Under the influence: Court rules on case questioning free will in inheritance dispute

Image source: Drazen Zigic from Freepik

The parties involved were the deceased father and husband (the deceased), one of the deceased’s daughters (the daughter), the deceased’s 5th wife to whom he was married to from 1993 to 1998 (the wife) and the long-time attorney of the deceased who was involved with the drafting of the contested Wills (the attorney).

The events

On 14 May 2014 the deceased, at the time a divorcee and unmarried, made a Will in terms of which he bequeathed his entire estate in equal shares to his only two daughters, born from his first marriage. During 2015, the deceased started displaying flu-like symptoms which would not subside. His health deteriorated and he was eventually diagnosed with pancreatic cancer in August 2015.

A few days after the diagnosis, the deceased received a call from the wife who had seemingly heard about the deceased’s illness and wanted to visit him. Shortly thereafter the daughter visited the deceased in hospital and found none other than the wife there, also visiting the deceased. Very soon thereafter the wife moved in with the deceased at his home.

On 10 September 2015, the daughter once again visited the deceased in hospital while he was recovering from surgery. There the daughter found the wife holding the deceased’s hand and, while being weak and confused, the deceased announced their plans to get married. The deceased and the wife were (once again) married on 25 October 2015. On 28 February 2016, the deceased passed away.

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Three Wills were made by the deceased in the period from his diagnosis to his death. For brevity’s sake it suffices to say that the Wills resulted in disinheriting the daughter. The daughter then approached the court to have the Wills declared invalid on the basis that the deceased was mentally incapable of understanding the act of making a Will when making the three Wills in question and that he was unduly influenced by the wife while doing so.

Testamentary capacity

The principles of testamentary capacity, which includes freedom of testation, are well established in South African law of succession. A testator may accordingly dispose of his estate as he or she wishes, unless there are public policy considerations which restrain the exercise of the testator’s wishes.

Therefore, provided that a person is above the age of 16 and capable of understanding the nature and effect of the act of making a Will at the time, one has a broad discretion to let inherit or to disinherit whomever he or she wishes. One must not only understand that one is making a Will but also the consequences thereof.

Imperfect memory, old age or illness will not necessarily result in someone being incapable of making a Will. The question is rather whether someone’s mind and memory are sufficiently sound for him or her to know and to understand the business in which the person was engaged at the time of executing the Will.

Free will

The court in Pokroy confirmed the importance of the testator’s free will and had the following to say:

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. 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…

Plainly put, the content of the Will must be the wishes of the testator and not the wishes of someone else. Should this become a matter of dispute, a court will consider the testator’s mental state, his ability to resist prompting and instigation and the relationship between the people concerned.

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The court in Pokroy then dealt with the evidence before it to assess whether the deceased was influenced to the extent that his free will was affected. It noted the close relationship between the deceased and the daughter and that, at least in terms of the 2014 Will, the deceased had wanted his daughters to be well looked after.

It was therefore deducted that the act of disinheriting any of his daughters would have had to have been “motivated by an act, equally unkind and of equal graveness perpetuated against” him.

The wife argued that the daughter fell out of favour with the deceased for various reasons, the main reason being the daughter’s disapproval of their marriage. The court rejected the wife’s argument, noting that the deceased had always discussed his intended marriages with his daughters and their disapproval of any intended marriage had never created any animosity between the deceased and his daughters.

The court found that there was no such act performed by the daughter which could have justified her disinheritance. This then begged the question whether the deceased was influenced to disinherit his daughter.

The evidence showed that it was in fact the wife who went to great lengths to create a divide between the deceased and his daughter. The wife and attorney colluded to ensure that the daughter did not attend the wedding and then lied about it to the deceased, who was upset that his daughter did not attend, in order to create animosity between the deceased and the daughter. The court said:

"The exclusion [in the Will] of the Plaintiff [daughter] in fact resonates more with the 2nd Defendant’s [wife’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."

The act of disinheriting the daughter was therefore more in line with the wishes of the wife than the wishes of the deceased. The court found that the deceased had indeed forsaken his Will for that of the wife.

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Undue influence

Next, the court ascertained whether this forsaking of the deceased’s Will was indeed as a result of coercion or fraud. It was clear that the wife had in the many years before the deceased’s death shown no interest in him until he was diagnosed with cancer.

The evidence showed how the wife, over a short period of time, systematically took over the daughter’s duties of generally caring for the deceased, in order to isolate the deceased and gain exclusive control over his life.

The wife went even further and lied to the deceased about the extent of the prognosis of his pancreatic cancer. She told the deceased that there were only two tiny spots on his pancreas, that it could be treated and that he would recover. In fact, the deceased only had an estimated six months to live. The court said:

“By so doing the 2nd Defendant [wife] 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.”

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State of mind

The court relied on expert witnesses’ testimonies and found that the deceased’s cognitive abilities was so impaired as to render him vulnerable and susceptible to undue influence at the time of the making of each Will.

The factors the court took into account were: the effect of the terminal pancreatic cancer which caused the deceased severe pain and a gradual decline in brain functioning, the wife’s deception with regard to the illness, the animosity created by the wife between the deceased and his daughter, the use of morphine and the incorrect administration thereof (the wife had withheld the deceased morphine in times of severe pain), the use of various central system depressants, the use of alcohol (encouraged by the wife) and the deceased’s prior struggle with alcoholism.

The court held that the deceased had therefore lacked the necessary testamentary capacity to make a valid Will at the times of making the three contested Wills. The Wills were accordingly found to be invalid. The Will made on 14 May 2014 was found to be the deceased’s last Will, resulting in the deceased’s two daughters inheriting his estate.

This case illustrates how wary we should be of opportunistic people who will go to great lengths in deceiving our loved ones to benefit from them and turning our lives into Hollywood soap operas.