A case about two brothers and an inheritance has ended up in the Western Cape High Court, with one brother disinherited by his father asking that the will be declared not executable so that he could inherit from the estate in terms of the rules of intestate succession.
The first respondent is the brother who stands to inherit under the will. He lodged a counter application to have the will accepted by the Master of the High Court even though it does not comply with all the formalities as prescribed in law.
Prior to May 2020, the deceased had a joint will that he and his late wife had drawn up in 1996. Under the old joint will, their sons – the applicant and the first respondent – were both beneficiaries in equal proportions.
The deceased’s wife died in 2004 and 16 years later, in May 2020, the deceased executed a new will. In terms of the new will, he provided that the first respondent would be the sole beneficiary and executor of the estate.
By the time that he executed the new will, the deceased had a very strained relationship with the applicant. The relationship was so damaged that when the deceased tried to contact the applicant to wish him well on his 40th birthday, the applicant did not take his call and instead sent him a message telling him to “p*** off”, the court was told.
The applicant then messaged his brother – the first respondent – saying: “Just let me know when he’s dead. I’m done with him.”
This deterioration in the relationship between the deceased and the applicant is not denied by the applicant. In fact, after the deceased’s death, the applicant posted messages on Facebook referring to his father as a “bitter, manipulative, vindictive, angry person”, Acting Judge K Hofmeyr said.
While the applicant and the deceased’s relationship was deteriorating, the first respondent and his family played a significant role in caring for the deceased. They moved into the deceased’s home shortly after their mother had died.
In 2013, when the deceased was diagnosed with cancer, the first respondent assumed the primary caregiver role to his father. He saw him through almost a year of chemotherapy and radiation therapy.
The deceased died in June 2020 while on a morning walk at a park near the family home.
Almost a month before this day, he executed a new will.
The first respondent explained that on that morning he made his father breakfast and took it to his room. Soon after, his father called him back and told him that he had written out a new will which he kept in a folder.
His father then told him that he needed witnesses to sign the will and explained that the first respondent could not do so because he was a beneficiary under the will. His father then asked the first respondent to call his wife and daughter (who lived with them in the family home) to his room.
They did so and then signed the will together in the presence of the deceased. The first respondent was not in the room at the time. An electrician who was working in the house at the time, was called by the father to sign as a witness.
The deceased did not show the first respondent the will on that day. It was, in fact, only found two weeks after the deceased’s death, when his son was cleaning his father’s bedroom that he discovered the will in a folder.
The son said he did not know what the will contained, but understood that his brother was disinherited as he had deeply hurt their father over the years. The judge said when the brother (applicant) was asked by the court about this, he simply said “no comment”.
The judge concluded that the will was sound and that the respondent son and his family cared for the deceased during his dark days of cancer. Judge Hofmeyr said there is no evidence that he influenced his father to disinherit his brother.
Pretoria News