Summary
This matter involves two wills. One executed by Elizabeth Magdalena Malan (“the testatrix”) on 21 May 2003 and another “the disputed will” ostensibly executed by Malan on 22 September 2004.
In the earlier will, Malan bequeathed her property situated at 17 Jacoma Court, Strand (“the property”) to Jeanette Van Der Merwe, the third Defendant.
In the disputed will, Malan is purported to have bequeathed to Van Der Merwe an amount equivalent to the amount which would be due and owing to Malan arising from an acknowledgement of debt executed by Van der Merwe in favour of Malan for the sale of the property.
The only difference between the will executed on 21 May 2003 and the disputed will is that whereas the bequest in terms of the will executed on 21 May 2003 is in the form of the property, the bequest in terms of the disputed will is the proceeds of the sale of the property.
Van Der Merwe had difficulty selling the property and it would therefore appear that the motive for the disputed will was to ensure that she would receive an equivalent amount to that which she would have received had she sold the property in order to pay off the acknowledgment of debt she entered into with Malan.
The Plaintiffs prayed for an order that the disputed will be declared null and void and the earlier will be declared to be the last will and testament of the testatrix. Furthermore, that the Master of the High Court accept the earlier will and testament of the testatrix, as her last will and testament.
The Plaintiffs alleged that the signature of Malan as well as the signatures of the witnesses appended to the first page of the disputed will had been forged and that the first page of the disputed will was not validly signed and thus stands to be declared invalid.
At an ensuing trial five lay witnesses testified in the Plaintiffs’ case.
The first witness, being the First Plaintiff, Floris Burger, verified the handwriting of Malan in the two cards which were addressed to him by Malan during her life time.
The second witness was Lohan Burger, Malan’s nephew, who verified Malan’s handwriting on an envelope addressed to him by Malan in her lifetime.
The third witness to testify was the Second Plaintiff, Marie Heyns, who verified Malan’s handwriting on an envelope, a letter and a note in a book.
The fourth witness was Ms De Lange, a social services official at the Strand Services Centre, who had dealings with Malan. She verified Malan’s signature on the indemnity forms issued by the Strand Services Centre, signed by Malan in Ms De Lange’s presence.
The last lay witness to testify was Ms Steenkamp, also a social services official at the Strand Services Centre, who had dealings with Malan. She verified Malan’s signature on indemnity forms issued by the Strand Services Centre signed by Malan, in her presence.
The evidence of all five witnesses went unchallenged.
Expert witness, Yvonne Palm, testified in the Plaintiffs’ case. Palm received instructions from the Plaintiffs to examine and determine the authenticity of the disputed will.
Having been provided with the disputed will, specimen signatures from three previous wills executed by Malan, and specimen writing and signatures of Van der Merwe on notes and bank cheques, Palm concluded that the signature of Malan appearing on page one of the disputed will was a forgery. Furthermore, Palm concluded that in all probability the signatures of the two witnesses were also forged.
Expert witness Gert Burger and Van Der Merwe testified in the Defendants’ case.
Held
The trial judge accepted Palm’s evidence, dismissing the evidence of Burger and Van Der Merwe.
In the result the judge declared the disputed will null and void and the earlier will to be the last will and testament of Malan.
He further ordered the Master of the High Court to accept the earlier will and testament of the testatrix, dated 21 May 2003, as her last will and testament.
He ordered Van der Merwe to pay the costs of the suit, including wasted costs from the postponement of the matter twice in 2010, on a party and party scale.
Value
If you suspect that a Will may be forged utilise the services of an expert witness to prove your case.
