- The five children challenged the handling of their late mother Magdalene Jansen’s estate and the transfer of her share of the family home to their father.
- They said a different will had been read to them and asked the court to replace the will that had been accepted by the Master.
- Judge Njokweni dismissed the application, finding that the children had not made their case in their founding affidavit and that key factual disputes could not be settled in motion proceedings.
The five children who grew up in the Robertson family home did not succeed in proving that their late mother wanted them to inherit her 50 percent share of the property.
The dispute concerned the estate of Magdalene Jansen, who died on 2 October 2014. She had been married in community of property to Nicholas Johannes Jansen, the father of Carla Jansen, Collin Ian Jansen, Wifred Andre Jansen, Martha Jansen, and Gloria Juleen Jansen.
The children took the case to the High Court in Cape Town, challenging how their mother’s estate was handled and the transfer and later sale of the family home. Nicholas sold the property to Rhoderick Meyer and Zukiswa Constance Meyer, who became the new owners and later started eviction proceedings against the children.
The children relied on what they said were their mother’s wishes
The children said that during a meeting in 2016 with their family attorney, Loftus Cilliers, he read their parents’ joint will and told them that Magdalene’s 50 percent share in the property would go to them.
They said the family believed the property would eventually be transferred to them and that nothing would happen to it in the meantime without everyone’s agreement. However, the will before the court was dated 19 July 1995. Clause 7 said the surviving spouse would inherit everything if one died first.
The children would only inherit if both parents died at the same time or within 28 days of each other, and if the survivor had not made another will. Nicholas argued that this was the valid will, so he inherited Magdalene’s share of the property.
No later will was ever produced
The children claimed that documents suggested a will dated 19 July 1996 had been given to the Master and accepted in 2016. They believed the 1995 will had been changed and accused their father of destroying or hiding the document they said had been read to them.
But no later will was ever produced. Judge Njokweni noted that every will submitted to the court was dated 19 July 1995. Cilliers also said he did not know of another will.
He explained that he mistakenly thought both Magdalene and Nicholas had died when he met with the family in January 2016, and his later correspondence reflected that misunderstanding. Cilliers insisted that the only will his firm ever had was the joint will from 19 July 1995.
Earlier eviction proceedings weakened their case
The court also looked at an affidavit that Collin had filed in the eviction proceedings started by the Meyers. She said Magdalene permitted the children to live in the property for the rest of their lives, and after her death, they reached an agreement with Nicholas that the property would be transferred to them.
Importantly, Collin included the 19 July 1995 joint will with that affidavit. Judge Njokweni found that the earlier court case showed the children already knew about the different versions of the will, the property, and their alleged rights before starting this application.
The court said the case could not be fixed in reply
The children’s founding affidavit only generally mentioned a 2016 meeting where the will was supposedly read. Their reply later gave more details, including a specific date and that Dino Bailey was allegedly there.
Judge Njokweni found that the children could not use their reply to fix problems in their original case. The judge said that every application has to be made with proper notice and an affidavit that sets out all the facts the applicants rely on for relief.
The judge found that the children had not properly shown the existence, contents, or legal effect of the alleged later will in their founding papers.
Key disputes stood in the way
There were different stories about the 2016 meetings, whether another will existed, what happened to Magdalene’s share, and the later transfer and sale of the property.
Judge Njokweni found that these were important factual disputes that could not be settled just by accepting the children’s version over the respondents’. The judge said, “This application is filled with major factual disputes.”
The court applied the Plascon-Evans approach and found that the respondents’ version was not so unlikely or unreasonable that it could be ignored in deciding the case.
Court rejects attempt to change the will
The children wanted the court to add extra words to the will accepted by the Master. They also asked for the alleged later will to be produced and for a declaration that the sale agreement for the property was invalid. Their arguments also relied on the development of the common law about wills and succession.
Judge Njokweni found that the children had not provided the necessary facts for that argument in their founding affidavit. The judge said, “You cannot ask for further or alternative relief to get an order that is very different from what you asked for in your notice of motion.”
The court found that the children were basically asking it to add provisions to a valid will based on disputed facts. The court said it could not grant that relief.
Application dismissed
Judge Njokweni also considered Nicholas’s claim that the application was meant to delay the eviction case brought by the Meyers. In the end, the court found that the children had not proved that the estate administration or the sale of the property was unlawful.
Judge Njokweni said, “The applicants have not shown that the property was under their control, and they have not proved that the estate administration or the sale to the Meyers was unlawful based on the documents before the court.”
The application was dismissed. The five children were ordered together to pay the first and second respondents’ party-and-party costs on Scale B, including the costs of counsel if counsel was used.
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