the winding up of Mrs G[...]r estate and that of the deceased. According to Mr Basson the 2^nd Defendant is currently involved in legal proceedings contesting three previous wills in the late G[...]r’s estate. He contacted the Plaintiff’s attorney because one of Mrs G[...]r’s wills involves a property in her estate that is a house located in Ramsgate which is said will be paid for by the 2^nd Defendant from the proceeds she will get out of the deceased’s estate. He has had no feedback as to how far the case was currently going and had contacted the attorneys to find out because they cannot draw the Liquidation and Distribution account of that estate until this case is finished. The 2^nd Defendant has moved into the property, but no payment has been received to date. He confirmed that there is a clause in G[...]r’s will that transferred the property to the 2^nd Defendant on the basis of a deferred payment.

 

[182]   It was put to him that G[...]r was insistent and prepared to sell the house to the 2^nd Defendant on the basis that the proceeds or part of the proceeds from the deceased’s estate will be used as the payment and the executors bound thereto. Basson confirmed that the executors were asked if they can assist in implementing such a clause, that if she gets any proceeds from the deceased’s estate she can use it or a portion of it to then buy the property in G[...]r’s estate. It was put to him that only two of G[...]r’s deceased’s last 3 wills are contested and any of the one that is found to be valid the 2^nd Defendant inherits therefore will be able to pay for that property. It was put to him that the 3 wills are contested on the basis that they were not properly signed in terms of the law and challenged on that basis.

 

[183] He confirmed that a day or two before the wedding, the entire family was asked to attend the wedding at the deceased’s house.

 

Dr Franco Colin

 

[184]     The Plaintiff’s last witness was Dr Franklin Colin. a psychiatrist in private practice, a part time lecturer at the University of Pretoria. He confirmed to have never met the deceased. However, was asked a specific psycho legal question, that is whether a possibility existed for the presence of the legal concept of undue influence often also referred to as the so called captive mind. His source of reference was a paper titled “Wills, Testamentary Capacity and Undue Influence,”[5]  He acknowledged his role as a Psychiatrist in an undue influence case, that is to provide clinical (proven) data based on clinical evidence, usually without an explicit or implied conclusory opinion. The word clinical in the medical world means beside the bed. With other words, a history of the signs and symptoms and all other sources of collateral information as observed to assist the court to understand whether undue influence might be present.

 

[185]   So, he explained that when a Psychiatrist analysis facts, there can be varying degrees of the import, the value, the know, the importance of individual clinical findings. Some of them are incontrovertible, an example will be, the terminal cancer that the patient suffered from, the physical decline and aspects of the mental state. Other aspects or individual points can be pointed out as clinically important, but the value thereof is determined by the court. For instance, the point about isolating the testator from his loved ones, the influence that existed etcetera.

 

[186]   Colin testified pointing out that undue influence is suspected in a situation where one has reason to believe that drawing up a will, the will of a testator has been replaced by the will of another or a will of another has replaced the will of the testator. That is where the concept of the captured mind comes into play. A presumption of undue influence is raised and suspected when one of the following four point comes into play.

 

(i)       When the beneficiary of the will is actively concerned in some way with the preparation of the will.

 

(ii)      Where this relationship between the testator and the beneficiary is coupled with some suspicious circumstance such as mental infirmity. This can probably also include physical infirmity of the testator.

 

(iii)      If there is evident unfairness in the will. An unfairness would imply that some of the family members who would obviously fairly be considered as reasonable heirs from the point of view of a testator,  are unfairly excluded that would certainly raise suspicion.

 

(iv)      Lastly, where one preparing or procuring the execution of a will obtains a substantial benefit to which he or she has no natural claim, or equally a benefit out of proportion to others having an equal claim to the estate.

 

[187]   Colin starts the whole reasoning from the point of view regarding the personality of the deceased as a stubborn hardheaded slightly stingy but paradoxically extremely generous towards other people, having often helped people in various circumstances. A ladies’ man who endeared himself to people, especially to women. Also indicated to be a brilliant businessman, very successful in the execution of his various business enterprises. He is therefore of the opinion that deducing from the deceased’s characteristics, he most likely would have been of firm conviction, very resolute in his choices. Also to have had excellent relationships with his family members, specifically his relationship with his first wife, I[...] who, with her family played some role throughout his life. The deceased would often consult her for advice. This would probably to be of importance to the Court as she was the mother of his two daughters, the Plaintiff and B[...]. It is clear that he had excellent relationships with his daughters, and no points of conflict detected. The cross-examination of the two daughters referred to an incident in September 2015 of which he was unaware and need to also familiarize himself. To him in providing the court with his opinion, observing and hearing the testimony would be very important. He at that stage put the personality of the deceased clearly in perspective as far as he could discern these elements.

 

Testamentary capacity (competence)

 

[188]   He considered the fact that to try and discern what the will of the deceased would have been, that is with regards to his estate, and possible heirs, obviously invokes the concept which is not in question here but still within reason, that of testamentary capacity. He was of the opinion that the deceased clearly was a man who had full testamentary capacity is not in question. He reckons that testamentary capacity again is based on the human aspect/concept of competence where one can receive information, integrate information then use that integration to come to sensible conclusions and to act sensibly. On the grounds of those sensible conclusions lead to sensible understandable logical actions. So, one gets information, integrate it, decide and act, that is practically the definition of competence. Competence then leads to testamentary capacity where you are able to understand what your estate consists of, you can decide who your heirs will be, and make logical choices, and there is no mental condition interfering with that ability.

 

Testator’s will

 

[189]   So, on the question of his will, he believes as a Psychiatrist that the deceased’s will was clearly demonstrated in his 1^st will, not implying that he could not change his mind, but at least up to 2014 his will was reflected in his choice, in the 1^st will, where his two daughters were his heirs. That situation changed over time, and a 2^nd will on 8 October 2015, 3^rd will of 18 January 2016 and 4^th will of 25 February 2016. The question is, in the compilation of the second, third and fourth wills, was the deceased exercising his own will, or was it substituted by the will of another, a point of departure for any reasoning regarding undue influence. According to him therefore critically important to understand that the concept of undue influence came into being because of the deceased’s relationship and subsequent marriage that is his fifth marriage (remarriage) to the 2^nd Defendant on 25 October 2015.  

 

[190]   It is alleged that some kind of a relationship continued to exist after divorce which was referred to as “living apart together.” A concept of living apart together, which he regards to be clearly a layman’s term, which he says he was yet to encounter from a professional point of view, and recognizes the right of the people involved to define their relationship in words they want especially the 2^nd Defendant. What was however striking for him as a Psychiatrist is that this relationship continued through the years, and was clearly a relationship often referred to in contemporary terms, as” an open relationship.” in the sense that both parties allowed to consort with other people which certainly not what one would call a committed relationship, in other words dedicated only in faithfulness to one person. He concedes this not to be actually Psychiatric knowledge, but just trying to figure out exactly what this relationship was. Contact was on and off, there were periods of advice in business been given to the 2^nd Defendant, by the testator. Now all of this changed after a diagnosis of cancer was made, or around about the time that a diagnosis of a pancreas cancer was made.

 

Terminal diagnosis

 

[191] Accordingly Colin further testified that: medically not psychiatrically, it is important to understand that a diagnosis of pancreas cancer is invariably almost a terminal diagnosis. The pancreas is hidden away in the front of the back of the stomach inside the body. The cancer can progress quite far before it shows any signs or symptoms often too late for any healing completely or any interventions that could heal the patient in leading the cancer to go into remission. So, the diagnosis is terminal already from the start. It is mportant that the 2^nd defendant arrived on 1 September 2015 and moved in with the deceased on 3 September 2015 and he passed away on 29 February 2016. It is 179 days of the testator’s life, five months and 26 days. The time from moving in to the change of the second will was 36 days, the time to the third will was 103 days, and the fourth will 39 days, after the third.  Only one conclusion that can clearly be made. This was that the formularized structured relationship between the testator and 2^nd Defendant and a marital relationship that lasted only 128 days, to the demise of the testator, evidently a short-lived relationship in the duration of the testator’s life. Motivations given was an alleged pregnancy which later turned out for various reasons not to be. It could have been that the 2^nd Defendant was indeed pregnant, but in his opinion the possibility clearly exists that it could have been a false allegation, however not for him to determine, and admitted cannot comment on.

 

[192]   He considered according to him the second motivation which is why they got married, the deceased stated during the period of hospitalisation after the first surgical intervention for the cancer, when the 2^nd Defendant arrived at the hospital to his daughters that “she is coming for my money”. Colin regards these as significant given that the 2^nd Defendant arrived at the hospital and immediately assumed a very prominent role in the care and support of the testator. She moved into the deceased’s house from her own place of abode apparently in Pringle Bay, words used being, moved into his bedroom.

 

Alcohol abuse

 

[193]   On the alcohol use of the deceased, Colin reported on the evidence given several times that the deceased and the 2^nd Defendant drank heavily together. Paraphrasing on one other aspect and that, he believed as a Psychiatrist he can come to the conclusion that the deceased suffered from what is called an alcohol disorder, which in laymen’s term is alcoholism. Evidence was given of at least two admissions to hospital where the deceased drank excessively to the point of where he became unwell, and needing medical attention. As a brief aside it is clear also from evidence that descriptions from the 2^nd Defendant could be given that she often was under the influence of alcohol, or walked unsteadily, or spoke in an inebriated way, which is clear that the two of them had a problem with alcohol and drank excessively.

 

[194]   Regarding the relationship and the possible isolation of the testator, the 2^nd Defendant then started taking over the care of the deceased as a patient in transporting him to medical appointments, which role was previously fulfilled by his daughters, especially the Plaintiff. There was also testimony from B[...] that used the following descriptions, that the 2^nd Defendant (CANSA actually) told them to be daughters not caregivers, in other words be family members and not try and care for him, she will do that. This was followed up by a comment, he needs to be left alone, so that he can do things by himself, in other words maintain a level of activity. Collin’s medical view is that obviously a patient should be assisted to be as active as possible, but within the limitations of his physical strength. The level of activity needs to be contrasted with the fact that this man was terminal with cancer. There comes a point where a patient who is terminal with cancer will just not be able to perform certain actions anymore. One of those actions that were mentioned was the use of a toilet, and there was mention made of a bedpan that was taken back unused, again the importance of that is for the court to decide.

 

Administration of medications

 

[195]   It was also clear that the 2^nd Defendant took over the administration of all of the medications that were prescribed, most notably the morphine and the anti-depressants, Lexamol that was mentioned. When the morphine was not administered, it was clear that tablets were used Oxycodone, the trade name Oxycontin was mentioned in evidence which is obviously an Opioid, which is a morphine like substance and has very similar effects as that of morphine. Several points of testimony were given about when the daughters visited whether the morphine syrup was administered or not, and they both quoted the 2^nd Defendant on the point that the deceased could not have his morphine because morphine and alcohol should not be administered together, which is a medical fact as both are central Nervous System Suppressants, they supress the brain.

 

[196]   However, what is indicated is a choice exercised by the 2^nd Defendant not necessarily an unreasonable one, by certainly being in control of the Morphine. There were also descriptions of the bottle hidden in a cupboard in the kitchen. As part of this controlling relationship, a constant supply of alcohol was ensured, and Colin leaves it to the court to make the final conclusion about how intense that was throughout the last months of the deceased’s life. Cross-examination indicated that he stopped drinking at some stage, as understood in the last two weeks, ten days before his death. However, the daughters testified that they often found him, with a glass of alcohol beside him, and this led to the description of the testator requesting dilution of his drink. Colin finds this a bit vague whether there was alcohol in the drink, and it had to be diluted with coke or whether the coke was too strong and had to be diluted with water. He however got the impression that alcohol played a prominent role, and the supply ensured, although its drinking is still to be evaluated. The following comment is according to him important, that the drinking of the deceased was severe and therefore he was probably dependent on alcohol. This would indicate his control over his use by implication would have been weaker, as is the case with dependent people.

 

Confusion

 

[197]   The possibility also existed that if he did stop to drink, he would have become confused with alcohol withdrawal again, no sign of such withdrawal was ever observed or described although the word confused was later used in relation to later aspect of his life. He took full cognisance of the fact that these observations of confusion were by his daughters not professionals. That the descriptions of speaking in a confused way, answering irrelevantly were certainly made which indicated that there were bouts of what a Psychiatrist would call Possible Delirium. Dr Bond referred to the word in his testimony. Delirium in lay terms is a condition of acute brain failure to contrast that with just Chronic Brain Failure which would be something like Dementia or Alzheimer’s. Acute brain failure often happens within context of medical emergencies, drug withdrawal, electrolyte imbalances. He reckons what is important to note is the confusion, which he describes as a period in which one’s contact with the world around has been lessened, and you cannot respond in a logical coherent way. There were descriptions from his children that when they visited the deceased they observed these periods, what is very clear however is that those periods of confusion were not consistent, with other words not present throughout and that he could have had periods of clear functioning and clear thinking.

 

Alcohol and influence

 

[198]   Colin allude to evidence indicating that the deceased did have periods of clear functioning and thinking as Doctor Bond testified. Talking about isolation and the actions of the 2^nd Defendant in the constant supply of alcohol, that it needs to be noted that the use of alcohol in a patient with terminal cancer of the pancreas, affecting the gastrointestinal tract with other words the stomach, the bowels and the pancreas is an extremely dangerous thing, and had the potential of making the patient just by virtue of using the alcohol, certainly more susceptible to the influence of an outside party, accordingly that part is incontrovertible, in other words it is not just a statement of fact about alcohol and the physical condition which is also a fact of the patient, that part is not an interpretation. The specific kind of cancer that he had, led to obstruction of his stomach, which in turn could have given periods of dehydration, nausea and vomiting that was mentioned,  nausea specifically, not the vomiting nausea by Doctor Bond leading to malabsorption, with other words that nutritional substances were not that readily absorbed, including protein which led to the slow decline in the physical wellbeing of the patient. Colin further reflected on the fact that according to Dr Bond’s indication, liver failure was certainly not part of this, who described that he found him with bad liver functions in the beginning. After his first intervention of placing a stent, a stent would be a pipe that is pushed in to the narrowed opening of the stomach or the bile duct through the cancer, allowing the fluids to pass in an unrestricted way. So, alcohol was used that is as previously mentioned, on top of of all that, that is periods of depression described by his family at various time where he withdrew himself, did not speak, and described by Bond as often accompanying the terminal phase of illness of any cancer patient.

 

Isolation by constant presence

 

[199]   The next important point as regarded by Colin to be spoken about is the possibility existing of the isolation of the testator by an outside influence, in this case the 2^nd Defendant. According to him considering the evidence, it was clear that certain family members were excluded from significant events, most notably when the 2^nd Defendant prohibited the Plaintiff from attending the wedding, it stands on the record and again adds to the impression of being excluded from significant events. It is clear that the 2^nd Defendant also was present during most of the daughters visits to their father during this time of his slow death. It was testified that the 2^nd Defendant often interrupted conversations and turned the conversations from the topic under discussion or the discussion with the deceased to topics such as, “I need a new motor car for the garage”, that sort of thing. The 2^nd Defendant was described to be present during each one of the consecutive signings of testaments two, three and four.

 

[200]   Again, one wonders about the possibility of exertion of influence, a description was also given by the two daughters that their father often expressed the need not to cause conflict with the 2^nd Defendant, that he had to avoid, being confrontational. Or that they should maintain good relationships, the impression being created that he was very sensitive about the relationship with the 2^nd Defendant and he was aware that she was at times unhappy with his relationship with his daughters, as if he tried to minimise that relationship. He considered the phrase used that it seemed as if the deceased was walking on eggs during these visits, where he was very careful with his daughters not to create any conflict in that regard. The 2^nd Defendant is also described as to have prohibited or refused CANSA, the Cancer Association of South Africa, the counsellors and support people from CANSA access to the patient. However, it seems that they did get access at times, but she was negative about this (guarded access).

 

(downplay or minimize the illness)

 

[201] He also took cognizance of what was also testified to, the fact that the 2^nd Defendant repeatedly minimized the illness of the patient. Also prominent was the issue of denial of the deceased’s cancer evident from the use of two phrases, one “you will recover soon”, “you will get better” which is clearly not in keeping with the conversations with Dr Bond. He took into consideration Dr Bond’s notes emphasising denial of the patient’s illness, and the second comment that was made, of only two spots “twee kolletjies ”two spots on the liver, the interesting point being that the liver was not the focus of his illness at all,  certainly not an important part. The important part was the cancer of the pancreas itself, leading to obstruction of the stomach. It was therefore the minimization of his illness to the patient where one would have expected any rational caring spouse to assist the patient in working through his imminent death. He referred to the work of Elizabeth Cobbler Roth on Death and Dying, where the patient goes through different stages of denial, bargaining, depression, etcetera. The point being that any rational caregiver would have, or spouse would have assisted the patient in working through his imminent death and coming to what Cobbler Roth calls a beautiful death. With other words where one dies accepting the end of his life, in a peaceful way.

 

[202]   Colin also refers to evidence by the Plaintiff and B[...] that when they tried to discuss the burial plot in which the deceased was to be buried, a statement was made by the 2^nd Defendant as quoted by the daughters in testimony that it was not the right time to discuss burial. According to him if there was ever was a right time to discuss burial it was obviously during this time where the patient literally had days to live, as is now very clear on record. It is clear that in the relationship there was isolation. There was another point that is the removal of the flowers, it is a minor symbolic gesture, but rather meaningful that at two events the daughters individually described bringing flowers to their father because he was a nature person. When they later arrived at his home, the flowers were removed from his presence and placed in other areas of the house that were inaccessible to the patient. According to Colin this concept of isolation of the love and the care shown by the daughters which he thinks it is a symbolic gesture as if it is being taken away.

 

Consistency of care 

 

[203]   In terms of consistency of care, the opposite indicated, to the fact that the 2^nd Defendant was an excellent caregiver, who looked after the patient’s needs. There were several points of evidence which to him indicated lapses of care. He points out that throughout, the description was given by the Plaintiff and B[...] that the deceased was in a very bad physical state noticeably in the last week of his life, when they found him, whereupon the blanket had to be washed three times or five times, that the t-shirt was very soiled, that he had not bathed for a week. Colin also pondered that a reference was made that the deceased had a lot of pain and he could have refused care, based on his abdominal distention and pain, that was clearly mentioned so one should be careful to interpret it as the lack of care, but it is evident that a bed wash, washing someone in their bed, could have been done with a very soft sponge, the patient could have been kept clean even despite adequate pain control, and that Morphine could have been administered before any of these washes. So, there was mention made of a period when evidence was found, that the second defendant went to Sandton to do shopping, and that the patient was left to his own devices during that time. Again, that is just something that is there.

 

Plaintiff’s disinheritance

 

[204]   As far as the disinheritance of the Plaintiff is concerned. Colin said he found it very strange that late in his life the testator suddenly questioned the paternity of his eldest daughter (to check the date when same was made supposedly 18^th or 19 February when it is alleged the instructions were given for changing of the will, excluding the Plaintiff, explaining the ambivalence and possible influence). To him this is a very strange thing because it was not supported by any previous such question or doubt or whatever through the life of the deceased. It is just a sudden idea with absolutely no evidence about where the idea came from, however, he reckons one has to ask the question if this was not part of the substitution of will that the 2^nd Defendant did not like the Plaintiff, the deceased’s eldest daughter. It was clear that the deceased has always had an excellent relationship, there was no event, and this is a very important point in terms of the disinheritance in the fourth will of the Plaintiff. There was no event mentioned that could have led to the break up in a relationship between father and eldest daughter.

 

[205]   Collin however hastened to add that it is very important for him as an expert witness before Court to point out a caveat that he has not heard further testimony on this point, and willing to reconsider that point obviously should any such information about an event that led of such a severity and degree that led to a break up in the relationship between father and eldest daughter, to the extent that the father would go so far as to disinherit her. The emotional impact must be quite severe for such an event to lead to a disinheritance happening, the times that he has encountered this kind of phenomenon clinically in his work with patients, it was usually a quite severe break up, conflict, rejection it is actually a very important form of rejection of your love of your child to disinherit a child. He has not heard of such an event, but further evidence may in fact point out whether such a thing existed.

 

Vulnerability factors to undue influence

 

[206]   Lastly, Colin dealt with the justness of establishing if the deceased was in fact vulnerable as an individual to undue influence, in respect of what were the other unconstitutional factors, in other words physical and mental influence that were present in mind and body of the deceased that could have made him more vulnerable to undue influence. He with reference to Bond’s report and testimony  pointed out that:.

 

[206.1]          On the mental factors – First would be a severe head injury after falling from a train. Dr Bond testified that it is true of any terminally ill patient that depression forms a significant part, it is also part of the phases of dying that Cobbler Roth described. The patient was on an anti-depressant Lexamol, a family member of the well known Prozac family,  the second point being that several of the points of evidence indicate that the patient became severely depressed at times, again fitting in with this description.  On the resultant effect of any of the depression he said he could not testify about the severity as he obviously did not examine the patient at that state. However, he took cognizance that depression will impair cognitive functioning especially memory, concentration and focus to a mild degree, . the effect of the anti-depressant however as it does not impact on the cognitive functioning. (admitted in September 2015 also suffering from depression, anti -depressants prescribed)

 

[206.2]          The second constitutional factor he referred to was the presence of terminal cancer which he regarded as obvious. One also needs to understand that the very important constitutional factor here is imminent-death, which is not a moment, but a process of slowly switching off bodily functions until the last moment when the heart stops, and the brain then also dies. All or one, one of the all the different organs can be affected to varying degrees, the liver, the kidneys, the heart etcetera. There were no signs of these reported in the deceased, other than the slow physical death. In terms whereof often physical weight loss, weakness, couldn’t walk any more etcetera. But one of the most important organs is obviously the brain, the brain also undergoes a slow progressive switching off in various degrees, and this would be supported by the descriptions of periods of confusion or periods of delirium that, that they obviously not continuously but certainly at times the deceased experienced.

 

[206.3]          The other constitutional factors that were present, were  obviously the Opioids and the alcohol. He deferred opinion on opioids to Dr Kruger the pharmacologist, but for mentioning that he was aware as a Psychiatrist that morphine in terminally ill cancer patients can impair cognitive function mildly. The same would apply to Oxycodone and to alcohol. Alcohol however is a very complicated topic when it comes to cognitive functioning, obviously if one is inebriated, he is drunk with alcohol. Obviously, to a lay person it means memory can be severely affected, etcetera, blackouts often described by lay people as periods of amnesic behaviour. In the intervening periods there can be associated nutritional deficits and the direct toxic effects of alcohol on the brain which is a very complicated topic, as a factor adding to others. Not in itself but certainly highly significant especially in combination with Morphine, then these were basically the constitutional factors he wanted to mention.

 

[207]   He concluded that in the end he would then come to a conclusion where you have a person with a premorbid personality that was strong, focused, directed, highly successful being diagnosed with a terminal illness with all the subsequent effects possibly also an alcoholic with all the attended effects thereto, with a stated wish to have his two daughters become his heirs in the first testament, being subjected to a relationship lasting a total of 179 days with a subsequent marriage. Evidence led of isolation, a vulnerable individual, evidence in progressive changes in wishes culminating in a fourth testament that disinherited his daughter. In the absence of a significant event that could have explained the testator’s disinheriting the Plaintiff.  

 

Failure to understand, or uncertainty about his wishes

 

[208]   In reading the recorded conversation between Ms B[...] and the deceased, Dr Collin’s view was that firstly, it was a very clear emotional feeling expressed about the 2^nd Defendant by B[...], that she obviously does not like the 2^nd Defendant, expressing a very ferriferous opinion that she does not want to take care of the 2^nd Defendant after the deceased’s death. Collin found the comment by the deceased strange that the 2^nd Defendant (not 2^nd Defendant but B[...]) was going to execute the testament as in every testament the deceased had appointed the 1^st Defendant to do so. It is also remarkable in two respects, firstly that the 1^st Defendant was probably the executor right through, and secondly the 2^nd Defendant was never mentioned in any one of the testaments in terms of executorship. B[...] was repeatedly mentioned as a backup or a second in line executor should the 1^st Defendant fail, or for some reason be unavailable or unable to be the executor. According to Colin it indicates an interesting confusion in the testator about this, which might indicate an unclarity or indistinctness about the ability to integrate the information about testaments and to understand logically what they mean, and to understand the wishes he has expressed. His wish expressed in the testaments was that the 1^st Defendant failing which B[...] would be the executor not the 2^nd Defendant, which is the second significance, apart from the relationship.

 

[209]   Colin referred to the discussion between the two daughters and between B[...] and the deceased again. He believed that the person they were discussing is probably the 2^nd Defendant. That the daughters again expressed a very clear emotional opinion that they do not want to be involved with the 2^nd Defendant. The testator conveyed that he has thought about it and supports the notion that B[...] expressed that for 20- years, his life was messed up. The deceased  repeated it twice, “she did” ---“she did,” but also professed that he also now knew. He then conveyed the fact that he too lived his own life and that he was a difficult man. That in other words indicated that apart from the bad relationship between his daughters and 2^nd defendant, the emotional value that the deceased at that stage expressed was that 2^nd Defendant might have interfered in his life, producing periods of unhappiness. At the same time fully acknowledging that he probably was not the easiest person himself, and that he significantly contributed to any relational issues between 2^nd Defendant and the deceased. Colin in that regard  conceded that the report was a resultant of one sided evidence that he has heard which excludes the side of the Defendants which might have to be reconsidered after that evidence.  

 

[210]   Under cross examination, Dr Colin’s testimony was that the capacity of the deceased in the sense that he knew what he was doing was not in dispute. The context of his comment however being the fundamental concept contained in the larger concept of testamentary capacity. When he was asked to confirm if at the time when the deceased signed the will he was fully aware of what was in it and that he agreed with that? He pointed out that it was a very, very difficult question for any sort of expert psychiatrist to answer because there were indications as shown from the transcript of conversations that there were times when the deceased got confused between the true executor and the 2^nd Defendant, who is going to execute the will. (Also him talking about leaving W[...] R4 Million when he is not in the will. Colin confirmed that it seems there were periods where some confusion might have existed.

 

[211]   He cautioned that the fact that the will was executed a few days before he actually died must be remembered, and making it incredibly difficult to definitively say yes or no he was fully aware of what was in it and that he agreed with that. He also said he would feel uncomfortable saying unqualifiedly that he was not. As it is evident that there were periods of confusion and periods of clarity and certainly the descriptions of observation of confusion at times makes one wonder what exactly the clarity was and testamentary capacity was not the question that he was asked. He however qualified that statement by also indicating that the level of psychiatric or mental affliction for testamentary capacity is much higher than that of undue influence. Undue influence is of a lower affliction. And it was necessary to indicate as a psychiatrist that it was so, in other words you need a much more confused patient to affect testamentary capacity than what you do of undue influence or let undue influence exert its influence.

 

[212]   Commenting on the quality of the evidence or the extent to which he had taken the evidence so far seriously, he stated that as a psychiatrist, in his clinical work when he asks someone a question and he listens to their description, it is very important to listen to the difference between a description of an event and the interpretation of an event. He made it absolutely sure whilst listening to the testimony so far that there were no interpretations by the two daughters when testifying, but in fact that they gave descriptions of events that the court could evaluate. He so far believed that the quality of the testimony was quite compelling in terms of the points that he described but indicated, which is a very important caveat for any expert witness that he was also of the view that the recordings were important, although clearly selected and absolutely nit-picked, they are however incredibly valuable for what they are. Fully keeping in mind that it does not reflect the full clinical picture, and that it is usually rare to get a version of the deceased’s thoughts, behaviour, other people’s behavior. He felt it was an incredibly important document nonetheless. He also agreed that a testament is a document relating to context so when it gets to testaments, context is everything.

 

[213]   On the 2^nd will signed on 8 October 2015 and 2^nd Defendant’s reappearance Colin noted that in terms thereof the Plaintiff was already excluded and the only beneficiaries being B[...], B[...]’s son (the deceased’s grandson and the 2^nd Defendant. The marriage of the deceased and the 2^nd Defendant was on 25 October 2015. The will therefore signed during their time of reunion and cohabitation. The deceased being exposed to the will of another. According to him there might have been no morphine or evidence of medication, however there were several constitutional factors already creating a more vulnerable individual at that stage, notably terminal cancer, as I indicated, purely the diagnosis was already terminal because pancreas carcinoma is such and it was shared with the patient.

 

[214]   The presence of alcohol and depression and the slow, progressive isolation that already took place. He noted that he still did not have any information about an event that would have led to Plaintiff’s exclusion from the will or would have changed a strong willed businessman’s opinion to disinherit one of his children. He was waiting to hear about it if there was such information. The patient was suffering from a terminal illness, and then the marriage in which all of this was very prominently expressed. 2^nd Defendant not wanting her to be involved happened literally on 25 October, where this was on 18 October, talking about a week, (which was actually two weeks as the will was signed on 8 October 2015). He did not believe that the opinion of the 2^nd Defendant will have changed in such a short space of time. He believed that there is a reasonable chance that the court can find that opinion by 2^nd Defendant was already there as it was very clearly expressed two weeks later.

 

[215]   He said he would have thought about it the same way and wouldn’t have significantly changed in the intervening two weeks since the will was signed and the expression of that opinion two weeks later at the marriage. The opinion was however not cast in stone, but for the court to evaluate and decide. When it was pointed out that there was no morphine at the time and that there was less time to isolate him from his family, the duration of the influence being a significant factor. He emphasized that there is a difference between the will of a person and cognitive impairment. He disagreed stating that the duration of the influence is actually not the factor, the factor is in fact the intensity of influence and vulnerability of the individual.

 

[216]   On the will dated 18 January 2016 naming the 2 daughters, that is the Plaintiff, B[...] and the 2^nd Defendant as beneficiaries, Colin described the change or the deceased’s vacillation as an ambivalence which according to him would still fit with undue influence being present which is an element of a particular state of mind. Going back to the concept of competence, which is the ability to gather information, make a decision, come to logical conclusions and act on that. He said ambivalence indicates the inability to integrate information as to who his heirs should be and who should not, in the absence so far of any clear fallout. The conflict is an indication that the patient was ambivalent. It begins to play into the concept of competence. Asking the question whether could the testator consistently evaluate his heirs and then consistently stick to his heirs based on his will or did he fluctuate under the influence of external pressure or another’s opinion? That is worrying in terms of consistency and competence, in terms of sticking to your guns, making a decision and sticking to your guns. According to Colin another very difficult question.

 

[217]   On the possibility of the deceased being angered or offended by the Plaintiff trying to stop the wedding and also not attending, resulting in her being overlooked or excluded. (This intercepted by January will). It was Colin’s opinion that the answer was yes, as generally speaking he would also be seriously offended by an attempt to stop his marriage. However, according to B[...] what later happened, was that when the testator expressed his surprise to Ms B[...] that the Plaintiff did not attend the wedding, asking after the Plaintiff, and when Ms B[...] then informed him that the 2^nd Defendant actually prohibited her from attending, he was quite surprised and expressed that he knew nothing of it. So, he found Counsel’s theory a bit strange the deceased got angry with the Plaintiff because she tried to prevent the marriage and therefore disinherited her, whilst at the same time expressed to his daughter later to be surprised that Plaintiff was not at the wedding. He found that to be sort of incongruent and not to fit in terms of what was the reasoning for the disinheritance (It however fits in with him including her again in the January Will.)  

 

[218]   Finally, what he still could not have is some kind of description of a confrontation between father and daughter, where the deceased was saying he was angry with the Plaintiff, asking her why was stopping his marriage, and telling her that he does not like her anymore. If she realises that she has now crossed the line, for that he was going to disinherit her. Or told that this is unacceptable behaviour, et cetera. Absence such a description or decision he is swayed by the evidence after the marriage, about him expressing surprise, he actually expected her to be there, the daughter that he later disinherits, according to his opinion that was bit strange, and does not fit. Ms B[...] led evidence of the Plaintiff’s exclusion at the wedding.  (As family he expected her to be there, like his situation he will still include her in the will)

 

[219]   It was put to Colin that a further reason or second factor for the deceased’s anger was the fact that after the news about the cancer, the Plaintiff was already in less than a week, in possession of 2 quotations from funeral parlors. Arranging a list of attendees to the deceased’s funeral. When it came to the knowledge of the deceased, he did not take it well, that she was planning his funeral at that very early stage. According to Colin if that is the case especially to a person that has been in profound denial of his illness and exacerbated and reinforced by the 2^nd Defendant that he is not dying, it could be upsetting. Further he commented that taking into consideration that the personalities of the two sisters are very different, the Plaintiff as a chartered accountant and the pilot, thinks in a linear and logical way whilst the teacher, B[...] is more the emotional, the loving, the kind, supportive, not that the Plaintiff is not loving, kind and supportive, she is just more linear and logic.  So, it is that the Plaintiff would go with their father to receive a diagnosis and was apparently present when he was told of his terminal illness. He wondered if this is not a kind of the Plaintiff personality kicking in but understanding that it can be upsetting to the patient, he agrees. He could not delve on whether it could be a sufficient ground to be disinherited, that she was thinking of his potential demise and planning for it.  

 

Under re- examination

 

[220]   It was agreed that pilots and Chattered accountants are very logical. His professional impression was that, the plaintiff, exhibits a kind of personality that is precise, linearly, logical, motivated, analytical, with incisive action often added to it whilst that of B[...], was that she is the more-soft spoken, emotionally empathic person especially as it also comes out in the recordings. Agreeing also that the Plaintiff could have been a thorn in the deceased’s eye, with an intrusive irritating presence, which is the negative side. The positive side he acknowledged was that her behaviour is testified to have been throughout to assist her father in various ways, doing administration for him, being his transport to all of the medical visits, the appointments, assisting him with cancellation of bank cards, also even consulting the police when some items belonging to the deceased were lost and was later found. The Plaintiff assisted her father always with very little regard to herself, from what he can gather there was never any motive to her than support, support from her perspective, her personality, her interaction style, that is it.

 

[221]   Further during re-examination on the possibility of undue influence on the execution of the 2^nd Defendant playing a role in the exclusion of the Plaintiff from that second will, his view by positioning an element of undue influence was that it is certainly possible that undue influence was also exerted during the creation and signing of that will. However, he said as an expert, he needed to emphasise that it is an opinion, as he cannot base this on absolute fact, other than the fact that the other factors did come into play over the course of time, cumulatively leading to undue influence, possibly on a vulnerable individual.

 

[222]   Colin’s comment on the deceased expressing a believe that god will spare him saying that “di jere gaan my spaar” was that it indicates a denial of his situation still on the 19^th February 2016, a few days before his demise. The deceased was talking to the 1^st Defendant, following his conversation with Dr Bond the previous day, in denial in believing that his cancer will stop, clearly based on the evidence that he received, a false conclusion and goes back to the whole idea of getting information, correlating information and then coming to logical conclusions. Commenting on his testimony about the fact that once a medical practitioner tells somebody you must consider cancer, and hospice in case of a cancer patient, that indicates that the end of his normal life is near whether the deceased’s conduct was realistic. He from the point of view that it is a fact that he was dying said that it was not realistic, however he said cross - examination clearly put to him and he also thinks that is absolutely valid, it is a stage which is well described in terminally ill patients, therefore not unusual for a terminally patient. What is unusual is the persistence of the denial, that you keep on holding onto that belief that you are in fact going to be saved and cured, that is the part that is not rational, in his words not reasonable The deceased’s denial being convenient to the 2^nd Defendant) .

 

[223]   Giving an opinion on whether somebody using morphine will be in a state of mind to change his will 4 days before his death. The deceased was prescribed morphine and has been using it for about a week when he signed his changed will.  The question was whether this change occurred of his own free will or was his state of mind compromised by the use and influence of morphine and perhaps concomitant alcohol use. the effect or actions of deceased’s financial records that medication and related substances.

 

Defendants’ case

 

1^st Defendant testimony

 

[224]   The 81- year old 1^st Defendant was the deceased’s attorneys for a period spanning nearly 40 years. He practiced as an attorney following his admission in 1965, then as an advocate, and back to the side bar in 1972. He is what we can call an old hand.  He met the deceased in the early seventies and has been his client since then representing the deceased in various matters. He regarded the deceased or described him to have been a successful business man, a very difficult client who liked to have it his way and it was difficult to sway him when the occasion arose, but he would generally follow 1^st Defendant’s advises. He confirmed to hold letters of executorship having been appointed as an executor in the deceased’s estate in terms of the 4^th will dated 25^th February 2016.  He also confirmed to have been involved in the drafting of the deceased’s other 3 wills and the execution of the Antenuptial Contracts concluded by the deceased in all his marriages.

 

[225]   In particular the 1^st Defendant confirmed to have overseen the execution of the deceased’s will and the conclusion of the ANC by the deceased and the 2^nd Defendant, signed at his office on 8 October 2015. His secretary signed as a witness. The will excluded the Plaintiff and included the 2^nd Defendant and W[...]. In their discussion at the time about the exclusion of the Plaintiff from the will the deceased told him that the Plaintiff was interfering in his life and trying to prevent his intended marriage to the 2^nd Defendant.  He was the old self and knew what he wanted. He wanted the 2^nd Defendant to come and look after him as he was diagnosed with cancer, and that was the reason the deceased gave him for marrying the 2^nd Defendant.

 

[226]   The 3^rd will that was signed on 18 January 2016 was also signed at his office and witnessed by his secretary. In this will the Plaintiff was now included. He had from time to time raised the issue of the exclusion of the Plaintiff with him and was not sure if that had anything to do with that. He would prepare the will on the date of the instruction and the deceased will then subsequently sign it. The handwritten notes indicating changes were not affected on that will. The 4^th will in which the Plaintiff is again excluded as a beneficiary was signed on 25 February 2016. The deceased came to his office highly agitated and wanted the 3^rd will changed, with the Plaintiff excluded again. The reason the deceased gave was that the Plaintiff went behind his back to Dr Bond and came and told him that, she was told that he was going to die, that he did not have long to live and that she was going to come and greet him, words to that effect and again typical of the Plaintiff interfering in his life and he wanted her excluded.

 

[227]   (The reason however articulated was that it seems to have been of greater importance to the deceased that she was arranging the funeral (whilst he still thought of his life, that he was encouraged to believe he still has) He then got a call on the 25 February 2016 from the 2^nd Defendant informing him that the deceased was too ill to come to his office and asked him to come and get the deceased to sign the will at their house. An arrangement was made for the 2^nd Defendant to come to the office, so that she could lead the way to show him how to get there. The 2^nd Defendant also asked the 1^st Defendant to bring a witness with him. He brought Mr Hennop who was at his office, to accompany him to the deceased’s home. The instruction to draw the will was received long before the 25^th February with the instruction that they will come back for the signing thereof. The 2^nd Defendant showed him some amendments to be made to the will that were written on the 3^rd will which had to do with the movables. He phoned the deceased to ascertain if that is what he wanted and again asked him with regard to the exclusion of the Plaintiff and he confirmed.

 

[228]   When he arrived there the deceased was happy to see him and in a jovial mood. Another visitor also arrived, Mr Putt who was introduced as the estate manager. He was also introduced and the guests told that he was the deceased’s attorney. He showed the deceased the will. It was very short. He showed the deceased on page 2 how exactly the estate was to devolve and again ascertained from him if that was the way he wanted it. The deceased was satisfied. The will was signed in the presence of Mr Hennop, Mr Putt and he thought and the 2^nd Defendant and not sure where she was sitting exactly, she might have been behind the deceased. The deceased was sick, scrawny, physically in a bad condition, but mentally he understood exactly what he was saying and what was going on. He was able to hold conversations and in his view there was nothing wrong with his mental capacity. He further could not detect any sign of alcohol. He would be sensitive to something like that as a teetotaler.

 

[229]   On the issue of morphine he said he did not know anything about it. He would not have let him sign the document if there were any signs that the deceased didn’t understand the contents thereof.  He also gave him a document whereupon he was releasing B[...] from a liability to repay him an amount of money he advanced to her. He signed that document as well.   

 

[230]   On the relationship between the deceased and the Plaintiff, the 1^st Defendant was of the opinion that it was a sort of an on/off relationship. The deceased would complain to him from time to time, if things worried him and when he was upset with the Plaintiff interfering in his life.  On the other hand, the Plaintiff had often phoned him when she happened to have a problem with the deceased, therefore on and off, good and not good. He said he didn’t know anything personally except for what he was told by the deceased or the Plaintiff.  He did not attend the funeral due to an appointment he had with the Cardiologist. After the funeral the Plaintiff and B[...] came to see him at his office. He gave them a copy of the will and was sympathetic to the plaintiff’s exclusion as his wife went through the same being left out of her mother’s will. He denied vehemently as being totally untrue that he laughed at the Plaintiff and told her that she need not have come.

 

[231]   He further denied that he, personally as the executor had anything to do with the advert that was published in November 2020 for finalization of the state when there was a pending dispute. He indicated that a Mr Hennop would have attended to the estate had it not been for the dispute. He said he confronted Hennop about the advertising and he told him that he also did not know about it. The advert was placed by his agent, by mistake. He confirmed to have made an undertaking to Mr Kruger, the Plaintiff’s attorney that he was not going to proceed until finalization of the dispute. He confirmed to have been an executor in a few estates but not to have done any administration himself. He agreed that the deceased was a stubborn man and as to whether he has gone against his will he says it depends and that is a general question. He might have discussed a particular problem with the deceased where they were not in agreement with each other, but he cannot recall if there were instances where he may have gone against the deceased’s will or advised him against his wishes. (He had testified to have advised the deceased at an instance of the friction between the deceased and the Plaintiff).

 

[232]   He did not have a file of the estate as the administration was being handled by Hennop. He would dictate to him the contents and he will put the letter on his letterhead. He also did not report the estate to the Master. He confirmed not to have looked at the Final Liquidation and Distribution account that was published nor to remember the number of accounts that have been opened. He also was not aware that there were doctors account (creditors) that were not paid. He was referred to the conversation of the 19^th February 2016 when the deceased called him to speak about the Mercedes vehicle that he no longer wanted. He was not sure if he was concerned about going to the hospice. He however remembered that the deceased did during that conversation state that he trusted or believed that the lord is going to save him. He also indicated that the deceased was in a bad state, he was obviously physically ill but believed that the almighty can do anything. He cannot say whether or not he was justified to believe that. He could not comment on the report by Dr Van Rooyen, the Oncologist that “hy presenteer aavanklik gewigs verlies algehele swakheid en naarheid” the deceased presents with a picture of a person that is normal, physically and with psychological capabilities, saying he does not have the knowhow. He confirmed that it was also said “hy het redelik gesukkel tydens behandeling intussen en verder gewig verloor. He could not deny that the deceased had lost a lot of weight.

 

[233]   With regard to the matter of the Plaintiff not attending the wedding and the evidence of B[...] that the Plaintiff heard of the wedding from B[...] on 23 October, he said that is what he was told by the deceased when they met, why he wanted his daughter excluded from the wedding. He said it was possible as in accordance with the evidence of the Plaintiff that when the Plaintiff heard of the wedding she phoned him and he advised her to keep her dignity and stay away from the wedding. He confirmed that the Plaintiff did not want the wedding to take place.   According to B[...] the deceased only knew of the reason why the Plaintiff was not at the wedding after the wedding and was surprised of the reason.

 

Professor Schellock

 

[234]   Professor N Schellock, head of the Pharmacology at the University of Pretoria reported that her broader field of study and research is Chemotherapy which involves medicines that work on rapidly dividing cells. She was however referred to by the Defendant’s Counsel to be an Oncologist. She said Chemotherapy also involves drugs used in oncology and drugs use in infectious diseases. So, oncology is cancer, that is in pain management and drugs used in infectious diseases which is antibiotics. And what is interesting these two are actually closely related because, cells in cancer divide rapidly and cells that work in infections divide rapidly. Research and review paper on how to optimize the management of pain. She wrote a paper on oral opiod management. What happens when morphine is administered orally. “If morphine or in that matter if any of the opioid, could either itself cause undue influence considering all of the factors as fully qualified below the use of morphine...”.

 

[235]   According to her apparently “Morphine 1mg per milliliter (5 to 10 mg) was prescribed on February 18, 2016 but apparently administered from February 4, 2016”. She noted that Dr Bond’s testimony was that he didn’t have that script. But he had also said “On the 4 February 2016 we started the patient on 2.5 milliliters of oral morphine.” (According to Bond it was a once off. It was scripted, to be given/taken 6 hourly.  A lower dose that was adjusted on 18 February 2016. Being at the period of advanced stage of cancer. The therapeutic dose of morphine where pharmacist start morphine at is normally at 5mg/ml four hourly. So, if they say that there is 1mg for 1 millilitre which is what was reflected on Dr Bond’s report then 2.5 millilitres is a very conservative dose. In other words, the patient was not started at the normal therapeutic dose for a person with pancreatic cancer. It is sometimes seen in clinical practice that clinicians start a little lower with morphine to determine the response of the patient to the effect and the side effects of a medicine.

 

[236]   She elaborated on how the morphine deals with the pain in pancreatic cancer? Analyzing morphine as a substance she reported that actually it is a very old substance. Saying what is more important than the medicine in itself is to take the medicine in context of a person’s specific condition. So in other word morphine acts on three different receptors. That is about mu receptor, kappa and then delta. The only reason she was mentioning that was to assist in putting it into context as the deceased was on other derivatives. It was the Tramadol, Buprenorphine and Codeine, all opioid derivatives and all do not act on their own receptor. She emphasized the fact that it was not known if the patient was on the opioid derivatives at the same time or if he used it before, but what is important is that they all act to some degree on the three same receptors. And also mentioned a concept she called tolerance. Explaining that the body in other words only has so many receptors. Buprenorphine does not have its own receptor, and then the other two drugs each have their own receptor. They share these receptors. So the drug acts there and if your body thinks there is enough it starts down regulating those receptors. The effect of that (which is why effects and side effects are highlighted) becomes less.

 

[237]   Dealing with effect in the context of someone with pancreatic cancer Shellock pointed out that it is an aggressive cancer and normally more than 80% of the time diagnosed very late. The pain is what makes a patient present to the doctor. Cancer in itself on its own also produces pain. And the reason why this happens is cancer has got lots of rapidly dividing cells. And these rapidly dividing cells releases inflammation mediators, that is molecules that signals pain. The molecules produces pain that is called the nerve growth factors. Cancer causes inflammation and in all of the cell lines and it almost attacks all of these nerve fibres. It is extremely important to not look at morphine in general but, you have to look at morphine in a patient with cancer more specifically pancreatic cancer.

 

[238]   So, now pancreatic cancer is especially special, because it causes three different types of pain and it is one of the most painful cancers that you can have. That being mentioned based on Dr Bond’s testimony just to place it into context why he did those surgical procedures. The visceral pain is pain to your abdomen and your pelvis. So, it actually highlights those receptive pathways in the abdomen and in that vicinal cavity and that is why the duct obstruction was mentioned in Bond’s testimony. And that is the one type of pain, visceral pain. Then the second type of pain is what is called somatic pain, this is now specific to pancreatic cancer and that is why oncology always needs to be placed into clinical context. Dr Bond also spoke about putting or going into the celiac plexus he did that because of pancreatic cancer. So, somatic just means it is pain in the tissues and the cancer in itself stimulates substance P, which Dr Kruger also mentioned. And then the third type of pain is neuropathic pain. So that is all the pain and all of the pathways. It is extremely painful.

 

[239]   She said the reason for mentioning all of this was to say that when morphine is used in a patient with pancreatic cancer, it is started with a low dose, normally at 5mg, a therapeutic dose.  But they can up regulate that quickly, which they normally do. But because of everything that she had just said, in the management of pain in cancer and in pancreatic cancer that pain is the physiological antagonist to the central nervous system side effects of morphine. That is important because the cancer in itself has now released all of these stimulated extra pathways and morphine is first addressing the pain. Then the next side effect that she reckoned one would see is a respiratory depression, the central nervous side effects. But what one must not lose sight of is tolerance.

 

[240]   Dealing with tolerance- Shallock confirmed that if there was no pain the morphine will give result to more side effects. The pain to a large extent absorb most of the morphine and there is less left to cause side effects which is tolerance. Tolerance is a function of time, as alluded to by Kruger citing the FDA’s website. To say that tolerance can only and can be developed after a week, because tolerance is a term relating to the receptor and the drug which develop at 60mg of opioids, which to some extent is incorrect, the line preceding that, which he read states that tolerance is a function of time. This drug was sitting on this receptor and this person now also have all of these other things happening. So, over time or if there is a rapid increase in dose the receptors start thinking, that they can now just reduce because, there is enough of this drug or it has been given over a long enough period and that is why junkies and people that use morphine will quickly try and get more and we refer to that as also physical dependence. So, what she actually just trying to compare and convey is that If an oral morphine is used in a patient with an advanced stage pancreatic cancer, there are many other inflammatory processes happening. That produces pain in itself. And in palliative care regardless of the cancer they continue to keep the person pain free because, they recognise that the morphine is occupied with the pain. The other side effects is secondary to that. They also recognise tolerance.

 

[241]   She indicated that in the deceased’s case there were lots of other factors. They cannot inadvertently say that morphine in a patient with advanced cancer will influence cognitive impairment at a certain dose, taking into consideration other medicine that he may or may not have used concomitantly or prior to this. One cannot say the tolerance for argument sake happened at 60mg. We cannot compare the use of morphine in healthy patients to a patient that has severe pain. Also recognizing that the deceased used oral morphine. In a patient with pancreatic cancer there are lots of painful receptors as stated earlier and when oral morphine is taken it first goes through the liver. If you give someone something intravenously it almost directly goes to that place to that receptor. It does not first have to go through the liver if it makes sense. So, if I inject you with morphine it does not first need to go through the lymphatic system therefore works immediately.

 

[242]   According to Shallock, receiving the morphine or not receiving it is equally important, because if you did not give him morphine he would be in distress, because pancreatic cancer is extremely painful and that may also impair his cognitive abilities. So, in a patient like this she said you give them something to address the pain so that, they can have quality life and go on with the business of living referring to the country‘s progressive Constitution that provides that pain management is the constitutional right of a patient, so that they can have quality of life. Recognising also that the deceased was receiving an opioid derivative, which share the same clinical properties as morphine. She confirmed that the use of the derivatives over a period would add to the tolerance, when morphine is administered after receiving that for a period of time. A patient who had a no  history of usage of these substances is referred to as an opioid naïve patient, that is more than exposed to an opioid. The deceased when they started him on morphine he was not an opioid naïve patient as he has been exposed to other opioid derivatives. She confirmed in terms of tolerance that in this case its known that his dose was still relatively low. So because there is a good possibility that he became tolerant he would have less side effects like neurological impairment. In pain and side effects. So, they become tolerant to the central nervous system effects, the respiratory depressed effects, pain but not constipation, which can be seen from the report of Mr Kruger as well.

 

[243]   On Dr Kruger’s report on the overview of morphine and its use with the potential side effects, it is her view that it was not placed into the said context of this patient but more specifically that Kruger has not taken into consideration the aspect of tolerance. She said she went to look at the reference that he has used, because tolerance is an aspect over time. You could see it in dosages as well. She agrees with Kruger on dosages, but in the resources that Kruger mentioned, the FDA, he mentioned 60mg at the line. Before that, specifically he stated clearly that tolerance is a function over time, which is what they are accepting in pharmacology as well. So tolerance can also be achieved over time to use his reference, with which she concurred, but the FDA also states a week or a dose of 60mg. She agreed that it is impossible that the deceased could have used all the medicines that were prescribed for him at once.

 

[244]   On the report and testimony of Dr Colin, she criticized the fact that Dr Colin used studies in healthy volunteers, which we now see Dr Bond in his cross -examination also said you cannot look at morphine in healthy volunteers. Then Dr Colin then also said you cannot actually look at morphine in healthy volunteers. In a healthy volunteer they do not have these pain receptives utilising and absorbing the morphine. And don’t have all of the inflammation and the inflammatory mediators and all of the pain receptors in a person that is healthy versus a patient that is dying of a pancreatic cancer and it is widely acknowledged that pancreatic cancer is extremely or very painful versus another type of cancer. It attacks three different parts of the body. It can be in the bone, soft tissue, the skeleton or in the The deceased (patient) received chronic administration or some opioid derivatives that may have been administered chronically and received morphine acutely. And Dr Colin did not include tolerance, but under cross -examination Dr Colin concurred as Dr Bond did, that there is a difference.

 

[245]  Furthermore, Shallock’ indicated that when a person is going through the process of dying as Dr Colin alluded to, they become depressed. She couldn’t find the mention of an antidepressant and would have hoped that the deceased would have been on an antidepressant. The reason was because she learnt later through the proceedings that the deceased was on Lexamil, not sure of the situation but important as Escitalopram acts on seroton in receptors in the brain. They say it is a selective serotonin receptor inhibitor. It would have been a good thing if the deceased was on it, because if you increase serotonin it may have assisted if he was depressed. I am not a psychiatrist also did not see him, but it would have assisted in his mood stabilisation and with pain management.

 

[246]   On the potential effect of alcohol Shallock’ reported that if there was concomitant use of alcohol it may potentiate the effects of morphine. In other words it may make it worse, because it cannot be metabolised by the liver. She listened to what Dr Bond had said and at his report. She looked at the statement from the nursing sister and could not get any clear evidence if there was alcohol use. She looked at the radiology findings of the deceased and could not see any hepatic cirrhosis, which in itself does not mean there was no use of alcohol. She again listened to Dr Bond as he explained the liver function tests, (LFT) and to the cross-examination from Mr de Klerk where he asked specifically to GGT’s, which is an important point that Mr de Klerk posed to Dr Bond.  She understood why Mr de Klerk asked Dr Bond that question. Because GGT is elevated to someone that used alcohol and sometimes indicative or almost always indicative if someone is using alcohol. It is a liver enzyme that they use to determine if someone is using massive amounts of alcohol. And Dr Bond’s response was that it was elevated and then he knows as he opened the duct obstruction to do the surgical intervention. And then it reduced. To put that in context, 60 is regarded as the upper limit. After the surgical intervention the deceased’s was 61, which is not that elevated. If there was an external factor she cannot say as she is not a pathologist. She was only responding to the evidence that was in front of her.

 

[247]  Adenocarcinoma is pancreas cancer of the glands. That means the pancreas presses against the liver. So, it makes it really difficult to determine if elevated liver functions is because of the cancer or if it is because of any external factor. So, it is important. She also listened to the testimony of alcohol in the house and Dr Colin and could not say if the deceased used or did not use alcohol. She explained the smell of alcohol as it was put to witnesses that the pancreas produces insulin. So, patients with pancreatic cancer can no longer regulate their blood sugar as appropriately as they should.  if something sweet is taken, the pancreas releases insulin which goes to that cell, opens up the cell and it pushes the sugar into the cell away, so that the body can use the sugar. She says in patience with pancreatic cancer they become emancipated they look like a victim of a war crime. It is because they cannot metabolise sugar or other foods and their body has to start relying on other ways to maintain energy. She spoke of a condition called Diabetic Ketoacidosis- which means because insulin is now no longer produced the way it should be produced, the body cannot use that sugar appropriately. The body starts using fats, proteins and it causes an acidotic cycle. In other words the patient almost becomes cidotic and smell like an alcoholic. It is a fruity smells. They call it a ketotic smell, and they could be suspected of alcohol abuse. So, it is very difficult in patients with advanced cancer.

 

[248]   The final question posed to her whether morphine or its opioid derivates will in itself in a patient with advanced pancreatic cancer cause undue influence. She  said she cannot say that morphine or any of those opioid derivatives based on the explanations that she has given, the testimonies that she has listened to, the reports and literature she has perused, the papers that she has written, say that morphine in itself will cause undue influence. She had to look at someone specific that is what she has done in other reports, in her testimony that means in a conceptual framework. The deceased’s age, adinocarcinoma, co- morbidities, metabolism of morphine, potential of tolerance. All play a role on the factors of undue influence, which she left for the court to decide. She cannot say that the patient might have been influenced or have had some degree of cognitive impairment.

 

Under cross examination

 

[249] She confirmed that she had little experience as a pharmacist except in retail pharmacy. She agreed that multiple opioids were used during the period before morphine was prescribed and before the contemplation and drafting of each of the wills although not sure of the time lines of all the wills and does not know when all of these opioids were prescribed. She admitted that on the question of the liver she only commented on the GAMA GTD which had a low elevation of 61 to 60 and not commented on ALT and AST were there were significant elevations. Asked to comment on them she said that ALT and AST are non-specific enzymes, meaning they can be elevated in multi-organ failure or in metastatic cancer conditions and is independent to Hepatic dysfunction only. In other words, they are seen elevated in patients with heart attacks, gastrointestinal disorders. She explained Lexamil Escitalopram referred to by Dr Kruger is a selective serotonin inhibitor. So what that means is, it just makes sure that there is enough serotonin which is called the “happy neurotransmitter” related to Prozac. Everybody knows Prozac within your central nervous system is classified as an antidepressant, but it could also be used in pain management because serotonin also has some effect in pain management.

 

[250]   She admitted to have done psychology studies in her Bachelor’s Degrees. It was put to her that it is known that from the deceased they have removed part of his duodenum, his gall bladder and they have removed part of his stomach. They have removed part of his pancreas and they have removed certain other stuff as well, lymph nodes. Now, if all those have been removed she was asked if the enzymes in the body can still produce the “liquor smell” and her response was that it actually makes it worse because insulin is produced or released from the pancreas and all of the cells, not only the cells that are removed, still requires energy, especially the brain. So if he did not have parts of his pancreas … the patient will still get the smell.

 

[251]   She also confirmed that if somebody is taking morphine and it is suddenly kept back from him that he would be very distressed. On the question “If morphine or any of the opioid derivatives could in itself cause undue influence. Her answer in her report was repeated that “To state that the use of morphine or any of the opioid derivatives for that matter will in itself cause undue influence cannot be stated as a fact.” However she confirmed Kruger’s modified answer that “Undue influence highly likely if the two are taken together, opioids and morphine”.

 

[252]  On the court’s question asking for clarity on the proposition that the patient would be in distress if he does not receive the morphine and if his cognitive abilities may also be impaired. She explained that on a patient with pancreatic cancer, morphine is used first of all for pain. In a patient the cancer in itself adds more pain pathways which is those 25 receptive pathways. As the cancer grows and the condition evolves all pain pathways are activated. And as the morphine is used to act on these receptors first of all for pain, and if its pancreatic cancer, there is even more visceral, somatic, neuropathic. Her opinion was therefore that the deceased actually did not even receive enough morphine for the severity of pain that pancreatic cancer is known to cause. In oncology pain is antagonised. It is the antagonist cognitive impairment. In other words, it first treats the pain, then the side effect, it was not really discussed during this court case. It is respiratory depression, then central nervous system side effects, which may include sedation and cognitive impairment. So one cannot shy away from the fact that there may have been cognitive impairment. She confirmed that this particular patient, the deceased was in serious pain. And even though he received the therapeutic dose in her practice in palliative care, as alluded to, it was a therapeutic dose but she suspects he may have been in pain.

 

[253]   She was asked then as a follow up question if when there is not enough morphine to treat the pain, there is nothing left to cause that respiratory depression and nothing left to cause any effect to the central nervous system or if it is used up. Her proposition was that with every drug that you administer there is an effect and a side effect. And referring to the up regulation of the receptors, what is being said is that, that drug, then preferentially binds to the pain receptors.  And in layman’s terms the answer could be yes, if that is actually what it means when one say in cancer, pain is the psychologist antagonist to respiratory and central nervous system effects and tolerance develops rapidly, both to pain and to the side effects.  She said she would not necessarily say that there is nothing left because they may be still some distribution, as is referred to in pharmacokinetic tolerance, only to a lessor extend. She cleared that cognitive impairment is a term for any condition that affects mental abilities like memory, thinking, or problem-solving.

 

CANSA’s Ms Venter

 

[254]   CANSA’s home based care nurse at Pretoria, Ms Venter who was contacted by the Plaintiff testified that: she remembered the deceased and the fact that he did attend to him and the family during November 2015 after she received a call from the Plaintiff asking her to come and visit following her father being diagnosed with cancer. The Plaintiff gave her 2^nd Defendant numbers with whom she made contact and thereafter went to visit them at their home. The deceased’s mobility was very poor, his mental state stable and was very thin. When she visited in February 2016, the deceased was on morphine and had also started with a low dosage. She explained to the deceased that if the pain is severe the morphine can be increased in small dosages, but the deceased refused because he was afraid that he would not be aware of what is going on around him.

 

[255]   On her last visit, which was on 22 February 2016 the deceased was very weak but that was normal, he was sitting in his chair, he did not eat much although he drank some yoghurt and stuff, cold drink, tea. He was as hard headed and very irritated … but as, when she asked him if he has pain he said it was under control, which was very strange to her as his morphine was not very high, for a patient with that type of cancer they usually have a lot of pain, so, but he said his pain was fine. He then commented that his mental state was however normal, there was nothing wrong with him. The last time he saw him was the 22 February 2016. He was aware of what was going on around him and he was still as hard headed as always.

 

[256]   The deceased’s wife the 2^nd Defendant told her that the doctor had suggested that the deceased go to a Hospice. She explained to them that it was not a bad idea, and they work close with the Hospice. If it comes to the time when he goes into a coma, as it usually happens by the end of the cancer, then the Hospice can provide a facility where they can admit him and look after him until the final day. They said they will wait for that. The deceased did not want to go unless it is time for him to go. It is not that he did not want to go, at that stage he felt that it was not yet necessary. She only made three visits to the deceased’s home.

 

[257]   Every time she visited the house she found it neat and tidy.  On her last visit she suggested that they can put him on nappies and explained to the deceased the reason for the nappies was because he did not have control over his body anymore and it is just to assist, for any inconvenience. He still got out of the chair and went to the bathroom, because he did not want to be on nappies. So when she visited him he was not on nappies, but he was not in soil and was cared after, it was obvious, u can see. He was not dirty but was sweaty, due to the situation of his illness, but he was not dirty. When she phoned and asked to come and visit them the 2^nd Defendant will agree and has never refused her to visit. She arranged the appointments and everything around their situation.

 

[258]   She met the Plaintiff when she visited the Plaintiff s house after Plaintiff’s call to CANSA. She also met B[...] for a short period of time. From her observation the Plaintiff was quite a lot like her father, very hard headed, strong minded, will fight until the bitter end, when B[...] was more softer, would think about other people’s feelings, she was the softer kind. Venter said she knew of the deceased’s history with alcohol but at each of the visits there was no alcohol available and the deceased did not look to be under the influence or nor did he smell of alcohol. Ever since CANSA got involved they were always in a fight with each other, which was sad because she felt that they needed to stand back and have compassion for their father’s situation at that stage, but they were always in a fight.

 

[259]   According to Venter, the 2^nd Defendant was always glad to hear from CANSA when she phoned her, especially when they visited she was glad to see them, because she was afraid that the deceased will pass away and she will not know what to do. She was afraid that she might not have been doing the right thing and not looking after him as good as she can. Her impression was that she was looking after him well.

 

[260]   Under cross examination she confirmed that neither the Plaintiff nor B[...] was present when she visited the deceased. However, when she visited the Plaintiff for the first time, the Plaintiff told her about her father. The Plaintiff cared about her father but she also said they were always in a dispute and disagreeing with each other.  When she visited the deceased at home and asked him about his children, he told her about specifically the Plaintiff. They were always arguing with each other. They never agreed on anything, there was a lot of animosity between them, that is what he said you know. He said, he needed to make peace with his children.  There was no good vibe between him and the Plaintiff.

 

[261]   She read a statement she made in April 2016 that on 16 September 2015 she visited the Plaintiff at her house who told her about her father the deceased and wanted her to visit him and also wanted to know what is going to happen. On 22 September 2016 the Plaintiff phoned her and informed her that the deceased had an appointment with the Doctor and she wanted to go along but they did not want her to come. She advised the Plaintiff that she can go to show her support its her father but she must keep her distance.  On 23 September 2016, the Plaintiff called her and informed her what the doctor said after the chemo and the radiation. Most of the time, the oncologists give patients the treatment and then wait a certain amount of time to see how the treatment works and then take it from there, because the patient needs to recover. So the Plaintiff phoned her and told her that the doctor said that the next appointment would be in a month’s time. The Plaintiff also phoned her to tell her that the deceased was at Kloof Hospital for a stent. She asked the Plaintiff for the address and the telephone number of her father.

 

[262]   On the 10 of January 2016, the Plaintiff telephoned her to inform her that the 2^nd Defendant was in the Cape and has left her father alone. Venter called the 2^nd Defendant and asked after the patient. The 2^nd Defendant responded that the deceased was well. She did not get the impression that she was not at home but that she was with the deceased. She also in her statement stated that on 9 of February 2016 the Plaintiff informed her that Dr Bond is putting another stent in and that he injected the deceased with morphine. She is not sure if they put another stent because he was too weak. But she also wrote that the deceased was sent to go and see the Urologist at Unitas by Dr Van Niekerk. She then recorded in her statement that from her notes she wrote that the Plaintiff phoned and told her that Dr Bond said that the deceased must register at a Hospice and make contact with a Hospice because of his situation he was weak and he was in denial. On the 19^th February 2016 she wrote that the Plaintiff also informed her that Dr Bond stopped all the medical treatments and that the deceased only had a few days left..

 

[263]   She confirmed that the Plaintiff cared for her father and that both daughters loved their father. The deceased was in denial of his situation and of how far along was his cancer. He only had a few days left. In a way the Plaintiff and B[...] were also in denial, in a way the Plaintiff was also in denial as all the other parties in the family. They did not want to come to the realisation that there is nothing left to do for the deceased than give palliative care and medication for pain and make him comfortable. They wanted, until the end even the Plaintiff and the 2^nd Defendant and the other daughter, B[...], to fight for the deceased to get well and to get better. So that was never a problem, they loved him, they cared for him but Maria was like her father, they always were fighting each other. She confirmed to have only visited the house by appointment and not to know how it was like when she was not there. She also did not see any visible wounds on the deceased whilst she visited.  

 

2^nd Defendant’s evidence.

 

[264]   The 2^nd Defendant testified confirming her marriage to the deceased on 5 June 1993 after having been in a relationship for seven months. She did fall pregnant and lost the baby in July same year. She was wife number 5. She met the deceased through her parents at a cattle auction in Pretoria. The marriage lasted for 5 years and they were divorced in 1998. According to her the reason they got divorced was because the deceased was a heavy drinker and from time to time it got unbearable as he would be aggressive and she decided on a divorce. She then left for the beachhouse in Ramsgate. On her birthday the deceased called her and told her that he got a surprise for her which she must collect at the airport and the surprise was him getting off the plane and then their relationship started again.  

 

[265]   They continued with their relationship but stayed unmarried and it all went very well. She continued staying at Margate and he remained at the farm. The deceased wanted them to get married again but she refused as the deceased under those circumstances was well behaved. After 2 years in 2000 she, at deceased’s request, moved back with him at the Waterberg farms.  They stayed together for five years. In 2005 she bought Pringle Bay Mini Mart and moved to Pringle Bay. He assisted her with the business in various ways, heavily involved. He helped also in 2013 when she wanted to sell the business. At some point he also borrowed her a R100 000 which she paid back in instalments of R20 000 per month.  There was an attorney’s letter of demand for payment as well as he was like that business to him was business even if you are family.  Also to build her own first cattle business and grow her own stud he asked her to pay the full amount. She had to cancel her investments and pay him. When she asked for a delayed payment, he refused. There was always a relationship all the time.

 

[266]   Over the whole period of 17 years they were divorced he continued to ask her to marry him and she refused until 2015 when she agreed. She refused before then because she thought he was going to misbehave. At the time in May the deceased phoned her and asked her where she was. She was in Pretoria. She also asked him where he was and he was in front of her house in Pringle Bay to ask her to marry him now, because he fell ill. They still do not know what was wrong with him. He had realised that she was also not well. He wanted to ask her to get married finally so they can spend quality time together. When she told him that she was at her sister’s inauguration as a professor at the University of Pretoria, he was very disappointed and, obviously because he had come to convince her again to get married. Then because she was not there the deceased decided to take a trip along the coast back home and to visit some of their friends, one of the ministers that was also involved with the Brahman cattle kept contact with him while he was driving back.

 

[267]   She denied that she chased the deceased away. The date was 26 May 2015, she was not there and she remembers the date because it was her parents’ birthday and the deceased went to visit them, had tea and cake and then continued his journey along the coast back home. She has retired now and before that she was a senior lecturer and head of department at Teachers Training College at Kwa -Tema Springs and then she got married to the deceased. She assisted him in the garage business. During the week she was at the business, because it was not busy and he would be at the farm and then they would swap weekends when business was very busy. She bought her own cattle then started her own Brahman stud. Her parents were also involved with that, so they were going to all the shows and the auctions. They lived together for five years. She alleges that because they were not married but living together on the farm, he started drinking again. She bought a property in Pringle Bay, in 2005 and sold it in 2013.

 

[268]   On 29 August 2015 she was down in Margate at her parents’ place when she got a call from the deceased informing her that he has been diagnosed with pancreas cancer, the previous day.  That follows after May 2015 when he was sick and did not know what was wrong with him.  He told her to come home now and that he wanted them to get married again.  She flew from the airport in Natal to Lanseria and was fetched by the deceased and his son in law B[...]’s husband. The next day the deceased called her indicating that there are three things he needed to discuss with her. Number one was, he wanted to marry her again, for the second time. The second one was he wanted to be buried with his mother at the Zandfontein Graveyard and the third one, he wanted her to promise him that he will never let him go to CANSA or Hospice. He wanted her to take care of him to the end at home and he did not want other people to be around him in his last minutes and she did all three.

 

[269]   They got married on 25 October 2015. She arrived at the deceased’s house on the 1^st September 2015. On the 2nd of September 2015 the deceased had to fill in a form for the estate so that she can also commute in and out with her fingerprint. The deceased asked the Plaintiff to complete the form because that is the way he always worked and he will just sign it. He was required to also state who is who on the form. He was the owner and the resident and Plaintiff filled in her name secondly, and then wrote daughter. She then filled in the end 2^nd Defendant’s details and asked the deceased what she must write there, the relationship with the deceased, and he said “my wife.” The Plaintiff ignored that and wrote friend. He was clearly unhappy with her and he wrote wife. The deceased asked her and the Plaintiff to go and hand it in at Mr Perth’s office.

 

[270]   On their way there the Plaintiff said to her the deceased is a lot more ill than they think, in fact the cancer has spread all over and was not going to live long, the cancer was already spread all over and asked the 2^nd Defendant to please make a list of the farmers and his friends that she knows to invite to the funeral. According to her it sounded crazy and absolutely disgusting. She could not understand the inviting part. The Plaintiff said she will make the list of the family and also asked her to give the deceased the three quotations that she already got for the funeral. She ignored the Plaintiff’s whole issue. When they got to the estate office everyone knew who she was when she told them her name. They all recognize her as the deceased’s wife because he always referred to her as his wife, all the years.

 

[271]   Then the Plaintiff took the chance when everyone was quiet to ask her out of the blue and in Afrikaans, “Mienie het jy darem nou al vir jou ‘n kêrel in die Kaap gekry”? Translating, Mienie have you got, now got yourself a boyfriend already in the Cape. She said she ignored the Plaintiff.  When they got home, the Plaintiff again told the deceased that she got three quotations for his funeral and he must please just tell her if he would like a happy one, a sad one or a normal one, who must be the pallbearers, what kind of flowers and all questions around a burial ceremony. Apart from being shocked, he was furious and told her to tear up all three, throw them away and leave the house.  She moved into the house and the deceased took her stuff to the main bedroom because he was still healthy.

 

[272]   On the 8 or 18 September 2015, they were waiting for the anaesthetist before the deceased’s second stent. The Plaintiff and B[...] were sitting with the deceased when Dr Bond came in with the anaesthetist. The deceased informed all that he was going to get married to her again. The deceased was upset with the Plaintiff because she made a silly comment and said, oh, so “this is now going to be his fifth wife, in fact actually his sixth wife.” The deceased was embarrassed and spoke to her about it afterwards. The deceased introduced her to both Dr Bond and the anaesthetist as his wife. Both the Plaintiff and B[...] did not express their feelings about the announcement by the deceased that he was going to marry her. It was put to her that Dr Bond was never there at the Dr’s rooms when they were supposed to do the stent and when the supposed announcement was made by the deceased that he was going to marry her. She then said it was for the first operation at the hospital not at the Dr’s rooms.

 

[273]   On the day he went for radiotherapy on the 8^th October 2015, the deceased took her to the 1^st Defendant to do the prenupt and he actually laughed and made the comment of, ‘of gaan jy nou weer kop uittrek’, so he actually asked her “do not tell me you are not going to get married again.” She assured him that she was going to marry him this time and they went to the 1^st Defendant. The deceased told the 1^st Defendant about the prenupt and then he also said he wanted to change his will. He wanted B[...], his only grandson and grandchild and the 2^nd Defendant in the will, a third each. She was surprised because he did not tell her that he was also going to change his will and she thought Mr Pokroy made a comment on why not Maria and like the deceased’s personality he just said those are the three he wanted in his will and he was pretty adamant about that. He was furious and he said he was so disappointed in Plaintiff because she already gave him three options for the burial and there was also another incident when he was in hospital and he told Dr Bond and the anaesthetist that they were going to get married and Plaintiff commented that it was his sixth marriage. He also asked her to open the small safe at the hospital, take out his ID, his credit card, his ring and his watch and to put it for him in his drawer in his office and they disappeared.

 

[274]   Under cross examination she confirmed that she also drinks alcohol especially a good red wine and whiskey which she learnt to drink from her father at the age of 32. Also that after they were divorced the deceased kept contact with her. The deceased used to fly up and down coming to see her and sometimes unannounced as a surprise. She during that time had relationships with other male friends, all good friends, but none of them in any way to get married. She had intimate relationships with other men and did not contemplate marrying any of them. (Like she did not contemplate marrying the deceased.) One of them was killed in an accident on 3 July 2007. He was jobless. She has a PHD in Philosophy.  She confirmed to have a platonic relationship with a 90 year old Mr Hogewind, an engineer and an MBA holder with whom she engages in intellectual conversations and who has a very good sense of humour. She said when she moved to Ramsgate after the divorce the deceased a few weeks thereafter asked her to move back with him at the farm to help with the cattle. (Although she initially said for a period of two years they were apart until 2000 when she moved in with him at the farm  until 2005).

 

[275]   On the story that he chased him away, she said the Plaintiff made the assumption that she chased the deceased away, she never did, she had no obligation to tell any of his children what she and her husband were doing. It is their evidence that the deceased left two pamphlets there and told her that he was leaving them underneath her door so that she can choose because he had come to ask her to make a choice, between a RAV, Toyota RAV 4x4 or a C class, B class 5 Mercedes. He still had the pamphlets and I think it is in the evidence. She said she got a call from him on 29 August 2015 asking her to come home immediately to look after him. She confirmed that on the date of operation the deceased indeed told her to leave before it was dark and the operation took place very late that night. If she did not leave he would be upset. She left and his daughters left with her but turned back and stayed over with him. They waited for Dr Bond to hear what was the problem after the operation, so this was the first operation. 

 

[276]   She denied that the Plaintiff was not invited to the wedding, contradicting the testimony of the 1^st Defendant. She also insisted that the Plaintiff made fun and joke of her father.  She denied but also could not refute the fact that the Plaintiff denied that her father ever spoke to her about her embarrassing him. The deceased’s dates for Dr’s appointment for radiation were put to her which started on 14 October 2015 until November and no date in September. She admitted to have been mistaken and again said it was on 8 September 2015.  On whether she knew if the Plaintiff played bowls on that day, she said the Plaintiff could not attend the wedding because she had a competition on for bowls on that day and she played in that competition and in Wonderboom. She said she knew about it because her friend and the friend’s husband whom she invited to the wedding said they could not come as they were playing in that competition. Her best friend told her the Plaintiff was there. Actually they were best friends of the deceased in their 80s and 90s and they could not come. It was also pointed out in relation to her evidence of receiving a letter of demand for the money she owed the deceased that B[...] who owed the deceased never received such a letter.

 

[277]   When she was asked if she was an alcoholic she indicated to have a medical condition that is called hyper mobility syndrome caused by stress, long term stress and or traumatic experiences. She was diagnosed in 2002. It all boils down to the ligaments that do not keep the bone structure and the muscles together, which makes her totally flexible, very flexible. It is a hyper mobility and she is off balance a lot of times, especially under stress she appears sometimes to be unstable when she walks and often falls and hurts herself as she has got no control about it. She said she was explaining her medical condition because she has been accused of having been off balance. She denied that the deceased and herself ever sent W[...] to buy alcohol at Spar. It was put to her that the last purchase was on Thursday 25 February 2016. She however confirmed a purchase on 19 February of a Johnny Walker red and also same bottle purchased on 22 February and on 25 February a Spier Merlot, Spier Chardonnay, two 1 liter bottles of the red Johnny Walker and one Scottish Leader were bought after the deceased had signed the will. It was put to her that W[...] visited them in the afternoon they already smelt like liquor both of them and Ms B[...] had also smelt the alcohol.

 

[278]   She was asked that as she did not suffer from a life threatening disease why did she marry the deceased and she replied that actually because their quality of life together was better when they were not married because he was kept on his toes, not drinking more than he is supposed to and then, she added that it does not appear anywhere, but she was also born with a heart condition. It is called Barlow syndrome. It was only diagnosed in 1996 and 1969, in 1969. She studied with oxygen until after university. She was on beta blockers and it is only also recently discovered, about three or four years ago that her heart goes out of rhythm and have been now on medication because it can cause a heart standstill and she gets blackouts.

 

 [279]  She explained that her handwriting appears on the 3^rd will because the deceased asked her to write it in there, and it was not uncommon of the deceased to do so. He often, even with business, did it in his business and in her business, asked her always to fill in the forms, even when he went to hospital and in any other cases and he would just sign. In fact, even when the deceased gave the car back, she filled the form in for him and he just signed. Even in the case of the Plaintiff, the deceased gave the Plaintiff the form on 2 September 2015 to fill in for the estate to update their data and he just signed it. It was put to her that she asked for the watch knowing it would be inherited by his only grandchild. She indicated that the watches were bought by the deceased on her birthday for himself and the 2^nd Defendant for sentimental value and very cheap and did not think W[...] would like the watches. 

 

[280]   With regard to the stuff from the hospital drawer that was allegedly stolen she pointed out that those items were only the deceased’s cheap watch, wedding ring that they got married with, his credit card and his ID. She put them in the chest drawer where they disappeared. After the four items were missing, the deceased immediately stopped his credit card, and the two of them went to the bank and he received his new credit card. He asked her to put the number in a very safe place. She wanted to write it in somewhere, she went to his office and underneath his desk she wanted to stick it in there. It was dark, could not see and she felt with her hands where it is possible to can stick the number and then discovered one of the items. She cannot remember in what order she discovered all four of them, in four different corners there. She gave the items to the deceased and told him that she has discovered them. She denied to have put them there in the four corners as she put them in the drawers where the deceased told her to and she always did exactly what she was told. The deceased did not lay a charge because she was upset. He said to her, he thinks he knows who it is.

 

[281]   According to her when the two daughters came to visit, the Plaintiff told the deceased that she already went to Lyttelton police station to report the missing items, but the deceased told her that he knew the Plaintiff did it, that is why they did not report it. He told her not to worry, sent her to her room to look through her property, because the daughters accused her and hinted that the police were coming to search the house. He was afraid that maybe the Plaintiff put the lost items in her stuff. She also added that before the jewellery was discovered she one Sunday, came back from church feeling feverish and fluey, so she went to lie down in their bedroom because she did not want him to get flu, it could have been fatal. The two daughters came to visit the deceased. The deceased told her that during the visit the Plaintiff went to the bathroom and stayed away for quite a long time. The deceased did not hear the toilet flushing and afterwards that is when they discovered the jewellery was gone. So, the deceased suspected obviously that that was the time when the Plaintiff hid the jewellery. She was sleeping and the deceased was talking to his other daughter. After they discovered the jewellery the deceased asked her not to say anything, he will deal with it when he thinks fits, which he actually did on 3 October 2015, which was the matric farewell function of the grandson, W[...] and after they left he confronted the daughters and he actually accused the Plaintiff who was sitting there with a smile just laughing. 2^nd Defendant actually lost her temper. The deceased asked them to leave.

 

[282]   It was also put to 2^nd Defendant that B[...] denied that she was at Dr Bond’s rooms with her present. Although she insisted that she was there with both, it was clarified that it was at Dr Van Niekerk were she and the daughters attended. On the wedding she denied that she told B[...] of the wedding on 23 October 2015 and invited only her, her husband and not the Plaintiff and W[...]. It was put to her that the 1^st Defendant also confirmed that the Plaintiff called him and asked him to stop the wedding upon which she was told to keep her dignity and stay away. She responded that the two daughters were told by the deceased on the day he was going for the operation that he was going to marry her and confirmed that the date was not mentioned. She denied having said the Plaintiff was not invited. She alleged that the Plaintiff was invited however could not say how and who invited the Plaintiff. She only argued on behalf of the deceased that he would not have not invited his daughter and his favourite grandson. However initially they were adamant that she was left out of the will because she was against the wedding so much so she was not invited.

 

[283]   On her absence at Pringle Bay on May 2015 when the deceased visited, she said even though they were very close, she did not tell the deceased that she was going to be in Pretoria as she was going to surprise him. The deceased also went to Pringle Bay without informing her because he was going to surprise her. They saw each other 11 times in the two years after their divorce, that would be during the shows. After she bought the shop he visited regularly. She visited him regularly at his house in Pretoria and came to stay with him for 5 years in 2000 until 2005. She continued his contact with the deceased even when she had a boyfriend. The deceased was aware of her relationships (post 2005).

 

[284]   On her allegations about the deceased’s being angry against the Plaintiff for discussions about the funeral, she insisted that although the deceased discussed the bucket list with her including his burial, he was incensed by the Plaintiff discussing it because it was a personal thing between her and the deceased. She then said that the deceased actually informed his daughters and discussed all three with them. One of them was his wish to be buried on top of his mother. The second one that he wanted to marry her and the third one that he did not want to go to hospice. She was asked as to why was there an allegation then that the deceased was angry with the Plaintiff because she discussed the funeral. She said the deceased was diagnosed on 28 August 2015 and 3 days after the diagnose, the Plaintiff arrived there and gave the deceased three quotations of funerals and actually asked him about the type of funeral, flowers, pall bearers and everything. The deceased told her to take those quotations and tear them up and leave the house, very upset because it was three or four days after he heard he has got cancer and she already was organising the funeral.

 

[285]   It was put to her that Plaintiff was discussing what was in his bucket list as she has confirmed that the daughters were also told of his bucket list. She denied that the daughters were there on her first day when the deceased told her about the bucket list and alleged they did not know about it for a reason. The deceased told them on 8 September, before the deceased went into the operation room, that he is going to get married to her, that was one of his bucket lists. The second one was, he wanted to be buried in his mother’s grave. She knew the deceased told his daughters because they did arrange for that, not her and they knew he did not want to go to a hospital or any place of care, he wanted to be home until the end. He however did not tell her or them together. The deceased asked her for that. So, it was very upsetting for her for the fact that her deceased husband then at that stage only heard three days ago that he has got cancer and the Plaintiff actually told her that it had spread all over and she must make a list of guests that she wants to invite that she knows from the Beaumont Touch Society to attend the funeral and she will make one of all the family and other friends and it was maybe a bit peculiar for her to use the word, to invite them.

 

[286]   Regarding the form completed for access to the estate it was put to her that it read friend and was never changed. The deceased signed it without any discussion. She said the deceased was very upset and changed it to wife. She denied going to Sandton during the 4 months she was married to the deceased. She denied insisting that the deceased’s daughters make an appointment before their visits, and pointed out that B[...] had a key to the garage. The Plaintiff also had a key to her father’s place. With regard to financial viability she said that she was, and the allegations made by Basson about the deferred payment of a property she bought, until the inheritance from the deceased’s estate pays out irrelevant.  She was and still was financially independent. Her parents had a beach house at Margate for 40 years and her father had passed on. Three years ago her mother wanted to sell the house and all the grandchildren, including Mr Basson, did not want to sell the house. So Mr Basson and her mother came with a proposal to her to buy the house and when the estate of the deceased is done, she will then pay the R1.1 million. It was an agreement and it was a contract between her and her mother, there was no reason for her to use her capital to buy it and she will pay for it as soon as the court comes to a conclusion. It was just an amount that came from her mother and from Mr Basson himself, because they did not want to lose the family beach house after 40 years, transferred to her name already for two years. She did not refute Basson’s evidence that she made the proposal for the deference of payment until inheritance is paid out, point out that as an executor just wanted the money in her mother’s estate.

 

[287]   She said on the 19 February 2016 after the results from Dr Bond, the Plaintiff  came to see the deceased and told them the results. They were supposed to have  gone and got the results themselves but the Plaintiff went behind their back and did so. The Plaintiff was blunt in delivering the message and it upset her. She then said she is going to say good bye to the deceased and asked for privacy since she is not going to see him again. The deceased was shocked and sometime thereafter the deceased fell and broke his arm. She said whilst she was in the garden she heard a large scream. At the time she was not sure whether it was the Plaintiff or the deceased. She found the deceased on the floor on his right side and thought he had broken his arm and injured his leg which was bleeding. The Plaintiff had left already.   She did not know what had happened. She called B[...] and her husband to come and help. It was put to her that B[...] will deny all that as she usually visited the deceased after school and did not assist her with the Defendant. She said as far as she can remember the incident happened after school.  She was told that B[...] had testified to helping the deceased when she and her husband got a call from 2^nd Defendant late at night that the deceased had fallen from the couch. She conceded that it is possible she is probably mixing the two.

 

[288]   On the 25 February 2016 the date of the signing of the 4^th will, it is the 2^nd Defendant’s evidence that they already had an appointment with the 1^st Defendant but the deceased asked her to phone the 1^st Defendant and ask him to come to the house for the signing of the will and bring two witnesses with him and that is what the 1^st Defendant did. It was pointed out that the 1^st Defendant said the deceased called him personally and asked him to come to the house. She was asked if she was part and parcel of the execution of the 2, 3 and 4^th will. She denied being part of any wills or to have influenced the deceased, by telling him what to do or by any other way, pointing out that he was not a person that one can convince or tell what to do. Although she admitted that she was not in the 1^st will she insisted that even then the deceased considered her to be his wife and introduced her as one. He loved her.  She denied throwing away the flowers bought by the Plaintiff and B[...].

 

[289]   On self -medication, she denied being aware of any self - medication the deceased took except the ones that were prescribed by the two doctors even though the two chemists or pharmacists, both testified that there was a measure of self – medication. On the mix from CANSA, instead on an enema. She said when she arrived at the house on the 1^st of September, there was already granules and some liquid paraffin that she mixed and gave to the deceased for constipation. The Plaintiff told her that is what they used for him when he has got a problem with his stomach for having a normal bowel movement. She knew nothing of the enema.

 

[290]   It was put to her that the fact that the deceased cried for morphine indicates that he was in serious pain. She confirmed to have given him the medicine in a syringe and that 4 millilitre was the dosage. She said she regulated his taking of the medicine because she wants caught him taking some morphine. On one occasion the deceased did not use the syringe, so she decided to hide it from him, because she did not want him to take the medication without her. She was there all the time to give it to him and had told the Plaintiff, that she had put it away. After that, she just always measured it to see how many doses was left more or less. So she confirmed controlling the morphine that he does not drink the morphine like unnecessarily too much. She said that she put the morphine in a syringe at least 5 millilitre so that if he needs it at night. If he was the hard skinned individual how come she had the power to control his medication. The deceased felt comfortable sleeping on the couch than in the bedroom. She however was with him at night sleeping next to the couch where he slept made a bed next to it.

 

[292]   On the ex-wife of the deceased who continued to work for him for 17 years whom she was said to have given the deceased an ultimatum to fire or otherwise she would leave. She denied that is what she said and replied that the woman was the deceased 3^rd wife, and was unusual for the ex-wife to still work for the husband when they are divorced. She married the deceased and then ran the business whilst he was tendering to the farm. At the weekend she will be at the farm and the deceased at the business when its busy. She never said she does not want the ex-wife there but it nevertheless was not going to work. One day just after they got married and it must have been on a Monday morning, because the deceased had left for the farm, the Plaintiff came into the office and told her to take her handbag, get out of her dad’s office and go home. The deceased then told the 3^rd wife to leave and there was a long protracted court case about that.

 

[299]   Regarding allegations on visits and not allowing his daughters privacy, she said she allowed privacy if asked, but she was his wife and whenever guests arrive she will be with him which is normal. She confirmed that the deceased was always happy with the visits of his daughters he never had a problem with anyone visiting, but insisted that, sometimes when the Plaintiff indicated that she was coming to visit, the deceased was always like yes, he will be happy to see her, but he was not as happy when he heard that B[...] was coming to visit. She confirmed that she was shocked when the Plaintiff conveyed the message about the deceased’s cancer that it had spread all over, there is not a single place that is not affected, and it upset her.  The Plaintiff had, besides that they already had an appointment with Sister Venter from CANSA to go and see her on 22 February 2016, the Plaintiff rearranged and went to speak to CANSAS behind their backs and asked Venter to be there on the day at 11h00 instead. She also saw Dr Bond regarding the prescription for medication, and already arranged appointment with Sister Venter which was already confirmed. She arranged a medical bed for him so that he can be more comfortable. The bed was supposed to be delivered by the 1st of March, but the deceased passed on that night.

 

[300]   She confirmed that in the last will the deceased’s motor vehicle was going to go to her according to the manuscript. She said the manuscript was added on deceased’s instruction that she must have the car, ring and watch. On the discussion of the 24 February 2016 about the money that was owed to the deceased by B[...] for the transfer fees she indicated that she was not aware of the debt as the deceased never discussed financial matters between him and his daughters with her. She does not understand as to why B[...] asked her if it was ok with her. She said her husband was total compos mentis.

 

[301]   She was asked to indicate when on that morning of the discussion did she give the deceased morphine and also why she had asked B[...] as to what she was going to do. She said she did not give the deceased morphine at 6h00 or at his request that day since they were on the next day going to see the 1^st Defendant. When he was supposed to get his morphine for pain, she was not going to give it to him, because he said he did not want to have it. He wanted to be clear minded when he signs the will. They however did not go to 1^st Defendant, who instead came to them. B[...] was concerned if the deceased was going to be fine with the pain and be able to keep up until then if he did not get the morphine at 06:00.  She told B[...] that he was going to be fine, the little pain he had he could keep up. She would have given it to him after 10:00, after their appointment with the 1^st Defendant, so that he was clear minded. B[...] felt maybe he did not have a lot of pain at that stage although swollen up and was obviously the windiness. She confirmed the recording that she gave the deceased his medication every four hours. He was due for his morphine at 6h00 that morning but she did not give it to him. She said it was difficult to say when exactly she gave to him as that was five years ago, however it was after 10:00 after the 1^st Defendant left. She said his last morphine could have been at 2:00 in the morning on 25 February and his next after 10:00, 8 hours later.

 

[302]   On the recording the deceased also noted that there was a little bird and B[...] pointed out that maybe it was her chair that made the sound. The 2^nd Defendant could not say if indeed there was a bird. She confirmed that the deceased sat and slept on the couch. On being questioned about her being sleepy, she said her pain pills make her sleepy, which is normal and not that she took the pills then she is just making a reference in general and very often fell because of her hypermobility syndrome which happens not because she has taken alcohol which she again explained to being the reason she always wears flat shoes. She however conceded that she was wearing high heels at her wedding. And said she never wore them again until at her father’s funeral. (The important thing she can walk in high heels without falling over. W[...] saw her without high heel, falling over.) With the sleeping she hinted she does every time but more often she is sleeping when she took her sleeping pills but she never slept whilst looking after the deceased. She went once to sleep. She came back from church feeling fluish and she went to lie down in the bedroom and she slept. She expected the deceased to come and wake her up, but he did not and that was the case when the jewelry incident took place.

 

[303]   On the question whether the deceased had the right medicine at the right time when he needed it with special reference to the Lexamil and the morphine. She said the deceased had the correct medicine at all times when he needed it, with her very cautious not to leave him at that late stage because he was by then quite very ill. Yet again she says the deceased was ill enough however to still be able to go under the shower himself and take a bath up until two days before he passed away. She said he was very much capable of doing it and that is why she called Sister Sharon to get a bed and that she now, from then on, show her how to bed bath him, because it then started to become necessary that he must now be bed bathed and the bed would have arrived on that Monday morning, 1 March.

 

[304]   B[...] was so kind and always very helpful to ask her ever when she went somewhere, to ask her if there was anything she needed and had offered again to make sure that he has got enough medication and that is all. She denied W[...] and B[...]’s evidence that there was a body ordour alleging that the deceased insisted on wearing a certain old T- shirt that they both got for free from Afrit which the deceased was very fond of. It seems maybe to them as neglect but he was taken care of, always clean and was able to shower up until the end which surprised her. She just always assisted him and sat with him when he showered.

 

[305]   On the question of the day before he passed on and the burst pipes she had stated that she did not know what it was and had said “is al die pype stukkend, ons sal hulle regmaak ”, She was just comforting him, because then for the first time he was not compos mentis , not totally compos mentis, this was the last day before he passed on. On that night when they were sleeping next to each other, hours before he passed on, he asked her saying “Saartjie, kan ek asseblief ‘n bietjie rooibos te  kry, swart net ‘n klein bietjie, half in my koppie ” and she felt very guilty, because she said to him, they just now came to bed and resting and everything is fine, they were now on that couch, the two of them. She asked him , “kan ek vir jou more gee and he said, “okay Saartjie, dis reg” and it was actually 10 seconds later that she just felt something was wrong and we were holding hands, She just let his hand go, because she knew there was something wrong and when she came to the other side he already passed on, afterwards she realised and was glad she did not go and make him the tea, because she did not expect that he was going to pass on exactly at that time and it would have been terrible for her to arrive back with the tea and find him already gone. She afterward did not, feel guilty that she did not give him the tea.

 

[306]   She also confirmed the incident when the deceased woke her up and told her that something was bothering him, he had sand in his pants, which meant in his costume and B[...] was there and she said to him, “hy moet maar ‘n bietjie rus, dit is die medikasie ook, die medikasie ook en pyn”, (he must rest a little, that is the medication as well as the pain). She said this happened hours before he passed on and was the first time in six months that he was not compos mentis. It was also not a bedsore or something like that. If he started any uhh… uhh she realised that it is pain and gave him his medication. She was also referred to a conversation that happened a few days before he passed on, where he was complaining that he was wet and she must bring towel to dry him. She brought the towel but he was not wet. The deceased said he does not want to be left alone. He didn’t realise that the daughters were there visiting. She had to tell him that B[...] and the Plaintiff were there to visit. He told him to say hallo to them. Again the deceased continued to say she must not live him alone. She then again said that the deceased had spilled water on him even though she was helping him, he was shaking. Even if she helped him water will be spilled and wanted to be dried. This all happened according to her a few hours or days before he passed on. 

 

[307]   On the issue of going to Sandton and leaving the deceased alone, she confirmed that she did go to Dainfern and bought a cellphone there. Also that her daughter stays near the shopping centre where she bought the phone on 6 February 2016. She said she must have left the deceased with somebody, it would likely be B[...]. She thereafter confirmed that she did not ask anybody to look after the deceased he was alone all day. She also bought a wedding dress three (3) days before the wedding. She said that the deceased’s mail was arranged to be forwarded to Pringle Bay by the deceased as they were intending to leave to there as soon as he was well enough. She also confirmed that she telephoned the 1^st Defendant not asking for an advance from her inheritance but to inform him of the deceased’s demise. The 1^st Defendant just said he unfortunately could not attend the funeral, because he had a medical appointment, she cannot remember asking him for an advance.

 

Answering the court’s questions:

 

[308]   The 2^nd Defendant indicated that she left the deceased alone in the house between the period 5 to 15 January 2016 when her mother was hospitalized to go and look after her father. The deceased was still capable of being on his own. She asked his 2 daughters and also his previous neighbours, Peter and his wife Ellen who lived very close to the deceased.to take care of him while she was gone. Peter walked every day. He would pass by their house, visit and supply the deceased with food. She phoned the deceased during the 5 days she was not there asking him many times if the children had visited him, brought him food, or taken care of him. On the third day he said, “do not even ask me anymore, because they were not here” and she must know that they are not going to come. At that time the first batch of morphine was already prescribed for him.  When she came back from Cape Town the deceased put back the Plaintiff in the will saying maybe he should not meet anger with anger (“kwaad met kwaad vergeld nie”). The deceased did not ask her but merely just informed her but asked if he was doing the right thing, which she supported. He then put the Plaintiff back.

 

Mr Potgieter     

 

[309]   Mr Potgieter’s testimony was that he was an old friend of the deceased. He owned a steel engineering company, that is how they met with the deceased, as businessmen 30 to 35 years ago. He has done a lot of business for the deceased during that time at the farm and ended up becoming friends. The last time he saw the deceased was on the Wednesday 24 February 2016 four days before he passed on. He had received a call from the deceased asking him to pass by, come and clean out his garage when he is in the area.  He arrived at the house on that Wednesday. The deceased opened the door for him and they sat down and had a chat. He stood up and put the kettle on and the 2^nd Defendant came and made them tea. Potgieter wanted the deceased’s keys so that he can take the car out of the garage. The deceased refused he wanted to take it out himself which he eventually did and then showed him what he needed to be taken out. The deceased commented to him saying “he can now sell his house as the garage is clean and empty, although he appeared weak, there was nothing wrong with his brain. The deceased was known to him for many years and would have known if he talked nonsense. The deceased knew exactly what he was talking about. Usually when he visited the deceased, the deceased would offer him wine or whiskey but this time it was tea and coffee. Even on the day of the wedding there was no alcohol. (The 2^nd Defendant conceded that there was alcohol on the day of the wedding) On the day Potgieter says he visited, the 2^nd Defendant had confirmed to have purchased alcohol.)

 

[310]   Potgieter further testified that the deceased visited him after he was diagnosed with cancer and refused an offer of alcohol. The question regarding liquor in the garage came from the counsel’s question, the witness never said anything about not finding any liquor in the garage. Potgieter said he said so (which was not his testimony) because the deceased used to keep empty bottles in the garage.) He said at the wedding the deceased was weak but he cannot say he was so weak that he could not get married. He described the deceased as a person who had his own will, nobody could tell him what to do, and if he wanted something, he would explain what he wants and stick to it. He would not change.

 

[311]   James John Puth, an estate manager at E[...] G[...] Residential Estate in Centurion, testified that he has been at E[...] G[...] since September 2011 and knew the deceased who was a resident of E[...] G[...] Estate. He had several dealings with the deceased through their respective connection as estate manager and resident. He became aware of deceased’s illness when the deceased at one stage told him and some of his staff that he’s diagnosed with cancer. He was not feeling well. Puth confirmed his signature on the deceased’s 4^th Will dated 25 February 2016, saying that the deceased called and asked him to come to his house where he was introduced to the 1^st, 2^nd Defendant and another gentleman. But 2^nd defendant was already known in the estate to be the deceased’s wife. The 1^st Defendant was introduced as the deceased’s lawyer and business associate. The mood was jovial with deceased telling them stories about their long term association, although sitting on a recliner chair and not feeling well. The deceased told them that he wanted to recall his previous will and sign a new will which the deceased asked him to sign as a witness.

 

[312] He explained that in the 5 years the deceased has stayed in the estate, he has met him 4 to 5 times. They were not friends but more of acquaintances. Their interaction was because of the construction that the deceased was involved in, in the estate. They as a result had a few altercations with the deceased who was hard headed and wanted to do things his own way, which led to the altercations. He as the estate manager had to ensure that the deceased kept to the estate rules. In the end they compromised, always came back to what he had to do. The deceased knew what he wanted and told them exactly what he wanted. He came in the house through the dining room into the lounge, everything seems good, clean and fresh. He did not see anything dirty or smelling or out of place.   

 

Re examination of Dr Colin

 

[313]   At the invitation of the court, Dr Colin presented his 2^nd or supplementary report on the evidence that was led after his testimony, with the understanding that experts tender their scientific reports not for any of the litigants purpose, but for the benefit of the court, to assist the court in making its findings and arriving at a decision. Also that as an expert witness, ie, a psychiatrist has particular expertise in training, that is to weigh information, especially in a psycho legal context. So, it is not just reporting, it is his opinion informed by his field. The Court also mindful that it was however not bound by the expert’s factual findings.

 

[314] Dr Colin first corrected the mistake in relation to the prescription of the Laxomil, that he made in his first report that it was prescribed by Dr Van Niekerk, the Cardiologist. He also confirmed that the report should be read together with the 1^st report as the second report is more focused on the evidence led and submitted post the Plaintiff’s case which is where the psychiatric academic background to the evaluation for undue influence is contained. He also indicated to have discovered, whilst compiling his second report, that the psychiatric effects and psychiatric components are skating very close and on thin ice to what is seen as legal concepts and begged the court’s indulgence in that regard. It was also of importance to him to emphasize that as a psychiatrist, he makes judgments as he has set out on how a person’s testimony should be evaluated in respect of the psychiatric value that it holds, which excludes the acceptability of witness‘s statement which is of legal determination. He, in his report has differentiated between the will (wishes) of the deceased and the testament (which is the execution). 

 

On the question of the deceased’s will (ones’ wishes),

 

[315] On the question of the will, Dr Colin reported that: in assessing any influence he would look at the frequency of access to the deceased. There are people that had one or two visits. There were other people that lived with the deceased, and those that had frequent contact with him. The duration and period that the deceased was only known to these people, was very important, either, a few months, or the whole of their lives. He had obviously noted the inconsistencies in the testimony, especially during cross-examination when something does not fit, which is important to him as a psychiatrist without making a legal finding on falsehood. Also, very important is the willingness of a particular witness to acknowledge and confirm unpleasant realities, that is from a psychiatrist point of view whether did a person present a version that looked completely clean when everything was just right or was there a balanced acknowledgment that some things could have been a problem.

 

[316] The second factor of importance on the question of the will Colin says was to be assessed is the psychiatric or psychological concept of secondary gain, which I believe his concentration was to be more focused. It is obvious and absolutely so, that all parties involved in these matter other than the 1^st Defendant, maybe stand to gain from the inheritance. It would therefore be very difficult to evaluate whether the secondary gain would make someone present an overly positive and patient note as they stand to gain, therefore, hide certain things. As a psychiatrist, he relied on collateral information from other sources to confirm or refute his points of view. He noted that certain people who testified, actually stand to lose some aspects of inheritance by giving accurate versions, for instance, B[...] who, if these proceedings were to be successful, would stand to lose a portion of inheritance and that would certainly indicate that the reliability of that person would be more acceptable or let me rephrase, not acceptable but would rise, the acceptability would rise and be seen on a higher level. So, again, the willingness to acknowledge something in testimony that would lead to losing some things. He clarified the psychiatric reference to the publication by Prof Behr’s the American psycho legal expert, that the South African law maybe has other aspects in terms of the evaluation of undue influence. Also not being a legal expert, to be able to differentiate between the two, from his point of view the summary and the paper of Behr attached as one of the addendums, is an incredible detailed summary that presents a lot of psychiatric points of view, not legal. He acknowledged that he can only make deductions and inferences from what he has heard and not to make conclusions for the Court.

 

[317]   Furthermore, in respect of the will of the deceased, his view was that it was  very important to look at everything that was said and the views that were expressed, regarding the deceased’s background and personality that would now go into this deliberation. According to him the opinions were absolutely consistent across all people who testified, even defendants and plaintiff that the deceased was a hard -headed resolute stubborn person. He was described as a person who once he decided, to keep to his decision and very little could deter him from executing that decision. For the person that is dying and the compilation of his testament, that forms the background. The description is very important in the further detection of undue influence, where there are signs that this expression of his personality waivered and if it did, when he was so resolute in all other decisions in his life, the wavering of the resoluteness of decisions becomes incredibly important in terms of undue influence. The acting differently now, (contrary to his nature), assessing why were there signs that he did act differently and what were those signs?

 

[318]   The next point was then an analysis of the deceased’s relationship with his two daughters, which he considered to go to the fundamental aspects of them becoming his heirs and whether that would in his later will be his wishes, taking into consideration what was the relationship and what were the points of testimony given on this. He notes that the evidence indicates that the deceased had a troubled relationship with his elder daughter, the Plaintiff, who also was very close to him. They lived together after the deceased was divorced from the 2^nd Defendant and they actually lived together before the divorce and after the divorce for another year, father and daughter sharing a house. It according to him is important in the sense that it indicates a sense of closeness, with no obvious conflict as such. It is but clearly indicated in evidence that the Plaintiff’s personality equals and resembles that of the deceased, persistent in attention to detail, focused and resolute in her opinions about aspects of people and life in general. This he regards to fit the cliché personality profile of a pilot and a chartered accountant. Not claiming to be an expert on their personalities other than dealing with them in his pinnacle practice and to find them also to be pretty much linear in their logic. He found the Plaintiff to be focused on the practical aspects and the admnistrative means of the deceased. The Plaintiff’s handling of the deceased’s financial affairs which has to him created some issues and tension at times. A conflict of two bulls.

 

[319]   The Plaintiff also lived in Mauritius for some time when she was a pilot. He regarded as important that 2^nd Defendant testified that the deceased warned her that the Plaintiff was a troublemaker. The deceased was furious with the Plaintiff for confronting the deceased about his terminal diagnosis and talking about funerals and the deceased’s wishes for his funeral. He, according to 2^nd defendant version, as a result tore up the three funeral quotations that the Plaintiff obtained and told the Plaintiff to leave the deceased house. It was alleged by 2^nd defendant that the Plaintiff also caused trouble between the deceased and other three wives before the marriage to 2^nd Defendant.

 

[320]   On the side of B[...] he figured that she was, in contrast to the Plaintiff, soft spoken and less confrontational as borne out by the recordings that indicated that B[...] often visited her father and was very supportive throughout, especially so during the last days of deceased’s life. Dr Colin regards the recordings, very valuable from a psychiatric point of view in terms of access to the thoughts and behaviour of the deceased on his last days. B[...] even if was often there and supported her father, she testified that she too was sceptical whether 2^nd Defendant was the “right person or good for the deceased. There was an issue on her side on the financing of her house and money owed as well which becomes relevant on B[...]’s relationship with the deceased. Those being the opinions expressed of the daughters.

 

[322]   He referred to B[...]’s testimony that the deceased called I[...] and inquired from her whether the two daughters were indeed his biological children, which indicated to Colin that a doubt somehow suddenly arose in deceased’s mind about the paternity of his two daughters almost at the end of his life, (when he has never in his life ever raised it).  Important also to him was that the deceased said he always had doubts and especially recently also about why the daughters differed so much to each other and questioning if the Plaintiff was his daughter. The deceased said he has no doubts about B[...]. Colin’s interpretation of that was that the deceased had serious doubts about the paternity especially of the Plaintiff, or he may have been joking. From the recording he sorts of tries to motivate this to his first wife I[...]. So, the point being, that if one assumes the first part that there was real serious doubts about paternity, one has to come to the conclusion firstly, that no testimony was ever given that the deceased ever had doubts before this time and for it arising in this period of making his testaments he reckons it should be evaluate whether this doubt that suddenly arose out of nowhere was significant in terms of undue influence, or something caused that doubt which is to be figured by the court.

 

[321]   Dr Colin noted the description by Venter, the sister from CANSA of her observations of the two daughters, as well that the Plaintiff was like her father, hard-headed and she will fight to the bitter end. Also having their fights with each other and Venter asking the deceased to make peace with his children. According to Venter the Plaintiff loved her father. He therefore gets the impression of an ambivalent relationship, at times very good and at times their personalities clashing. In respect of B[...] noting that Venter regarded B[...] as softer and considerate of other people’s feelings, especially when B[...] described the Plaintiff’s personality saying “this is why I say she does not have the tools, she never got those tools in her life. She never got that from my parents. For her it was very straightforward and business –like and her way of helping out. Go and see the doctor, go and organise. Colin regards B[...]’s analysis to mean that the abrasiveness that comes out in the relationship of the deceased and the Plaintiff is that of a stern and caring person, she is a no -nonsense person which explains that she did not actually have what a psychiatrist or psychologist would refer to as social skills, social adeptness that you can read. In contrast she was very much the same with the deceased and that the abrasion and conflict would often arise out of that context.

 

[322]   Focusing on the evidence led in court on the 4 wills, to understand if he can discern from such evidence or documents what the wishes of the deceased were. In other words, what would the deceased’s will be. The first point to understand being that in the first testament he made in 2014 he bequeathed his estate to his daughters in equal amounts. This indicates that at least at that point in time in 2014, the relationship was good or at least not as bad as to this inheritor. Throughout the execution of all the wills, the wishes of the deceased as far as B[...] is concerned never waivered, naming her an heir throughout all the testaments. It was, however, the ambivalence towards the Plaintiff as an heir that characterized the last three of testaments in which she was consecutively disinherited in number 2, inherited in number 3, and disinherited in number 4. This indicates according to Dr Colin what he calls in testimony, ambivalence. It led to him paying attention to the relationship between the two daughters and the 2^nd defendant, which is now important when looking at the wishes of 2^nd Defendant, what or how was the relationship. Evidence indicated that the relationship between B[...] and the 2^nd Defendant was superficially cordial. However, over time and testimony, it also became clear to him that B[...], also did not have a good relationship with 2^nd Defendant (but 2^nd Defendant could tolerate her), superficially, yes, below the surface.

