- Will signed 350km apart was declared invalid after the court found a complete failure to meet the legal signing requirements.
- The court finds the testator lacked true intention and did not understand or approve the contents of the Will.
- Daughter declared unworthy to inherit after relying on false evidence and engaging in misconduct that affected the estate.
A Will has been declared invalid after the court found that the testator and witnesses signed it in different cities, making it legally defective from the very beginning.
The dispute arose within the Lombard family over which document truly reflected the wishes of the late Jan Hendrik Lombard, but the court ultimately found that the later Will could not stand.
At the centre of the matter was a document dated 1 November 2022, presented as the deceased’s final Will. The evidence revealed that the 93-year-old testator had signed the document in Matlosana, while the witnesses signed it later in Bloemfontein, approximately 350km away. That geographic separation proved decisive.
Judge A Reddy said, “This is not a technical defect but a total failure of the statutory ritual.” The court stressed that the requirement for simultaneous presence is not optional but a core safeguard to ensure authenticity. As the court put it, “The 350km separation represents a geographic impossibility of presence.”
Fatal flaws in how the Will was signed
The court found that the Will failed to meet the basic legal requirements set out in the Wills Act. The law requires a testator to sign a Will in the presence of at least two witnesses who are both present at the same time. That simply did not happen.
Instead, the document moved between cities with signatures added at different times and in different places. The court concluded that this amounted to a complete breakdown of the legal process required to create a valid Will.
Judge Reddy stated, “These unassailable facts result in one ineluctable legal conclusion; the witnesses were not present at the time the testator signed, and the testator was not present at the time the witnesses signed.” On that basis alone, the Will was declared invalid from the outset.
No real intention to make the Will
Beyond the procedural defects, the court found that the testator did not truly understand or intend the contents of the document. At 93 years old, he was described as cognitively vulnerable and emotionally affected following the death of his wife.
The circumstances under which he signed the document raised serious concerns. The person who drafted the Will reportedly told him “dit moet nou end kry,” meaning “this must end now,” a statement the court interpreted as pressure rather than neutral assistance.
A critical inconsistency further exposed the problem. The Will named a beneficiary who did not align with what the testator had allegedly expressed, and the court described this as clear proof that he did not understand or approve what he was signing.
Judge Reddy found, “If the testator truly possessed the actual intention to test, he would have identified the correct beneficiary.”
Daughter declared unworthy to inherit
The consequences extended beyond the invalid Will. The court found that Ethel Laura Elizabeth van der Merwe had engaged in serious misconduct, including relying on a fabricated document during the litigation and playing a role in the financial abuse of the estate.
Her explanation for delays in the case relied on a “Notice of Amendment” that did not exist. The court rejected this outright, stating that “it is a fabrication” and that “reliance under oath on a non-existent document to justify a three-month procedural default constitutes a serious abuse of the processes of this court.”
As a result, she was declared legally unworthy to inherit. The court emphasised that this principle applies not only to extreme cases such as causing death but also to serious dishonesty and abuse of the legal process.
Judge Reddy held that to allow the first respondent to inherit after she had attempted to subvert the machinery of justice would be an affront to the principle of equity.
She was removed as executrix, and the earlier joint Will made with the deceased’s late wife was reinstated as the valid Will.
Legal representatives also face consequences
The court also raised serious concerns about the conduct of the first respondent’s attorney, who had sworn an affidavit asserting the existence of a document that never existed.
Judge Reddy noted that an attorney who deposes to an affidavit asserting the existence of a document he knew or ought to have known had never been filed is not explained by inadvertence.
The attorney has been ordered to show cause why he should not personally bear the costs out of his own pocket.
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