- An earlier Will now governs a multimillion-rand estate after the court declared three later Wills and a Codicil invalid.
- The court found that the elderly businessman lost testamentary capacity by mid-2014 as Alzheimer’s disease gradually affected his cognition.
- An attempt to declare his second wife unworthy to inherit failed due to insufficient evidence of wrongdoing.
A wealthy businessman’s multimillion-rand estate will now be distributed according to an earlier Will after the High Court in Johannesburg found that Alzheimer’s disease had deprived him of the ability to make valid testamentary decisions in the final years of his life.
Judge J Manoim found that the businessman, who died at 94, still had testamentary capacity when he signed his April 2012 Will and Codicil. However, he lacked that capacity when he executed the Wills in July and August 2014, and the December 2016 Codicil, a legal amendment to an existing Will.
The judgment reinstates the earlier Will, which now governs significant assets in South Africa, Israel and the K Family Trust.
Equal inheritance gave way to changing Wills
The businessman built up considerable wealth through engineering, manufacturing, and investments, leaving behind an estate that included assets in South Africa, property in Israel, and interests in a valuable family trust.
He had three children from his first marriage and one daughter from his second marriage. In his 1999 Will, he made it clear that he wanted all four children to inherit the residue of his estate equally, while his second wife would receive a separate legacy.
That position changed between 2012 and 2016, as new Wills increasingly gave more benefits to his second wife and their daughter. The businessman’s children and grandchildren from his first marriage challenged these documents, arguing under the Wills Act that their father no longer understood what it meant to make a Will or the consequences involved.
Judge Manoim pointed out that the dispute was not about complete disinheritance. “The children and grandchildren from the first marriage have not been disinherited. Rather, the inheritance they anticipated from prior Wills had, over the four years, steadily diminished in favour of the second family,” he wrote.
Every Will had to be judged separately
The court said the key issue was not whether the businessman had dementia, since all the medical experts agreed that he did, but whether he still had testamentary capacity on the specific day each Will and Codicil was signed.
“The key question is whether that meant that he lacked testamentary capacity because he was mentally incapable of appreciating the nature of his testamentary acts,” Judge Manoim wrote.
The judgment stressed that every Will or Codicil had to be assessed on its own facts, since a progressive illness does not automatically make every document signed during that time invalid.
Why the April 2012 Will remained valid
The businessman’s children and grandchildren from his first marriage argued that he signed the April 2012 Will just weeks after a heart attack, while suffering from hypoactive delirium, a temporary condition that can affect judgment.
The court agreed that delirium can affect mental capacity but found there was no evidence it lasted sixteen days after the heart attack, when the Will was actually signed.
One of the businessman’s sons testified that if anyone had asked him whether his father was fit to sign a Will at that time, he would have answered, “Absolutely not.”
Judge Manoim nevertheless found that the family had not proved incapacity at the time, stating, “The children and grandchildren from the first marriage failed to prove incapacity when the businessman executed the 20 April 2012 Will and 26 April 2012 Codicil.”
Medical evidence became overwhelming
The turning point came in 2014. Dr Brent Tipping, the businessman’s treating geriatric physician, documented a steady decline in memory, reasoning, and cognitive function through repeated Mini-Mental State Examination assessments. His evidence was especially important because it was recorded during treatment, not years later for litigation.
By February 2015, Dr Tipping advised there should be “no more Will changes,” reflecting his opinion that the businessman was no longer capable of making valid testamentary decisions.
Judge Manoim described Dr Tipping as “a unique witness” whose evidence was “reliable, independent, and informed,” preferring it to other conflicting, retrospective expert opinions.
Audio recording exposed severe cognitive decline
A 2016 audio recording by financial adviser Daniel Roy became one of the most powerful pieces of evidence during the six-week trial.
The recording revealed that the businessman struggled to retain or understand information even moments after it had been explained. Judge Manoim found that his “understanding of what he was being told and his retained memory of what had been discussed with him only moments earlier, was seriously compromised.”
The judge also rejected repeated claims by estate adviser David Nathan that the businessman appeared lucid whenever the Wills were signed. He found that Nathan’s observations carried little weight because they were based more on outward sociability than on actual cognitive ability.
Three later Wills declared invalid
After considering the medical evidence, cognitive tests and witness testimony, the court concluded that the businessman had lost testamentary capacity by the middle of 2014.
The court went further, holding that by 2016, “the medical case was overwhelming,” making the December 2016 Codicil invalid as well.
Indignus claim fails
The businessman’s children and grandchildren from his first marriage also asked the court to declare his second wife an indignus, alleging that she knowingly facilitated testamentary changes while her husband lacked capacity and benefited from them.
Judge Manoim dismissed the claim, ruling that “probable incapacity was insufficient, without more conclusive evidence, to justify the extreme consequence of disqualifying the second wife from inheriting.”
The court also noted that the second wife had died before the trial, so she was unable to explain her conduct or answer the allegations against her.
The order
The High Court declared the July 2014 Will, the August 2014 Will, and the December 2016 Codicil invalid because of a lack of testamentary capacity.
The April 2012 Will and Codicil remain valid, and the application to declare the second wife an indignus was dismissed.
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