Disqualification from inheriting

In Smit v Master of the High Court, Western Cape and Others [2022] 4 All SA 146 (WCC), disqualification of applicant to inherit because of her role in the murder of her husband and the forgery of his will and other documents by her.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Wills and estates - Validity of will – disqualification from inheriting: The applicant’s husband in Smit v Master of the High Court, Western Cape and Others [2022] 4 All SA 146 (WCC) was murdered on their farm in June 2019. Pursuant to his death, the applicant sought an order that the first respondent (the Master) accept and register a document dated 12 January 2019 as the last will and testament of the deceased. The application was opposed by the second and third respondents (the daughters of the deceased from a first marriage) on the basis that such document was fraudulent. They contended that a 2018 will was the real will of the deceased.

A critical aspect of the case was the implication of the applicant in the murder of the deceased. The court was thus faced with the question of whether the applicant should be declared unworthy to inherit from the deceased’s estate.

It was held that the disputed 2019 will was found by a handwriting expert to have been forged. The only person who stood to benefit therefrom was the applicant. The court could find no fault with the witnesses called by the respondents who testified about the applicant’s plotting to have her husband killed, particularly after she gained access to his safe and discovered that she would not inherit in terms of the 2018 will kept there. The court found the witnesses in question to be credible.

That led the court to the question of whether the applicant was entitled to inherit in the estate of the deceased, having caused or participated in his murder. The court referred to the Roman-Dutch principle that there are classes of persons who are regarded as unworthy to inherit. The novel element in this case was that there had not yet been any judicial pronouncement on the guilt of the applicant in the murder case. The question then was whether murder was the only crime warranting exclusion from inheriting.

It was ascertained that the applicant had forged at least three documents and submitted one forged document purporting to be the deceased’s last will, public policy required that she forfeited all the benefits that arose from the deceased’s estate. The court ruled her unworthy to inherit and dismissed her application to recognise the 2019 document as the deceased’s will.

Merilyn Rowena Kader
Legal Editor at LexisNexis