Background: A Family Feud over a Contested Will
The case of M.E.K and Another v Pokroy N.O and Others (70352/16) [2024] ZAGPPHC 862 unfolds as a gripping family saga centred on the contested will of Mr A.K., a successful businessman and father of two daughters. The legal dispute arose when M.E.K., a chartered accountant and retired pilot, challenged the validity of several wills executed by her late father in the months preceding his demise. At the heart of the controversy lay a series of wills that progressively excluded M.E.K. from inheritance, while favouring her father’s ex-wife, W.M.K., who had been divorced from him for 17 years before their remarriage shortly before his death.
The family drama began to unfold in May 2014 when A.K., then unmarried, executed a will bequeathing his estate equally to his two daughters, M.E.K. and A.I.B. However, the landscape shifted dramatically when A.K. was diagnosed with pancreatic cancer in August 2015. Within days of this diagnosis, W.M.K. re-entered A.K.’s life, moving into his home and swiftly becoming a central figure in his affairs.
What followed was a whirlwind of events that saw A.K. execute three new wills in rapid succession. The first of these, signed in October 2015, revoked the previous will and excluded M.E.K. entirely, dividing the estate between W.M.K., A.I.B., and A.K.’s grandson. Subsequent wills in January and February 2016 further altered the distribution of the estate, with the final will, executed just days before A.K.’s death, leaving everything to W.M.K. and A.I.B., once again excluding M.E.K.
The case brings to the fore complex issues of testamentary capacity and undue influence, as defined in Section 4 of the Wills Act 7 of 1953. M.E.K. alleged that her father lacked the mental capacity to execute valid wills during this period, citing his deteriorating health, use of strong pain medication, and alleged alcohol abuse. Moreover, she claimed that W.M.K. had exerted undue influence over A.K., manipulating him to alter his will in her favour.
The legal battle that ensued not only pitted family members against each other but also drew in A.K.’s long-time attorney, Morris Pokroy, who became embroiled in the controversy as both the drafter of the contested wills and the executor of the estate. The case thus presents a complex web of personal relationships, legal obligations, and ethical considerations that often characterise high-stakes probate disputes.
As the court delved into the intricacies of A.K.’s final months, it was tasked with unravelling a tangled narrative of family dynamics, medical evidence, and legal precedents to determine the true intentions of the deceased and the validity of his final testamentary acts. This case serves as a stark reminder of the potential for conflict in estate planning and the critical importance of ensuring clear testamentary capacity and freedom from undue influence in the execution of wills.
The Legal Battle: Challenging Testamentary Capacity and Undue Influence
The crux of M.E.K.’s case rested on two fundamental challenges to the validity of her father’s later wills: lack of testamentary capacity and undue influence. These legal concepts, rooted in both statutory law and common law principles, formed the battleground upon which the fate of A.K.’s estate would be decided.
Testamentary capacity, as outlined in Section 4 of the Wills Act 7 of 1953, requires that a testator be “mentally capable of appreciating the nature and effect of his act” at the time of executing a will. M.E.K. argued that her father’s deteriorating health, particularly his advanced pancreatic cancer and the effects of strong pain medication, had compromised his ability to meet this standard. She contended that A.K. was not in a position to fully comprehend the implications of the changes he was making to his testamentary dispositions.
The court, in evaluating testamentary capacity, drew upon established legal precedents. In Essop v Mustapha and Essop NNO and Others 1988 (4) SA 213 (D), it was emphasised that the decisive moment for establishing competence is the time when the will is made, not when instructions are given. This principle became particularly relevant given the rapid succession of wills executed by A.K. in his final months.
The concept of undue influence formed the second prong of M.E.K.’s challenge. She alleged that W.M.K. had exerted improper pressure on A.K., effectively substituting her own wishes for those of the testator. The legal test for undue influence, as articulated in Spies v Smith 1957 (1) SA 539 (A), requires evidence that the testator’s will was supplanted by that of another, resulting in a disposition that the testator would not have made of their own free will.
M.E.K.’s legal team sought to demonstrate a pattern of isolation and manipulation by W.M.K., arguing that she had systematically limited A.K.’s contact with his daughters and created an environment in which he was susceptible to her influence. They pointed to the dramatic shifts in A.K.’s testamentary intentions, particularly the exclusion of M.E.K., as evidence of this undue influence.
The defence, led by W.M.K. and the executor, Morris Pokroy, countered these arguments by asserting A.K.’s enduring mental acuity and strong-willed nature. They portrayed the changes in his will as reflective of genuine shifts in his relationships and desires, rather than the result of any external pressure or diminished capacity.
