THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not reportable
Case No: 20632/2014

In the matter between:
VAN NIEKERK ELIZABETH ALETTA
APPELLANT

and

KRUGER GERT ABRAHAM
FIRST RESPONDENT
CLIFTON CHARLOTTA CATHARINA
SECOND RESPONDENT
KRUGER ROELOFF JURGENS JOHANNES
THIRD RESPONDENT
KRUGER MARIA JOHANNA MAGDALENA
FOURTH RESPONDENT
KRUGER PIETER
FIFTH RESPONDENT
CLIFTON SEBASTIAN LEGALLY REPRESENTED
BY CHARLOTTA CATHARINA CLIFTON
SIXTH RESPONDENT
CLIFTON STEFAN LEGALLY REPRESENTED BY
CHARLOTTA CATHARINA CLIFTON
SEVENTH RESPONDENT
KRUGER RUHAN LEGALLY REPRESENTED BY
ROELOF JURGENS JOHANNES KRUGER
EIGHTH RESPONDENT
KRUGER WERNER LEGALLY REPRESENTED
BY ROELOF JURGENS JOHANNES KRUGER
NINTH RESPONDENT
KRUGER: WIEHAN LEGALLY REPRESENTED BY
ROELOF JURGENS JOHANNES KRUGER
TENTH RESPONDENT
ABSA TRUST LIMITED
ELEVENTH RESPONDENT
MASTER OF THE HIGH COURT
(ESTATES DIVISION)
TWELFTH RESPONDENT

Neutral Citation:
Van Niekerk v Kruger and others (20632/14) [2016] ZASCA 55
(1 April 2016)
Coram:
Navsa ADP, Leach and Saldulker JJA and Tsoka and Baartman AJJA
Heard:
3 March 2016
Delivered:
1 April 2016
Summary: Wills Act 7 of 1953, section 4 – whether deceased had testamentary capacity to
execute a will – Expert evidence – court must be satisfied with the reasoning which led to
conclusion by expert witness- held testatrix not of sound mind at time of execution of will.

ORDER
On appeal from: Gauteng Local Division of the High Court, Johannesburg
(Mokgoatlheng J sitting as court of first instance).
The following order is made:
1 The appeal is dismissed with costs, such costs to include the costs of two counsel.
2 The order of the Court below is altered to read:
„The claim is dismissed with costs such costs to include the costs of two counsel and
the qualifying fees of the following expert witnesses:
Dr Edeling, Mr Ormond-Brown and Professor Vorster.
JUDGMENT
Saldulker JA and Baartman AJA (Navsa ADP, Leach JA and Tsoka AJA concurring):

Introduction
[1] On 28 November 2006, Mrs Maria Johanna Kruger (the deceased) executed a
will, the original of which allegedly cannot be found (the disputed will). After her
death, the appellant sought an order that a copy of the disputed will, Annexure X1 to
the papers, be declared a true copy of the deceased's last will and testament, and a
further order directing the Master to accept it. In regard to this relief the issues in the
court below were (i) whether the deceased had the required mental capacity to have
executed the will; (ii) whether the appellant, Mrs Elizabeth Aletta van Niekerk, the
deceased's niece had unduly influenced the deceased into executing the disputed
will and (iii) whether the deceased's purported signature appended to the disputed
will was authentic.  The court below held that the document presented was not a true
copy of the original will and that the deceased did not have the testamentary
capacity. This appeal with the leave of the court below is directed against inter alia
the following order:

„1.
Annexure "X1" [the disputed will] is declared not to be a true copy of the Deceased's
original last will and testament;
2.
Annexure "X1" is declared not to be valid on the face of it;
3.
The Deceased is declared not to have had testamentary capacity on 28 November
2006, nor to have possessed sufficient intelligence, sound mind or memory to
understand and appreciate the import of her signature when she signed Annexure
"X1" on 28 November 2006, consequently, Annexure "X1" is declared not to be the
last will and testament of the Deceased;‟

[2] Before us, the parties were in agreement that the primary question to be
addressed was whether the deceased had the required testamentary capacity at the
time the will was allegedly executed. In the event of a finding that the deceased
lacked the necessary capacity, that would be dispositive of the appeal. Before turning
to address that issue it is necessary to have regard to the background.

