- The High Court declared a November 2022 will invalid after finding it did not comply with the Wills Act formalities.
- Judge Yake accepted expert evidence that the disputed signature did not belong to Bertha Magdalene Esbach.
- The court ordered that a 2013 joint will must instead be recognised as the valid last will.
The High Court in the Western Cape has declared a disputed November 2022 will of the late Bertha Magdalene Esbach invalid after finding serious problems with how the document was signed and witnessed.
The court also accepted unchallenged forensic evidence showing the deceased did not write the signature that appears on the document.
Acting Judge A Yake ruled that the requirements of Section 2(1)(a)(ii) of the Wills Act were not met and that the document could not be saved under Section 2(3) of the Act.
Ray Charles Esbach brought the application against the Master of the High Court, Cape Town, his siblings Charklene Barron, Karen Esbach and John Brent Esbach, as well as First National Bank. Only Barron opposed the matter.
The dispute was about whether a later will that was allegedly signed by Bertha on 28 November 2022, validly replaced a joint will she had made with her late husband on 22 August 2013. The 2013 will said that if the surviving spouse did not leave a valid later will, their estate would go to their son, Ray.
Questions over the execution of the disputed will
The court heard that Bertha became very ill during August 2022 and needed frequent hospitalisation before she died. A new will was said to have been signed only days before her death.
The applicant argued that the November 2022 will did not comply with the formal requirements set by the Wills Act because the witnesses did not see the deceased sign the document in each other’s presence.
Crystal Plaatjies, a witness to the disputed will, signed an affidavit stating that when she signed the document, the testatrix had not signed it yet.
According to the judgment, Plaatjies said she never saw the testatrix sign the will and only saw her from a distance holding a pen while Barron and John Brent Esbach were near her.
Another witness, Tyler Ralph Stemmet, confirmed in an affidavit that when he signed the document, the testatrix’s signature was already on the will. He also did not witness her actually signing it.
Witness affidavits contradicted each other
Judge Yake found that these affidavits seriously undermined the respondents’ version that the legal formalities had been met.
The court said that if the testatrix had signed the will in the presence of both witnesses, you would expect their affidavits to clearly reflect this.
Judge Yake added that instead, the affidavits were inconsistent and did not address the crucial point of whether the testatrix signed in their presence.
The court found that the evidence did not show that the testatrix and both witnesses signed the document in each other’s presence, as the law requires.
The judgment also noted contradictions in Barron’s own evidence. Barron claimed she did not know about the new will, even though Plaatjies placed her at the scene during the signing.
Forensic evidence undermined the respondents’ version
A major part of the case was the expert evidence of forensic document examiner SD Snyman, who compared the signature on the disputed 2022 will with the signature on the uncontested 2013 will.
Snyman concluded that Bertha was not the person who wrote the signature on the November 2022 document. The judgment noted that no other expert evidence was brought before the court. Judge Yake said there was no evidence from the second respondent to the contrary.
By applying the Plascon Evans rule for factual disputes on affidavit, the court held that the respondents’ version could not stand because it was not credible when weighed against the uncontested forensic findings and the conflicting witness evidence.
The court said that since the November 2022 will does not fully comply with the formalities for a valid will, in that the parties did not sign in the presence of each other, and the forensic evidence excluded the signature as that of the testatrix, the applicant has met the required standard of proof.
Court rejects reliance on Section 2(3)
The court also considered whether Section 2(3) of the Wills Act could save the disputed document despite defects in execution. Judge Yake explained that section 2(3) is there to prevent a deceased person’s true wishes from failing just because of technical errors in following the rules.
However, the court found that the evidence did not show the November 2022 document genuinely reflected the deceased’s testamentary intention. The court said that the validity of the November 2022 will is in serious doubt, so section 2(3) cannot be used to fix these defects.
Earlier in 2013 will be restored as a valid testament
The court declared the November 2022 will invalid and directed the Master of the High Court to accept the August 2013 joint will as the valid last will of Bertha Magdalene Esbach for estate administration.
Judge Yake also granted a costs order against Barron after the matter became unopposed when she did not appear in court on 28 April 2026.
Get your news on the go. Click here to follow the Conviction WhatsApp channel.