A key legal issue that emerged was the application of Section 4A of the Wills Act, which disqualifies certain persons involved in the execution of a will from benefiting under it. The court had to consider whether W.M.K.’s involvement in the will-making process, particularly her presence during the execution of the final will, fell afoul of this provision.
The case also raised questions about the role and responsibilities of the testator’s attorney, Morris Pokroy. His dual position as both the drafter of the contested wills and the executor of the estate came under scrutiny, with the court examining whether he had fulfilled his fiduciary duties in ensuring A.K.’s testamentary freedom and capacity.
As the legal battle unfolded, the court was tasked with weighing a complex array of evidence, including medical records, witness testimonies, and expert opinions. The judgment in Tregea and Another v Godart and Another 1939 AD 16 provided guidance on the holistic approach required in assessing testamentary capacity, emphasising the need to consider the testator’s ability to comprehend the nature of the act, the extent of the property being disposed of, and the claims of potential beneficiaries.
The intricate legal arguments presented in this case underscored the challenges inherent in probate disputes, particularly those involving allegations of diminished capacity and undue influence. The court’s task was not merely to interpret the law but to apply it sensitively to the nuanced realities of family dynamics and end-of-life decision-making.
Expert Testimony: Medical Insights into the Testator’s Mental State
A critical aspect of the case revolved around expert medical testimony providing insights into A.K.’s mental state during the period when he executed the contested wills. The court heard from several medical experts whose testimonies were crucial in assessing A.K.’s testamentary capacity and susceptibility to undue influence.
Dr. Kruger, a pharmacist, offered expert opinion on the effects of the medications A.K. was taking, particularly morphine and other opioids. He emphasised that morphine, as a strong painkiller used for extreme pain like pancreatic cancer, affects the central nervous system and can impair cognitive function. Kruger noted that side effects such as drowsiness, decreased alertness, and memory impairment can occur even at therapeutic levels. He also highlighted the potential for drug interactions, given the multiple medications A.K. was taking, which could have further compromised his cognitive abilities.
Dr. Bond, who had treated A.K., provided crucial testimony about the progression of A.K.’s illness. He confirmed that A.K.’s condition had significantly deteriorated in the weeks leading up to his death, with the cancer spreading and causing increased pain and weakness. While Dr. Bond noted that A.K. was not confused or delirious during his last visit on 18 February 2016, he acknowledged that A.K.’s physical state was very poor.
Dr. Franco Colin, a psychiatrist, offered insights into the concept of undue influence from a psychiatric perspective. He emphasised the importance of considering A.K.’s mental state, his ability to resist prompting and instigation, and the nature of his relationship with W.M.K. Dr. Colin noted that A.K.’s terminal diagnosis, combined with pain, medication effects, and possible alcohol use, could have made him more vulnerable to influence.
Professor N. Schellock, head of Pharmacology at the University of Pretoria, provided a counterpoint to some of Dr. Kruger’s assertions. She emphasised the importance of considering pain as a physiological antagonist to the central nervous system effects of morphine. Schellock argued that in patients with severe pain, like those with pancreatic cancer, the pain itself might mitigate some of the cognitive impairment typically associated with opioid use.
The experts’ testimonies painted a complex picture of A.K.’s mental state. They highlighted the potential for cognitive impairment due to his illness, medication, and other factors, while also acknowledging the difficulty in definitively assessing mental capacity retrospectively. The court had to weigh these expert opinions against the factual evidence of A.K.’s behaviour and decision-making in his final months.
This expert testimony was crucial in the court’s consideration of whether A.K. possessed the necessary testamentary capacity to execute valid wills, and whether he was in a state that made him particularly susceptible to undue influence. The medical insights provided a scientific foundation for understanding the potential impacts of A.K.’s condition on his mental faculties, adding a layer of complexity to the legal questions at hand.
The Court’s Ruling: Invalidating Multiple Wills
After careful consideration of the evidence and expert testimony, the court reached a significant decision to invalidate multiple wills executed by A.K. in his final months. The ruling was based on a comprehensive analysis of both testamentary capacity and undue influence, drawing on established legal principles and precedents.
In assessing testamentary capacity, the court relied heavily on the test articulated in Banks v Goodfellow (1870) LR 5 QB 549, which was reaffirmed in Tregea and Another v Godart and Another 1939 AD 16. This test requires that a testator understand the nature of the act of making a will, the extent of their property, and be able to comprehend and appreciate the claims to which they ought to give effect. The court found that A.K.’s deteriorating health, coupled with the effects of medication and possible alcohol use, had compromised his ability to meet these criteria, particularly in the execution of the later wills.