Background
[3] The deceased and her husband, the late Mr Pieter Andries Kruger, had three
natural children (Gert, Charlotta and Roeloff), the first three respondents. The
deceased and the first respondent had been estranged for eight years prior to the
material events. The deceased made a career of taking care of young babies who
were up for adoption until the adoption process was complete. In the course of her
career, the deceased and her husband adopted Ms Magdalena Kruger, the fourth
respondent, and „took in‟ Mr Pieter Kruger, the fifth respondent when he was three
weeks old, never adopting him formally. However, Pieter was treated as their natural
son and when he was 16 years old, they officially changed his surname to match
theirs. The deceased referred to him affectionately as her „welfare child‟. The
deceased was a strong-willed 78-year-old woman. At the time of her death on 24
December 2006 she was obese and suffered from hypertension and diabetes. These
conditions, no doubt, contributed to her death.

[4] The deceased suffered two strokes, one on 15 June 2006 followed by another
on 19 October 2006. Between those two events, on 19 August 2006, she suffered

dehydration and gastroenteritis. The deceased was hospitalised for each of these
medical conditions.

[5] On 15 June 2006, after the deceased had suffered her first stroke, she was
treated at Milpark Hospital in Johannesburg by Dr Rowji, a neurologist who attended
to her from 15 June until a time shortly before her death. On the day of her
admission, Dr Rowji requested that a brain scan be conducted. The scan showed
„…an ill-defined area of hypo-intensity in the region of the right basal ganglia
involving the head of caudate nucleus the right internal capsule and the lentiform
nucleus with some extension into the adjacent deep white matter.‟ Also apparent
from the scan was age-related involutional change to the cerebral cortex (age-related
brain shrinkage). The hospital records show that by 22 June 2006, the deceased was
„fully conscious and communicating well with staff and visitors‟, although prone to
wetting her bed.

[6] On 30 June 2006, the deceased was transferred to Netcare Rehabilitation
facility where Dr Mochan and a team of specialists, including a patient counsellor and
a physiotherapist, attended to her. She eventually regained full continence.
According to the Netcare records, by 5 July 2006 the deceased was only partially
orientated to time and place and only knew the day of the week. Furthermore the
Netcare records indicated that the deceased‟s short term memory and concentration
had been affected by the stroke. The following week, 12 July 2006, her cognitive
function was still impaired, indicating „no rapid improvement‟ of cognitive function.

[7] On 12 July 2006, the deceased‟s husband, daughter, son and grandsons
attended a family meeting with Netcare personnel, presumably to discuss the
deceased‟s condition and what she would need after her discharge to improve her
concentration. According to the Netcare records, by 17 July 2006 her cognitive
function had improved and she was orientated to time but still required verbal cueing,
and made mistakes when working independently. It is recorded that the medical team
continued to work on daily basic concentration tasks.

[8] By 19 July 2006, the same records show that the deceased was fully
orientated to time and place. The Netcare staff continued to treat and assist her with
the aid of creative activities to improve her concentration. The medical advice was
that the deceased could go home for a weekend. It was suggested that the services
of a caregiver should be procured for the visit. On 26 July 2006, the deceased went
home, for the weekend, but with no arrangements for a caregiver, which left her
husband to shoulder the burden. Upon her return to Netcare, the deceased remained
fully orientated and the medical team continued to engage her in activities to improve
her concentration although she was reported to be occasionally incontinent.
Thereafter, Netcare personnel recommended home alterations such as „grip rails and
a bath board‟ to prepare for the deceased‟s homecoming and to facilitate her mobility
which had become impaired. It was uncontested that the first stroke left her partially
paralysed on the left side of her body. On 1 August 2006, the occupational therapist
made several other recommendations regarding further alterations to be effected in
anticipation of her discharge. On 4 August 2006, she was discharged, a week prior to
the planned date, mainly due to her uncooperative and obstructive behaviour. On the
day of her discharge, the deceased‟s husband committed suicide. She was informed
of this fact whilst awaiting transport home.

