Cape Town - The Western Cape High Court has ruled that there was insufficient evidence to show that a man who died in hospital from Covid-19 had intended to revoke his will and write up a new one in which he left everything to a farming trust instead of his three children.
The ruling by Acting Judge Masudah Pangarker came after the plaintiffs in the matter – David Roux, in his capacity as the trustee for the time being of the Willemse Boerdery Trust, and Corita Vorster – failed to prove that Leon Stemmet drafted a new will revoking his old one.
Stemmet, a resident of Montagu, executed a will there in October 2018 in which his entire estate was bequeathed to his three children, Joubert, Bianca and Anja, the defendants in the case.
In July 2021, Stemmet contracted the Covid-19 virus and was admitted as a patient at Mediclinic Worcester.
Roux and Vorster claim that on July 25, 2021, Stemmet indicated to Gawie Willemse that he wished to revoke his 2018 will. They said he asked for Willemse’s help and repeated the request on July 26 and 27. They told the court that on July 30, assisted by Medi-Clinic personnel, Stemmet made contact with Willemse via video call.
During this video call, he again repeated his wish to revoke the 2018 will and that his final instructions regarding the disposal of his estate were that his entire estate be left to the Willemse Boerdery Trust.
On that call, Stemmet allegedly asked Willemse for help to engage attorneys to draft a will reflecting his new final instructions.
After that July 30 video call, Stemmet was transferred to the hospital’s intensive care unit. Meanwhile, Willemse told attorney Louis Benade, to prepare a will in accordance with Stemmet’s video call instructions.
On July 31, Benade gave Willemse a duly prepared will, which Willemse delivered to Stemmet at the hospital.
However, on arrival Willemse was refused access to the ICU and prevented from delivering it personally to Stemmet due to Covid-19 restrictions.
He left the new will with hospital staff with a request that it be delivered as soon as possible.
That evening the hospital staff attempted to deliver the new will to Stemmet, only to find that he had been induced into a coma for purposes of being intubated.
Stemmet did not recover from the coma and died on August 8, 2021.
Judge Pangarker said: “From the Particulars of Claim, it is evident that the deceased did not personally draft the document which the plaintiffs rely upon as revoking the deceased’s 2018 will.
“Furthermore, accepting that he was in a coma at the time that the new will was delivered to him by nursing personnel, it follows that the deceased was unaware of the content and was, at least objectively speaking, not in a position to confirm that the document’s content correctly expressed his intentions.”
mwangi.githahu@inl.co.za