The court also considered the principle established in Essop v Mustapha and Essop NNO and Others 1988 (4) SA 213 (D), which emphasises that the decisive moment for establishing competence is when the will is made, not when instructions are given. This was particularly relevant given the rapid succession of wills executed by A.K. in his final months.
On the issue of undue influence, the court drew guidance from Spies v Smith 1957 (1) SA 539 (A), which defines undue influence as a situation where the testator’s will is supplanted by that of another. The court found compelling evidence that W.M.K. had exerted improper pressure on A.K., effectively substituting her wishes for his own, particularly in the exclusion of M.E.K. from the later wills.
The court also considered the principles outlined in Kirsten & Others v Bailey & Others 1976 (4) SA 108 (C), which emphasises that the mere existence of a relationship of a particular kind does not give rise to a presumption of undue influence. However, the court found that the totality of circumstances surrounding W.M.K.’s involvement in A.K.’s affairs and the will-making process exceeded the bounds of normal influence.
In its analysis, the court referenced Scott v Master of the High Court Bloemfontein (2582/2012) [2012] ZAFSHC 190, which underscores the importance of the testator being able to provide sensible reasons for unexpected provisions in a will. The court found that no credible explanation had been provided for the dramatic shift in A.K.’s testamentary intentions, particularly the exclusion of M.E.K.
The court also considered the application of Section 4A of the Wills Act 7 of 1953, as interpreted in Blom and Another v Brown and Others [2011] 3 All SA 223 (SCA). This section disqualifies certain persons involved in the execution of a will from benefiting under it. The court found that W.M.K.’s involvement in the will-making process raised serious concerns under this provision.
In light of these considerations, the court ruled to invalidate the wills executed by A.K. on 8 October 2015, 18 January 2016, and 25 February 2016. Instead, the court declared the will executed on 14 May 2014, to be A.K.’s last valid will and testament. This earlier will, which divided the estate equally between M.E.K. and A.I.B., was found to be a true reflection of A.K.’s wishes, executed at a time when his testamentary capacity was not in question.
The court’s decision underscored the importance of protecting the principle of testamentary freedom while also safeguarding against the exploitation of vulnerable testators. The ruling serves as a significant precedent in South African probate law, emphasising the courts’ willingness to scrutinise closely the circumstances surrounding the execution of wills, particularly when there are dramatic changes in testamentary dispositions shortly before a testator’s death.
Implications: Lessons for Estate Planning and Will Execution in South Africa
The judgment in M.E.K and Another v Pokroy N.O and Others (70352/16) [2024] ZAGPPHC 862 offers several important lessons and implications for estate planning and will execution in South Africa:
Importance of Testamentary Capacity: The case underscores the critical importance of ensuring testamentary capacity when executing a will. Legal practitioners and testators must be acutely aware that capacity can be affected by various factors, including illness, medication, and mental state. Regular updates to wills should ideally be done when the testator is in good health and clear mind.
Vigilance Against Undue Influence: The court’s ruling highlights the need for safeguards against undue influence, especially when testators are vulnerable due to illness or advanced age. Legal practitioners should be vigilant for signs of coercion or manipulation, particularly when there are dramatic changes to long-standing testamentary intentions.
Role of Medical Evidence: The extensive use of medical testimony in this case emphasises the growing importance of medical evidence in probate disputes. Estate planners might consider incorporating medical assessments into the will-making process, especially for elderly or ill clients, to pre-emptively address potential capacity challenges.
Documenting Reasons for Changes: When significant changes are made to a will, especially those that exclude close family members, it is advisable to document the testator’s reasons clearly. This documentation can serve as valuable evidence of the testator’s intentions and mental state if the will is later contested.
Caution with Involvement of Beneficiaries: The case serves as a warning about the risks of involving potential beneficiaries in the will-making process. Legal practitioners should be cautious about allowing beneficiaries to be present during will discussions or executions, as this could raise questions about undue influence.
Ethical Responsibilities of Legal Practitioners: The scrutiny of Attorney Pokroy’s role highlights the ethical responsibilities of legal practitioners in estate planning. Lawyers must balance their duty to follow client instructions with their obligation to ensure the client is acting freely and with capacity.
Importance of Proper Will Execution: The court’s criticism of wills witnessed by only one person underscores the importance of strict adherence to the formal requirements for will execution as outlined in the Wills Act.
