- A dispute over a mother’s Will ended with the court finding that all four children are entitled to an equal share of her estate’s residue.
- The court found that a dispute resolution clause in the Will took precedence over wording that seemed to leave one son out of the inheritance.
- The attempt to remove the executor was dismissed, and the costs will be paid from the estate.
A family dispute over a multimillion-rand inheritance has ended with the High Court in the Western Cape ruling that a son could not be excluded from sharing in the residue of his late mother’s estate despite a clause in her Will that appeared to benefit only three of her four children.
The dispute arose after the death of JER Orlik on 27 March 2022. Orlik left an estate valued at just under R22 million and executed her final Will on 29 October 2021. While the Will made various bequests to her children, grandchildren and niece, disagreement emerged over who was entitled to inherit the balance of the estate after those bequests had been distributed.
Acting Judge DM Thulare was asked to determine the proper interpretation of the Will and whether Struan Orlik was entitled to share in the residue of the estate alongside his siblings, Ryszard Orlik, Arn Orlik and Meryn Orlik.
Son challenges being left out of inheritance
The Will left specific inheritances to a number of family members. Meryn Orlik received the deceased’s jewellery and a cash bequest. Ryszard Orlik and Arn Orlik each received substantial cash inheritances. The deceased’s grandchildren and niece were also beneficiaries.
Struan Orlik was left the deceased’s loan account in a trust together with all assets related to that trust and was nominated as a successor trustee. However, the dispute centred on Clause 3.8 of the Will, which provided that the balance of the estate, including all movable and immovable assets, would be distributed equally among Ryszard, Arn and Meryn.
Struan maintained that his mother never intended to exclude him from the residual inheritance and argued that the Will had to be interpreted as a whole.
Siblings and executor argue for Will’s strict reading
Marthinus Wessel Nagel, together with Ryszard, Arn and Meryn, contended that Clause 3.8 was clear and that only the three named siblings were entitled to the residue of the estate.
Struan disagreed and relied on Clause 3.11 of the Will, which dealt with disputes between the deceased’s children. That clause appointed Nagel to resolve disagreements and directed that the children should share equally in the inheritance when disputes arose.
Struan argued that Clause 3.11 demonstrated his mother’s intention that all four children should benefit equally and that the executor’s interpretation unfairly favoured his siblings.
In a counterapplication, Struan sought the removal of Nagel as executor, a stay of the administration of the estate, rectification of the Will and alternative relief.
Judge rules all children must share equally
Judge Thulare found that the dispute resolution clause applied to all four children and that there was no basis to exclude Struan from its operation.
Judge Thulare said, “There is no basis to conclude that Clause 3.11 excluded Struan from the dispute resolution mechanism which his mother set up in that clause.”
The court found that the dispute concerning the residue of the estate fell squarely within the wording of Clause 3.11. Judge Thulare said, “Nowhere does the Will say that Clause 3.8 was excluded from the operation of Clause 3.11.”
The judge rejected the argument that Clause 3.8 could be interpreted in isolation and stressed that the entire Will had to be considered when determining the deceased’s intentions.
Judge Thulare said, “Clause 3.11 is part of the whole of the terms of the Will from which the testator’s intention is to be determined.”
A central issue for the court was the principle contained in Clause 3.11 requiring equal sharing among the deceased’s children. Judge Thulare held, “The fundamental source of and basis for resolving the dispute between JER’s children was that all the children of JER, to which Clause 3.11 applied, should share in the entire bequest.”
The judge concluded that the residue of the estate should be shared equally among all four children, including Struan. Judge Thulare further remarked, “It is the testator who determines the destiny of their estate.”
Executor stays on after the challenge fails
The court also considered allegations raised by Struan concerning the administration of the estate, including disputes relating to loan accounts, investments and alleged offshore assets.
Judge Thulare found that several of these issues involved factual disputes that could not be resolved on the papers before the court. The judge was not persuaded that Nagel should be removed from office.
Judge Thulare said, “I am not persuaded that there is a need for the discharge of Nagel as executor.” The court also declined to find that Struan’s challenge lacked merit. Judge Thulare said, “Equally, I am not persuaded that Struan’s contest was spurious.”
The court dismissed the application seeking a declaration that only Ryszard, Arn and Meryn were entitled to inherit the residue of the estate.
The court also dismissed the counterapplication seeking the removal of Nagel as executor, the appointment of a replacement executor and related relief. Costs in both the main application and the counterapplication were ordered to be paid by the estate.
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