[9] As indicated earlier, on 19 August 2006, the deceased was admitted to
Milpark Hospital and treated for dehydration and gastroenteritis. On 22 August 2006,
the deceased was discharged from Milpark but taken into Panorama frail care facility
(Panorama) at the instance of her children. It was envisaged that her stay at
Panorama would be temporary, pending the contemplated alterations to her home to
address the disabilities brought on by her medical condition.

[10] It was noted that at Panorama, the deceased was difficult, uncooperative,
refused treatment, accused personnel and patients of stealing her property, refused
to eat and periodically wet her bed. It is common cause that she was unhappy,
dissatisfied with her admission to the facility and took the view that she was well able
to take care of herself. The Panorama records include a note in which the

deceased‟s behaviour and physical condition were considered to be „an indication of
starting dementia.‟

[11] On 15 September 2006, Dr Rowji consulted with the deceased and found her
severely emotionally distressed. Dr Rowji increased the dosage of the anti-
depressants which he had previously prescribed. It is uncontested that Dr Rowji
favoured the deceased‟s continued stay at Panorama. On the day she consulted with
Dr Rowji, the appellant signed her out for a weekend visit at the latter‟s home. It is
necessary to record that but for a few days between the first stroke and her death,
the deceased spent all her time outside the hospital and rehabilitation facilities at the
appellant‟s home. On 19 September 2006, after an appointment had been arranged
by the appellant, the deceased met with Mr Johan Van der Merwe, an ABSA broker,
for the purposes of instructing him to draft the disputed will which is the subject
matter of the present litigation. Van der Merwe requested the relevant ABSA
department to draft the will in accordance with the deceased‟s instructions to him. He
received the following typed document which according to him was in line with her
instructions:
„Ek bemaak my boedel soos volg:
1.1
Die vaste eiendom bekend as St. Helenslaan 82, Mayfair-Wes, aan my dogter MARIA
JOHANNA MAGDALENA KRUGER.
1.2
Die vaste eiendom bekend as St. Helenslaan 81, Mayfair-Wes, aan my kinders
CATHARINA CLIFTON en GERT ABRAHAM KRUGER.
1.3
Die vaste eiendom bekend as 3de Laan 12A, Westdene, aan my seun ROELOF
JURGENS JOHANNES KRUGER.
1.4
Die motorvoertuig aan my pleegkind PIETER KRUGER (GEBORE 03/06/1967).
1.5
Die kontant in my boedel gevind, soos volg:
1.5.1 50% (VYFTIG PERSENT) aan my susterskind ELIZABETH ALETTA MAGDALENA
VAN NIEKERK (GEBORE 27/05/1963).
1.5.2 50% (VYFTIG PERSENT) aan sodanige van my kleinkinders SEBASTIAN CLIFTON,
STEFAN CLIFTON, ROHAN KRUGER, WERNER KRUGER en WIEHAN KRUGER wat my
oorleef….‟ (own emphasis.)

[12] On 19 October 2006, the appellant found the deceased in her room in the
following condition: „ sy het nie lekker gelyk nie. Ek het met haar gepraat en dit was
al of sy, jy kon nie met haar komminukeer nie.‟ On that day, the deceased suffered a
second stroke and was, readmitted to Milpark Hospital. The second respondent, the
deceased‟s daughter Charlotta, visited her on 20 October 2006 and found her
confused and unresponsive. She said, „My ma was heeltemal, ek dink nie eers sy het
geweet ek is daar nie. …Sy het net so gelȇ daar en ek het haar probeer skud en vat
en dit, en sy het net so gelȇ‟. The deceased was apparently in the same condition
when the second, third and fourth respondents visited her the following week.