Considerations for Late-Life Marriages: The case raises important considerations for late-life marriages, especially when they involve significant changes to estate plans. Extra caution may be warranted in such situations to ensure that testamentary changes reflect the true wishes of the testator.
Potential for Family Conflict: This case illustrates the potential for bitter family disputes over inheritances. Estate planners might consider discussing potential family dynamics with clients and exploring options like mediation clauses in wills to manage potential conflicts.
Evolving Legal Landscape: The judgment contributes to the evolving jurisprudence on testamentary capacity and undue influence in South Africa. Legal practitioners must stay informed about these developments to provide the best advice to their clients.
Fiduciary Duty of Executors: The criticism of the executor’s handling of the estate administration serves as a reminder of the high standards of care and diligence expected of executors.
Costs Implications: The award of costs against the defendants on an attorney and client scale highlights the potential financial risks of contesting or defending wills in bad faith.
This case serves as a cautionary tale and a valuable reference point for estate planners, legal practitioners, and individuals engaged in estate planning in South Africa. It emphasises the need for careful, ethical, and thorough practices in will drafting and execution, particularly in complex family situations or when dealing with vulnerable testators.
Questions and Answers
What was the key legal issue at the heart of the M.E.K and Another v Pokroy N.O and Others case? The key legal issue was the validity of multiple wills executed by the deceased, A.K., in his final months, with challenges based on lack of testamentary capacity and undue influence.
How does South African law define testamentary capacity? South African law, as per Section 4 of the Wills Act 7 of 1953, requires that a testator be mentally capable of appreciating the nature and effect of his act when making a will.
What legal test was applied to assess testamentary capacity in this case? The court applied the test from Banks v Goodfellow, which requires the testator to understand the nature of making a will, the extent of his property, and to comprehend and appreciate the claims to which he ought to give effect.
How did the court view the relevance of medical evidence in assessing testamentary capacity? The court considered medical evidence crucial, relying heavily on expert testimony to understand the impact of A.K.’s illness, medication, and possible alcohol use on his cognitive abilities.
What is the legal definition of undue influence in the context of will-making? Undue influence is defined as a situation where the testator’s will is supplanted by that of another, resulting in a disposition that the testator would not have made of their own free will.
How did the court assess whether undue influence had occurred in this case? The court examined the totality of circumstances surrounding W.M.K.’s involvement in A.K.’s affairs, looking for evidence of improper pressure or manipulation that led to changes in A.K.’s testamentary dispositions.
What significance did the court place on the rapid succession of wills executed by A.K.? The court viewed the rapid succession of wills as a red flag, suggesting potential instability in A.K.’s intentions and raising questions about his capacity and vulnerability to influence.
How did the court interpret Section 4A of the Wills Act in relation to W.M.K.’s involvement in the will-making process? The court considered whether W.M.K.’s involvement in the will-making process disqualified her from benefiting under the will, as per Section 4A of the Wills Act.
What was the court’s ruling on the validity of the multiple wills executed by A.K.? The court invalidated the wills executed on 8 October 2015, 18 January 2016, and 25 February 2016, declaring the will of 14 May 2014 to be A.K.’s last valid will and testament.
How did the court view the role of the testator’s long-time attorney, Morris Pokroy? The court criticised Pokroy’s handling of the will executions and estate administration, emphasising the high standards of care and diligence expected of attorneys and executors in such roles.
What legal principle did the court apply regarding the timing of assessing testamentary capacity? The court applied the principle from Essop v Mustapha and Essop NNO and Others, which states that the decisive moment for establishing competence is when the will is made, not when instructions are given.
How did the court address the issue of A.K.’s reasons for changing his will? The court found no credible explanation for the dramatic shift in A.K.’s testamentary intentions, particularly the exclusion of M.E.K., citing the principle from Scott v Master of the High Court Bloemfontein that emphasises the importance of sensible reasons for unexpected provisions.
What legal standard did the court apply in assessing the evidence of undue influence? The court applied the standard from Spies v Smith, looking for evidence that W.M.K.’s influence had supplanted A.K.’s own will in making testamentary decisions.
How did the court view the relevance of A.K.’s prior testamentary intentions? The court considered A.K.’s prior testamentary intentions, as expressed in his 2014 will, as a benchmark against which to assess the dramatic changes in his later wills, emphasising the importance of consistency in testamentary dispositions.
What implications does this ruling have for the witnessing of wills in South Africa? The ruling emphasises the importance of strict adherence to the formal requirements for will execution as outlined in the Wills Act, particularly the need for proper witnessing by two competent witnesses.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.
DOWNLOAD THE JUDGEMENT HERE: