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Court rules against dead ex-husband who ‘deceived’ his ex-wife to sign off her share of house while hospitalized

Published Apr 5, 2023


Pretoria- The Supreme Court of Appeal (SCA) ruled that an agreement which was signed by a woman giving her ex-husband her share of the house while she was in hospital recovering from serious injuries, was unenforceable.

The two were married in community of property in 1987 and divorced in 1991.

At the time of their divorce, they owned a house in Boksburg and they verbally agreed that each of them would be entitled to half of the value of the property. The also agreed that the ex-husband would pay his ex-wife half the value of the property, but he never did.

In 2010, the ex-husband got married to his new wife and he made a will leaving 50% of his estate to his wife.

In March 2012, his ex-wife got into car accident and was admitted to hospital until September 2012 as she had sustained serious injuries.

Before she could be discharged, in July 2012, a messenger from the law firm representing his ex-husband called the hospital asking her to sign a variation agreement, where she was awarding the house solely to the ex-husband.

Without reading the documents, she signed them.

In 2014, the ex-husband died and in 2017, the ex-wife tried to sell the house.

However, the attorneys attending to the transfer of the property, informed her that she was not entitled to 50% of the proceeds of the sale, because the variation agreement stated that she had awarded the property solely to the ex-husband.

She approached the court challenging the enforceability of the variation agreement which she had signed while in hospital.

Part of her argument was that she signed the agreement without reading it, as she did not have the strength to do so in the state that she was in.

She said she assumed that the agreement dealt with what she and the deceased had agreed upon, ie, that he would pay her 50% of the value of property.

She also added that the attorneys’ messenger did not inform her of the nature and contents of the agreement she was signing.

The new wife challenged the ex-wife’s application saying that her injuries did not impair her mental functioning because she suffered a hip fracture dislocation. She also contended that the ex-wife was of “sound and sober senses” when she signed the agreement and was neither under duress nor unconscious.

However, the high court found that it was highly unlikely that the ex-wife would have disposed of her 50% share in the property without any apparent reason.

The court held that there was also no evidence that the nature and importance of the document she signed, which was a binding agreement where she forfeited her 50% in the property, was explained or ever discussed with her.

The ex-wife succeeded in her application and the high court consequently ruled that the variation agreement was not enforceable and also ordered that she should get 50% from the sale of the house.

Unhappy with the ruling, the new wife appealed and her application was dismissed.

Undeterred, she approached the SCA using the same arguments, saying that the injuries sustained by the ex-wife were not psychologically related and that she did not sign the 2012 agreement under duress.

The SCA found the ex-husband approached his ex-wife through his lawyers knowing full well that she was in hospital recovering from serious injuries.

The SCA added that he deceived his wife and caused his attorney to present the 2012 agreement, containing entirely different terms to those they had agreed upon during their divorce in 1991.

“It is clear on the objective facts that he did so deliberately, and with intent to deceive the respondent into forfeiting her half share in the joint property.

“In the circumstances, I consider the respondent’s unilateral mistake to be reasonable and excusable. Accordingly, the proposed appeal has no reasonable prospects of success. The application for leave to appeal must, therefore, be dismissed with costs,” said judge Fayeeza Kathree-Setiloane.