[13] On 9 November 2006, the deceased was readmitted to Netcare Rehabilitation
Hospital. On the same day, Ms Russell, a psychometrist employed by Mr Ormond-
Brown, a resident clinical neuropsychologist, met the deceased. Ms Russell saw the
deceased because the Netcare practice was for Mr Ormond-Brown to assess all
neurological patients. Ms Russell‟s records show that the deceased was
„confused…and not testable‟. In this regard she was referring to psychometric testing.
Ms Russel monitored her until the deceased was able to sit and concentrate for at
least 20 minutes, by which time she would be testable. It was only on 22 November
that Ms Russell took the view that the deceased could be tested and so performed
„the mini mental status examination‟ (the MMSE) on her. The test results showed that
the deceased believed it was 1906, that her husband had died the previous year –
rather than in August 2006, and that she was unaware of anything on her left side
due to paralysis. The deceased scored 20/30, which Ms Russell described as a poor
result. In addition, Ms Russell conducted „a clock test‟ in terms of which the patient is
required to draw a clock face and indicate the time as 09h50. She had great difficulty
in doing so. The purpose of the clock test is to evaluate the patient‟s planning skills
and concentration. The experts accepted the value of the test to be
following:‟…because you are able to plan, you can draw the circle, you know you
must put the numbers so that they are equally spaced and you know therefore to put
the hands of the time…‟ We shall, in due course, deal with the proper meaning and
value to be attributed to the MMSE score and also the result of the meaning of the
clock test.

[14] On 23 November 2006, the day after Ms Russell performed the MMSE, the
deceased was discharged from Netcare because she had refused to cooperate with
medical personnel and for that reason her medical scheme had refused to pay for
any further treatment. On 28 November 2006, five days after her discharge, the
deceased allegedly signed the disputed will at the appellant‟s home witnessed by
Van der Merwe and Mrs Flemming, the appellant‟s neighbour. On that day, she
allegedly altered the disputed will in regard to „the Westdene property‟ (clause 1.3
para 11 above) which had previously indicated „my seun‟, the third respondent, as
legatee, and instead bequeathed it to the appellant. It was common cause that the
deceased had inherited that property from the appellant‟s brother, a police officer. It
was not disputed that before the latter‟s death the deceased and he had enjoyed a
good relationship. The deceased had assisted him when he was in financial
difficulties and after he was shot, took him in and nursed him back to health.

[15] On 7 December 2006, accompanied by the appellant, the deceased while
consulting Dr Rowji as an out-patient, told him that she had disinherited her children,
saying, „I will not give them anything‟. On 24 December 2006, the deceased died of a
pulmonary embolism (a third stroke). On 28 December 2006, Dr Klepp conducted a
post-mortem recording the following:„. .. . Intracranial contents: There are two areas
of haemorrhage into the right cerebral hemisphere. Resolution is more marked in one
of the areas. There is marked complicated atheroma of the cerebral vessel.‟ We deal
with the significance of these findings below.

[16] We pause to record an incident which might have some relevance to the
ultimate question to be decided. In September 2006, the first respondent sought
police assistance claiming that 11 firearms in the deceased‟s home had not been
properly secured while the deceased was convalescing at the appellant‟s home
following her departure from Panorama. This is an indication of the extent of the
family feud that followed the deceased‟s ill-advised move from Panorama to the
appellant‟s home. Pursuant to the complaint, Inspector Claasen (Claasen), a member
of the South African Police Services, visited the deceased on 18 October 2006. He

found her in bed, emotional and still resentful of her placement in Panorama despite
the obvious benefits it held for her recovery. She further complained that the first
respondent had taken her red Jetta motor vehicle without her permission. The
deceased consented, however, to the appellant collecting the firearms in question
from her house, which was done, with the firearms remaining thereafter in the
appellant‟s custody.