 

[223]   B[...] had testified that 2^nd Defendant shouted at her over the phone that she has nothing to say about her marriage to the deceased and instructed her that she was the only one welcome at the wedding ceremony. Colin said that it was not that clear if it was by implication or clearly stated, however understood that it was stated that the Plaintiff and W[...] were not invited. At the ceremony, B[...] asked the deceased not to marry 2^nd Defendant but he did not answer. The deceased inquired from her why the Plaintiff was not at the wedding, whereupon she told him that the Plaintiff was not invited by 2^nd Defendant. He was very upset by this fact. Colin says the deceased’s reaction indicated that he wanted the Plaintiff to attend and therefore he concluded that the relationship with the Plaintiff was at the very least very good at the time of the wedding ceremony. As to the contradiction he accepted that it is for the court to evaluate. As to B[...]’s testimony that she told the deceased that after his death, she did not want anything to do with 2^nd Defendant who must then return to Cape Town” and that she felt she could not “talk freely to the deceased in the presence of 2^nd Defendant who was always there everytime she came to see the deceased. She felt they could not have a real conversation. B[...] also said she was not doing it for the 2^nd Defendant as they are not sitting beside the same fire.  

 

[324]   On the other hand the 2^nd Defendant “said, she has never clashed with either the Plaintiff and B[...], never had a problem with B[...]”. In Colin’s view he can see that B[...] expressed animosity towards 2^nd Defendant whilst 2^nd Defendant repeatedly tried to re -assure and stated several times in the conversation that she in fact considered B[...] as a welcomed person with whom he had a good relationship when it was also clear from the evidence that 2^nd Defendant and the Plaintiff had a very bad relationship filled with animosity from the first entry of the 2^nd Defendant into the deceased’s life in 1994. This was acknowledged by everyone and 2^nd Defendant that this animosity stretched over 24 years. In one of his recorded conversations with the 2^nd Defendant the deceased had indicated that “then he just stands back, not wanting to get involved in their arguments. So, it is very clear that there was a distinct animosity and resentment from the side of 2^nd Defendant towards the Plaintiff that was not denied but in fact, confirmed by her. Colin sees this as going towards understanding from a psychiatric point of view possibly the wishes of 2^nd Defendant.

 

[325]   The poor relationship also playing out in the last days before the death of the deceased in which aspects of recorded conversations indicated that the Plaintiff’s presence at the home of the deceased, caused a lot of discomfort to the deceased and was upset by her presence but distinctly referring to the effect it had on 2^nd Defendant as recorded in the conversations and referred to quite a few times. So it has to be understood that the relationship between the 2^nd Defendant and the Plaintiff was full of animosity and resentment for various reasons, like the Plaintiff’s resistance against the wedding (however B[...] also was openly against the wedding), and an open confrontation of the deceased about his denial of his terminal illness.

 

[326] Colin further analyzed the nature of the relationship between the deceased and 2^nd Defendant from their initial meeting, before, during and after the second marriage which he figures to be critical to him as a psychiatrist. The first marriage, subsequent divorce, long distance relationship living, which was referred to as living apart together or together apart. It was a long-distance relationship and then what was the relationship after their resumption of their cohabitation and their marriage the second time up to the deceased’s demise. The understanding of which goes to understanding what influence could have been exerted while in this relationship that is to be figured out by the court. 2^nd Defendant repeatedly expressed her displeasure initially with the deceased’s excessive drinking of alcohol and in her words “misbehaving. It however, became clear that 2^nd defendant possible also suffered from an alcohol abuse disorder herself. Although he has not examined either the deceased or the 2^nd Defendant, Colin considered it to be a very clear expressed opinion based on the information that he had. He thinks it can be strongly motivated for based on the definition of an alcohol use disorder and will become important later when analysing actions, influence and the care given, etcetera.

 

[327]   It is very important what the 2^nd Defendant also indicated in the voice recordings, that her relationship with the deceased in her own words was on and off over time, when during testimony she repeatedly referred to herself as his wife and alleged to have also seen herself as the deceased’s wife. She introduced herself in various clinical settings as his wife and this was not borne out by her own description to people, taking into consideration that there is discrepancy and understand its meaning. He refers to the evidence of a lawyer’s letter that was sent to the 2^nd Defendant regarding a loan that the deceased made to her claiming that she must repay this money. She testified that she repaid it month by month, and to Colin the letter goes towards an implication that the deceased was very business-like, business was business, but  the court is to evaluate whether this implied that or that he did not have a committed relationship with his wife, in which he would basically say, she is his wife now, and did not hold anything against her or that he considers to be his life partner and therefore would not expect her to repay him and again, here, the reasoning is just to say Court should evaluate these conclusions. According to him the action speaks against commitment.  

 

[328]   The two daughters individually testified that the deceased, immediately after his initial diagnosis of terminal cancer, told them that the 2^nd Defendant was coming for his money. This was also mentioned by the grandson. “This contrast startling and the deceased clearly expressing a different attitude towards 2^nd Defendant in voice recording. “But now from the other side, the 2^nd Defendant and the deceased had good times together and there was never… unclear in my life”. He understands by that, that the deceased had tried to say there was never another woman in his life but that is unclear. Colin reckons what that indicates is that the deceased did have loving feelings, that they did have good times and so his understanding of the unclear part is that the deceased expressed that there was no-one else really but 2^nd Defendant in his life and this opinion expressed a loving relationship between the deceased and 2^nd Defendant. The question of the debt shows him to have been different in his action in that he agreed in the last days of his life when he was significantly weakened and already very close, towards the end of his life, by signing apparently a document that B[...] does not owe him anything for the transfer amount of the house. The conclusions will be what does this say about his attitude towards his wife which is one of the elements that is to be unpacked in this relationship.

 

[329]   So, Colin’s view is therefore that the relationship between the deceased and 2^nd Defendant was not as stable as it was represented by 2^nd Defendant in her testimony. He also concludes that at best the relationship from the point of view of the deceased can be described as also ambivalent, however, as he states later, the 2^nd Defendant was included in testaments 2, 3 and 4. There was no ambivalence in that regard and he is of the view that the court needs to understand that.

 

[330]   Further going further into his understanding of the wishes of 2^nd Defendant Colin highlights that if, according to the definition of undue influences, the wishes of the testator are supplemented (substituted) by the wishes of another person through undue influence, then obviously the wishes of 2^nd Defendant about expressing wishes about the estate of the testator is obviously of significance and importance. According to the described elements, the Plaintiff and B[...] both testified that the deceased told them after the diagnosis of cancer of his pancreas was made, that 2^nd Defendant was coming for his money. Now, this is obviously not the wishes of the 2^nd Defendant but it expresses the attitude of the deceased at that point in time about the relationship and what the intentions of 2^nd Defendant could possibly be and that is all it needs. It does not mean that it is 2^nd Defendant’s wishes. He noted that W[...] testified that the deceased tried to set his mind at ease when the deceased told him that he knew exactly why 2^nd Defendant came, that is, she wanted to inherit his money. That was just another reference to this aspect.

 

[331]   Colin further believed that the wishes of 2^nd Defendant towards the Plaintiff is described most clearly in testimony by B[...], a conflict to place at the ailing event of the deceased and 2^nd Defendant and was testified to by B[...]. She said that 2^nd Defendant was angered when he overheard guests at the wedding ceremony, commenting on the fact that she was “marrying a man on his death bed.” The 2^nd Defendant then threatened B[...] that 2^nd Defendant “will make sure that she does not inherit a cent from the deceased. Also, if the Plaintiff attended the wedding ceremony. This statement is of further importance in that it expresses an intention by 2^nd Defendant to potentially exert an influence that she expressed some kind of opinion about the inheritance that was going to be and that she could potentially influence this at the very least, to control the inheritance.  The statement is therefore to be evaluated.

 

[332]   He mentioned that throughout her evidence, 2^nd Defendant expressed a very clear displeasure with the Plaintiff, who, according to the 2^nd Defendant interfered in the lives of the deceased and her and who also repeatedly tried to stop the wedding between her and the deceased by contacting the Pastor, or the dominee and the 1^st Defendant requesting assistance to stop the wedding in question. B[...] testified that 2^nd Defendant tried “everything in her power to make the relationship between the deceased and the Plaintiff bad”, B[...] testified that the Plaintiff had little time with the deceased. Her testimony in other words being that this relationship was again filled with a lot of animosity and that it led to reduced time. So, all of this goes to understanding whether were there any features of the 2^nd Defendant’s will, and these were the points that he could discern from what he heard and read. The implication of whether it was the 2^nd Defendant’s will to disinherit the daughters or daughter being one that should be made by the court.

 

[333]   As point 11, Dr Colin then looked at what were the implications of the execution of three consecutive testaments by the deceased during the period of resumption of the full-time cohabitation relationship and later marriage between the deceased and 2^nd Defendant, which Colin referred to as what he called the 179 days that the deceased and 2^nd Defendant spent together, approximately +-130 of which they were married. It being common cause that the deceased executed three wills, and as to which will, whatever will is not a psychiatric issue, so beyond him. During the period, the delineated period stretched from the beginning of September 2015 until the death of the patient on the 29 February 2016. So, between the 2^nd and 3^rd wills, 103 days between the third and fourth testaments, a period of 39 days. According to the terms of these testaments, the Plaintiff was consecutively disinherited in number 2, acknowledged as an heir in number 3 and disinherited in the final testament drawn up and signed, four days before the death of the deceased. He believes he is justified to conclude that these rapid changes in the wishes of the deceased implied that he was ambivalent towards the inheritance of the Plaintiff which is the fundamental question before Court.

 

[334]   Taking into consideration that “ambivalence” is defined by the Oxford English Dictionary as meaning, “The condition of being undecided about a viewpoint or course of action or of being unconvinced by the merit of something. The state or fact of being contradictory or inconsistent.” He compares that with the deceased’s character as described in the evidence, that his personality described by all who testified in Court, agreeing as resolute, decisive, persistent in decisions and subsequent actions, with other words, the very opposite of ambivalent. It is therefore of extreme significance that the ambivalence that characterise the execution of the three consecutive testaments were not characteristic of the deceased’s personality at all and about this, from a psychiatrist point of view, he can be very categorical. Colin regards the contradiction to be as important in the Court’s deliberation on the presence or absence of undue influence although no -one can be sure about the exact cause of this ambivalence in the deceased towards his daughter.

 

[335]   The following aspects were testified to and should also be considered that 2^nd Defendant elects in testimony that the Plaintiff presented her father from the start of the diagnosis of terminal cancer with this terminal nature. She confronted him, dad, this is it, this is the end of your life, even to the point of supplying him with quotes if this were to be found true, quotes of funerals or asking him about his wishes for the funeral. Who does he want there? The deceased clearly resented these confrontations with his terminability, and the resentment was in no small degree aided by his own denial of his terminal illness. He resented the Plaintiff confronting him because he was in denial. 2^nd Defendant’s support of the deceased’s denial of his terminal illness, could have re-enforced this anger. It was repeatedly indicated that 2^nd Defendant supported the denial of the deceased.  

 

[336]   Seemingly part of it was with good intentions on 2^nd Defendant’s side because she wanted to maintain his hope.  In Colin’s mind the 2^nd Defendant’s denial certainly re -enforced the denial of the deceased and this could have re-enforced his anger (2^nd Defendant supporting such denial to gain favour with the deceased over the Plaintiff), towards the Plaintiff as she confronted her father with his terminal illness and bluntly opposed his denial which was not done with a lot of social skill. Colin points to the second point of increasing the ambivalence towards the Plaintiff, to have been her opposition to the marriage between the deceased and the 2^nd Defendant and as in her style of a personality, acted on this and contacted people to find out if she could stop this. The deceased resented this according to evidence from 2^nd Defendant.

 

[337] He also dealt with what he referred to as the existence of physical constitutional factors, influencing the resoluteness of the deceased’s mind and decisions, an area of increased vulnerability which he intentionally discussed separately. Which is about whether could the increased vulnerability have caused the ambivalence? 2^nd Defendant expressed resentment of the Plaintiff, their relationship full of animosity and resentment lasting over 24 years, culminating in an intense dislike during the period of the full-time cohabiting relationship between 2^nd Defendant and deceased and later marriage. The animosity between the two being an obvious source of distress to the deceased. His discomfort, and not being happy repeatedly referred to in the recordings, asking for calmness and not cause any upset. Colin reckons a question before court as a result is whether 2^nd Defendant’s intense resentment of the Plaintiff could have exerted an influence in augmenting the ambivalence of the wishes of the deceased. He proffers these to be factors he could delineate and discern that could have contributed to his ambivalence, contrary to deceased’s personality. So, with other words, he acted in a way that is irreconcilable with his usual way of acting, making and keeping his decision, which is of extreme significance.

 

[338]   Furthermore on constitutional factors, Colin described the individual, physical factors, etcetera, illness, alcohol, opiates, whatever, warning that one must be extremely careful to take one factor and elevate it above the others in terms of significance. He pointed out that what is to be understood about the vulnerability of the deceased is that it was a confluence, a flowing together of many aspects that individually could have contributed to a significant vulnerability during his last days.  He points out as the first one to have been:

 

(i)              a severe head injury that was testified to by the Plaintiff that the deceased sustained severe head injury by falling from a train, after which he was severely affected by noise. According to him such severe head injury does lead to a measure of brain injury and increase vulnerability, a general psychiatric statement that stands. Any form of head injury can bring about an increased level of vulnerability to all sorts of other factors later impinging on the person. Also increasing the vulnerability for possible late or mental disorders, even just the presence of what is seen as concussion, “harsingskudding” in Afrikaans is of significance, from a psychiatric point of view.

 

(ii)            The diagnosis of terminal cancer. It is what it is, a slow declining physical health, cachexia, weight loss, possible metabolic effects, nutritional problems, deficits, vitamins, electrolytes and depression flowing from that terminal illness was an obvious constitutional factor making the deceased progressively vulnerable over that 179 days.

 

(iii)          The use of opiates, which was mentioned in deliberations that the prescription was made by Dr Bond on 8 February whilst in his notes it says, Bond prescribed it on 4 February 2016, a negligible relevance that it started somewhere in February.  He noted that an opiates in itself, is of moderate influence and is placeable in cognitive dysfunction, but of a moderate significance in itself in terms of inducing vulnerability. However, if added, one of the things that is in confluence with other factors, it leads to a build-up of effects, mentioned as a domino effect leading to a next and then leading up to a heap of dominos. The administration of the opiates in terms of the effect on cognitive is as important as the withholding of the opiates, the person then suffering severe pain and there is repeatedly many testimony that the opiates were not administered on the right time. With other words, the presence of severe pain was also a factor that added to this kind of increasing confluent effect. B[...] observed the deceased, “begging for morphine” and 2^nd Defendant state that “she will decide when he should take his medicine.” The administration and the withholding, increased pain,  a factor in the vulnerability.

 

(III) (b)          With reference to Professor Natalie Shellock’s testimony  about the concomitant use of opiates and alcohol, most definitely the statement that, combined they will increase any cognitive effects. Again, one of the contributing factors in confluence is vulnerability. The Plaintiff testified that 2^nd Defendant administered her own pain medication that she used for her joint hypermobility syndrome and that was a drug called Ultracet which contains a complicated pain drug called Tramadol and Paracetamol, the old Panado in combination in Ultracet and that the deceased consumed two boxes of the 2^nd Defendant’s medication without a prescription for himself of the drug called Ultracet. So, she gave him the drugs, again, it is for Court to understand whether that attitude indicated more. In his opinion, the use of morphine moderately contributed to reduce cognitive clarity of the deceased during this period but again it must be seen as adding to the whole.

 

[iv]     The deceased suffering from depression. Colin considered evidence that after his diagnosis of cancer of the pancreas, the deceased often went “into depression”, Lexamil, an anti-depressant was and that was the one fact that was corrected, prescribed by the cardiologist, Dr Charles van Niekerk. He indicated that depression as a condition can moderately contribute to increasing mental vulnerability.

 

(v)      The deceased’ alcohol dependence, was to Dr Colin another factor that clearly indicate that he suffered from an alcohol use disorder, alcoholism. The following aspects of alcohol use disorder are relevant to this case. One of the criteria for alcohol dependents or alcohol use disorder which he mentions is craving or a strong desire or urgency to use alcohol, an important concept of addiction. A resumption of drinking from a position of abstinence. W[...]’s evidence that the deceased lived his whole life close to the bottle and also sent him to buy alcohol, indicates that the deceased did use alcohol in his last days despite knowledge of his pancreatic cancer and declining physical health. He suffered from a condition, terminal pancreatic cancer, alcohol being absolutely poisonous to the pancreas often leading to pancreatitis, also the liver, physical health and the stomach lining. Everything is made worse, it being an important testimony that 2^nd Defendant indicated the purchase of a generous supply of alcohol for her personal use, which testifies to an extremely callous attitude by 2^nd Defendant towards the deceased’s abstinence from alcohol. If this abstinence were any true, it was testified by 2^nd Defendant that the deceased repeatedly said, “Saartjie, I am going to stop drinking because it is bad for my health” and that he stopped the moment the 2^nd Defendant got to the house. He points to opposing evidence given in that regard and concludes that he believes it would have been extremely difficult for an alcohol dependent individual to stop drinking in the presence of another person using copious amounts of alcohol.

 

(iv)           (b)      He pointed to the fact that Plaintiff testified that her father drank “more” and this contributed to the divorce between her mother and deceased. He had to be admitted at Rustenburg Hospital after drinking too much alcohol. The two daughters testified about the deceased’s use of alcohol in his final days having observed a glass of alcohol with conflicting evidence, about a dilution taking place on request of the deceased. W[...], testified about two separate occasions, when deceased and 2^nd Defendant asked him to purchase alcohol for them. Later this prohibited and also about smelling alcohol in the house. Several Defendants’ witnesses testified that they did not smell alcohol on the deceased’s breath, which is also to be placed in context. 2^nd Defendant repeatedly stated that the deceased decided not to drink as it would be detrimental to his health. On the aspect of smell in the breath of the deceased and whether this was ketones associated with feeding or eating or was it alcohol and from a psychiatric point of view, a medical point of view, the smell of alcohol on a breath is distinctly different from the smell of ketones. The nail polish remover smell, that is a ketone. Acetone is what is used to take off the colour. He compares that with what ketone smells like, it is a smell that is variously referred to as apple -like and it is very distinctive, and Colin impresses that the smell of ketone and alcohol are fundamentally different and therefore very difficult to get these two smells mixed up. Ketone has a very distinctive smell than if you smell someone that drank a lot.

 

(vi)     The 2^nd Defendant’s health and alcohol use is also a significant aspect in a few respects. First of all, W[...] testified that he smelled alcohol on the breath of 2^nd Defendant on the evening of his matric farewell dance. Also on his birthday when he visited the deceased and found 2^nd Defendant inebriated falling over her feet. The deceased made apologies for her. Furthermore, in the last month of the deceased’s life W[...] hated visiting him as 2^nd Defendant sat in a nightgown with her breath stinking of alcohol, belittling the Plaintiff. Colin’s view is that 2^nd Defendant possibly also suffered from an alcohol use disorder. She alleged that she suffers from a joint hypermobility, a life-threatening health condition called joint hypermobility syndrome and Barlow syndrome. He says from a medical point of view that are relatively benign conditions and neither life threatening. He confirmed that her hypermobility syndrome from a medical point of view was responsible for appearing off balance at times and noted that 2^nd Defendant offered this clinical trait of balance problem as a reason why she appeared off balance to onlookers at times. He argued that:

 

(vi) (a)          a person with balance problems should absolutely avoid alcohol in her own best interests as alcohol will certainly worsen any pre-existing balance problems. She testified that she suffers from severe pain and uses Ultracet, which can cause severe problems and again, one wonders about the effect of balance problems. Colin says its important to understand why he is pointing this out as he believes that there was a measure of exaggeration of these health problems, secondly the joint hypermobility syndrome and balance problems could also have influenced the 2^nd Defendant’s ability to physically care for the deceased during his last days, with other words, strength might have been an issue but also her persistent use of alcohol and an exaggeration of the deceased’s use of alcohol or stimulus for it and for her own health and her own balance problems could have been a problem. It indicates a callous attitude which can clearly be discerned in this regard.

 

(vii)    On the actions of the 2^nd Defendant towards the deceased in his final days. Colin considered Venter‘s testimony (from CANSA) that the 2^nd Defendant was always glad to hear from her and that 2^nd Defendant was afraid that she would do something wrong, and hurt him. It indicates at the very least appearing attitude from 2^nd Defendant. The aspect of denial, the denial of the illness is part of the dying process. It is important for loved ones to assist in the process of dying by gently confronting denial and acceptance. That is called the work of dying. Denial of illness increases the psychological vulnerability of the person due to the inevitability of death. If one basically denies one’s illness and progressively getting weaker, it is going to upset one more and more and increase the depression. In voice recordings, 2^nd Defendant said her attitude towards the deceased’s denial was to allow the deceased “a little comfort zone of belief.” Colin believes that this indicated her acceptance of the deceased’s denial was part on her side to keep his hope alive. That is absolutely true, however, this acceptance of denial was possibly keeping the deceased from doing the work of dying as Ericson called it and the process of working through to inevitable death.

 

(vii) (a)         He referred to Dr Bond statement that the deceased’s biggest problem was his denial “of his condition”. Plaintiff also testified that 2^nd Defendant told the deceased “a photo of his liver showed only two tiny spots and the deceased “will recover.” The Plaintiff also testified that when the deceased expressed the wish to be buried with his mother, 2^nd Defendant said, “it was not the right time to be discussing burials, slammed doors, and screamed at her that she had no right to tell someone about their last days left.” Dr Colin reckons that could have contributed to the animosity between father and daughter and one of the aspects that could possibly have led to ambivalence.

 

(vii) (b)         Then B[...] testified that 2^nd Defendant told her that she, B[...], “did not want her dad to get well”, with other words, 2^nd Defendant told B[...] that “you are not working towards wanting your father to get well”, but this was part of the denial of the terminality as the two daughters disagreed with the description by 2^nd Defendant of the deceased’s “liver with only two spots on it.” B[...] also testified that 2^nd Defendant repeatedly told the deceased that he was going to get well again. Colin’s view is that this must be understood from a loving attitude as well as keeping an open line, the balancing being important. The point is the implication of the support of denial by the 2^nd Defendant which could have increased the anger that the deceased felt towards the Plaintiff.

 

(viii)   The next point in terms of the actions of 2^nd Defendant, is the quality of care of the deceased by the 2^nd Defendant. Colin noted that several people said it was fine, Venter, Mr Pooth, and Potgieter, whilst other people testified to the opposite. He referred to the evidence by B[...], the Plaintiff and W[...] of poor and lack of care. The conditions in the living room of dog faeces and urine. Ms B[...] added inter alia, being upset about the 2^nd Defendant not using a bedpan that she bought for him. The poor quality of care was consistently denied by the 2^nd Defendant, and supported by the visitors in the deceased’s last days, as he had already mentioned. The 2^nd Defendant is clearly quoted in the recordings, saying that she wants Charmaine to wash the deceased and put him neatly in bed.” Colin presumed  the sister to be from either Hospice or CANSA and clearly contradicting elements of it. The 2^nd Defendant left the deceased alone and shopped in Sandton and the 2^nd Defendant conceded that this was indeed true. B[...] testified that she sat with her father for two hours while he was alone. Colin was of the opinion that the alcohol use disorder of the 2^nd Defendant could have weakened her ability to emotionally and physically care for the deceased and led to the deceased’s own use of alcohol, by virtue of exposure. 

 

(ix)     The next point is the aspect of isolation of the deceased by 2^nd Defendant from his two daughters. Initially 2^nd Defendant indicated to B[...] that she will be there for the deceased, 24-hours a day. The Plaintiff testified that when they visited, there was an atmosphere at the home, “as if the deceased was walking on eggs,” another aspect of isolation. This indicated that the deceased was uncomfortable about the relationship between the daughters and 2^nd Defendant which could have led to alienation in this regard. Also that 2^nd Defendant took over conversations while they were talking to the deceased making it difficult also to have a private talk with their dad.” The 2^nd Defendant testified repeatedly that she never prevented any person from visiting. She stated so frequently in the recordings, that it emphasized that she did not want any interference. He wonders why it was necessary to state the obvious because he would think that as a terminal cancer sufferer the deceased would have unfettered access to loved ones. The Plaintiff said the 2^nd Defendant told her that the deceased must not be visited without an appointment. The 2^nd Defendant denied this and stated that there was always a clear relationship where things were arranged and that was not a big issue.

 

(xi) (a)          W[...] testified that the Plaintiff and B[...] were driven away and 2^nd Defendant made it progressively more difficult to look after the deceased or be involved in his care. The Plaintiff also testified that she was uncomfortable and the deceased was uncomfortable with the 2^nd Defendant. The conflict caused problems for the deceased which was another reason to avoid visiting because of the discomfort of the deceased and the displeasure of the 2^nd defendant. B[...] seems from the recorded conversations, had free access to the deceased and visited him regularly. There was a situation during deceased’s last days when B[...] tried to convince the Plaintiff to visit. She took her along but made to wait in the garage for an opportune time to be invited in to see the deceased, which was some kind uncomfortable, not a free flowing contact as one would expect of family supporting a loved one with the terminal cancer.

 

(xi) (b)          There was testimony of gift of flowers thrown away. A voice recording of 2^nd Defendant’s repeated reassurance that the two daughters are welcomed to visit anytime, as if this was a difficult and contentious issue. Colin views this subjectively as a kind of quality of over reassurance, almost compromising. Another quote, is where B[...] tells 2^nd Defendant that she had told Mrs van Heerden but 2^nd Defendant said no. It is evident that 2^nd Defendant did at times impose those limitations but as it is her home and probably her right to regulate things, to allow the normal flow of the house situation but given the context of a dying man an average person would assume to have access to family. Daughters are an unspoken given, something that would not have to be repeatedly stated by 2^nd Defendant.

 

[339]   On the voice recordings of an important conversation between B[...] and the deceased when their relationship was discussed and where the daughters talked to the deceased about the role that 2^nd Defendant played in his life. According to Colin the deceased’s response when B[...] mentioned that she and the Plaintiff will never just leave him, that he knew that is highly significant and indicative of a closeness that existed between the deceased and both daughters. There deceased’s angry response about 2^nd Defendant’s confrontation with his daughters, again re-emphasizing what is known already. There was also another recorded statement about 2^nd Defendant by B[...] expressing an opinion that: “If 2^nd Defendant comes there to them, the deceased will throw them away again.” B[...] also quotes her mother I[...] who told them about the deceased asking her whether his daughters were his biological children. Colin finds the conversation unclear, he has already indicated that and regarded that as part of the conversation they already had about the deceased’s testament at that stage and very little to can be deduced from this conversation about his wishes. During this conversation, furthermore, 2^nd Defendant and B[...] made it clear that B[...] was appealing to the deceased for the Plaintiff to have access to him. It is obvious that the deceased was distressed about 2^nd Defendant’s animosity by saying that he does not want her to be upset. By implication, one can deduce that the acrimonious relationship already had an influence on the deceased.

 

[340]   Colin then discussed the next aspect which is the actions of 2^nd Defendant, on the aspect of weight loss which he finds to be a non issue. According to him he  cannot deduce from deceased’s weight loss that it was poor care, not in the context of a terminal pancreatic cancer. So, if anything, 95%, 5% is care.

 

[341]   There is also the aspect of periods of confusion that the deceased had, that were made out from the recorded conversations. Colin referred to both B[...] and the Plaintiff having noted that the deceased became confused at times. He indicates that such periods called “delirium” by Psychiatrists, which is a brain failure that sets in as a pre -terminal phenomenon. A part of the switching off of the organs before one dies, representing part of dying. It was not a constant phenomenon so that he was delirious all the time. Delirium is rarely constant but on and off at times but certainly tagged that it would have been a contributing factor through the load of 20 others contributing factors. On the recorded conversation B[...] said that it was going better because the deceased was not happy yesterday because he could hardly speak to her. From his psychiatric point of view, periods of delirium will increase mental vulnerability of the deceased, as one contributing factor.

 

[342]   Regarding the possible role of the 2^nd Defendant in the execution of the deceased’s last three consecutive wills. Colin notes that the 2^nd Defendant was not listed as an heir in the 1^st will even though she testified that the deceased considered her his wife throughout the period after their divorce and subsequent second marriage. 2^nd Defendant testified that she was present during every signing of wills 2, 3 and 4. However that the stipulations in any of the last three wills were never discussed with her, other than the deceased informing her that he was naming the Appellant again in the 3^rd will. It was further her testimony that the deceased informed her that he was removing the Plaintiff as an heir in the 4^th will and she responded “are you sure that is what you want to do?” To which the deceased replied “I am telling you what to do.” Furthermore, there was testimony also written notes submitted which at the very least clear that she assisted in the 4^th will, writing in her handwriting notes which acceptability thereof is something to be evaluated.

 

[343]   2^nd Defendant told B[...] at the second wedding that she will make sure she will not inherent a cent from the deceased. He says this indicated an expression of some wishes of having a wish realized in the testaments or expressing an opinion as to inheritance of the deceased whilst repeatedly testifying that the deceased was strong willed and that he would never allow interference. The deceased nevertheless showed ambivalence in contrast with his normal personality where he was normally resolute and strong willed in his actions. Colin believes that this resentment would have potentially influenced the deceased in his choice of heirs given the very strong expressed resentment of 2^nd Defendant towards the Plaintiff. Again, the resentment was overtly expressed and testified to and confirmed.

 

[344]   The question could resentment have influenced the deceased and could it have made him ambivalent about his choices, again in contrast with his personality. According to Colin the role of potential is almost at the end of undue acting in this period, during which the last three consecutive wills were signed. As he pointed in his deliberations and comments about this, he did not consider himself able to choose between the wills. As a lay person he understood that a person can only have one testament and that each next one replaces with a specific codicil the previous one which understanding he says informed his comments when he referred to it in the singular. Also in the end to which is to define but one testament that will stand. The deceased will have to have a will and that will could potentially have been subjected to undue influence not limited in time.  He says it must be seen as a series of actions or the excretion of an influence over a period by an individual to influence his testamentary choice, or either will of the deceased, meaning somebody else’s will is expressed in the deceased’s will, not his own. The essential element from a psychiatric point of view is that the actions performed or the influence exerted influences the will over this period of time and by implication any executed will in this time will be subject to undue influence.” Colin is of the opinion that it can potentially be projected, theoretically that the undue influence started when the relationship resumed at the beginning of September 2015 and thereafter it lasted. He points out that it is very difficult for any expert witness to finally dissect day by day, the degree of influence that existed, but for the court to do so. Further that the ambivalence at this stage is highly significant and the premorbid personality extremely significant. It should also be reasoned from the point of view of what is the benefit for 2^nd Defendant, which is that she will purely receive a larger inheritance if the plaintiff is excluded.

 

[345]   Colin further notes that a whole list of constitutional factors indicated as potential. None of them operating as the only or the most exclusive or continuously present, as in opiods. Also that these things were variously present at various times, working together, some of them very prominent, like alcohol or the terminal illness of the deceased leading to the slow weight loss and cachexia. Thy are not to be seen in isolation but some of them were severe and others just contribute to a domino effect, leading to a huge heap of influence. He notes that the deceased was vulnerable for the reasons indicated. He also expressed appreciative feelings towards 2^nd Defendant, in stating that they had good times together. He named her as an heir in the 2^nd, 3^rd and 4^th wills. In other words, there is an element of intention involved in that, but a conflicting and ambivalent relationship that the deceased had with 2^nd Defendant, which is clear from her own description and from the descriptions of other people that it was most definitely not that prominently committed relationship over time before the resumption of co-habitation and that the commitment clearly increased after the period of co-habitation.  Colin believes on these issues sufficient reason exists on psychiatric grounds, for the court to evaluate the concept of undue influence. He is of the opinion that that the deceased’s mind was sufficiently vulnerable, caused by the constitutional factors as elaborated, that he would have been more vulnerable and susceptible to influence.

 

[346]   He suggested that both reports be read together. In the definition of undue influence he pointed out three points to the court, which is first, the influence of another person must be such that it substitutes the wishes of the testator. On the next important that is the persistent requests and urging to a point that the testator can no longer resist, and may result in a situation where he acquiesces just for peace and quiet.” His opinion was of there being lots of indications that the deceased was asking his daughters and his wife for peace and quiet. The third and last one is defamation, using partial truths and causing bitter angry feelings to have been implicated in successful claims, which is legal stuff. To him he believes the answer is that the presentation of the relationship with the Plaintiff by the 2^nd Defendant, clearly indicated a high degree of animosity that could have potentially exerted and influenced the deceased.

 

[347]   The resumption of undue influence is raised when or where the beneficiary is actually concerned with the preparation of the will for the court to evaluate these aspects, whether she was involved, present, influenced, or whether the relationship is coupled with a suspicious circumstance, such as mental infirmity of the testator. It is according to him what he says would call the vulnerability and infirmity. It does not mean that he was not compos mentis. It just means that he was vulnerable and infirm.  On the unfairness of the will, the court was to decide whether it is fair that 2^nd Defendant should be an heir, in that the wishes of the testator were expressed to such an extent that this could be purely proven, and Plaintiff is not.

 

[348]   Lastly: He looked at “where one preparing or procuring the execution of the will, obtains a substantial benefit.” He believed these are the points that the court should take into consideration in the definition as explained by 2^nd Defendant in paying attention. As to whether there was a will in the deceased, or a will in the 2^nd Defendant? If this was exerted and if the constitutional factors made him more vulnerable? He could not say in short, but in long he said basically what he understood now, having listened to everything that happened in court.

 

{349]  Under cross examination answering a question on the testimony of the Defendant’s witnesses that collaborated each other on the aspect of what was happening at the deceased’s house and the state of the deceased and his relationship with his daughters, Colin pointed out that, access plays an important role as to its duration, number, and how it took place in determining the credibility of a witness’ evidence.  It has to be understood that some of these people visited the deceased, by virtue of prearranged appointments.  In respect of what they found at the deceased” house, that was significant. So, it must be seen within the context of the manipulative ability of the access that these people had. He also indicated that his conclusion that B[...] also stands to lose was as a result of the fact that she will lose as the estate will be divided into three as compared to when there are only two heirs. His view was that if someone stands to lose in certain respects, and they are still honest about things, in other words, they take the good with the bad, it just increases the reliability of their version. It was then further pointed out that loyalty should fetter in as she would be loyal towards her family, more so to the Plaintiff who is regarded to have been more of a mother to her.  

 

[350]   The question of influence per se looked at, differentiating between ordinary influence that is not wrong and undue influence. He refers to Perr’s description of undue influence that the essence of undue influence invalidating a will is that the influence of another person must be such that it substitutes the wishes of that other person for that of the testator.  He agreed it takes away free will and that substitution of the wills becomes relevant although difficult to prove. He confirmed that Perr further comments that “In other words, the undue influence must destroy the free agency of the testator and substitute that for another. Colin points to Perr’s further philosophy that “if one influences another by kindness and good deeds or if one persuades another fairly and reasonably without fraud or deception, then the effect is not one of undue influence.”

 

Legal framework

 

[351]   The starting point should be to note the recognition of freedom of testation being a constitutionally protected right as it implicates the rights to property, dignity and privacy which encompasses the freedom of a testator to dispose one’s estate as one wishes.[6] In Wilkinson Mhlantla J opined that the Court has acknowledged that “Freedom of testation is fundamental to testate succession.”

 

 [352]  In respect of the right to property and dignity, the Court in  Minister of Education v Syfrets Trust Ltd N.O[7]  noted in an obiter statement that freedom of testation “forms an integral part of a person’s right to property, and must therefore be taken to be protected in terms of section 25.”  In BoE Trust Ltd NO and Another[8]  at para 27 the Supreme Court of Appeal held that –

 

“Not to give due recognition to freedom of testation, will, to my mind, also fly in the face of the founding constitutional principle of human dignity. The right to dignity allows the living, and the dying, the peace of mind of knowing that their last wishes would be respected after they have passed away.”

 

[353]   Testamentary freedom therefore goes hand in hand with testamentary capacity. The freedom of a testator to dispose of his or her estate as he or she wishes is consequently not absolute. Although a testator is permitted to disinherit whom he so wishes, even his or her spouse and his or her children, there are instances where, based on public policy, the law restrains testators in the exercise of their testamentary freedom. For example, a testator cannot through a will stifle the rights that other people have against the estate. The principles of testamentary capacity stem from the common law and are well established in South Africa and other common law jurisdictions. Du Toit  in “Succession law in South Africa[9]  –explains the historical background in the South African law of succession and the influence of both civil law (Roman-Dutch) and common law (English).

 

 [354]  The legal framework applicable in the execution of wills is articulated in the preamble specifically with relevance to the provisions of s 4 of the Act, that governs testamentary capacity. For a valid will, the testator is, at the time of the execution of the will, besides being required to have reached a specified age, also required to have had sufficient mental capacity to appreciate the nature and effect of his testamentary act, understand and recollect the nature and situation of his or her property; relations and those whose interests are affected by the will.

 

[355]   In Essop v Mustapha and Essop NNO and Others[10], the test for testamentary capacity was set out as in Banks v Goodfellow 1870 LR 5 QB, which was relied on in the Tregea and Another v Godart and Another[11], and remains the law, that:

 

‘The testator must … be possessed of sound and disposing mind and memory …. But his memory may be very imperfect … and yet his understanding may be sufficiently sound for many of the ordinary transactions … were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?’

 

[356]   Where the question arises as to whether a person had the capacity to make a will, the mere fact of old age or illness does not necessarily mean that a person is incapable of appreciating the effect of the will he or she is executing.  The question is whether, as a consequence of the disturbance or impairment, the person was mentally incapable of understanding the nature and effect of his or her act.[12]

 

[357]   In Tregea, supra Tindall JA adopted the following test for testamentary capacity referred to by Cogne CJ in Banks vs Good Fellow 1870 L, R QB further held that:

 

'The testator must, in the language of the law, be possessed of sound and disposing mind and memory. He must have memory; a man in whom the faculty is totally extinguished cannot be said to possess understanding to any degree whatever, or for any purpose. But his memory may be very imperfect; it may be greatly impaired by age or disease; he may not be able at all times to recollect the names, the persons, or the families of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered, and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory and vigour of intellect to make and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. This is a subject which he may possibly have often thought of, and there is probably no person who has not arranged such a disposition in his mind before he committed it to writing. The question is not so much what was the degree of memory possessed by the testator'? as this: Had he a disposing memory? Was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty? To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?'

 

[358]   The decisive moment for establishing the competence of the testator is the time when the will was made and not, for example, when the deceased had issued instructions for drawing up the will as confirmed by the court in Essop supra.

 

[359]   In Vermeulen and Another v Vermeulen and Others [13] the Court referred to the remarks by Van Niekerk J, in Lerf v Nieft 2004 NR 184 (HC) 1901B−C; and see also Cloete v Marais 1934 EDL 239 250 that:

 

“In order to show that the deceased in this matter did not have the necessary mental capacity it must be shown that he failed to appreciate the nature and effect generally of the testamentary act; or that he was at the time unaware of the nature and extent of his possessions; or that he did not appreciate and discriminate between the persons, whom he wished to benefit and those whom he wished to exclude from his bounty; or that his will was inofficiously in the sense that it benefited persons to the exclusion of others having higher equitable claims to the estate”.

 

[360]   It was further in Vermeulen par 139, in reference to the case of Harlow v Becker[14], stated that :

 

“Obviously, it is a prerequisite to the execution of a valid will that the person who executes the will has to intend it to be his will. But the mental capacity or competency to execute a valid will embraces more than a mere intention on the part of the testator that the draft will to which he puts his signature should be his will. He may appreciate the meaning of the document and approve of its contents and yet may lack the understanding or mental capability necessary for the execution of a valid will.”

 

[361]   It is therefore not only required that the testator should have known that he is making a will (nature) but furthermore he or she must appreciate the consequences (effect) of the act. In Scott v Master of the High Court Bloemfontein,[15] the validity of the said will was challenged on the basis that, when the testator made and signed it, he was mentally incapable of doing so and consequently could not appreciate the nature and effect of his conduct. Furthermore, the applicant accused the deceased of abusing alcoholic beverages and argued that this might have affected his mental state as well. The court in finding otherwise considered and stated the following:

 

” The deceased was aware of the farm workers that had died or left his farm. The deceased wanted to change the bequest to the remaining farm workers to provide for their retrenchment benefits for them, now that he had decided to estrange his farms. The deceased could logically motivate each and every bequest he made and could remember that he bought the farm Helderfontein and had it registered in the name of the first applicant. The first applicant did not dispute this fact. The evidence of his sister, the third respondent and that of the retired reverend corroborated this unequivocally.”

 

[362]   The will was indicative of the testator’s resolve to change his mind as and when the circumstances dictated. He could appreciate the changed circumstances and resolved to act the way he did, an important factor to be considered. In Lewin v Lewin,[16] at 264-5 the court held that the disease may 'produce changes in the emotions which may affect a testator's judgment but, in such a case, the question would not simply be whether the testator understood the will but whether there was such an alteration of the testator’s personality, emotions and affections as to have diminished the testator’s power of judgment and discrimination so that the testator could no longer be said to be possessed of a sound disposing mind”. 

 

[363] It has also been declared that the consumption of alcohol cannot in itself invalidate juristic acts, such as drawing up a will.[17] 

 

[364]   Consequently to succeed with a challenge against the validity of a will one must prove on a balance of probabilities that a person so making a will was “... mentally incapable of appreciating the nature and effect of his act... as at the time the will was made:  The testamentary capacity test that was well established in Banks is outlined in its simplest form as follows in the recent case of Jones v Jones[18] that also involved the issue of undue influence:

 

1.       Did the testator understand that she was making a will?

 

2.       Did he understand the extend of her property?

 

3.       Did the testator comprehend and appreciate the people to whom she might consider leaving her estate?

 

4.       Is there any disorder of the mind that might poison her affections or pervert her sense of right or prevent her exercising her natural faculties, meaning is there any medical condition that would affect her from knowing that she is making a will, what her property consisted of or who her friends and family were?

 

[365]   Furthermore in terms of s 4A (1) of the Act, any person who is a witness to a will, who signs on behalf of the testator, or who writes out the will or any part in his or her own handwriting, as well as the spouse of any person involved in such a capacity, is disqualified from inheriting or receiving any benefit in terms of the will. Certain notable exceptions, in terms of which a person may inherit despite their involvement in the execution of the will, are however provided for under the subsection (2) (b). A court may declare a person, or his or her spouse referred to in subs (1)­, to be competent to receive a benefit from a will if the court is satisfied that that person or his or her spouse did not defraud or unduly influence the testator in the execution of the will.[19]

 

[368]   The interpretation of s 4A was in dispute in Blom and Another v Brown and Others.[20]  The court noted that what s 4A (1) actually seeks to achieve, consistent with the common law, is to permit beneficiaries who would otherwise be disqualified from inheriting, to satisfy the court that they or their spouses did not defraud or unduly influence the testator in the execution of the will by holding that any person, including the spouse, who writes out a will shall be disqualified from receiving any benefit from that will, subject to the qualification and exception.

 

Undue influence

 

[366]   The testator’s expression of his own free will is an important element for establishing a valid will. A testator must completely of his or her own volition decide how his or her estate is to be divided. As a result, only his testamentary intent must be reflected in his or her will. The court will test to see if there has been a displacement of the volition of the testator, to such an extent that the will no longer reflects the wishes of the testator, or alternatively contains the wishes of a person other than the testator (that of the alleged influencer) by evaluating the actions that might have led to undue influence. In essence establishing if it is the testamentary intent (testator’s intention) of the testator or that of the alleged influencer that is reflected in the will executed.[21] The influence being such that the testator no longer expressed his or her own free will even if he or she did have animus testandi. the question is whether the animus testandi

 

[367]   The evidence evaluated holistically should point to circumstances that indicate it to be more probable (as alleged) that the will was executed as a result of coercion or undue influence.  The law on the undue influence was stated by the court in the recent English decision of Rea v Rea[22]  to be as follows:

 

“I would accept that undue influence can be proved without demonstrating that the circumstances are necessarily inconsistent with any alternative hypothesis. On the other hand, the circumstances must be such that undue influence is more probable than any other hypothesis. If another possibility is just as likely, undue influence will not have been established. When making that assessment, moreover, it may well be appropriate to proceed on the basis that undue influence is inherently improbable.

[…]

 

it seems to me that it will commonly be appropriate to proceed on the basis that undue influence is inherently improbable. As I have said, ''undue influence" signifies coercion in this context, and potential beneficiaries are surely less likely to resort to coercion than to rely on affection, gratitude or even persuasion.”

 

In that matter the evidence indicated that undue influence was not more probable than the other hypothesis, the other hypothesis being that A[...] simply wanted to benefit Rita more. The court therefore found the will to be valid and ordered it to be admitted to probate.

 

[369]   The court further Spies commented as to what constituted undue influence, by holding that:

 

“A last will may in fact be declared invalid if the testator has been moved by artifices of such a nature that they may be equated … to the exercise of coercion or fraud to make a bequest that he would not otherwise have made and which therefore expresses another person’s will ... In such a case one is not dealing with the authentic wishes of the testator but with a displacement of volition ...’. The key question therefore is whether there has been a displacement of volition and thus whether the will contains the wishes of someone other than the testator. The testator’s mental state, his or her ability to resist prompting and instigation; and the relationship between the people concerned, are all factors to be taken into account[23].

 

[370]   It is evident from these authorities that the courts will take into account a number of factors in order to establish the possibility of undue influence, inter alia:

 

[370.1]          the mental state of the testator at the time of the signing of the will, being of crucial importance again;

 

[370.2]          His ability to resist prompting;

 

[370.3]          the relationship between the testator and the person/s concerned (If sec 4A applicable if beneficiary being in a position of influence)

 

[370.4]          and surrounding factors. (displacement of volition)

 

[371]   On the question whether there has been a displacement of volition and thus whether the will contains the wishes of someone other than the testator, the mere existence of a relationship of a particular kind does not give rise to a presumption that the will of another has been substituted for the testator’s will. The testator’s mental state, his or her ability to resist prompting and instigation; and the relationship between the people concerned, are all factors to be taken into account.[24]

 

[372]   In Katz and Another v Katz and Others[25], it was alleged that the testator was improperly influenced by his second wife to make a new will. The court held that the fact that the testator was dependent on his wife after his stroke was not sufficient proof of undue influence. The court emphasized that an allegation that one or more of the factors was present had to be supported with evidence and that unfounded suspicion and speculation were not sufficient. Furthermore, if, after the execution of a will, a period of time elapses during which the testator could have altered the will should he or she have wished to do so, the failure to take advantage of this opportunity is a circumstance from which it may be inferred that the will was not made against the testator’s wishes.

 

[373]   In Essop v Mustapha and Essop NNO and Others[26], the court held that the decisive moment for establishing the competence of a testator to draft a valid will is the time when the will was made and not when instructions were given.

 

[374]   Consequently evidence on the steps taken by the legal practitioner to ascertain testamentary intent (whether the testator’s intention reflected properly in the will) also crucial. In that instance statements made by the testator, his instructions and statements of testamentary intention therefore admissible. In that case, evidence of the testator’s reasoning for unexpected provisions in a will, may help establish that the testator did not lack testamentary capacity.[27] The reasoning must be sensible.

 

[375]   Furthermore, on the question of undue influence, the key question is whether there has been a displacement of volition and thus whether the will contains the wishes of someone other than the testator. The testator’s mental state, his or her ability to resist prompting and instigation; and the relationship between the people concerned, are all factors to be taken into account.

 

[376]   The main contention on all 3 wills that had to be established is the effect a diagnose with pancreatic cancer, a malignant tumor with a very poor prognosis, that is a terminal illness, at a very advanced age of 73 of which the testator was given a short period of +- 6 months to live, and the concomitant treatment and its co-morbidities, had on the deceased’s cognitive abilities. The extent the effect the pancreas cancer, use of morphine and other opiods, indulgence in alcohol and or the alleged undue influence if found proven would have or had impacted on the deceased’s testamentary capacity (that his mental ability to appreciate the nature and effect of his testamentary acts) and intent. A fact to be established from the whole evidence adduced by the parties, including their expert witnesses who assisted the court to understand the mental effect from the experts’ perspective. The aim being for the court to determine if all being taken into account the deceased had the testamentary capacity and his will reflected in any of the 3 wills.

 

Legal principles on Expert Evidence

 

[377] The background or context from which the expert evidence is included and considered is informed by the following principles that are enunciated in the following authorities;

 

[376.1]  In Schneider NO and others v AA and Another,[28] Davis J. outlined this function, and the ensuing duty of an expert witness as follows:

 

"In short, an expert comes to Court to give the Court the benefit of his or her expertise. Agreed, an expert is called by a particular party, presumably because the conclusion of the expert, using his or her expertise, is in favour of the line of argument of the particular party. But that does not absolve the expert from providing the Court with as objective and unbiased an opinion, based on his or her expertise, as possible. An expert is not a hired gun who dispenses his or her expertise for the purposes of a particular case. An expert does not assume the role of an advocate, nor gives evidence which goes beyond the logic which is dictated by the scientific knowledge which that expert claims to possess."

 

[377]   Similarly, in the matter of Nel v Lubbe[29] the court held as follows:

 

“…But the opinion of an expert witness is admissible whenever, by virtue of the special skill and knowledge he possesses in his particular sphere of activity, he is better qualified to draw inferences from the proved facts than the judge himself. A court will look to the guidance of an expert when it is satisfied that it is incapable of forming an opinion without it. But the court is not a rubber stamp for acceptance of the expert's opinion. Testimony must be placed before the court of the facts relied upon by the expert for his opinion as well as the reasons upon which it is based…The court will not blindly accept the assertion of the expert without full explanation. If it does so its function will have been usurped.”[30] (my emphasis)

 

Mindful as well that scientific ideas can be supported or refuted by evidence. As a result, ideas or opinions not supported by evidence would be difficult to accept or admit.

 

Analysis of the evidence

 

[378]   The Plaintiff has given a full background of the deceased’s life with the aim to give a clear picture of the kind of person the deceased was, prior to his health taking a negative turn when he was diagnosed with pancreas cancer on 28 August 2015. She testified on the devastation and the resultant physical and mental impairment the illness caused to his life in general. It is the Plaintiff’s testimony that the Plaintiff was strong headed, rebellious, prepared to take risks in business, determined, resilient, a ladies’ man who went through five marriages and divorces. The deceased was however also said to have been compassionate, keeping some kind of a cordial relationship with some of his ex- spouses, and a fairly healthy and interactive family relationship with his only children, his two daughters who continued to be part of his life until his cancer diagnose. The Plaintiff in particular having a couple of times played a major role in the deceased’s life, looking after his wellbeing. A significant specific incident was when the Plaintiff was a 20 year -old university student, and the deceased had a life threatening incident in Durban. The deceased was found on the railway line with a broken skull. The Plaintiff fetched the deceased from Durban and assisted him to be admitted at a hospital in Pretoria where a major surgery was performed to repair his skull.  Both his daughters testified to the fact that the Plaintiff was the deceased’s person to go to, every time he got divorced. The Plaintiff would stay with the deceased and look after him until he picked up his life or married again.

 

[379]   Both Plaintiff and B[...] have also indicated that the deceased would seek their counsel prior to marrying any of the women he met. They would voice their approval or disapproval, sometimes the deceased would explain why he would nevertheless proceed to marry notwithstanding their disapproval. It has never displaced their kinship as a family or created any animosity between them. That is the sort of relationship the deceased was described to have had with his daughters.

 

[380]   The relationship between the deceased and his adult daughters was shown to have been of care and display of a great concern about the welfare of their father and for each other. When the Plaintiff was away in Mauritius between the period 2002 -2012 the deceased visited her frequently. At one time they together visited the deceased’s family in the Netherlands where the Plaintiff was introduced to all his kinship. The Plaintiff kept in touch with the relatives, family being more important to her. B[...] would speak of times when she was called a couple of times at the farm to come and rescue the deceased who will have drunk himself into a stupor or when he was injured in an incident that involved the 2^nd Defendant. One time she had to take her sick child to T[...] to their farm to help them and was at the hospital the whole night because the deceased felt the 2^nd Defendant was not good for him. The Plaintiff took the deceased to all his appointments and made sure that everything was going right. As his daughters what was affirmed was that they have always been there for the deceased even after the deceased was diagnosed with cancer, until the 2^nd Defendant reappeared and came to stay with the deceased.

 

[381]   As of the deceased, all this evidence point to a kind of man who very much loved and cared for both his children who have also loved and cared about him all their lives, in spite of the deceased’s many marriages. It is also their evidence which was not contradicted that the deceased said he wanted them to be well looked after post his demise. B[...] was also told that his wish was that they can also look after their mother. Prior 2015 there was no doubt that, that is what he had done. He executed a will in May 2014 that bequeaths all his estate to both his daughters. An act of such seemingly gross unkindness of excluding any of the two daughters from the will, contrary to the promise and wish he articulated in his 1^st will, would have to have been motivated by an act, equally unkind and of equal graveness perpetuated against the deceased. Understandably, the testamentary freedom, capacity and intent of the deceased would be regarded as questionable. As to whether indeed it was questionable, it is to be established from the facts, if there were any intervening factors.  

 

The testamentary freedom, capacity and intent of the testator discernable from the facts (Evaluation of Plaintiff’s perspective)

 

[382]   The Plaintiff’s testimony was honest to a point of being vulnerable, very detailed and straight forward. She just left it to the court to determine if from the testimony there is factual evidence that supports the allegations made in the particulars of claim on the reason for the deceased’s change of will that justifies the invalidation of the subsequent wills. I find the Plaintiff’s evidence reliable, as an open and honest witness. Most of her evidence was corroborated by B[...]. They grew up together and remained close to their father even in their adult lives up to his demise. I have no reason to doubt the honesty of their evidence, notwithstanding their kinship. According to both there was nothing on Plaintiff’s side that could have justified such a drastic step, taking into consideration all that has happened between them and the deceased all their lives. They were also very candid about the fact that there was no love lost between the Plaintiff and the 2^nd Defendant. The 2^nd Defendant was straight forward that the relationship was in fact antagonistic. The Plaintiff believed it was cordial at the beginning, the description given however indicating it to have been tolerant than cordial until just before the 2^nd Defendant was divorced from the deceased when there was an issue about the help that the Plaintiff was getting on the petrol, from the deceased’s business and the Plaintiff overhearing the 2^nd Defendant on a phone call to her parents alleging that the deceased was abusive towards her.

 

[383]   It was rather put to the Plaintiff that she must have done something to have been excluded and a suggestion made that it related to her disapproval of the 2^nd Defendant being part of the deceased’s life and of their marriage as well as the manner in which she handled the news of the deceased’s terminal illness, denying that the deceased lacked testamentary capacity as a result of his illness or undue unfluence. Those allegations were unsustainable as against the evidence of the Plaintiff and B[...]. In respect of Plaintiff’s disapproval of the deceased’s marriage to the 2^nd Defendant, both Plaintiff and Defendant confirmed that they had previously voiced their disapproval of some of the deceased’s relationship, one of which was that of Ms T[...] or Ms C[...], whom they felt was too young for their father and probably would have wanted children. The deceased married her anyway, notwithstanding their disapproval. He then had a vasectomy. There was never any animosity thereafter between them and their father. They also kept in touch with C[...] even after the divorce, who continued to work for the deceased for 17 years. The deceased would also in some instances explain his reasons for getting married despite their disapproval. He did on the occasion of the 2^nd Defendant. B[...] testified that when the deceased consulted her about marrying the 2^nd Defendant, she was against it. The deceased told her and the Plaintiff that the 2^nd Defendant was pregnant so he had to marry her, nine months into their relationship. Although the deceased had reversed his vasectomy, no child was ever born from their marriage.

 

[384]   The voicing or indication of disapproval of a relationship or marriage by either Plaintiff or B[...] was then not something new. Also the fact that the person who from the beginning had voiced her disapproval of the 2^nd Defendant was never left out in any of the wills, gainsays that allegation. B[...] had unequivocally conveyed her dislike of the 2^nd Defendant to the deceased, that she only tolerated the 2^nd Defendant for deceased’s sake and would not want anything to do with her after his demise. Further that she does not want anything that would tie her to the 2^nd Defendant or make her responsible for her. The 2^nd Defendant must just leave and go back to Pringle Bay. B[...] was nevertheless not excluded, with a possibility of being in co-ownership with the 2^nd Defendant of the property in trust in the 4^th will. It is therefore unlikely/improbable that the alleged Plaintiff’s disapproval of the 2^nd Defendant could have been the reason for deceased to exclude the Plaintiff from any of the Wills whilst including B[...] notwithstanding her utterances and include the 2^nd Defendant with a less equitable claim. That reason is far-fetched.   

 

[385]   Actually it is the deceased who voiced a misgiving to his daughters when the 2^nd Defendant reappeared in his life after he was diagnosed with the terminal cancer that ‘the 2^nd Defendant was coming for the money.’ The attitude is not a totally welcoming one and also indicates that the deceased was also suspicious of 1^st Defendant reappearance. The allegations by the Plaintiff that the deceased gave her the phone and she spoke to 2^nd Defendant who asked her if she could come and visit was not disputed nor tested under cross examination. The 2^nd Defendant only narrated her own version of how she came to stay. It is therefore trite that the initial reason she gave for her reappearance was to come and visit due to the deceased being diagnosed with cancer. According to the 2^nd Defendant the Plaintiff’s remark that it was the deceased’s sixth marriage, is a fact, that marked Plaintiff’s disapproval and supposedly infuriated the deceased such that he changed his mind and went against his initial will and promise, and disinherited the Plaintiff, which is absurd. The submission is unsustainable and the reason far-fetched. The deceased never spoke to the Plaintiff about the remark.  

 

[386]   A suggestion was also put to the Plaintiff that the deceased was so unhappy about the Plaintiff’s disapproval of his relationship with the 2^nd Defendant that she was not invited to the wedding or he would not have wanted her at the wedding. Actually the 1^st Defendant in his evidence in chief had said that is the reason the deceased gave him for excluding the Plaintiff on the signing of the 2^nd will, she was interfering in his life and trying to prevent him from marrying the 2^nd Defendant. In the meanwhile, he is the one that advised the Plaintiff to keep her dignity and stay away, when the Plaintiff indicated to him her concern and disapproval of the wedding based on the deceased’s health status. He did not allege to have told the Plaintiff that actually the deceased did not want her at the wedding.

 

[387]   In the meanwhile it was the 2^nd Defendant not the deceased who did not want the Plaintiff to be at the wedding. She made sure that the Plaintiff does not attend by instructing B[...] that the Plaintiff and W[...] were not invited and should not be at the wedding. It was therefore disingenuous of the Defendants to claim that the absence of the Plaintiff was due to the deceased not wanting her to be there. The deceased was actually immensely hurt and disappointed that the Plaintiff did not attend his wedding, a fact which the 2^nd Defendant obviously had instigated so as to create and rely on that fact as proof for the animosity the Defendants alleged to exist between the deceased and the Plaintiff, so as to justify the disinheritance.

 

[388]   In that instance both Defendants’ credibility becomes questionable. The 1^st Defendant was evidently not candid when he alleged that the deceased told him he did not want the Plaintiff to be at the wedding due to Plaintiff’s disapproval of his marriage to the 2^nd Defendant. Both Defendants falsely alleged that it was for that reason that the deceased disinherited the Plaintiff. In the meanwhile, as per B[...]’s evidence the deceased was surprised when informed of the reason why the Plaintiff was not at the wedding. Understandably, he had expected the Plaintiff, actually both his daughters to be at his wedding, notwithstanding their disapproval of the marriage. This is the kind of relationship they had as already mentioned that the deceased’s daughters’ disapproval of his relationships or who he married had never created any animosity or led to any resentment between them as alleged to have happened by the Defendants.

 

[389]   The deceased was not aware that the 1^st Defendant had also unkindly instructed and warned the Plaintiff to stay away from the wedding. The 1^st Defendant was therefore also disingenuous when he proffered the same reason to justify the purported narrative of an animosity between the Plaintiff and the deceased. The deceased had nevertheless not excluded but included the Plaintiff in the will executed subsequent to the wedding, that is the 3^rd will.

 

[390]   It is therefore evident that notwithstanding his daughters’ feelings, his intention in relation to his will would not have been affected. It is therefore unlikely that he would have excluded the Plaintiff from his 2^nd will because of her disapproval of his intended marriage to the 2^nd Defendant. On a balance of probabilities, he did not. Having delegitimized that narrative, it is evident that their allegation also of an existent animosity between the deceased and the Plaintiff was intended to also justify the disinheritance there being no plausible reason. 

 

[391]   The exclusion of the Plaintiff in fact resonates more with the 2^nd Defendant’s wish and feelings towards the Plaintiff. Her dislike of the Plaintiff was very clear in her evidence. She clearly testified that she never had a relationship with the Plaintiff whom she does not mention prior 2015. She indeed resented and could not stand the Plaintiff. On 2^nd Defendant’s first encounter with the Plaintiff, following her reappearance in September 2015, she complained about the Plaintiff’s reaction towards her reappearance, and was even offended that the Plaintiff enquired from her if she was in any relationship, notwithstanding 2^nd Defendant holding out to have had what she termed an “open relationship” with the deceased that involved other intimate partners. She complained about how the Plaintiff introduced her to the people in the estate where the deceased resided, and putting her status as a friend not wife when registering for access. She also complained about Plaintiff’s timing of the discussion and manner in which the Plaintiff handled the news of the deceased’s diagnosis and her discussion with the deceased on his imminent demise. She was the only one aggrieved by all this. Her resentment of the Plaintiff very pronounced.

 

[392]   The 2^nd Defendant confirmed to have had on the other hand a relationship only with B[...], notwithstanding B[...] being against the marriage and the threats she made. Her position was as a result safe. B[...] had actually a day before the wedding, and on the day of the wedding confronted the deceased on his decision to marry the 2^nd Defendant. She also expressed her dislike and strong views about the 2^nd Defendant to the deceased, not long before the execution of the 4^th will. According to the Defendants’ narrative B[...] would be expected to have been the one excluded or to be excluded together with the Plaintiff, particularly from the 4^th will. It is significant however that the 2^nd Defendant regarded B[...] as tolerable whilst she professed to have had a better relationship with her right from the beginning, and B[...] was never excluded in any of the wills nor from attending the wedding.

 

[393]   This confirms the 2^nd Defendant’s preference of B[...] over the Plaintiff which happens also to be reflected in the wills. As to the deceased, it would not have mattered so much to have led him to take such a drastic step of altering his intention or wish and promise to leave his estate to both his daughters. It is therefore not plausible that the deceased disinherited the Plaintiff for the reasons proffered by the Defendants. The evidence is certainly indicative of a displacement of the deceased’s will. This echoes the circumstances in the Spies matter where the court commented on what constituted undue influence, holding that:

 

‘… a last will may in fact be declared invalid if the testator has been moved by artifices of such a nature that they may be equated … to the exercise of coercion or fraud to make a bequest that he would not otherwise have made and which therefore expresses another person’s will …  In such a case one is not dealing with the authentic wishes of the testator but with a displacement of volition …’.

 

[394]   As it is clear that the deceased had forsaken his will, apparently for that of the 2^nd Defendant, the question that arises is therefore whether the deceased was influenced unduly through coercion or fraud to forsake his will for that of the 2^nd Defendant or he had done so willingly, in his full senses. In order to establish the possibility of undue influence the court has to take into account the following as per the decision in Tegra’s

 

[394.1]          the mental state of the deceased at the time of the signing of the will, being of crucial importance again, (that is his ability to resist prompting) whether he was susceptible to influence.

 

[394.2]          the relationship between the testator and the person concerned whose will is alleged to have displaced that of the deceased (If sec 4A applicable, a beneficiary being in a position of influence)

 

[394.3]          and surrounding factors. (including displacement of volition)

 

 [395]  Considering that there is evidence of the displacement of volition, that of the deceased being substituted for that of the 2^nd Defendant, the relationship that the deceased had with the 2^nd Defendant, the person whose wish had displaced his will, (the identified influencer), and the mental state of the deceased at the time of executing (signing) the will becomes crucial so as to establish if he had the ability to resist any prompting, and that is if indeed he was unduly influenced to forsake his will, especially when the substitution does not make sense (is not reasonable).

 

The relationship between the deceased and 2^nd Defendant whose wish/will is indicated to have displaced that of the deceased

 

[396]   With the background of their relationship and interaction having been already outlined, the Plaintiff and B[...] explained that on the reappearance of the 2^nd Defendant as an ex-wife, having been divorced from the deceased for 17 years, the atmosphere between them and the deceased changed. The deceased was more concerned about not upsetting the 2^nd Defendant, than his own feelings. They described the atmosphere to have been “like walking on eggshells.” It is also significant that from the first day the 2^nd Defendant interacted with the Plaintiff in particular, already the deceased was put into a position of discomfort or uneasiness as the 2^nd Defendant relentlessly began her complains about the Plaintiff to him. , fueling an illusory narrative of an existing animosity between the deceased and the Plaintiff, rather than the one between her and the Plaintiff that was prominent right from the first day.

 

[397]   The 2^nd Defendant, on that very first day of interaction with the Plaintiff following her arrival at the deceased’s house, made several complains about the Plaintiff to the deceased, mainly that she did not recognize her and had refused to put her status as the wife on the forms that the Plaintiff completed for access to the estate. She surprisingly was also offended and complained to the deceased when the Plaintiff enquired about her relationships status since she has been divorced from the deceased, notwithstanding that she personally had described her relationship with the deceased during that period to have been an open relationship that included other intimate partners. These complains according to the 2^nd Defendant proved the impropriety of Plaintiff’s behavior which supposedly made the deceased angry and deepened the alleged animosity between him and the Plaintiff. In the meanwhile, the deceased was uncomfortable to be in the presence of the 2^nd Defendant and the Plaintiff due to the intensified animosity between the two. Such animosity eventually caused a detachment between the deceased and the Plaintiff.

 

(2^nd Defendant’s securing of a position of influence, take over and isolation)

 

[399]   Furthermore, on 2^nd Defendant’s reappearance, the Plaintiff was attending to the deceased’s needs, registered as the deceased’s next of kin for any hospital treatment and or medical care that the deceased had to undergo. The Plaintiff at the time would also either transport and or accompany the deceased to the hospitals for treatment or doctors’ appointment, attending to any administration relating thereto. It is something that the 2^nd Defendant observed on the 1^st and 2^nd day of her arrival at the deceased’s home. The deceased had summoned the Plaintiff to the house, gave her the keys to the estate’s security gate and asked her to renew her fingerprints so as to gain full access to the property whilst he was sick. The 2^nd Defendant also observed the Plaintiff accounting to the deceased on the transactions she had attended to on his bank accounts including transfers, cheque deposit, attending to invoices and payment of medical bills. She ran errands, sorted out the gas certificate, filled out hospital forms and took care of invoices for the next hospital appointment with Dr Van Niekerk on 8 September 2015. The deceased gave the Plaintiff the transfer papers for the house as well.

 

[400]   That was the prevailing situation when the 2^nd Defendant reappeared, the Plaintiff as usual, attending to deceased’s needs and giving him any assistance he required, which marked the reliance and absolute trust the deceased had on the Plaintiff. There was therefore no evidence of animosity that existed between the deceased and the Plaintiff as was generally professed by the Defendants. The Plaintiff and B[...], especially the Plaintiff had been actually taking care of the deceased all their adult lives after every set back the deceased had experienced. The Plaintiff staying with the deceased every time after he got divorced to assist him until he is at his feet again. Even also between the period 2012 and 2015 when she relocated from Mauritius.

 

[401]   Highly notable is in 1983 when the Plaintiff as a 20 year- old fetched the deceased from Natal after he was found thrown on the railway and had suffered a broken skull. The Plaintiff brought the deceased back and took him to hospital where his skull was mended. During the period 2000 to 2005 when the 2^nd Defendant was staying with the deceased after the divorce, the 2^nd Defendant used to call on B[...] and or the Plaintiff to come and deal with any situation that required the deceased to receive medical attention or hospital care. Even when the deceased had bouts of depression or incidents of alcohol abuse. They mentioned the couple of times B[...] had to travel long distance with a small child to where they were staying to assist the deceased to get the medical attention.

 

[402]   The Plaintiff also mentioned an incident post 2002 when the deceased had a rib injury hit by the 2^nd Defendant with a truck whilst he was trying to block her from removing his cattle from his farm. THE 2^nd Defendant refused to take him to hospital and left him injured. The Plaintiff who was visiting from Mauritius had to take the deceased to hospital. There was also an incident when 2^nd Defendant and deceased had a drinking spree that led to them injuring each other and B[...] had to assist. The 2^nd Defendant prior her reappearance in September 2015 was never involved in caring for, or assisting the deceased get hospital or any medical attention when he needed it, even during the times they stayed together, she would still call on the Plaintiff or B[...] to attend to that.  

 

[403]   The 2^nd Defendant had not long ago on May 2015, 2 months before the deceased was diagnosed with cancer shunned the deceased whom she was aware was sickly. The deceased travelled all the way from Pretoria to Pringle Bay, nearly a whole day’s drive to visit her. The deceased came back heartbroken, furious and depressed as she was not there. Her explanation was that she was in Pretoria, in the same neighborhood where her sickly so called husband’s home was, to attend her sister’s graduation. She did not see the necessity to inform him or want to see him, even though she was aware of his failing health. She alleged that she intended to surprise him, but went back without seeing him or enquiring on his health.

 

[404]   The important fact that is clear is that prior to the deceased being diagnosed with terminal cancer the 2^nd Defendant never had any interest or got involved in taking care or assisting the deceased get any medical attention or hospitalization for any health issues, or showed any care towards his sickness even when they were staying together. It is therefore not surprising but reasonable that the Plaintiff, B[...], and the deceased were all suspicious of her intentions when she reappeared on the news of the deceased being diagnosed with a terminal illness, more so when she now wanted to solely take care of the deceased.

 

[405]   In addition, it is significant that when the 2^nd Defendant reappeared, she had requested to come visit because the deceased was now diagnosed with an illness that was terminal when she has never been interested before. Once she arrived, she suddenly for the first time ever, had an interest in taking care of the terminally ill deceased. She gained exclusive access to the deceased, by moving into his bedroom. She wanted to be registered for access to the estate as the deceased’s wife, when she was not.  She proceeded to fill in hospital and medical forms that were already attended to by the Plaintiff. She proceeded to introduce herself at the hospital as the deceased’s wife. She then insisted on taking over the care of the deceased, displacing the Plaintiff and B[...] from the role they have played all of the deceased’s life, especially the Plaintiff. All that so as to gain exclusive control of the deceased’s life and care, being privy to and influence the decisions he had to make.

 

[406]   On the day of the deceased’s appointment with Dr Van Niekerk on 8 September 2015, 5 days after the 2^nd Defendant had moved in with the deceased, the Plaintiff as usual came to the house to assist the deceased with the preparations. She was told not to bother anymore because the 2^nd Defendant was going to accompany the deceased to the appointment, and going forward to take care of everything. Literally the 2^nd Defendant took over Plaintiff’s role although the Plaintiff was still registered as the deceased’s next of kin.

 

[407]   Surprisingly, when Dr Van Niekerk rescheduled the surgical procedure for the next day, the deceased called and informed the Plaintiff, asking her to be at the hospital. This is an indication of lack of resolve or decisiveness. The next day the Plaintiff and B[...] found the 2^nd Defendant already at the hospital, she had swiftly announced herself to the hospital staff as the wife to get prioritized access to the deceased. The deceased however sent her back home when the surgery was again delayed to later that evening. After surgery the Plaintiff informed the 2^nd Defendant of Dr Van Niekerk’s prognosis regarding the extent of the malign and the deceased’s not so good response to surgery including the deceased’s imminent demise in six months.

 

[408]   Plaintiff testified that the next morning after the surgery, they found the 2^nd Defendant already at the high care unit where the deceased, who was not doing so well was still recovering and visitors not allowed. The 2^nd Defendant was holding the deceased’s hand. The deceased was weak and confused but nevertheless made an announcement that they were going to get married, mind-bogglingly seeming to prioritize the marriage over his devastating illness and treatment. He had just come out of surgery with a worst prognosis. The Plaintiff as a result cautioned the deceased not to be too hasty to make such a decision until he gets better. That was 7 days after the 2^nd Defendant had moved in with the deceased primarily to take care of him, but instead prioritizing getting married. She also mystically was now very much interested in marrying him. The Plaintiff commented following the announcement that it was the deceased’s sixth marriage. That is the legendary comment that did not sit well with the 2^nd Defendant and had allegedly infuriated the deceased so much so he disinherited the Plaintiff.

 

[409]   The deceased remained in high care for 3 days and thereafter was transferred to a surgical ward where he spent another 5 days. During that time, following the announcement on their marriage, the 2^nd Defendant told B[...], in contradiction to Van Niekerk’s prognosis that the deceased’s scans actually show only two tiny spots on the pancreas, and therefore the deceased was not serious, and was going to recover. Subsequent to that the 2^nd Defendant also told the Plaintiff and B[...] that she and the deceased were going to relocate to Pringle Bay were the deceased was going to recover. This followed her displacing, a few days ago the deceased’s dependence on his daughters, especially the Plaintiff. She then gave the deceased a false hope of recovery by lying about the extent of his illness whilst planning to totally isolate him by removing him from the people who most care about his life and wellbeing. The 2nd Defendant’s conduct and motive for distorting the prognosis and extent of malaise, should be seen in the same vein as her down playing the severity and seriousness of his illness and prioritizing getting married.

 

[410]   The 2^nd Defendant had not only caused confusion to B[...] and the deceased about the actual extent of the latter’s illness, but also detached the deceased from dependence on the Plaintiff for assistance and guidance on the information from the doctors. She then was enraged and criticized the Plaintiff for discussing Dr Van Niekerk’s prognosis and matters concerning his burial with the deceased, after his discharge from hospital. It was however hypocritical of the 2^nd Defendant to do so as she had alleged to have discussed these same matters herself with the deceased as early as when he called her to inform her about his cancer diagnose on 28 August 2015. Her version that was put to the Plaintiff was that when the deceased called her, it was to discuss three things, marrying her, his wish to be buried with his mother and his refusal to go to a Hospice. Her testimony was however that, besides wanting to marry her and being buried with his mother at the Zandfontein Graveyard he wanted her to promise him that he will never let him go to CANSA or Hospice, she will take care of him up to the end at home and he did not want other people to be around him in his last minutes and she did all three. The fact that the deceased did not want other people around him in his last minutes was not the version put to the Plaintiff.

 

[411]   The allegation is clearly untrue as at the time the deceased was neither aware of the prognosis on the extent of the malign and the imminence of his demise, nor of the possibility of a double burial. The Hospice was also not yet mooted to his family as an option. The deceased became aware of the double burial as an option when the Plaintiff discussed the prognosis with him. He only then indicated his wish to be buried with his mother. He had initially instructed the Plaintiff to look for a burial site in Zandfontein which is when the Plaintiff promised to look for quotations as she did not know how that worked.

 

[412]   The 2^nd Defendant tried to interfere during Plaintiff’s discussion with the deceased, seemingly agitated and allegedly concerned of the timing of her discussion that it was too soon and insensitive to be discussing his burial. She the accused the Plaintiff of not wanting the deceased to live. The deceased on the other hand continued to engage the Plaintiff in the discussion. The 2^nd Defendant’s allegation of animosity between the Plaintiff and the deceased resultant from the discussion was also not true. The 2^nd Defendant was understandably unsettled by the discussion since she had presented a false narrative of the deceased’s prognosis and promise of recovery. The Plaintiff thus by discussing the real prognosis was unwittingly negating all that. The 2^nd Defendant was consequently trying to protect her disingenuous claim rather than raising a genuine concern. Otherwise her plan to get married and relocate to Pringle Bay for deceased’s professed recovery would not have made sense to the deceased. Her accusation that the Plaintiff didn’t care about the deceased was intended to influence the deceased to continue believing in her deception.

 

[413]   The deceased actually ignored the 2^nd Defendant’s attempt to interfere in their discussion. It is not true that the discussion caused such grave resentment to have led to the Plaintiff’s disinheritance as alleged by the 2^nd Defendant. The evidence before court indicates it to have been a usual occurrence for the deceased to discuss with the Plaintiff and get her to attend to issues that concern his welfare, implement some of his decisions, which then made her privy to certain information. This just confirmed the Plaintiff’s character being a doer, very decisive and consistent. Yet on the 2^nd Defendant’s side this was just another ploy to try and minimize the engagement between the Plaintiff and the deceased, whilst instigating the purported animosity between them and propagating a lie about the deceased’s illness. 

 

[414]   Notably as well is the fact that the 2^nd Defendant was not candid to the court. As indicated the discussion 2^nd Defendant allegedly had with the deceased when she arrived at his house about being buried with his mother and the Hospice could not have happened nor was the allegation that the deceased was infuriated by the Plaintiff discussing the prognosis with him. The deceased engaged the Plaintiff and even told her that he wanted to transfer ownership of the house into her name, which was heard by the 2nd Defendant. That is not a conversation he would be expected to hold with a person he is angry with or against whom he harbored a resentment that could have led to disinheritance, but instead it shows absolute trust. The 2^nd Defendant was definitely not a credible witness, her evidence unreliable.

 

[415]   The 2^nd Defendant, to further fuel the narrative of animosity between the Plaintiff and the deceased also alleged that Plaintiff stole the deceased’s personal items, a watch, bank card and ring from the deceased’s chest drawer, where she put them for safe keeping. The deceased angrily phoned the Plaintiff and questioned her about the disappearance of the items. When she went to see them, the 2^nd Defendant shouted at her and accused her of being responsible for their disappearance. The Plaintiff, not the deceased as alleged by the 2^nd Defendant, immediately cancelled the bank card and ordered a new one, as she is known for her proactive mindset. She tried to report the matter but was advised against it and her subsequent request to visit the deceased was obstructed. She was told to come on Sunday after church. On Sunday after church she was told they cannot see her as they had visitors that 2^nd Defendant wanted to get to know. She went in anyway.

 

[416]   When the bank notified the deceased that the new card was available he requested the Plaintiff to collect it. In my view again that conduct does not show any mistrust or an existent animosity but trust. In counter effect the 2^nd Defendant took the deceased to the bank to activate the new card and obtain a new pin number. The 2^nd Defendant then became privy to the pin number and the deceased’s accounts. In essence in doing all these, the 2^nd Defendant effectively bowdlerized the Plaintiff’s assistance and deceased’s dependence on the industriousness of the Plaintiff.

 

[417]   B[...] and Plaintiff testified about when the Plaintiff was struggling to secure a private interaction with the deceased and could not have access to the deceased as much as she wanted. Anybody that wanted access had to go via the 2^nd Defendant. She will then decide who and when they could have access to the deceased. She always stayed in proximity. The deceased, in turn, was more concerned about not offending the 2^nd Defendant for peace sake, besides trying to cope with his illness and its challenges. He was aware that 2^nd Defendant resented the Plaintiff and was unhappy about his relationship with the Plaintiff. He made sure that B[...] and the Plaintiff are well behaved around the 2^nd Defendant, being very sensitive about their relationship. The 2^nd Defendant continued to try and inhibit the Plaintiff’s access to the deceased.

 

[418]   From the evidence I could not find the deceased to have been at loggerheads with the Plaintiff but had toned down their relationship in his quest to avoid any conflict. In practical terms this reinforced his isolation by the 2^nd Defendant taking absolute control of his life. A situation that does not speak of a man that used to be strong, stubborn, hard headed and firm but of a man who in many instances was also sometimes fallible and assisted back to his good self by his caring daughters who afforded him a veil of protection and unconditional care. Conversely, when the relationship was impeded, it left the deceased vulnerable and fragile.

    

[419]   The evidence also show that the 2^nd Defendant took total control of the deceased’s care and life. He was effectively isolated to the extent that he could not do anything by himself or with any other person without the 2^nd Defendant being there or on her approval. Even CANSA’s request and offer to be involved to get access to the deceased, just to guide the 2^nd Defendant on how to look after and take care of the deceased was unreasonably refused. The refusal minimized a possibility of unsupervised access by any other person than the 2^nd Defendant, therefore was calculated.

 

Necessity for a will

 

[420]   It is of significance that on 28 August 2015 when the deceased was diagnosed with pancreatic cancer, he already had the 1^st will in place which he executed on 14 May 2014. To the deceased and his daughters there couldn’t have been any need, let alone urgency for the deceased to execute another will whilst he was still dealing with the overwhelming situation of the prognosis of his pancreatic cancer, the consequent complications and the choices he was required to make with regard to available treatment. Furthermore, the 2^nd Defendant played a very active and significant role in the preparations and was present during the signing of the contested wills. On the 2^nd will executed on 8 October 2015 and the 4^th will executed on 25 February 2016 she was involved even during the giving of instructions. The wills excluded the Plaintiff.

 

Deceased’s state of mind, (his or her ability to resist prompting and instigation)

 

[421]   Prior the diagnose the deceased has been factually sick since January 2015, battling with depression, a weak immune system, jaundice, and also nursing a broken heart from May 2015. Post the diagnose on 28 August 2015, he endured a few medical treatments and a surgical procedure, inter alia, the endoscopic biliary stent insertion in his liver by Dr Bond, but mainly a palliative surgical bypass on 9 September 2015 performed by Dr Van Niekerk, with the devastating prognosis of so much of the cancer having spread to the main artery. According to Van Niekerk not much could be done since it was not receptive to surgery. This is regarded to be a severe type of cancer. His skin had turned yellow, due to obstructive jaundice.

 

[422]   At the age of 73 the deceased had become very frail and half a man he used to be having lost more than half of his weight. According to the Plaintiff, the deceased had at the time of his consultation with Bond, gone from 90 kg down to 40 kg. He was physically already waning away, weak and given six months to live. A difficult and overwhelming period for him, suffering a multifaceted setback. The medical opinion tendered by the experts unrebutted was that not only is an advanced age pancreatic cancer a severely painful illness but it also inhibits the cognitive ability. The deceased was therefore mentally and physically extremely challenged enduring severe pain, frailty and an impaired cognitive ability. He certainly could not have been his usual strong willed, resolute and (hard koper) stubborn self or so strong to can be burdened with issues of a will and a marriage as an urgent priority over his health. The purpose, urgency and prioritization thereof over his illness not defensible hence the Plaintiff cautioned the deceased to give priority to his health. He needed strength physically and mentally, together with support of loved ones to handle all that.

 

[423]   The significance of the seriousness of his prognosis was on the extent of the malign (how far the cancer has spread) and his age, as a result of which Dr Van Niekerk also cautioned against an immediate referral for Oncology, alluding to a reduced quality of life which was going to lead to a major depression, which the deceased was already battling for several years. The 2^nd Defendant, as a highly educated person, instead of trying to understand the implication of the prognosis and the advice to be able to assist and take care of the deceased, decided to contradict Dr Van Niekerk’s findings, fabricating her own diagnosis of only two tiny spots visible in the pancreas. She used it to delude the deceased that recovery was indeed possible with treatment, further confusing him with an impossible dream.

 

[424]   The 2^nd Defendant’s false portrayal of the deceased’s illness affected the deceased’s ability to discern his situation, live the truth of it and make appropriate decisions in relation to the remainder of his life. Understandably he would be more receptive to the false news of a possible recovery than to accept the true facts of his imminent demise. He accordingly expressed his wishes to get married as soon as he gets better, which was sensible in relation to the 2^nd Defendant’s promise. According to B[...] the priest at church confirmed that to be what the couple initially agreed upon when they consulted her about their marriage. She thereafter suddenly received a phone call from 2^nd Defendant, telling her that they were so much in love they did not want to wait anymore, asking for the first opportunity available, which was that coming Sunday.

 

[425]   The suddenness also stunned B[...] who was informed two days before the wedding. She approached the deceased and he told her it was what the Plaintiff wanted, indicating to have given in. It is evident that the deceased’s vulnerability and compromised state of mind was being extremely exploited by the 2^nd Defendant. He was put under pressure. The 2^nd Defendant continued to act indifferent and downplay the deceased’s sickness and seriousness of Van Niekerk’s prognosis which in my view was cruel, illogical and akin to a deception. The comments by B[...] at the wedding that the 2^nd Defendant was marrying a man on his death bed did not sit well with the 2^nd Defendant as she had attempted to persuade B[...] as well about the fabricated diagnosis and the possibility of recovery.

 

[426]   Furthermore, the 2^nd Defendant strategically accused the Plaintiff of being cruel and not wishing the deceased to live, for discussing with the deceased the correct prognosis as reported by Van Niekerk so as to influence the deceased to see the Plaintiff in a bad light. Dr Colin had emphasized that psychiatrically, it is important for loved ones to assist the dying in their process of dying by gently confronting denial and acceptance. Further that denial of illness also increases the psychological vulnerability of the dying person due to the inevitability of death. That if the person dying basically denies his illness but progressively getting weaker, he will not do the work of dying but it is going to upset him more and more when he is not getting better and increase his depression. The 2^nd Defendant insensitively propagated the false hope, promising the deceased relocation to Pringle Bay for the treatment by an Oncologist and the prophesized recovery. By so doing the 2^nd Defendant denied the deceased to do the work of dying but to hold onto the false hope, escalating the deceased’s depression as his situation worsened, indeed aggravating his psychological vulnerability. It exacerbated his depression. This is after she had succeeded in isolating him by displacing any chances of a secluded interaction between the deceased and the Plaintiff.

 

[427]   As for the deceased, subsequent to his discharge from hospital on 16 September 2015 after the surgery, he was indeed in and out of hospital during the remainder of September, struggling mainly with the debilitating depression, understandably so, given the confusion and amount of pressure he was placed under. He was also struggling with management of the unbearable pain that was already inhibiting his cognitive abilities, lack of sleep, nausea and constipation. He was therefore unquestionably very vulnerable. He during that period also showed further indecisiveness, inter alia, by changing his mind about Dr Van Niekerk’s advise not to see an Oncologist as yet. He went ahead and sought an appointment with Dr Slabbert, thereafter Dr Inge Demeulenaere with whom the chemo -radiotherapy Programme was planned. The aged deceased obviously overwhelmed by pain, depression, confusion and seemingly oblivious to his debilitating condition, brainwashed by the 2^nd Defendant, to believe it was not that bad, also asked for Viagra. This shows the extent of the effect of the 2^nd Defendant’s perfidy which is to be considered as a serious factor in relation to deceased’s susceptibility to her influence and the impairment of his cognitive ability.

 

[428]   On 8 October 2015 the deceased started with the radical radiotherapy. The scans showed a couple of dots spread all over his torso as opposed to the 2^nd Defendant’s incorrect assurance that only two spots were visible and were to be eradicated. The deceased was as a result overwhelmed and no longer keen to proceed with the treatment, he had to be restrained. This further evidences lack of clarity of mind and indecisiveness. So not only did the 2^nd Defendant cause confusion to the deceased about the extent of his illness, but also about the nature of the treatment he was to undergo (procedure) and the effect thereof.

 

[429]   The deceased’s reaction to the therapy treatment displayed the instability of thought and lack of resolve which followed immediately after the outburst he had after he was discharged from hospital on 16 September 2015 suffering from depression, severe pain, constipation and nausea. The deceased is said to have shouted at the Plaintiff blaming her for the alleged disappearance of his personal belongings from his study since the 2^nd Defendant suspected her. The 2^nd Defendant later alleged to have found the items, after the Plaintiff had obtained a new bank card and 2^nd Defendant had managed to get the pin number for the deceased’s new credit card. The deceased was even talking about giving her the house documents. The 2^nd Defendant persisted to accuse the Plaintiff then for the lost items re-appearance. She yelled, screamed and swore at the Plaintiff in front of W[...] and a friend who rather then left, apparent that she was drunk, calling the Plaintiff names, (inter alia, a bitch).

 

The use of alcohol and neglect of deceased

 

[430]   It was part of the evidence that when the 2^nd Defendant was yelling, screaming and over-reacting supposedly angered by the reappearance of the items that were allegedly stolen, she was falling all over and with a slurry speech, apparently very drunk. This was corroborated by W[...] whom I also found to be a credible witness. He did not exaggerate nor was he too elaborate in his evidence, unless where he was personally involved. W[...] was disgusted by the 2^nd Defendant’s rude behavior towards the Plaintiff and her obvious drunkenness that he hurriedly left. The 2^nd Defendant in a show of grave insensitivity to the deceased’s infirmity and apparent vulnerability drank and kept alcohol in the house. She did not care that the deceased was previously an alcoholic and had just been diagnosed with cancer. Her explanation that she suffered from a condition that makes her fall over does not explain her slurry speech and behavior as described by W[...], B[...] and Plaintiff. She was obviously in a state of drunkenness. B[...] confirmed that the 2^nd Defendant and deceased not only drank alcohol but also kept it in the house. Both B[...] and Plaintiff referred to incidents of deceased being found with or smelling of alcohol.

 

[431]   It was also a known fact that Dr Bond treated the deceased’s liver, an organ which is associated with alcohol abuse. It is a given that alcohol could only exacerbate the deceased’s already dire situation, it being a threat to his already compromised cognitive ability and illness, create dependency as well as susceptibility to influence. As the dedicated so called care giver and wife, aware that the deceased’s liver was already compromised, she was liable to make sure he has no access to alcohol. She instead introduced him back to alcohol, made it available to him whilst she also couldn’t wait to marry him, notwithstanding having alleged his abuse of alcohol to have been the reason she divorced him and had stayed divorced from him until the cancer diagnosis. The 2^nd Defendant’s actions therefore negated the notion of caring she alleged to have informed her reappearance in deceased’s life. It rather proves to be devoid of any good intentions and calculative.

 

[432]   B[...] and Plaintiff also testified about the state of neglect in which they found the deceased at the house, which is expected as the 2^nd Defendant could not have properly taken care of the deceased whilst abusing alcohol, drinking herself into a stupor. The evidence is that the deceased was found not very clean and unkempt at the house after his discharge from hospital following the surgery by Dr Van Niekerk. The 2^nd Defendant seemed overwhelmed. It was also Plaintiff’s evidence that when the deceased was admitted in hospital on 25 September 2015 suffering from depression and struggling with pain management, he was hygienically in a very bad state, unkempt and showing signs of neglect. This was also observed when he went to Van Niekerk on 28 September 2015 to remove the stitches. He was, according to Plaintiff in a very bad state and wearing an old dirty t-shirt. It therefore meant the 2^nd Defendant was unable to take care of the deceased. She nonetheless refused assistance. The intention for such refusal and insistence on taking the role of the sole caretaker, therefore had nothing to do with the deceased’s care or wellbeing but to insulate him. She not only was failing to take care of him but exacerbating his infirmities and becoming a danger to him, by making alcohol available to him.

 

[433]   Taking all that into consideration, that is, the fact that the 2^nd Defendant worked against the deceased to admit the seriousness of his illness and live the truth of his circumstances, created confusion around the deceased’s fate by lying about his prognosis and about a potential recovery, exacerbating his depression and indecisiveness. She failed to take care of him and actually worsened his frailties by availing alcohol to him. The deceased was clearly susceptible to 2^nd Defendant’s influence which he found to have been difficult to resist, having also been isolated. He was as far as his relationship with the 2^nd Defendant was concerned seriously compromised. He would not have been in the right frame of mind to lucidly think about matters relating to the execution of a will and marriage contracts. The fact that he was also put under pressure to hurriedly get married evidently taking advantage of his vulnerability, upon which he gave in, confirms his susceptibility to the 2^nd Defendant’s influence at the time.

 

Pain and depression

 

[434]   The deceased was also in a constant state of depression and pain. He was as a result in and out of hospital in the latter part of September. B[...] indicated the times when the deceased would ask for something to relieve his pain, crying, even when he was at the hospital as also testified by the Plaintiff. He, as a result suffered also from lack of sleep due to the persistent and unmanageable severe pain, exacerbated by the age advanced pancreatic cancer. He was said to have been on the maximum dosage for cancer medication that is morphine, during his admission at the hospital on 25 September 2015. He was also on antidepressants prescription for Lexamil, already with a history of depression and at the time suffering from a severe deep depression at the time. Plaintiff testified that the deceased was refusing to talk to her when she arrived at the hospital until she started to talk to a man from T[...]. He was also put on Alsona, the sleeping tablets. Although during admission he was given morphine to relieve the pain, he was only given Stilpaine on discharge on 27 September 2015. He could not urinate or eat. This is evidence that the deceased was on morphine at some stage prior the execution of the 2^nd will. Otherwise it would not have made sense that he suffered from such a serious and severe type of cancer and he was not on any of the opioids. 

 

Indecisiveness

 

[435]   The deceased was, due to the confusion caused by the 2^nd Defendant regarding his prognosis and continued lack of appreciation of the severity of his illness plus her trajectory of non-prioritization of his care, been put under tremendous pressure and predisposed to indecisiveness and acquiescence. The major indecisiveness was actually exhibited on 8 October 2015 when he was to undergo his first major radical radiation treatment. He was scheduled for seven of these medical treatments, whilst on tablets with the Oncologist. Apparently it was a struggle to settle him down as he then did not want to proceed anymore. He had wanted to proceed despite being warned prior the treatment that due to the extent of malign in the pancreas the treatment was likely not to succeed and was going to affect his quality of life. Obviously believing in the possibility of his recovery reinforced by the 2^nd Defendant, he decided on the treatment. His refusal to then settle down during the treatment confirmed his lack of commitment to the decision and confusion. The scan indeed showed several marks on the pancreas when he was made to believe that there were only two tiny marks to be treated and promised that after undergoing the chemo-radiotherapy to eradicate them he was going to be on the road to recovery. He realized that in actual fact he was to undergo a major radical radiation treatment.

 

[436]   Dr Colin refers to such indecisiveness as ambivalence. According to Colin the deceased’s conduct indeed indicated confusion about his situation which Colin regards as a state of delirium which shows the lack of clarity. This in my view is a hallmark of the pressure that was exerted on the deceased and the extent of confusion he was subjected to by the 2^nd Defendant, when he was already vulnerable due to his illness making him more susceptible to influence. 

 

[437]   In the meanwhile, the Plaintiff did not support the deceased’s going against Dr Van Niekerk’s advise, especially on the basis of a perpetuated deception about the two tiny spots and recovery. The 2^nd Defendant in that instance portrayed the Plaintiff to the deceased as not having his best interest at heart and made him to believe that Plaintiff did not want him to live when the Plaintiff was the one who was being honest. This was intended to portray the Plaintiff in a bad light to the deceased and perpetuate the untruth of an animosity that supposedly existed between the deceased and the Plaintiff, when the real animosity was clearly between the 2^nd Defendant and the Plaintiff. The deceased was subjected to  enormous pressure and anxiety by the negativity that 2^nd Defendant showed against the Plaintiff with her constant disagreement, disapproval and complain about what the Plaintiff did or did not do. He was said to have always been restless about any interaction between the two. He was as a result in a continuous state of anxiety and unhappiness, yearning for peace and quiet.

 

[438]   There is additional evidence that the deceased was put under a constant state of anxiousness about his relationship with his daughters especially the Plaintiff, so much so that he would actually occasionally give in to pressure by the 2^nd Defendant for the sake of peace, even to his detriment. It happened, amongst others, with the wedding and his items that were allegedly stolen. According to the priest even though the deceased had initially said he was going to get married when he gets better, he however had forsaken his wish to wait, gave in and agreed to hurriedly get married for the sake of peace. He told B[...] that is what the 2^nd Defendant wanted. Likewise he had forsaken his frequent and ways of interaction with his daughters including their care for him, for the sake of peace with the 2^nd Defendant.

 

The execution of the 2^nd will.

 

[439]   Considering all these factors, the question that remains is now whether the conspicuous of evidence of the deceased’s vulnerability and predisposition to acquiesce to influence and pressure is sufficient to rebut the presumption of his testamentary capacity, there being proof on a balance of probability of a diminished or lack of capacity to testate when he signed the wills. As a result of not being in the right frame of mind (to understand and appreciate the nature of the transaction and its impact) and or not exercising a free will when executing the wills in this instance the 2^nd will. The deceased having been subjected to circumstances that put tremendous pressure on him to acquiesce to the 2^nd Defendant’s wishes (weakened the deceased’s capacity to resist) and there being a displacement of his volition.  The 2^nd Defendant exploited this influence to persuade the deceased to agree to her wish which the deceased would not have made had he acted of his own free will. 

 

[440]   At the time of the signing of the 2^nd will on 8 October 2015, all the factors discussed that were established from the evidence were at play. The deceased was very frail, battling with unmanageable severe pain and depression for which he was on 25 September 2015 hospitalized upon which he was put on the maximum dosage for cancer medication, and also pain killers, that is, other forms of opioids. He was also on antidepressants prescription with a history of suffering from depression for a long time now severe. Moreover, also taking sleeping tablets for inadequate sleep, tablets for nausea and constipation which are all ailments resultant from the pancreas cancer. In addition, as per evidence he was drinking alcohol, lack of care/neglect, experiencing bouts of delirium, indecisiveness. He was also on course with the Oncologist, for a radical radio therapy treatment on the day of the execution of the 2^nd will. During the treatment he exhibited signs of confusion and indecisiveness about his situation, which presented him as very vulnerable and susceptible to influence. He was insulated from his loved ones whilst he yearned for peace and quiet. Sadly, he was also on trajectory of believing that he was going to recover and confused also about the prognosis on his illness. Put under pressure to please the 2^nd Defendant. This was the condition of the deceased on the relevant days leading to the making and the signing of the 2^nd will on 8 October 2015.

 

The Expert’s perspective on the deceased’s state of mind

 

[441]   As it is accepted that medical records or testimony from doctors and mental health professionals may also help establish if the testator exercised adequate or inadequate control over their faculties,[31] the perspective of the experts on the probable state of the deceased’s mental functioning at the time of execution of the 2^nd will was accordingly considered. They had extensively elaborated on the impairment of the deceased’s cognitive abilities that could have rendered him vulnerable at that time and probably susceptible to undue influence. Even though the experts’ testimony was intended to focus on the 3^rd and 4^th will, as the particulars of claim initially, only referred to the two wills, it however dealt with the probable condition of the deceased in general terms with slight reference to conditions or circumstances relating to a particular will as none of the experts consulted with the deceased except Dr Bond, who treated him.  

 

[442]   According to Dr Kruger with no rebuttal by the other experts, the deceased was at the time highly cognitively impaired due to the age advanced pancreatic cancer that was severe and of which he was struggling with pain management and depression amongst other things. It is therefore important to make out if any mental impairments suffered were of such significance that it can be concluded that he lost the legal capacity to execute the will.   

 

[443]   Dr Kruger gave a general view as a pharmacist of how the opiods (morphine being one of them) are applied and the nature and extent of their effect on the cognitive ability, upon which he concluded that they do expose an individual to influence. Dr Colin on the other hand gave his view as a Psychiatrist taking into consideration the deceased’s domestic and health challenges at the time, reliant on the evidence led. Dr Bond as one of the physicians that treated the deceased at the beginning when the diagnose was made and during the period leading to his demise when the 4^th will was executed, his perspective was crucial to establish the condition of the deceased during that time. The relevant and important comments by the individual experts that are significant to the execution of the 2^nd will are then reflected upon and those of Dr Shellock, whose evidence was led on behalf of the Defendants which was on the general function of the opioids.

 

Dr Kruger

 

[444)  Kruger’s initial evidence was on the effect of the use of morphine as a medication, that is, whether the use thereof could have affected the deceased’s cognitive processing of the will. What is key is his pointing out that morphine as an opioid, is a very strong painkiller used for extreme type of pain like pancreatic cancer, usually after surgery. It affects the central nervous system, that means it affects the whole cognitive process which is how it dulls the pain. It also like any medication have side effects which he identified one of them to be drowsiness or decreasing the level of one’s alertness. It therefore affects one’s ability to think and to react clearly, its side effect profile more enhanced obviously as it is at the top of the ladder of these depressants. There is no disagreement in that regard. He pointed out that a high dose causes too much constipation, cardiovascular effects or amnesia affecting loss of memory or agitation.

 

Referring to literature he mentioned that it could also have a negative impact on anti- retrograde and retrograde memory, so that using the medication will affect memory as well. He emphasized that these side effects can happen even at a therapeutic level and at the onset of that. It therefore can happen at a very safe dose which is the recommended dose. It therefore does not have to be a maximum or an extremely high dose for the named side effects to happen. In this case the deceased did present with the stated side effects expected at therapeutic level and at the onset of cancer. He complained of constipation, nausea, lack of sleep, depression and confusion. He was also of a small built considering that he was 40kg instead of the average 70kg considered by the FDA guidelines.  In this instance Dr Kruger view is correct as these were his complains when he landed in hospital again on 25^th September following his discharge on 16 September 2015.

 

[445]   Dr Kruger also raised the matter of drug interactions indicating that there is always interactions between the medicine and the patient, with other medication the patient is taking, as well as between the food and the specific drug. These interactions can lead to either the medication having a stronger effect or a weaker effect. Weaker effect if it be excreted quicker through out of the body. On the deceased he notes that there was an issue of a number of other medications he has been using with many that he used to self–medicate which are not necessary self -medication but prescription medicine, in the sense that they were prescription medicine, for the 2^nd Defendant but he was using them. According to Kruger the specific drug that deceased used that would cause an interaction would be (i), Ultracet, (ii), Paracetamol, (iii), Temgesic, (iv), Stilpayne (v), OxyContin and obviously the drug that he has been using whilst at hospital, that is morphine. What is important is Dr Kruger’s assertion that all these medicines have a central nervous system depressant effect, which is an additive effect in one’s cognitive ability to react, think, drive, talk and make decisions, if used simultaneously.

 

[446]   What would be relevant in the deceased’s case is to think and make decisions. The deceased was prescribed morphine to manage his pain only on his hospital admission on 25 September and being discharged on 27 September 2015, he was prescribed the Stilpain. He hinted to the Plaintiff’s testimony that for pain relief he also depended on what the 2^nd Defendant gave him for pain which was her prescription medication. Hence the assessment of the possibility of other opioids he has been using having a particular reaction to his mental capacity was very important. Kruger assessed the drugs or other pain killers the deceased was said to be using for pain and depression, besides morphine, with or without a combination of morphine.

 

[447]   He in addition highlighted the fact that the combination of the deceased’s advanced age, his low body weight and use of central nervous system depressants over a period of time together with morphine would have led to him being less able to make a rational decision as would anyone in that situation. Further that, on deceased’s case there was the added fact that pancreatic cancer on its own also decreases one’s ability to think rationally and then decide on major decisions that one has to make. He therefore did not have to be on the morphine for his ability to think rationally to be affected. His advanced age and his low body weight and use of other central nervous system depressants over a period of time, would have been additives that also made him to be less able to make a rational decision. He was in that space during the period when the 2^nd will was concluded. From these conclusions we can then infer that the deceased’s cognitive deterioration challenged his ability to make rational decision even at the time when the 2^nd will was signed.

 

[448]   It is of importance to take note that Dr Kruger also indicated the other factor that needed some consideration was the liver as an organ that normally excretes medicine from the body. His view was that if one suppresses liver function it could mean that the medication levels might be higher as the liver does not have the ability to excrete the medication as quickly as it should be. He noted that as per Pathology report of Ampath on the deceased’s “liver function,” it is indicated that, notwithstanding whether the level of the medication was higher or lower, the deceased’s liver function was clearly inhibited, such that his ability to excrete this medication was inhibited. He further pointed out that, as the deceased was using alcohol for quite some time which also gets metabolized by the liver and there was evidence that he was introduced to alcohol again after the onset of cancer, the more drugs and alcohol there was to be excreted by the liver the more pressure there was on his liver and the less functional it was. I would imagine that will be the case notwithstanding Dr Bond’s effort of putting a stent to enhance its function. Kruger opined that it therefore means the medicine, with its negative effect was not being excreted. It can therefore be accepted that the normal function of the deceased’s liver was also compromised and the side effects of the medicine more enhanced.   

 

[449]   On the other will that was signed on 16 January 2016 he accepted that there was no morphine used however he was on other opiods as listed that could have, similar as the morphine, influenced his cognitive abilities, as well as the use of alcohol. Kruger took note that Professor Schallock also referred to the fact that in patients with cancer, cognitive impairment is frequently associated with other neuro psychological complications. What he understood of this is that on top of the opioids the deceased was using he was already cognitively impaired due to cancer, so the opioids that he was using before morphine or morphine, impaired his normal cognitive ability even more. He noted that even Prof Schellock admits that an “Advanced age pancreatic cancer itself inhibits the cognitive abilities, which is a compounding effect and says that “Psycho motor testing appears to be more pronounced.” Thus chronic administration of opioids modifies their function. He therefore on that basis questioned Shellock’s statement that tolerance develops within seven days, asking why does she then state that chronic administration of opioids modifies their function. It is indeed a contradictory statement. In my view Prof Shallock failed to convincingly deal with the tolerance issue. She did though concede on other issues, like the fact that pancreatic cancer due to the severity of the pain on its own impairs rational thinking. Kruger proclaimed to stand by those points which for him was strong.

 

Dr Bond

 

[450]   According to Dr Bond the fact that the deceased had at some point suffered a severe head injury was very significant as he says that he would have been already extensively affected cognitively, therefore had started from a disadvantaged position already with the terminal illness.

 

[451]   He further took note that the deceased was on an anti-depressant Lexamol, a well-known Prozac. He could not testify about the severity of the depression having not examined the patient at that stage, but for the fact that for any terminally ill patient, depression forms a significant part, and also a part of the phases of dying. He however recognized that there was evidence that the patient indeed became severely depressed at times, fitting in with this description. He however took cognizance that depression on its own will impair cognitive functioning especially memory, concentration and focus to a mild degree although the effect of the anti-depressant is negligible it does not impact on the cognitive functioning. The deceased was admitted twice in September 2015 also suffering from severe depression, with anti -depressants prescribed.

 

[452]   He corroborated the fact that the presence of a terminal cancer is an important factor, the constitutional factor of which is imminent death, which is a process of slowly switching off of bodily functions until when the heart stops and the brain dies. He indicated that the deceased did not experience the multiple organs failure but a slow physical death, in terms of which he suffered physical weight loss, weakness, couldn’t walk any more. Plaintiff had testified that the deceased presented himself on 25 August 2015 at Bond rooms on a wheelchair, seemingly very weak. According to Bond the brain also undergoes a slow progressive switching off in various degrees, and this would be supported by the descriptions of periods of confusion or periods of delirium that the deceased experienced at times, even though obviously not continuously. This bears testimony to the seriousness of the deceased mental and physical susceptibilities.  His brain had likely started the process of dying and confusion signifying lack of clear or rational thinking, in this instance to be seen in line with the execution of the wills. 

 

Dr Colin

 

[453]   On the other hand Dr Colin appointed to look at the issue of undue influence had in relation to what is relevant to the 2^nd will also dealt with the aspect of periods of confusion and indecisiveness that the deceased evidently experienced, and what that may signify to a pancreatic cancer sufferer. Colin as a Psychiatrists corroborated Bond that such periods signify a brain failure, which sets in as a pre -terminal phenomenon, that is a part of the switching off of the organs before one dies and is called delirium. It is part of dying. On the deceased’s part it was not a constant phenomenon rather on and off, certainly tagged that it would have been a contributing factor.  According to Colin’s psychiatric view, the periods of delirium increase mental vulnerability. However, it is evident that the deceased experienced such a phenomenon at therapy on the date of signing of the 2^nd will and also at the times evidenced by B[...] and the Plaintiff.

 

[454]   Colin alluded to the evidence indicating that the deceased did also have periods of clear functioning and thinking as testified by Dr Bond. He then addressed the issue of isolation and the other conduct of the 2^nd Defendant, including her constant supply of alcohol to the deceased, that it needs to be noted that the use of alcohol in a patient with terminal cancer of the pancreas affects the gastrointestinal tract in other words the stomach, the bowels and the pancreas is an extremely dangerous thing, and had the potential of making the patient just by virtue of using alcohol, certainly more susceptible to the influence of an outside party, and that part incontrovertible. In other words, it is not just a statement of fact about alcohol and the physical condition but also a fact in relation to the patient (that is the deceased), which is not an interpretation. The specific kind of cancer that he had, led to obstruction of his stomach, which in turn could have given periods of dehydration, nausea and vomiting that was mentioned, nausea specifically, not the vomiting nausea by Dr Bond leading to malabsorption, in other words that the nutritional substances were not that readily absorbed, including protein which led to the slow decline in the physical wellbeing of the patient.

 

[455]   Colin further reflected on the fact that according to Dr Bond’s indication, liver failure was certainly not part of this. He found him with bad liver functions in the beginning. The stent placed allowed the fluids to pass in an unrestricted way. However, according to Colin, since alcohol was still used it certainly would reverse the improvement gained from the insertion of the stent. It explains the periods of depression described by his family at various times where he withdrew himself, did not speak, which was described by Bond as often accompanying the terminal phase of illness of any cancer patient.

 

[456]   What is also relevant mentioned by Dr Colin and other experts is the issue of the Opioids, the pain relieving medicines, that works with brain cells and the alcohol. Colin had deferred to the opinion of Dr Kruger but looked at the issue of the Opioids with the use of alcohol. He mentioned that as a Psychiatrist he was aware that Morphine can in terminally ill cancer patients impair cognitive function mildly. He overlooked the fact that the side effects were said to be more enhanced.  The same would apply to Oxycodone which is a pain narcotic and the use of alcohol. He opined that alcohol is a very complicated topic when it comes to cognitive functioning, accepting that an inebriated person’s memory can be severely affected. The person can also suffer blackouts, which in laymen’s term is referred to as periods of amnesic behavior. In the intervening periods there can be associated nutritional deficits and the direct toxic effects of alcohol on the brain which he says is a very complicated topic. It is in the background and a factor that add to others. Not in itself so significant but certainly highly significant especially in combination with with other opioids and probably morphine.    

 

[457]   He in the end had indicated that he would then come to a conclusion where  a person with a premorbid personality that was strong, focused, directed, highly successful being diagnosed with a terminal illness with all the subsequent effects possibly also all the attended effects of being an alcoholic, with a stated wish to have his two daughters become his heirs in the first testament. He then is subjected to a relationship lasting a total of 179 days with a subsequent marriage that led to him being isolated which resulted in a vulnerable individual, the progressive changes in wishes culminating in him disinheriting his daughter, and up to that stage at the time, given the caveat in his access to knowledge about this and in the absence of a significant event that could have explained the deceased’ s disinheriting of the Plaintiff.

 

Dr Shellock

 

[458]   Dr Shellock reflected on the fact that when a person is going through the process of dying as Dr Colin and Bond alluded to, they become depressed. She couldn’t find mention of an antidepressant and indicated that she had hoped that the deceased would have been on antidepressants. The deceased was however mentioned to have been on antidepressants as testified by the Plaintiff. Several of them were considered by Kruger and Bond. What was also mentioned was the Lexamil. It seems Shellock had overlooked that. She pointed out however what was highly significant that it is equally important whether or not a patient has been receiving morphine, for the reason that if he was not given morphine he would be in distress, because the pancreatic cancer is extremely painful confirming that pain on its own may impair his cognitive abilities.

 

[459]   This mention by Dr Shellock is extremely important as it has been the argument of the Defendant’s Counsel that the 2^nd will cannot be criticized on the basis that the deceased was on morphine, as he was in fact not getting it at the time. Although the statement not entirely correct, the fact is that, even if the deceased was not on morphine, the deceased would have had still serious challenges, the experience of extreme pain of the pancreatic cancer causing distress and as pointed out by Dr Kruger and Shellock due to the extreme pain, his cognitive abilities would have been already impaired. In both situation his quality of life, thinking and decision making compromised. The issue of depression, confusion and indecisiveness being a pre-terminal phenomenon that also increases mental vulnerability. 

 

[460]   Shellock recognized that to be a fact as she further opined that ”a patient like the deceased is given something to address the pain so as to have a quality life and go on with the business of living, pain management being a constitutional right of a patient, so that they can have a quality of life. The other side of the argument was to recognize that the deceased was receiving an opioid derivative, which share the same clinical properties as a morphine. She however indicated that the use of the derivatives over a period of time would add to the tolerance of morphine as and when it is administered. When they started the deceased on morphine formally, he indeed had been exposed to other opioid derivatives. The tolerance factor is therefore only relevant post 2^nd will period. It would have covered the period of the execution of the 3^rd and 4^th will in January and February 2016. She was however also in agreement that pancreatic cancer on its own also decreases one’s ability to think rationally and decide on major decisions that one has to make.

 

[461]   After having conceded to impairment being a given in certain instances she concluded by saying she could not say that the patient might have been influenced or have had some degree of cognitive impairment. The last part being a contradictory conclusion to what she has conceded to be a fact that suffering from an aged pancreatic cancer on its own causes cognitive impairment due to the severity of the pain.  As a final point she also emphasized that the deceased’s age, adinocarcinoma, co- morbidities, metabolism of morphine, potential of tolerance, all play a role on the factors of undue influence, which she left for the court to decide.  She failed to also consider the role of alcohol. Her testimony and opinion lacked commitment to certain obvious concessions she has made and her conclusion not supported by the analysis she has made of the facts. Her evidence arguing tolerance not persuasive in the deceased’s circumstances.     

 

[462]   The common thread in the testimony of the Plaintiffs experts is that due to the severity of pain resultant from pancreatic cancer on its own, the deceased was already suffering a cognitive impairment, and a fact that the brain also shuts down slowly with symptoms showing of confusion and depression even though it happened not so often. It was pointed out that the extreme pain decreases one’s ability to think rationally and decide on major decisions that one has to make. On deceased’s scenario, his age and being emaciated therefore weak, exacerbated the situation. Furthermore, as pointed out by Dr Kruger the experience of extreme pain of the pancreatic cancer causes distress when his cognitive abilities would have been already impaired. Whilst depression might on its own impair cognitive functioning, especially memory, concentration and focus to a mild degree, together they increase mental vulnerability. In both situations the quality of life, thinking and decision making is compromised. All these had already manifested on the deceased when the execution of the wills subsequent to the 1^st will took place.  

  

[463]   Also very relevant to the date of execution of the 2^nd will and what that may signify to a pancreatic cancer sufferer is the fact that the deceased was indeed experiencing periods of confusion and indecisiveness which signify brain failure confirmed by Bond and Colin as part of the switching off of the organs in the process of dying. Although it was indicated not to have been a constant phenomenon it was evident leading to the signing of the wills executed subsequent to the 1^st will. It was indicated that it would have been a contributing factor, increasing the deceased’s mental vulnerability. The deceased on the date of signing of the wills experienced such a phenomenon including the times witnessed by B[...] and the Plaintiff of him being confused at times.

 

[464]   It is evident that the deceased was clearly vulnerable, as he did not have full control of his faculties at the time due to his medical condition, frailty and advanced age. There was a cognitive decline and resulting in a lack of lucid thinking and resolve due to confusion and depression making him susceptible to influence and or coercion. It being unlikely that he would have been able to resist any influence.

 

[465]   Considering all these factors the question that arises is whether the presumption of deceased’s testamentary capacity rebutted, that is if deceased proven to have not been in the right frame of mind (cognitively impaired) when he executed the wills subsequent to the 1^st will,  as a result of his infirmity and cognitive impairment, incapable of clear thinking and decision making, unable  to understand the nature of the transactions and appreciate the impact thereof, and also having been proven not to have been his wish or intention to change his  will to exclude the Plaintiff and substitute her with the 2^nd Defendant, ( susceptible to capitulate to undue influence). Finally, if notwithstanding the deceased’s infirmities, the evidence on the deceased’s reasoning for the unexpected provisions in the wills nevertheless establishes testamentary capacity. If he is proven to have been rational at the time the will was made.

 

[466]   The keypoint being at the time the will was made. In re the Estate of Erwin W Schlueter [32] the Supreme Court of Wyoming refers to the Matter of Estate of Buchanan:[33] The testator must appreciate nature and effect of the will he is executing and the following said:

 

“Mere proof that the decedent suffered from old age, physical infirmity and chronic, progressive senile dementia when the will was executed is not necessarily inconsistent with testamentary capacity and does not alone preclude a finding thereof, as the appropriate inquiry is whether the decedent was lucid coherent and rational at the time the will was made.”

 

[467]   Furthermore, the expression of a testator’s last wishes must be the result of the exercise of his or her own volition. Any impairment to the free expression of the testator’s wishes at the time the will is made may result in a will being declared invalid.

 

The 2^nd will.

 

[468]   On 8 October 2015 when all these factors were at play to the deceased, a mental impairment, frailty, depression due to the terminal illness and its manifestation at an old age, pressure from his domestic environment that made him vulnerable and prone to influence and or capitulation for the sake of peace, the 2^nd Defendant and the deceased went to the 1^st Defendant offices. The deceased was coming straight from the botched radio therapy treatment, where he had to be restrained as he was refusing to proceed with the treatment, showing signs of indecisiveness and delirium.

 

[469]   It was therefore apparent that the deceased lacked clarity in thinking, and confidence in decision making and commitment. The reason for the urgency in signing a will when he already had one, whilst he was in such a state of vulnerability, and still traversing the issue of the treatment is from the facts of this case mystifying. Furthermore, the will in place already reflected the deceased’s lifetime wish. It was confirmed in evidence that the inclusion of W[...] was of no consequence, even without the 2^nd will he was still going to benefit. Consequently, there was no urgency as far as the inclusion of W[...] was concerned. The only act that remained relevant in the execution of the new will was the inclusion of the 2^nd Defendant as a new beneficiary and the disinheritance of the Plaintiff. 

 

[470]   There were no cogent reasons why then when he was about to die, and his lifelong wish about to be realized, would the deceased have urgently wanted to repudiate or retract that wish, disinherit his daughter and benefit his ex-wife instead, who had no claim, natural or otherwise for inheritance from him. The reasons alleged by the Defendants to have been proffered by the deceased were  proven to be unsustainable and contrived. Moreover, there is no evidence of the deceased ever threatening to disinherit the Plaintiff or contemplating to do so, prior the execution of the 2^nd will. The Plaintiff was also neither ever confronted by the deceased about her disapproval of his marriage to the 2^nd Defendant. There was consequently no conceivable reason for the deceased to change his wish as reflected in the 1^st will.

 

[471]   Inversely, the 2^nd Defendant did harbor a wish for the Plaintiff to be excluded   from inheriting from the deceased. She had threatened to make sure that the Plaintiff, whose resentment was indisputable was not going to inherit from the deceased. She also in her evidence did not deny that there was no love lost between her and the Plaintiff. She had by such utterings indicated that she was capable of fulfilling that wish or influencing such a decision. It is therefore apparent that in the absence of any plausible reason for the deceased’s exclusion of the Plaintiff, such exclusion was the realization of the 2^nd Defendant’s wish. The deceased clearly had forsaken his wish as proclaimed in his 1^st will, whilst the wish of the 2^nd Defendant was fulfilled. There is therefore proof that the will of the 2^nd Defendant was displaced by that of the deceased.

 

[472]   The 2^nd Defendant and the deceased were together at the 1^st Defendant’s office when the preparation and the signing of the 2^nd will took place. The will was then executed in the presence of the 2nd Defendant who is a beneficiary, and whose wish for also for the exclusion of the Plaintiff was then realized. In explaining this compromising situation, the 2^nd Defendant alleged not to have been aware that the deceased also intended to change his will. She said after the distressing experience with the radio therapy treatment, the deceased insisted that they go to see the 1^st Defendant to conclude and sign an Antenuptial Contract (ANC), insisting that he wanted to marry her. She uncannily alleges that once at the 1^st Defendant’s office, the deceased unexpectedly gave the 1^st Defendant instructions to change his will, naming B[...], adding her and W[...] as beneficiaries to inherit one third each.

 

[473]   The changing of the will was therefore sudden and hurried. She alleged that the 1^st Defendant asked the deceased about the Plaintiff and he was adamant that is what he wanted. The 2^nd Defendant alleged that the deceased was furious and had mentioned three things to have been the reasons for the Plaintiffs disinheritance. The comment the plaintiff made when the deceased announced that they were going to get married that “it was the deceased’s sixth marriage,” the incident when the deceased’s personal items were alleged to have disappeared and later found, for which the Plaintiff was blamed and the fact that the Plaintiff untimely discussed with the deceased plans for his funeral.

 

[474]   The 2^nd Defendant’s evidence on the signing of the 2^nd will varied to that of the 1^st Defendant. The 1^st Defendant in explaining what had happened on the day alleged that the deceased instructed him to draft a new will, leave out the Plaintiff but include the 2^nd Defendant and W[...]. He asked the deceased about the Plaintiff. The deceased told him the Plaintiff was excluded because she was against his relationship with the 2^nd Defendant and interfering in his life. There was no mention of the other two incidents mentioned by the 2^nd Defendant. This also marked the unlikelihood of the Defendants’ evidence.  

 

 [475]  The will was prepared and signed at the 1^st Defendant’s office during the 2^nd Defendant’s presence who, short of being part of the discussion, was privy to the going-ons and a beneficiary. The 1^st Defendant’s secretary was the only witness to the will. There was accordingly no planning or pondering by the deceased that went into the execution of this will. These circumstances not only were they sudden and drastic but highly pressured and unsatisfactory.

 

[476]   The document attached as the ANC that the deceased and the 2^nd Defendant were supposedly to sign on that day is a notarial confirmation that an ANC contract was already concluded. So no ANC was to be signed on 8 October 2015, all having been hurried up, there is no indication of when it actually was signed and attended to by a Notary. Although the signing of the alleged ANC also questionable, the document nevertheless does not form part of the contestation between the parties.

 

[477]   As the changing and signing of the will was sudden and drastic with far reaching implications and the 2^nd Defendant, the named beneficiary accompanying the deceased, who was suffering from a terminal illness, frail, old, with the resultant mental challenges, known to have been an alcohol abuser and suffering  from depression, also being aware of the brief period of their reunion, the 1^st Defendant’s responsibility was so much marked to establish if the deceased’s testamentary capacity was not compromised. Further that the sudden and drastic act was voluntary (not due to any influence) and the reason for the changes sensible. 

 

[478]   As it has already been alluded to in Essop that the decisive moment for establishing the competence of a testator is the time when the will was made and not when instructions were given to draft a will. In casu, it was more disconcerting and challenging that the drafting and the signing of the 2^nd will happened suddenly and hurriedly on the same day. The deceased never had a chance to think and reflect on the instruction he is alleged to have given and to later consider if the drafted will in accordance with his intention. Consequently, evidence on the steps taken by the 1^st Defendant to ascertain testamentary intent, that is if it was the resolve of the deceased to proceed on the instruction he gave and the authenticity of that being the deceased’s decision was very crucial. To establish that, the statements the deceased made, his instructions of his testamentary intention were crucial, therefore admissible. In that case, credible evidence of the deceased’s reasoning for the unexpected provisions in the will is central. The reasoning must be sensible in order to found the testator’s testamentary capacity.

 

[479]   Lamentably the evidence by the Defendants on the reasons allegedly given by the deceased for the disinheritance of the Plaintiff is incongruent. According to the 1^st Defendant the reasons related to the Plaintiff interfering in deceased’s life and trying to prevent his intended marriage to the 2^nd Defendant. The cogency and credibility of those reasons had already been ruled out and proven to be  implausible. The 2^nd Defendant instead mentioned the deceased to have been aggrieved by the comment the Plaintiff made that their remarriage was the deceased’s sixth marriage, even though she conceded that the deceased never spoke to the Plaintiff about that comment. Furthermore, she mentioned the allegations she made about the disappearance of the deceased’s personal items, and their subsequent discovery about which she drunkenly got incensed. Finally, the deceased never complained to the Plaintiff about the discussion the Plaintiff had with him regarding the funeral. These were in any case the 2^nd Defendant grievances.

 

[480]   The 1^st Defendant had pleaded to have been aware of the deceased’s suffering from cancer but denied being aware of the extent of his illness and of the fact that he was on morphine or drinking alcohol. His testimony was that the deceased was his old self and was adamant that the instruction was what the deceased wanted. The old self is reference to the deceased as having been strong willed and a no nonsense taker, the deceased’s known personality prior the diagnose, attested to by most of the witnesses.

 

[481]   The denial by the 1^st Defendant to have any knowledge about the extent of the deceased’s illness, use of morphine and alcohol, was dishonest as proven by the Plaintiff. She testified that the 1^st Defendant was aware of the severity of the deceased’s illness and the likelihood of him being under morphine, although not, as well as the fact that he was an alcoholic. The Plaintiff had mentioned in her testimony that the 1^st Defendant was one of the first people she notified immediately after Van Niekerk informed her of the prognosis on the malignancy of the disease, that it had spread to the main artery and that not much could be done, the challenges with further treatment, the comorbid depression and the deceased’s imminent demise in 6 months.  

 

[482]   The 1^st Defendant was therefore well aware of the severity or extent of the deceased’s illness and the possible failure and reduction of quality of life if further treatment sought and the fact that he did not have long to live. All this was not refuted during the Plaintiff’s testimony. There is also evidence that the 1^st Defendant was also aware that the 1^st Defendant was an alcoholic with a history of depression. He once got the deceased admitted at Kalafong hospital due to both. The 1^st Defendant was very much aware of what was going on in deceased’s life. He was kept updated by the Plaintiff. Likewise he and CANSA’s Sharon were likewise informed of the episode of the alleged disappearance of deceased’s personal belongings and their subsequent discovery by the 2^nd Defendant.

 

[483] In addition, besides 1^st Defendant being aware of the extent and progress on the deceased’s illness , the fact that the deceased and 2^nd Defendant came to his office coming straight from a radio therapy treatment prep that did not go well should have served as a warning to the 1^st Defendant that the deceased was not in the right frame of mind to execute a will. The added fact is that the deceased and the 2^nd Defendant were at 1^st Defendant’s office for a different reason and the instruction to change the will sudden and drastic. Moreover, the deceased was accompanied by the 2^nd Defendant, his ex-wife, from whom he was divorced for 17 years and had reunited 5 weeks ago who was intended to be a beneficiary. The situation therefore called for extra attentiveness to his fiduciary duties as the deceased’s attorney. The will was nevertheless drawn and signed immediately with far reaching consequences for the daughter that was disliked by the 2^nd Defendant as the 1^st Defendant failed to exercise the required standard of duty of care towards his client and make sure that the deceased’s best interest is protected.

 

[484]   The 1^st Defendant was further negligent when he failed to make the necessary enquiries in relation to the known facts so as to advise the deceased accordingly. He alternatively also failed, as a precaution, to accordingly ascertain or recognize that due to those factual circumstances the deceased could not have been in the right frame of mind to perform such a significant act and that the reasons proffered were far-fetched thereby delay or advise the deceased to delay the signing of the will..

 

[485]     Furthermore, seeing that the 2^nd Defendant was very much involved and present at the signing of the will, and the fact that she was about to inherit an unwarrantable proportion of the deceased’s estate, although not a natural heir, to the exclusion of the Plaintiff, his natural heir, his own daughter, it was critical for 1^st Defendant to ascertain that the deceased was doing that acting voluntarily in his full senses, appreciating the impact thereof and not subject to any undue influence by the 2^nd Defendant. being his own decision to execute another will, and not influenced, coerced or put under pressure, due to his cognitive impairment, comorbid depression and confusion, likely alcoholism, the 2^nd Defendant’s presence at the execution, their relationship, and susceptibility to influence.

 

[486]   The failure by the 1^st Defendant constituted the highest degree of recklessness, given the grave consequences of his act. It was contrary to the fiduciary duty of care he owed to the deceased. The deceased was supposed to have some time to reflect if notwithstanding the prevailing circumstances, it was really his intention to disinherit his daughter and include the 2^nd Defendant instead. It was the 1^st Defendant’s evidence anyway that when dealing with wills, his usual procedure was to receive instructions a few days before the signing of the will. On the day of execution, he will then make sure that prior to signing, the testator confirms if what has been drafted is in accordance with his instructions, and his wishes properly expressed.

 

[487]   The 1^st Defendant had also conceded that although the deceased was difficult, he would generally follow his advice. Understandably so, since they have known each other for nearly forty years. Besides, on the day there was also only one person available to witness the execution, the 1^st Defendant’s secretary, so the signing could have been delayed. The 1^st Defendant’s negligent handling of the matter under patently questionable circumstances contrary to his usual practice is clearly indefensible. He put the Plaintiff, the deceased’s natural heir in a risk of suffering damages in that she was disinherited.    

 

[488]   Furthermore, the 1^st Defendant’s allegation that the deceased was his good self on the day is far-fetched. He was suffering from a severe pancreatic cancer, with a debilitating pain that had cognitively impaired him to a degree, agreed by all the medical experts that he is bound to be cognitively impaired just by suffering from the aged pancreatic cancer. The cancer had also weakened him physically causing him to go through a serious physical transformation. At the time he had lost more than half of his usual weight weighing 40kg. He was therefore very frail and less than half a man he used to be, slow and unsteady in his gait. His long term depression exacerbated by the chronic terminal disease’s comorbid depression. He was lacking in resolve and delirious as evidenced by the incident at therapy that morning, and one time when he was admitted in hospital and wouldn’t speak to the Plaintiff, an effect also resultant from his condition as confirmed by the medical experts. It is therefore unlikely that he would have been his good self. On a balance of probability, he was not.

 

[489]   By the mere fact that there is no reasonable explanation alleged to have been proffered by the deceased for forsaking his wish to benefit both his daughters by disinheriting the Plaintiff, and for the substitution of the 2^nd Defendant who had no spes as a beneficiary in his will, and in the absence of any evidence that the deceased had ever had any intention or threatened to disinherit the Plaintiff, confirms that the disinheritance of the Plaintiff and the naming of the 2^nd Defendant as a beneficiary in her stead was never the intention or decision of the deceased but the influence of another, the 2^nd Defendant, who has played an active role in the execution of that will and the 4^th will that also excludes the Plaintiff.

 

[490]   In the Scott matter[34] the testator could explain the reasons for altering his will which was due to interim developments that had taken place recently. In casu, the attempt at alleging that there was animosity between the Plaintiff and the deceased is countered by the evidence of a historically loving interaction between the daughters and their father bar the 2^nd Defendant, informed by a sincere compassion and care for each other that was displayed along the years till the deceased’s demise.  

 

[491]   Contrariwise, there is evidence rather that 2^nd Defendant harbored such a wish and had threatened the Plaintiff that she will see to it that it happens. She worked towards it by fueling the non- existent animosity between the deceased and the Plaintiff, instigating incidents alleged to have been a source of conflict between the deceased and Plaintiff. She isolated the deceased, minimized and made any interaction between the Plaintiff and the deceased difficult, causing anxiety to the deceased. She made the deceased believe that the Plaintiff was preparing for his demise because the Plaintiff did not want him to live. She deluded the deceased to believe that he was going to recover with treatment, contrary to the prognosis by Van Niekerk. She evidently took advantage of the deceased’s vulnerability and susceptibility to acquiescent under pressure in her presence by making sure that he, in his compromised cognitive faculties, urgently and immediately executes the impugned will, notwithstanding the obvious indecisiveness and confusion he displayed that day when he went in for the therapy treatment. The same thing having happened with the announcement the deceased made that they were going to get married. At the time the deceased had just come out of surgery and at high care, confused and weak. The 2^nd Defendant made sure that she was already there early in the morning and was holding the deceased’s hand when he made the announcement.

 

[492]   The deceased was not in the right frame of mind to appreciate the nature and the impact of the act he was involved in, lacking clear thinking and ability to make a decision, nor to resist any influence having also been put under serious pressure, by the presence and participation of the 2^nd Defendant, in the absence of a plausible reason for revoking his previous will, whilst evident that the execution of the 2^nd will excluding the Plaintiff, clearly was the fulfillment of the 2^nd Defendant’s verbalized wish. The deceased’s will to benefit his daughters was obviously suppressed by the exclusion of the Plaintiff and inclusion of the 2^nd Defendant without a reasonable cause. Therefore, the deceased’s wish displaced for that of 2^nd Defendant, her undue influence highly probable and apparent. Then will 2 is therefore invalid.

 

[493]   On the question of the alternative scenario of the possibility of the 2^nd Defendant having been included because they were going to get married, that is mere speculation. If indeed that motivated the deceased to include her in the will, it still does not explain or justify the exclusion of the Plaintiff as a beneficiary. The 1^st Defendant has also alleged that the deceased’s will had nothing to do with the deceased marrying the 2^nd Defendant. In addition, if it is true that the deceased gave an explanation to the 1^st Defendant for marrying the 2^nd Defendant he would not have acted out of character as already illustrated. His explanation when he married her for the first time, after 7 months they met was that she was pregnant. Although no child was ever born from the 2^nd Defendant.

 

[494]   Besides the deceased’s vulnerability and susceptibility to influence due to his illness, it is due to the close involvement of the 2^nd Defendant in his life, the isolated and unmonitored relationship she had with him that she had private access and overall control of his life. She was also completely involved and present when the 1^st Defendant was supposedly given instructions and during the signing of the will whilst she stood to benefit, upon which the deceased’s own natural heir against whom she harbored an obvious and unwavering resentment, and whom the deceased had wished to be in his will was displaced and substituted with the 2^nd Defendant. The 2^nd Defendant influence to achieve her goal the only irrefutable hypothesis.  

 

[495]   The 2^nd Defendant constantly instigated for the deceased to antagonize or quarrel with the Plaintiff for tenuous reasons. In turn the deceased was constantly worried about his daughters upsetting the 1^st Defendant, a situation his daughters described as “like walking on egg shells.” The deceased as a result always anxious and uneasy when his daughters, particularly the Plaintiff was around.

 

[496]   For her own end, the 2^nd Defendant had manipulated the deceased by making him believe in the possibility of being cured. She deceptively advised the deceased contrary to the medical practitioner‘s prognosis that he was going to get better. She rebuked the Plaintiff for discussing the true prognosis with the deceased alleging that she was not sympathetic. She wanted to appear to the Defendant to be the only person around him who has not forsaken him. Otherwise she would not be able to answer to the question why get married to a man on his deathbed in accordance with B[...]’s evidence. As a result, the deceased could not appreciate his true health condition. He was therefore most of the time depressed and confused by his circumstances, mostly in relation to his infirmity. This was demonstrated by his request for Viagra.

 

[497]   The deceased was frequently becoming indecisive which points to the gradual worsening of his cognitive impairment and vulnerability. There is also evidence of him telling the Plaintiff in the presence of the 2^nd Defendant that the 2^nd Defendant will take him to hospital, and look after him going forward, she must not bother. When he was left alone at the hospital, he phoned the Plaintiff and asked her to come. At some stage he wanted to transfer the house into the Plaintiff’s name and then soon thereafter in the presence of the 2^nd Defendant he executed a will that excluded the Plaintiff from inheriting. The deceased’s ambivalence demonstrates contrasting behavior between when he is under the pressure and presence of the 2^nd Defendant and when the 2^nd Defendant is not there. It explains the 2^nd Defendant’s always lacking in the background when the deceased’s daughters visited him.

 

[498]   The experts had pointed out that a person with pancreas cancer experiences severe pain. As a result, the pancreatic cancer on its own decreases one’s ability to think rationally and decide on major decisions. Also that an advanced age pancreatic cancer highly inhibits these cognitive abilities. The deceased was in all probability highly cognitively impaired, which extremely compromised his ability to think rationally, lucidly decide on major decisions and resist pressure. The use of opioids even if not morphine, would also have affected his cognitive abilities. Lastly Kruger confirmed that the use of alcohol also inhibits lucid thinking which Colin confirmed that together with morphine or any of the opioids the effect would be enhanced. The deceased was therefore in a state of absolute vulnerability, in relation to cognitive impairment and infirmity, besides his inappropriate isolation and pressurized circumstances that he was subjected to by the 2^nd Defendant. A situation that also enhanced the deceased’s depression and confusion, further compromising his mental faculties and enabling the 2^nd Defendant unrestrained manipulation. Considering those circumstances and the fact that the conspicuous evidence indicates that there was no love lost between the Plaintiff and the 2^nd Defendant with the latter previously having threatened to make sure that Plaintiff does not inherit anything, the substitution of the 2^nd Defendant for the Plaintiff in the deceased’s will whilst the Plaintiff holds a higher equitable claim, was a fulfillment of the 2^nd Defendant’s wish on a balance of probability as a result of 2^nd Defendant’s undue influence and therefore invalid.

 

The 3^rd will.

 

[499]   The deceased’s 3^rd will signed on 18 January 2016 was belatedly contested. It was executed after the 2^nd Defendant has been away for a period of two weeks from 5 January until 16 January 2016. The deceased was also for a few days spared any visits from the Plaintiff or B[...]. He therefore had time to reflect without any pressure and anxiety triggered by the presence of the 2^nd Defendant or unease  created by the existent tensions when both the 2^nd Defendant and his daughters were present. Except for such a pause, his other prevailing circumstances remained. He was therefore still enduring the same dominant challenge of the impairment of his cognitive faculties, pain, frailty and weakness due to his terminal illness. The morphine was not yet prescribed for him, therefore accepting that during that time still no morphine was used until after the 3^rd will was signed on 18 January 2016. It was however confirmed that the effect of the opioids on his  cognitive abilities was the same as the effect as morphine, although the degree may differ.

 

[500]   The deceased had likewise, again exhibited what is regarded as an ambivalence or indecision when in the absence of the 2^nd Defendant he reversed the decision to disinherit the Plaintiff (the 2^nd Defendant’s wish) which was in line with his lifetime wish.by instructing the 1^st Defendant to draft another will, the 3^rd will that included the Plaintiff as a beneficiary. It is of significance that leading to the instruction on the 3^rd will, nothing had changed except that the deceased was left to his own devices for a period of 12 days, with the 2^nd Defendant away. Visits also from the Plaintiff and B[...] were minimal, however he had an opportunity to talk to the Plaintiff without the 2^nd Defendant or B[...] being there.  

 

[501]   The Plaintiff visited the deceased on 10 January 2016, 5 days after the 2^nd Defendant was away, after she found out that he was left on his own. The deceased was again left in neglect, extremely malnourished and dependent on Ensure biscuits. He told the Plaintiff he was in so much pain. He got lost coming back from the airport and because of the severity of the pain he could not get out of the car. His condition bore credence to the fact that his health was indeed deteriorating as anticipated by Dr Van Niekerk. Notwithstanding he still had to drive the motor vehicle back from the airport and got lost. The Plaintiff advised him to see Dr Bond for management of the pain, which prompted the visit back to Dr Bond. 

 

[502]   The deceased was still in denial that there was something wrong with him notwithstanding his state. He alleged to the Plaintiff to have picked up a condition. He apparently also abandoned the chemo radiation therapy as the 2^nd Defendant was now against it, because he was totally healed and not sick anymore. He was at the same time complaining about the severity of the pain that had gotten worse, a clear indication that he was not recovering but instead getting worse.  When the Plaintiff questioned him about the 2^nd Defendant’s obvious deception, he got very angry and accused the Plaintiff of not wanting him to live or get better. The 2^nd Defendant’s persistent trajectory to deliberately delude the deceased, exacerbated his confusion about the seriousness of his illness and its fatality. It confirmed the strong hold, and influence the 2^nd Defendant exerted on the deceased. Further, it indicates the extent of his vulnerability and susceptibility to 2^nd Defendant’s influence, besides the impairment of his cognitive faculties that was stark.

 

[503]   The 1^st Defendant testified that the deceased signed the 3^rd will on 18 January 2016 at his office which was witnessed again only by his secretary. This is when he explained that he would have first received the instructions to prepare the will and the deceased then subsequently on a later date would sign it. He also in this instance did not establish from the deceased the reason for changing the will again, now to include the Plaintiff and only exclude W[...]. Instead he mentioned that he, had from time to time raised the issue of the exclusion of the Plaintiff with the deceased and was not sure if that had anything to do with her inclusion in the 3^rd will. He explained that the handwritten notes on the 3^rd will were written by the 2^nd Defendant during preparations for the 4^th will, to indicate the changes that were to be effected thereon. It is also significant that notwithstanding the recent exchange the deceased had with the Plaintiff accusing the Plaintiff of not wanting him to live, he included her in the 3^rd will.

 

[504]   Notwithstanding being aware of the deceased’s illness and the extent of its effect to the deceased’s mental and physical wellbeing, the 1^st Defendant again failed to ascertain when the deceased signed the 3^rd will if he was in the right frame of mind and condition, the situation or setting appropriate, and if it was on the deceased’s own volition. The will, besides reinstating the Plaintiff, included the 2^nd Defendant again who had no spes and without any stated reason mentioned for her inclusion whilst excluding W[...]. There is no evidence of what exactly were the deceased’s instructions. As usual only 1 witness was available during the execution to witness the signing of the will and the 2^nd Defendant was again present and named a beneficiary. Her continued presence not explained. The 1^st Defendant oblivious to the situation again did not comply with the provisions of the Act and continued to act without any diligence or in the best interest of the deceased. He did not ascertain from the deceased if the inclusion of the 2^nd Defendant was voluntary given his deteriorating mental and physical condition, their relationship (his apparent dependence on her) the effect of her presence at the execution, their known history of alcoholism.

 

[505]   The 2^nd Defendant’s testimony responding to cross examination on the 3^rd will was convoluted. She alleged that when she returned from Cape Town, the deceased had put the Plaintiff back in the will saying maybe he should not meet anger with anger. The deceased did not ask her but merely informed her that he was putting the Plaintiff back, but asked if he was doing the right thing, which she supported. The deceased then put the Plaintiff back. If the instruction was according to the 1^st Defendant received long before the signing of the will, the deceased would have already included the Plaintiff in the will prior to the 2^nd Defendant’s return. She had also said on her return, the deceased had put back the Plaintiff. Her alleged approval or support thereof inconsequential. Her wish for the Plaintiff to be disinherited was never indicated to have changed. The only person who’s likely to have not been included when the instruction for the 3^rd will was issued and was to be put back so as to not meet anger with anger is the 2^nd Defendant. The 2^nd Defendant was definitely a poor witness, her testimony same as the 1^st Defendants’ lacked any credibility.

 

[506]   Considering that the medical practitioners concurred that in the process of dying of a pancreatic cancer sufferer, the brain also undergoes a slow progressive death, switching off in various degrees, this would be supported by the descriptions of periods of confusion or ambivalence and of delirium that the deceased experienced at times, happening occasionally as the situation progresses. Those occasions signaled that the deceased’s brain had started the process of dying and confusion signified lack of clear or rational thinking. He was mentally impaired in any case due to his sickness. It was obvious that the deceased could not separate his heirs from the 2^nd Defendant, hence even though he had included the Plaintiff, there was no plausible reason alleged to have been given by the deceased why he took out W[...] and somehow still included the 2^nd Defendant. The 1^st Defendant did not care to ask but instead speculated that it may have been because of his constant asking.

 

[507]   The 3rd will as well does not accord with the intention of the deceased. There was never a stated intention indicated by the deceased to benefit the 2^nd Defendant. The deceased’s lacked a disposing mind and memory required for testamentary capacity. He was also opened to possible influence to still include her in his 3^rd will and forsake his wish to benefit W[...]. In this instance the 2^nd Defendant’s deception contributed to the ambivalence in relation to his intended beneficiaries together with his extreme vulnerability and overall circumstances.  cognitive impairment coupled with the confusion created by the 2^nd Defendant and pressure of her presence when the will was signed,

 

[508]   As a result the 2^nd Defendant might have been included in the will supposedly to have been by the deceased’s own volition, but the downside of that is that the deceased was not in his full mental capacity, rather with impaired cognitive faculties, even to believe in the story of his recovery and under pressure. He was as a result, not in the right frame of mind, to make a rational decision as would anyone in that situation. He also remained vulnerable and prone to acquiescent to the 2^nd Defendant’s wishes and pressure, therefore less able to make any valid legal decisions. The element of ambivalence was also evident leading to the signing of the 3^rd will.

 

The 4^th will

 

[509]   It is the 1^st Defendant’s evidence that the signing of the 4^th will on 25 February 2016 was also preceded by the receipt of instructions from the deceased to draft the will prior the date of signing. The deceased came to his office highly agitated and wanted the 3^rd will changed with the Plaintiff excluded again. The reason the deceased gave was that “the Plaintiff went behind his back to Dr Bond to get his results and came and told him that “he was going to die, that he did not have long to live and she was going to come and greet him”, words to that effect, again typical of the Plaintiff interfering in his life.” The deceased wanted her excluded.

 

[510]   The problem with that explanation is that, it is not what the 1^st Defendant pleaded. In his reply to questions raised in his plea, given a chance to address this issue again, he stated that he does not know the reason why the deceased executed a further will on 25 February 2016. The response was never amended. The truthfulness of his testimony is therefore in doubt as it only came out after the Plaintiff’s testimony and was not put to her directly. He certainly lacked sincerity. Regarding the alleged complaint, Dr Bond phoned the Plaintiff and gave her the results. She did not go to Bond. The 1^st Defendant became aware of Bond’s prognosis soon thereafter as he is one of the people that the Plaintiff informed immediately after receipt of the news, besides the deceased’s relatives and CANSA.  CANSA offered to assist to go and deliver the news to the deceased, which offer was refused The Plaintiff then proceeded alone to deliver the news to the deceased, even though they said they will be in town.

 

[511]   Dr Bond had confirmed that the cancer had spread so much, that he could not help the deceased anymore except with palliative treatment to relieve him of the pain until his demise that was in a few days. Putting the stent was not going to assist and his liver contaminated. It was the 2^nd Defendant who reacted aggressively to the news. She shouted, banged the doors and poked the Plaintiff. The Plaintiff was so shocked by 2^nd Defendant’s aggressive response. The prognosis negated the possible recovery falsehood the 2^nd Defendant had made the deceased believe in.  Dr Bond was also worried about the deceased’s denial of his situation, hence the discussion. For the 2^nd Defendant as the recovery became more illusory, panic set in. She is the one that responded with ferocious accusations wanting to avoid the discussion.

 

[512]   B[...], had pointed out that the allegation by the 1^st Defendant must have come from the 2^nd Defendant, the one who was infuriated and had acted ferociously towards the Plaintiff. In my view the explanation by the 1^st Defendant is something that would indeed more likely have come from the 2^nd Defendant as pointed out by B[...]. It is unlikely that the deceased would have complained about the Plaintiff getting the results from Bond, informing him about the prognosis and Bond’s decision going forward in relation to treatment, which was crucial information to him. He would have been rather disappointed than angry. Both the Defendants in my view were not candid to the court as with all their evidence. It is obviously a story hatched for the trial as the Defendant had no story to tell according to his plea. 

 

[513]   The instructions to again change the will, excluding the Plaintiff was said to have been given on that day or previous day , that is the 18^th or 19^th February 2016, said to have been 6 or 7 days before the will was signed. Alcohol was also purchased on 19 February whilst the deceased is said to have randomly purchased a new Mercedes Benz on the previous day. He further interestingly on the same day out of the blue and for the first time in their entire lives questioned the paternity of his daughters. He mainly questioned that of the Plaintiff whose existence seem to have historically gravely offended the 2^nd Defendant. He surprisingly made a comparison between his daughters and himself with a suggestion that B[...] was more like him and the Plaintiff totally different from him, an obviously inaccurate comparison, and a clear distortion of the truth taking into consideration the whole evidence led, about the Plaintiff.

 

[514]   The idea was deliberately suggested so that the deceased can question Plaintiff’s entitlement to his estate and reconcile with her exclusion from his will. The Plaintiff disinheritance was going to fulfill the 2^nd Defendant’s wish and to be to her benefit with the estate divided to only two heirs instead of three. The suggestion about B[...] being more like him intended to leave room for her inclusion and the estate divided between two instead of three heirs. Either way the 2^nd Defendant inheriting more.

 

[515] All this happened when the deceased was at his lowest and very vulnerable as his illness was failing him. Dr Bond, the one person who was trying to help him had also thrown in the towel. His condition had worsened and deteriorated such that he was told he was left with a few days, obliterating the story of recovery, 7 days before his demise. A confusing issue now also added to his woes on the identity of his real heirs. It was all falling apart for him. He couldn’t have been in a lucid mental state to be able to make a decision on the changes on his will, let alone decide on his heirs. It was for that reason there was no explanation given to the 1^st Defendant for changing the will who was also aware of the prognosis.

 

[516]   It is also around the same time that alcohol was purchased on the 19 February 2016 when the 1^st Defendant was given instructions to draft the 4^th will. Therefore, the likelihood that he was under the influence of alcohol on the same day when the instructions to draw the will were given to the 1^st Defendant cannot be discarded as well, exacerbating his cognitive impairment and proneness to influence.

 

[517]   One establishment whether, on the date the instruction was given to change the will, the deceased’s thought process at the time was influenced by the simultaneous intake of opioids, the Defendants’ counsel put to Kruger as he has to B[...] that the instructions were given 5 or 6 days before the 25 February 2016. The whole process being said to have started on these two significant dates, on 18 or 19 February 2016. Kruger opined, in view of the physical drawing up of the will and the signature process having taken place in that last week, that the thought process of what the deceased wanted in his will and the instruction to have been given whilst the deceased was under the concurrent use of different opiods. He accepted that the other opioids were however stopped before the will was signed on 25 February 2016. As to the deceased’s mental state, at signature, that is the ability to resist prompting and instigation, he said it depended on the other evidence which he didn’t have. 

 

[518]   The 4^th will was signed on 25 February 2016. The 1^st Defendant confirmed during his testimony to have received the instruction to draw the will long before the 25^th February 2016 with the instruction that they (The 2^nd Defendant and the deceased) will come back for the signing thereof. Subsequent thereto the 2^nd Defendant showed him the notes she wrote on the 3^rd will, which were amendments to be effected on the 4^th will and had to do with the bestowing of some of the deceased’s movables to her. He thereafter phoned the deceased to ascertain if indeed that is what he wanted and again asked him with regard to the exclusion of the Plaintiff. The deceased confirmed. So it is apparent that the instructions on how the will was to be amended was given in the absence of the deceased. In his Plea the Defendant had alleged that he was aware of the notes and that they were made by the 2^nd Defendant at the specific instance and request of the deceased. He however was not aware when they were made.

 

[519]   Subsequent to the instructions the 2^nd Defendant handed her notes on the amendments to be effected on the 4^th will to the 1^st Defendant that directed the inheritance by herself of certain of the deceased’s belongings that she personally wanted. They were to be bestowed on her separate from the estate that was to be divided equally between her and B[...], the named beneficiaries. The instruction relayed to the 1^st Defendant in the absence of the deceased. The 1^st Defendant alleged to have phoned the deceased afterwards to ascertain if the instructions were in accordance with his wishes, including the exclusion of the Plaintiff.

 

[520]   So, according to the 1^st Defendant the instructions to draw the 4^th will was received from the deceased and the 2^nd Defendant, in the midst of or a day after the devastating news about the deceased imminent demise, of which he was immediately made aware, with an instruction that they will come back for the signing thereof. The deceased could not have been in the right frame of mind to make any lucid decisions, understand their nature and effect. He was also confused such that he was not able to appreciate who his heirs were, doubting his own children if they were his. He also could not have had the ability to resist any prompting and instigation, seeing his fragility and subjection to an overbearing relationship and abuse of alcohol.

 

[521]   Furthermore, the 2^nd Defendant and the deceased were married out of community of property and the will was of the deceased alone, not a joint will. Only the deceased was supposed to make the necessary decisions, give the instructions on his intended heirs and how his estate was to devolve on such heirs. However, the 2^nd Defendant played an active and central role in the issuing of instructions notwithstanding that she was a beneficiary in the will, in circumstances were the prospect of influence apparent. She also participated in, inter alia, the selection of beneficiaries, and the decision on how the property was to devolve on theml. There was certainly a displacement of volition, whereupon the 2^nd Defendant‘s wish that she previously asserted was substituted for that of the deceased.

 

[522]   On 25 February 2016 the 1^st Defendant allegedly got a call from the 2^nd Defendant informing him that the deceased was too ill to come to his office. She  asked him to come to their house for the deceased to sign the will and to bring a witness with him. An arrangement was made for the 2^nd Defendant to come to 1^st Defendant’s office, so that she could lead the 1^st Defendant on the way to get to the deceased’s house. The 1^st Defendant brought a Mr Hennop with him to sign as a witness, whom he subsequently appointed to be his agent in the administration of the deceased’s estate. They found the other witness a Mr Putt, the estate manager already there. According to the 1^st Defendant the deceased was in a jovial mood and happy to see him.

 

[523]   In the meantime, the 2^nd Defendant’s testimony was that she, at the request of the deceased, phoned the 1^st Defendant and asked him to come to the house. She also asked him to bring two witnesses with him, which the 1^st Defendant did. This was after the 1^st Defendant has testified, she therefore contradicted the 1^st Defendant. The 1^st Defendant and Putt said the 1^st Defendant and Hennop found Putt already there. That is how torturous the Defendants’ testimony was. It seemed to be formulated as the trial progressed. On a balance of probabilities, the 1^st Defendant came with only one witness being the precedent he has set with the other two previous wills that were signed by only one witness. It is therefore far-fetched that 1^st Defendant would have brought 2 witnesses. In all likelihood the 2^nd Defendant arranged with Putt to be there. She however failed to mention Putt all together in her testimony.

 

[524]   According to the 1^st Defendant he showed the deceased the will which was very short. He also showed the deceased on page 2 how exactly the estate was to devolve and again ascertained from him if that was the way he wanted it. The deceased was satisfied and signed the will in the presence of Hennop and Putt. The 2^nd Defendant was sitting behind the deceased. 1^st Defendant noted that the deceased was sick, scrawny, physically in a very bad condition, but mentally he understood exactly what the 1^st Defendant was saying and what was going on. He was able to hold a conversation and in his view there was nothing wrong with the deceased’s mental capacity. He further could not detect any sign of alcohol which he said he would be sensitive to something like that as a teetotaler.

 

[525] The 1^st Defendant’s evidence cannot be relied upon anyway as he has indicated the tendencies of just supporting the 2^nd Defendant even where he had himself in the pleadings indicated not to be aware of a fact or facts. He stated in his plea that he did not know why the Plaintiff was left out, he tried his best, however the deceased was adamant that he did not want the Plaintiff to be in his last will. In confirmation of that he further said there was no reason that he was aware of. Yet he surprisingly in a roundabout, during the trial testified that the deceased came to him very agitated wanting the Plaintiff out as she was interfering in his life and came to greet him saying he was about to die. His version lacked credibility. He however argued that the deceased executed a valid will, notwithstanding the circumstances under which it was executed.

 

[526]   Furthermore, the 2^nd Defendant attended to the arrangements for signing of the will by overseeing the presence of the 1^st Defendant and the witnesses at the deceased’s home for that purpose, sitting behind the deceased during the signing, observing the signing thereof by the deceased. This is further evidence of the pressure exerted by the 2^nd Defendant through her presence and active management of the whole process of execution. A process in which she has made sure that her wishes were fulfilled and certainly, which could not have been by the deceased’s own volition. A day before the signing the deceased had spoken of his wish that the Plaintiff look after their mother from whatever they get. He further discussed and gave advise to W[...] on what he could do with his inheritance of R4 Million. Neither of the two were included in the will to be signed. Instead the 2^nd Defendant not only stood to inherit but she was to inherit even more than B[...]. The deceased spoke of having changed the will and going to change it again although he had already given instructions to do so, and pointing out again that he was going to change it again, indicating a desire to change the instructions that he has already issued. He even commented that as a result the 1^st Defendant was going to get tired of him. His mind was definitely unsettled and indecisive. He was committing acts of ambivalence, lacking any resolve in any of them. He was also trying to cancel the Mercedes Benz he bought nearly at the same time when he gave instructions for the changing of the will, 6 days ago.   

 

[527]   The aftermath or consequence of the signing of the 4^th will gave credence to the threat the 2^nd Defendant had previously made that she was going to make sure that the Plaintiff is excluded from inheriting from the deceased. The undeniable major and active role she played in the execution of the deceased’s wills proved striking whilst also indicative of the gravity of her influence and the pressure she exerted on him. This was so, notwithstanding her attempt to downplay that by alleging that the deceased was known to be a person with a strong character and no one could convince or tell him what to do. In the contrary, he couldn’t look after himself, but was at the mercy of the 2^nd Defendant who managed and controlled 100% his self-care. She managed the administering of his medication, decided on when and how he took it. She confirmed that leading to the signing of the will, she hid the morphine and strictly monitored the deceased. She also regulated who he can see, when and for how long. The man was also suffering from a pancreatic cancer, the tumor of which had become severely malignant. It took its toll on his mental and physical capacities exacerbated by the intake of alcohol that has seemingly ravaged his liver as well.  He was weak and therefore improbable that he could still have been of the same strong character who couldn’t be convinced, especially as against her.  

 

[528]   What's more, the allegation that the Plaintiff was excluded because the Plaintiff went behind their back to get the deceased’s results from Bond and  untimely and unkindly discussed them with the deceased could not hold. It upset the 2^nd Defendant not the deceased, as she also declared. Her attempt during her testimony to link that discussion to the deceased’s fall when he broke his arm and injured his leg could also not hold. She retracted the allegation when she was forced to admit under cross examination that the deceased’s fall did not happen that afternoon and had nothing to do with that discussion. B[...] and her husband got a call late that night that the deceased fell, he slipped from the couch. B[...] alleged that the deceased smelt of alcohol and was lying in filth. In any case the Plaintiff was always berated by the 2^nd Defendant not by the deceased for conduct she deemed offending either to the deceased or herself.

 

[529]   It was evident that leading to the execution of the 4^th will the 2^nd Defendant and the deceased were continuing to seriously indulge in alcohol. The 2^nd Defendant had actually on 19th and 25^th February 2016 purchased alcohol from Spar. W[...] and a friend visited the deceased, on 20 February 2016 and found everything chaotic. The deceased was lying in pain looking for his morphine and the 2^nd Defendant did not know where it was. They tried to assist to look for it in vain. W[...] and his friend were upset as the deceased was crying and they could not help. The 2^nd Defendant could not hold her balance, she could barely stand, she was falling all over. The deceased was left in pain. He went crying to his bed as they couldn’t find the morphine. That was the effect of the 2^nd Defendant administering the morphine. The man known to be strong in character was reduced to tears in front of his grandchild as he was denied his medicine whilst the 2^nd Defendant was inebriated.  

 

[530]   As the 2^nd Defendant was habitually drinking and had isolated the deceased to such an extent that he became totally dependent on her, the deprivation of his medicine was on a balance of probability an often occurrence. The 2^nd Defendant had told B[...] that the deceased was indeed drinking alcohol. He would wake up at night and go to the cupboard to get the alcohol which he sometimes mixed with the morphine. She hid the morphine and other medicine to prevent him from doing that. However, the main point is that the 2^nd Defendant had made the alcohol available in the house. The issue of alcohol was therefore serious and irrefutably permeating the lives of the deceased and the 2^nd Defendant again. Both being known to have previously abused alcohol, their use of alcohol at the time was regrettable.

 

[531]   The 2^nd Defendant therefore besides irresponsibly availing alcohol to the deceased, she negligently also controlled his intake of morphine. As shown not only did she decide when to give it to the deceased or deliberately withhold it notwithstanding him being in pain but she would also sometimes be inebriated that she could not even remember where she put or hid it. The deceased would then suffer in agony.  The administering thereof was inconsistent. She said she did not want him to get used to the medicine. But Bond had explained that he was on morphine for palliative care, that is for the specific purpose of helping him with the extent of pain he was feeling so that he could die in dignity. He usually did not prescribe morphine but was helping the deceased. Shellock acknowledged that the management of pain n pancreatic cancer sufferers was indeed to afford them their  constitutional right to die in dignity, which you would have expected the 2^nd Defendant to also want for the deceased, respect and work towards the same goal.

 

[532]   The 2^nd Defendant instead admitted to have also withheld administering the morphine for selfish reasons, prior the day of the deceased’s signing of the will. She however struggled to explain when last the deceased would exactly have had it, before and after the signing of the will. She was not definite even about the dosage given and how it was administered, whether 4 or 5 millimeters. However, what is certain is that immediately after the deceased signed the will, she made sure there was a large supply of alcohol. On the other end, on the last of the deceased’s few days, the deceased told B[...] that he does not have the morphine anymore. There is no reason why the 2^nd Defendant could not get the supply of morphine immediately after it was finished. She instead prioritized the supply of alcohol with she made was available in abundance on 25 February 2016.

 

[533]   All the 2^nd Defendant’s actions were against the wellbeing of the deceased. She certainly never had his welfare as a priority. She did not encourage a good relationship between the deceased and his daughters and allow him an environment of peace and tranquility with his family which he absolutely yearned for. She continued to give him access to alcohol exacerbating his condition. She did not compromise her drinking for the sake of the deceased’s wellbeing which is more harmful and yet controlled the morphine. She denied the deceased an opportunity to accept his condition and die in dignity by misrepresenting the medical prognosis and giving him a false hope of recovery. The deceased as a result could not accept his situation, prepare himself to die in peace. The 2^nd Defendant’s priority was for him to sign the will before his demise as he did 3 days to the day. His lawyer could not understand the reason for the insistence that he changes his will. After he passed away the morphine bought by B[...] was found unused. He therefore suffering to the end, ravaged by pain.

 

[534]   The deceased was actually using a number of central nervous system depressants, painkillers, besides morphine, up to the 19 February 2016. Kruger’s view was that it was probable that the simultaneous use of this medication diminished the deceased’s cognitive ability to think rationally. As the use of morphine by patients who are concurrently receiving other narcotics or drugs was clearly cautioned that it be used in reduced dosage. The outlook on deceased’s use of medication for pain management by Dr Bond, of morphine, the frequency, other opioids from the 2^nd Defendant, the physical and psychological effect thereof covered extensively by the medical evidence.

 

[535]   In respect of the morphine, it is evident that even though the deceased was officially started on morphine on 9 February, there were lapses in the administration thereof and as a result the theory with regard to tolerance and non-tolerance by Shellock could not have been accurate in relation to the deceased. According to Bond morphine was applied on 4^th February 2016 but officially started per prescription from 9 February 2016. During that time the deceased was taking it with other opioids until 19 February 2016 when the disease became deadly and Bond stopped all forms of treatment, prescribing only morphine for palliative care. The person controlling the administering of morphine when it was available was nonetheless not doing it diligently. She was overwhelmed by her own indulgence in alcohol, sometimes forgetting where she hid it or withholding it if she thinks the deceased’s pain not serious enough to deserve the morphine.

 

[536]   The drug interaction, was very much relevant in assessing the deceased’s state of clear-headedness when the instructions on the 4^th will was given and its signing took place. Kruger’s conclusion on that was that the deceased had been administered morphine and was under its influence for about +- seven days (18 or 19 February 2016) when he apparently was said to have changed his will. The possible date came out during cross examination and put to B[...] by the Defendants’ counsel although the exact date not articulated by the 1^st Defendant. Kruger reckoned if the deceased had experienced some of the common side effects caused by morphine, it is possible that he may have experienced a compromised state of mind and this further exaggerated by the concomitant use of alcohol bought and consumed from 19 February 2016 and further.

 

[537]   Furthermore, leading to the date of the signing of the will on 25 February, it is part of the evidence that on the 22 February 2016, B[...] went to see the deceased and found that he had an injury on his right arm, apparently he fell and needed stitches. The deceased also had gashes on his knees as always when he sits up from the table he would hit his knees against the table. She also noticed that the deceased’s legs were swollen. The deceased was taking some of the tablets and some medicine with alcohol, saying it helps a bit. The 2^nd Defendant also purchased more alcohol on 22 February 2016.

 

[538]   On 23 February 2016, the Plaintiff visited the deceased. Whilst she was there the deceased asked her to dilute his drink of alcohol with water, saying it was too strong. She denied the suggestion that it was coke and indicated that it was captured on a tape recording. The deceased was therefore drinking frequently, nearly everyday leading to the date of the signing of the will.  

 

[539]   On the inconsistent administration of morphine and lastly the constant supply of alcohol by the 2^nd Defendant, Colin had emphasized that it needs to be noted that the use of alcohol in a patient with terminal cancer of the pancreas, affecting the gastrointestinal tract in other words the stomach, the bowels and the pancreas is an extremely dangerous thing, and had the potential of making the patient just by virtue of using  alcohol, certainly more susceptible to the influence of an outside party, he emphasized that part to be incontrovertible, it being not just a statement of fact about alcohol and the physical condition but also a fact regarding the deceased, and not an interpretation.

 

[540]   A day before the signing of the will, that is on 24 February 2016, the deceased was visited by B[...] when he exhibited a little bit of some confusion. He would speak about stuff and then stop not sure what he was talking about. He also was not smelling good. He smelt very badly because for some time he did not have a bath. B[...] could not sit close to him.  Most significant is the fact that he was also in pain so he told B[...] not to touch him, rather he will touch her. His feet were swollen. The sad environment of pain, filth, alcohol very depressing, whilst the 2^nd Defendant refused help. After he passed on B[...] had to wash his blankets a few times because of the stench. It is also perturbing and rather very much unlikely that the 2^nd Defendant could have slept with him on the same couch as she alleged she did when he was nearing his demise.

 

[541]   All this time the 2^nd Defendant had told the deceased that he was actually not sick. No matter the reality of the prognosis becoming certain and imminent, the deceased still believed of the two spots on the pancreas and his recovery. The deceased then also on that day confronted B[...] about him not being sick. A fact which the 1^st Defendant and Bond referred to, which also influenced his irrational thinking.

 

[542]   Colin analyzed the state of confusion referred to by B[...] observed on 24 February 2016 as being delirium, which is in lay terms a condition of acute brain failure contrasting that with chronic brain failure which he likened to something like Dementia or Alzheimer’s. He indicated that acute brain failure often happens within the context of medical emergencies, drug withdrawal, electrolyte imbalances. In this instance drug withdrawal did take place and observed during the time leading to the signing of the will and when the will was signed.  It certainly would have resulted in the acute brain failure. From his psychiatric point of view, periods of delirium would have increased the mental vulnerability of the deceased, as one contributing factor. The deceased was already very weak.

 

[543]   In addition to that, Kruger pointed out that the combination of the deceased’s advanced age, his low body weight and use of central nervous system depressants over a period of time together with the use of morphine and or other opioids led him to be less able to make a rational decision as would anyone else in that situation. The pancreatic cancer pain on its own also decreases one’s ability to think rationally and then decide on major decisions that one has to make. Due to that and other factors that were at play, he was already exceedingly vulnerable and patently susceptible to influence and acquiescent, more so as he was also put under pressure.

 

[544]   Kruger referred to a document that alluded to studies that investigated the relationship between dosage regimes of morphine and a person’s state of mind which according to him warranted some consideration where it clearly states that a patient receiving a normal dosage of morphine will experience some degree of retrograde as well as anti- retrograde memory loss. The deceased was supposedly to have used the normal recommended dosage for a normal patient. With all these factors the deceased’s rationality and lucidity at the time the will was made was clearly compromised.

 

[545]   A point of convergence of the experts’ views is what was confirmed by Dr Shellock with regard to the withdrawal of morphine, when asked if the patient would be in distress and if his cognitive abilities may also be impaired if he does not receive the morphine whilst experiencing pain. Shellock explained that morphine is first used for pain on a patient with pancreatic cancer, whilst cancer in itself adds more pain pathways. As the cancer grows and the condition progresses, all pain pathways are activated. The morphine is first used to act on these receptors for pain, and if it is pancreatic cancer, there is even more visceral somatic neuropathic. Her opinion was therefore that the deceased actually did not even receive enough morphine for the severity of the pain that pancreatic cancer is known to cause. She highlighted that an oncology pain is an antagonist cognitive impairment. The morphine first treats the pain, then the side effect. It causes a respiratory depression, then central nervous system side effects, which may include sedation and cognitive impairment. She indicated that even though the deceased received the therapeutic dose, in practice in palliative care as alluded to, she suspects he may have been in pain. She confirmed that the deceased was in serious pain and she could not shy away from the fact that there may have been cognitive impairment, which is what is important.

 

[546]   The expression of the deceased’s last wish must be the result of the exercise of his own volition done in his full senses. Any instigation, through pressure and an environment or circumstances that results in the impairment of the free expression of the deceased’s wishes at the time the will is made should result in the invalidation of the will. The deceased must have been in a position to be able to appreciate the nature and effect of the will he was executing, as established from all the factual and medical circumstances existent at the time of signing the will and to have done so of his own free will.

 

[547]   In Kirsten supra[35], considering the questions to be asked of the testator’s testamentary capacity, Vivier AJ referred to Tregea supra[36], at p, 49, where the following test for testamentary capacity was adopted with reference to a statement by COCKBURN, C.J., in Banks v Goodfellow, supra at p. 568 that:

 

“The question is not so much what was the degree of memory possessed by the testator'? as this:

 

“Had he a disposing memory? Was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty? To sum up the whole in the mostsimple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?'

 

[548]   The following case was also considered and found instructive by Vivier AJ in Kirsten, that of Harwood v Baker, [1840] EngR 1087; 3 Moo. P.C. 282, in the matter the testator, whilst suffering from a disease which affected his brain and impaired his mental ability the testator made a will in favour of his wife to the exclusion of the other members of his family. At p. 290 of the report ERSKINE, J., said the following:

 

“and, therefore, the question which their Lordships propose to decide in this case is not whether Mr. Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property.'

 

 [549]  The deceased’s mental faculties were compromised by his illness (the pancreatic cancer and its co-morbidities), the effect and the treatment thereof, exacerbated particularly by the influence the relationship and his interaction with the 2^nd Defendant had on him. The 2^nd Defendant’s whole elaborate interference and convoluted involvement in the execution of the deceased’s will, continued propagation of animosity between the deceased and the Plaintiff, the deception on the deceased’s prognosis, the availing of alcohol to the deceased, clearly rendered the deceased mentally, extremely challenged. It was observed from the confusion and indecisiveness he exhibited before the signing of the will. He lacked any resolve with regard to his potential heirs.  He was very vulnerable and at the mercy of the 2^nd Defendant’s hold. As a result of his vulnerability, and the severe cognitive impairment, he was not in a position to resist the coxing or coercion by the 2^nd Defendant. He therefore lacked the required testamentary capacity and an ability to exercise and execute a will at his own volition (free will).  

 

[550]   The Defendants attempted to rebuff the fact that the deceased’s cognitive abilities were compromised at the time of signing the will, by arguing that Bond had indicated that when the tests were done on 18 February 2016, he did not suspect the deceased to have struggled to understand what was going on but to have found him to have been on his normal senses, although emaciated and obviously of poor health. Bond’s evidence only relevant in relation to when the instructions were allegedly given for the will which was mooted to have been the day the tests were done on the deceased accompanied by the 2^nd Defendant. His opinion cannot assist the Defendants as the will was only signed 7 days thereafter on 25 February 2016. He also did not evaluate the deceased psychologically and cannot take away the reality of the fact that on its own the aged pancreatic cancer and its co-morbidities do adversely affect the proper functioning of the sufferer’s mental faculties. The deceased’s cancer had at that stage seriously advanced such that Bond had decided on terminating any further invasive treatment. The advance was reported by the experts to also further affect the brain. It therefore cannot be correct that he was of all faculties the whole time. 

 

[551]   It is also highly improbable that he could still show any hard headedness, be resolute as alleged by any of the Defendant’s witnesses, especially as against the 2^nd Defendant, he was feebly.    

 

[552]   The Defendants led the evidence of Ms Venter the sister from CANSA. Venter went off course to her previous statement made under oath. She testified, inter alia, about the mental state of the deceased on 22 February 2016 when she visited the deceased’s home. She visited the deceased only three times, and that visit was the last one. According to her the deceased was confined to a chair, but as hard headed and very irritated. He was weak, but in his full senses and aware of what was going on around him. Even though he was on low dosage of morphine, he refused it to be increased saying he wanted to see what was happening around him. She found it strange that he said his pain was fine and under control as a patient with that type of cancer usually has a lot of pain. It is of course strange as a day or two ago, he was crying for morphine because his pain was unbearable.  She nevertheless, alleged that his mental state was normal, there was nothing wrong with him, everything was clean and tidy.

 

[553] It is ironic that she would mention that his mental state was normal and his pain under control when part of the undisputed medical evidence was that a sufferer of that type of cancer will experience severe pain and a mental impairment especially where the dose is inadequate and not properly administered as in the case of the deceased. There was also evidence that in fact he was in severe pain most of the time that he would cry for his morphine. It is therefore improbable that he would still be hard headed and his mental state normal. Moreover when his situation was obviously deteriorating. She also confirmed that the deceased no longer had control over his body hence her suggestion that he be on nappies. The same reason which prompted B[...] to buy a bedpan that was obviously needed but unused, and also prompted W[...] and B[...]’s husband to offer to put him through the shower, which offer was declined, he was in a bad form .

 

[554] The other witness was the signatory to the deceased’s 4^th will, Mr Puth, the estate manager. There was evidence that the 2^nd Defendant on her reappearance was introduced to him as the deceased’s wife. According to Puth the deceased called and asked him to come to his house where he was introduced to the 1^st, 2^nd Defendant and another gentleman whilst he was supposed to have been already known to the 2^nd Defendant. According to the 2^nd Defendant he arrived with the 1^st Defendant. The mood was jovial with deceased telling them stories about his long term association with 1^st Defendant, although he was not feeling well and sitting on a recliner chair. The deceased told them that he wanted to recall his previous will and sign a new will which the deceased asked him to sign.

 

[555] The other witness called was a Mr Potgieter, who was alleged to be the deceased’s longtime friend and business acquaintance. Both deceased’s daughters have never heard of him. He appeared in the Hennop’s financial statements as a debtor who owed the deceased money which was then shown to have been recovered. He said he owns a steel engineering company. He met the deceased some 30 to 35 years ago during that time he was doing a lot of business for the deceased at the farm which is how they met and ended up becoming friends. He alleged to have visited the deceased at his house on Wednesday 24 February 2016, a day before the signing of the will. He got a call from the deceased who asked him to come and clean out his garage when he is in the area. He came and personally cleaned the deceased’s garage despite being a business owner. The deceased opened the door for him, offered him tea and switched on the kettle. There was no alcohol. He found the deceased jovial. The deceased insisted on driving his vehicle out of the garage himself. After he has cleaned the garage, the deceased told him now he can sell the house. He also vouched that at the deceased’s wedding there was no alcohol.

 

[556]   Notably however B[...] had also visited the deceased on that day and found that the deceased was experiencing some serious pain. His feet were swollen and had experienced a bout of delirium or confusion. She was worried if he would actually be able to hold it until the next day being deprived of morphine with that kind of pain. The meeting for the signing of the will was arranged to be at the deceased’s house the next day due to him not feeling well and wouldn’t be able to make it to 1^st Defendant’s office.

 

[557]   The evidence is that he was emaciated and very weak and would just sit on the chair. He couldn’t ambulate properly at the time its alleged Pretorius had visited him. B[...] was there on the same day and observed the deceased being confused and exhibiting mental vulnerability which could be attributable to acute brain failure which according to Colin may emanate from the withdrawal of morphine. Pretorius was not seen by anybody and he also saw nobody.  I agree with Plaintiff’s counsel that Potgieter’s evidence was staged. It was unlikely that the deceased would have been jovial, opening doors for him and strong enough to drive his car out of the garage with his challenges and swollen feet. The deceased had already sold his house so the comment that he said he can now sell his house cannot be true. His allegation that he was at the wedding and there was no alcohol also false. Putin’s evidence also could not take the matter any further. They were not acquaintances and would not know if he was or not in the state of mind to understand and to appreciate what he was asked to sign.   

 

[558]   Not only is it clear from the factual and medical evidence that the deceased was mentally challenged such that even though he seemed to understand the nature of his act, that he was making a will, and the extent of his property, he however lacked the comprehension and appreciation of who his natural heirs were, that is the people with a claim on his estate and on whom he might consider bestowing his assets. He therefore lacked the testamentary capacity to execute a valid will.  

 

[559]   It is also evident that due to his vulnerability the 2^nd Defendant’s dominance  and his susceptibility to capitulate under pressure and instigation his wishes were replaced with the wishes of the 2^nd Defendant, such that the will does not reflect his wishes but that of the 2^nd Defendant who was actively involved in the arrangement for the execution of the wills, deciding on the beneficiaries and the manner of devolvement of the deceased’s estate, whereupon through deception and exertion of pressure on the deceased she is one of the beneficiaries under the will to the exclusion of the deceased’s other natural heirs. Also through her instigation she also stands to benefit more than the other beneficiary. The will therefore also stands to be declared invalid due to the improper and undue influence.

 

[560]   Furthermore, the 2^nd Defendant is unworthy of benefitting from the deceased’s estate due to her deception regarding the true prognosis and severity of the deceased’s illness and the role she played in exacerbating the mental and physical frailties of the deceased. Considering her instigation of animosity between the deceased and the Plaintiff plus the improper agitation of the deceased to question the suitability of his heirs and mainly the Plaintiff to inherit, her influence in relation to securing her own inheritance. The role she played in the arrangement and alleged preparation of the deceased for signing the will whilst he was lacking in resolve. I am convinced that her conduct not only was improper but tantamount to coercion and should disqualify her from inheriting.  

 

[561]      The Plaintiff has under the circumstances also sought the removal of the 1^st Defendant as the executor of the deceased’s estate, due to his reckless conduct during the signing of the impugned wills and the improper handling of the administration of the deceased estate after his appointment. The evidence is clear that the 1^st Defendant failed to take the proper steps to ascertain if the deceased was in his full mental capacity or right frame of mind when he executed the wills notwithstanding the warning signs of him being diagnosed with pancreatic cancer and being informed of the extent thereof. He in addition ignored the presence of the 2^nd Defendant at all times when instructions were given to him and or the signing of the wills. Moreover, she being one of the named beneficiaries but also issuing instructions on how the estate is to devolve on the named beneficiaries whereupon part of the estate was to devolve on her exclusively for her benefit.    

 

[562]   It is also evident that the 1^st Defendant was not only aware of the illness of the deceased and the extent thereof but also of the procedures that he underwent and the outcomes, as he was always kept abreast by the Plaintiff. His outright denial that he was aware, put a serious dent on his integrity. Even his denial of being aware that the deceased was an alcoholic has been shown to be insincere. He also did not comply with the Act when the signing of the wills took place. The wills, except for the 4^th will were all attested to by one witness, that is his secretary instead of as per requirement in terms of the provisions of s 2 of the Wills Act 7 of 1953.

 

[563]   The 1^st Defendant’s lackadaisical behavior extended relentlessly to the manner in which he handled the administration of the deceased’s estate. In Bramwell and Lazar, NNO v Laub[37],  at page 298 the court dealt with the situation where the executor appointed someone else to:

 

“generally to administer, liquidate, distribute and manage the affairs of the said estate and to do and perform all such acts and sign all such documents as may be necessary or expedient to that end.”

 

[564]   The status quo has also been settled by our courts that although an executor can appoint an administrator to assist him/her, such person does not replace the executor[2]. In the Bramwell supra matter the court further held:

 

“An executor, as I see the matter, may not appoint someone to act instead of himself, so as to relieve himself of responsibility; but he may appoint someone, for whose acts he will be responsible, to act on his behalf, and that is what, in my judgment, the second plaintiff did in the present case.”

 

[565] The 1^st Defendant did not have a file of the estate as according to him the administration was being handled by Hennop. It begs the question as to where he then placed the communications and the documentation sent to him for his attendance. As the appointed executor he needed to open a file or keep a record of the matter so as to monitor and record the progress in the matter, including the agent’s reports. He cannot depend on the assiduousness of the agent to keep record of the related information and copies. His situation is the same as that of an instructing attorney that appoints a correspondent attorney. He owes it to the deceased estate and the beneficiaries, to pay diligent attention to the matter notwithstanding his appointment of an agent to act on his behalf. As it is trite that such an appointment does not absolve the executor of his or her responsibility, making it essential to appoint an agent who has the necessary knowledge and skill to ensure that the administration process is attended to correctly and he is kept informed. 

 

[566]   He testified that as an executor he would dictate to the agent the contents of a letter that the agent will put on his letterhead. He would therefore certainly need a copy of his dictation and of the letter that is eventually sent out or knowledge of the action that is eventually taken on his behalf and or in accordance with his instruction. However, the 1^st Defendant was oblivious to that. He  confirmed that not only did he not have a file he also did not report the estate to the Master. He did not look at the Final Liquidation and Distribution account that was published nor remember if any account or a number of accounts have been opened. He also was not aware that there were doctors account (creditors) that were not paid. He was without a doubt clueless as to what was happening in the estates. 

 

[567]   On the other hand, the Plaintiff surely as a natural heir of the deceased has a vested interest in the administration and proper handling of the deceased’s estate. Her challenge of the 1^st Defendant’s lackadaisical handling of this matter and ignorance of what was happening was justified. The Plaintiff had to approach the court to interdict the continuance with the administration of the estate and the publication of the Liquidation and Distribution Account after failure by the 1^st Defendant to make sure that his agent adheres to an undertaking he made not to proceed pending the finalization of the action. It also came out that the administration of that part of the process was not even handled by the 1^st Defendant’s agent but outsourced to a third party, a fact the 1^st Defendant was also not aware of and probably had not sanctioned.

 

[568]   The 1^st Defendant further alleged both himself and Hennop to have not been aware that notwithstanding his undertaking to withhold the publication of the L & D Account and the administration of the estate, the L & D was nevertheless published. He blamed the agent who, on his hearsay evidence blamed the third party. The 1^st Defendant did not bother to call Hennop to come and testify, even though the latter was also involved in the signing of the 4^th will. However, his appointment of an agent does not exonerate the executor of his or her responsibility, he still carries the responsibility to make sure that the administration process is attended to swiftly and correctly nd proper reporting done.  

 

[569]   The Plaintiff has therefore made a case for a cost order in the urgent application for the interdictory order and for the removal of the 1^st Defendant as an executor. However, the point on the removal of the 1^st Defendant as an executor has become moot due to the 1^st Defendant’s demise after the trial. A decision thereon therefore inconsequential.

 

[570] On the question of costs with regard to the action, the conduct of the 1^st Defendant has also been found extremely wanting. He lacked diligence and was quite reckless in the manner in which he performed or fulfilled his duties when overseeing the execution of the impugned wills. Whilst the 2^nd Defendant’s calculated treatment of the deceased, her instigation of discourse between the deceased and the Plaintiff plus her personal involvement in the making of the wills, exerting pressure on the deceased through his isolation and her deception to achieve her personal wishes in the deceased’s will justifies the cost order sought against her by the Plaintiff.     

 

[571]   Under the circumstances, the following order is made

 

1.               The will purportedly executed by the deceased on 8 October 2015 is declared invalid.

 

2.                The will purportedly executed by the deceased on 18 January 2016 is declared invalid.

 

3.               The will purportedly executed by the deceased on 25 February 2016 is declared invalid

 

4.       The will executed by the deceased on 14 May 2014 is declared to be her last will and testament

 

5.       The copy of the will executed by the deceased on 14 May 2014 be accepted by the 3^rd Defendant in terms of s 2 (3) of the Wills Act 7 of 1953 as amended, to be the legally made regular last will and testament of the deceased, which will is also included signed and dated in the protocol of the 1^st Defendant (the deceased Mr Morris Pokroy).

 

4.               The 1^st and 2^nd Defendants to bear the costs of the action on an attorney and client costs, such costs to include the costs of the employment of Senior Counsel

 

5.               The 1^st Defendant to pay the reserved costs of the urgent Application to prevent the continuation with the administration of the deceased’s estate pending the finalization of this action.  

 

 

 

 

N V KHUMALO (MS)

Judge of the High Court

Gauteng Division, Pretoria

 

For the Plaintiff:	L S DE KLERK SC
Instructed by:	Franken Attorneys
	Ref: Mr Frankem/IM/K049
	Email: sfrankim@frankim.co.za
For the Defendants:	Adv G JACOBS
Instructed by:	Rynhart Kruger Attorneys
	Pretoria
	Ref: Rynhart Kruger
	Email: rynhart@mweb.com

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