[17] After the deceased‟s death, the appellant requested the Master of the High
Court, the twelfth respondent, to accept a copy of the disputed will for the purposes
of the administration of the deceased‟s estate. In terms of the disputed will the
eleventh respondent, ABSA bank was appointed as the executor of the deceased‟s
estate. The Master of the High Court, Johannesburg refused to accept the disputed
will as it was a copy of the will and not an original. It is this refusal that prompted the
appellant to institute action on 28 August 2007, seeking, inter alia, the following relief:
„1. Declaring that the copy of the Deceased's last Will and Testament annexed hereto
marked "X1" constitutes a true copy of the original of the Deceased's last Will and
Testament.
2.
That the Twelfth Defendant be authorised and directed to accept annexure "X1"
annexed hereto as the last Will and Testament of the late Maria Johanna Kruger.
3.
That the Twelfth Defendant be and is hereby authorised to register the copy of the
Deceased's last Will and Testament annexed hereto marked "X".
4.
That the Eleventh and Twelfth Defendants be and are hereby authorised and directed
to administer the estate of the late Maria Johanna Kruger in accordance with the contents of
annexure "X1" annexed hereto.‟

[18] The respondents, one to four (the deceased's children) and six to ten (the
deceased‟s grandchildren) opposed the action. Since they challenged the validity of
the disputed will on the basis of the deceased‟s lack of testamentary capacity, they
bore the onus of proving that fact.1 They also did not accept the authenticity of the
deceased‟s signature. They pleaded in the alternative, that in the event of an

1 Wills Act 7 of 1953 , s 4.

affirmative finding of the authenticity of the deceased‟s signature, that the appellant
had influenced the deceased. Below we deal to the extent necessary with the further
evidence led in the court below.

Further evidence
[19] According to the appellant, who was employed at ABSA bank as a Risk
Manager, the deceased executed the disputed will on 28 November 2006 at her
home and was of sound mind when she did so. The appellant testified that she had a
good relationship with the deceased, whom she occasionally referred to as „Tannie
Ma‟. She had weekly contact with the deceased; either personal visits or
telephonically. She further indicated that she took the deceased in at the latter‟s
request when her children had admitted her to Panorama. While in her care, with the
assistance of Mrs Nchube, a caregiver, the deceased returned to her normal self
although she remained physically challenged. Regarding the deceased‟s state of
mind on 28 November 2006, the appellant‟s evidence was that „Tannie was by haar
volle positiewe en sy het altyd logies gedink en haar besluit was gewees as sy „n
ding besluit het, het sy dit besluit en niemand kon dit verander nie.‟

[20] Van der Merwe, who testified in support of the appellant‟s case, stated that he
had approximately thirty years' experience in drafting wills. On 19 September 2006,
he met the deceased as a result of the appellant arranging such appointment. At that
meeting the deceased requested him to draft a will and supplied the necessary
information. Van der Merwe sent the information to the relevant ABSA department,
which drafted the disputed will referred to above. On 28 November 2006, he met with
the deceased and the appellant‟s husband and presented the disputed will for
signing. The deceased, prior to signing, instructed him to alter the draft document so
that paragraph 1.3 would reflect the appellant as heir of „the Westdene property‟,
instead of „my seun‟, the third respondent. This amendment was witnessed by Mrs
Flemming, the deceased and him. He presented the altered document to the ABSA
department to be retyped. The deceased died before she could sign the retyped
document. According to Van der Merwe, he deduced that the original altered will was

in his briefcase which had been stolen from his shopping trolley at a supermarket.
Thus only a copy is available.

[21] Mrs Flemming, the appellant‟s 71-year old neighbour, testified that she had
witnessed the disputed will in the presence of the deceased, Van Der Merwe and the
appellant‟s husband who had fetched her for that purpose. Mrs Flemming had not
known the deceased prior to that day. She described the deceased as „pleasant . . .
fine and alert‟ and stated that she communicated well.

[22] The fifth respondent, „the welfare child‟, testified in support of the appellant‟s
case. He testified that he was the only one who had taken care of the deceased after
her husband passed away. He testified about the stormy relationship that the
deceased had with her other children who, according to him, had abandoned her
when she suffered the strokes. He described the deceased as someone who could
not be easily influenced. On 25 November 2006 the deceased visited him at his
home and was fully orientated. During that visit the deceased told him that she was
going to change her will and leave him her entire estate because her children had
abandoned her. He advised against this and instead requested that she leave him
her car and the policy that he had been paying for. He conceded that he was bitterly
upset with his siblings and felt that he was not valued by them.

[23] We do not deem it necessary to deal in more detail with the evidence of the
other lay witnesses who testified at the trial. We proceed instead to deal in some
detail with the expert evidence led.

The expert evidence
[24] The experts, Dr Rowji called by the appellant, and Dr Edeling, a
neurosurgeon, Mr Ormond-Brown, and Professor Vorster, a psychiatrist, called by
the respondents, had conflicting views on whether the medical conditions, referred to
above, had resulted in frontal lobe executive mental impairment which would have
rendered the deceased of unsound mind and incapable of executing a valid will.

[25] Although, neither Dr Edeling nor Professor Vorster treated the deceased, they
had accessed the medical records relevant to the deceased‟s time in hospital and in
the rehabilitation facilities, and based their opinions on those records. Dr Edeling said
that they were accordingly in as good a position as the treating doctors to formulate
their opinions. The experts called by the respondents suggested that the deceased
had suffered from dementia following the first stroke and that she got progressively
worse. We deal with their evidence in turn below.

[26] Dr Edeling, whose expertise as a neurosurgeon was not in dispute, testified
that the first stroke occurred in the right middle cerebral artery, which means that it
was an ischaemic stroke, which blocked an artery and thus that area of the brain
supplied by that artery „died‟ through lack of blood supply. The affected area was in
the right side of her brain deep in the basal ganglia regions, not around the surface
but deep in the right hemisphere of her brain. The stroke was triggered by her history
of hypertension and diabetes, both of which are risk factors for the development of
cerebrovascular disease. When she was admitted, her blood pressure was high with
a systolic reading over 200mmHg; she was also paralysed on the left side, leaving
her left arm and leg weak. He translated the results of the scan, referred to above, as
follows:
„…a stroke involving those structures would predictably cause left hemiparesis and also left
hemianopia. So the pathway coming from the vision to the eyes going to the back of the
head the nerves bringing information from the left visual field so the left side of the left eye
and the left side of the right eye would go through that area.‟

[27] Also apparent from the scan was age-related involutional change to the
cerebral cortex (age-related brain shrinkage), which according to Dr Edeling, was
significant as it would have made the deceased more vulnerable to the effects of a
stroke. Dr Edeling said the following about her incontinence, reflected in the Milpark
hospital records of 22 June 2006:
„…from that anatomical situation of the stroke if that was the only part of her brain that was
damaged one would not expect incontinence the fact that she was incontinent following the
first stroke means that there was other damage to other parts of her brain that the scan could
not see. The part of the brain that is involved in this kind of incontinence is the cortex in the

frontal lobes. So the cortex was affected but the fact that she was incontinent means that the
shrinkage of the frontal lobes was to such an extent that there was impaired functioning.‟

[28] Although by 19 July 2006, the deceased was fully orientated as to time and
place, Dr Edeling testified that such „orientation is a very low-level basic mental
function. One needs to have a lot more advanced and complex mental function
before one can conduct one‟s affairs.‟ Following her admission to Milpark Hospital for
dehydration and gastroenteritis, Dr Williams, her attending doctor certified her as
unable to manage her affairs. Dr Edeling confirmed that Dr Williams‟ certification was
in line with his opinion that the dehydration had hampered her mental function,
despite the fact that mental impairment was not clearly documented in Milpark's
records. Dr Edeling said that this condition would have had following effect on the
deceased:
„…[A] person who has had a stroke and a person who has cerebral vascular disease as she
is known to have had and a person who has mental impairment on the basis of that and
cerebral atrophy which we know she all had by that time will be aggravated by dehydration
because it will impair the blood flow to the brain. So I would expect that this dehydration from
gastroenteritis would have further compromised her mental function.‟ (own emphasis.)

[29] Dr Edeling testified that the Panorama records showed that the deceased was
awake and alert, though sleeping most of the time, which he said was in keeping with
brain damage as had her brain had been normal, she would not have slept most of
the time because gastroenteritis and dehydration would not on its own have made
her sleep; brain damage and dehydration, however, hampers cerebral blood flow
thus causing drowsiness.

[30] Dr Edeling explained the deceased‟s uncooperative and obstructive behaviour
as recorded in the Panorama records as follows: „. . .  frontal lobe executive mental
impairment, where a person‟s mental function has deteriorated to the level where she
is unable to care for herself.‟ He went on to say that once mental impairment has
reached the level of impaired social functioning or occupational functioning, it is
called dementia. This view was shared by, Ms Viljoen, the owner and manager of
Panorama, who obtained her honours degree in nursing at the University of the

Orange Free State in 1981 and had been in the profession since that time. She
described the deceased‟s condition as „an indication of starting dementia.‟

[31] According to Mr Ormond-Brown, the deceased had suffered a cerebrovascular
incident or CVA stroke, involving the right middle cerebral artery which supplies
about 60 per cent blood to the brain. He further agreed with the views expressed by
Dr Edeling above.

[32] Mr Ormond-Brown described the deceased‟s mental and physical condition
after the second stroke as follows:
„…She was confined to a wheelchair and had a dense hemiparesis, in other words, she was
paralysed on the left side of her body. Muscle tone was 3/5 in the left arm and leg, in other
words, it is reduced. She had generalised left-sided hyperaesthesia, meaning that she could
not feel on the left side of her body. She had left hemianopia, meaning the she was blind in
the left visual field of both eyes.‟

[33] Dr Edeling described the second stroke as follows:
„…[I]t was in the same area of the brain as the first stroke but as opposed to a blockage of a
vessel there was bursting of a vessel so there was haemorrhage or bleeding into that region
of the brain and the haemorrhage actually went further than the confines of the first stroke
but it was in the same area of the brain.‟

[34] Dr Edeling also testified that the expected consequence of the second stroke
was that the hemiparesis and the lack of vision would become worse but her level of
consciousness would be impaired. He claimed, therefore, that the scan did not depict
the full extent of the brain damage and that the post-mortem findings confirmed this
view.

[35] The visual impairment meant the deceased was only able to see „50 percent
of her visual field‟. Mr Ormond-Brown considered the impairment significant as the
left side did not exist for the deceased.

[36] Professor Vorster testified that the MMSE is of value in the cognitive
assessment of patients. She confirmed that psychiatrists generally use the MMSE to
test for cognitive impairment, and is a standardised part („gold standard‟) of their
evaluation. She said that a score of 20 out of 30 indicated a very poor result and was
suggestive that the deceased had suffered a multi-infarction syndrome in the nature
of dementia, given her history of hypertension, diabetes and cholerostomia. She said
the following about the scores achieved by the deceased, views shared by Doctors
Edeling and Ormond-Brown:
„Ja 20 out of 30 is an abnormal score it is low and would be indicative of some kind of
pathology and what one would need to look at is where she did poorly. . .  . . Her major
losses are on orientation where she scored 1 out of 5 and on calculation where she scored 1
out of 5, those are indicative of pathology. In terms of the date the importance of asking
people the date is in fact to see how well their memories are functioning because it is your
memory that tracks the date and in terms of attention and calculation where one sees you
have to subtract you know 7 from 100 that little test. So she was able to correctly subtract the
first one but from there on made an error and then did not proceed by the looks of the
scoring here shows that she had very poor concentration. So from here it looks as though
her memory and concentration is poor and if one then looks at her draw a clock . . .there one
can see evidence of abnormality quite easily see the evidence of the abnormality in that she
is unable to plan where the numbers should be in appropriate places on the clock, a clock
being something one sees very commonly….
Your frontal lobe is the most important part of your brain for thinking people, your frontal lobe
is what allows you to plan and if one looks alone without doing anything else at her drawing a
clock you can see the evidence of the lack of planning…because you are able to plan, you
draw the circle you know you must put the numbers so that they are equally spaced and you
know thereafter you put the hands of the time that on its own shows a lack of planning so it is
quite likely she had frontal lobe damage….’ (own emphasis.).

[37] Dr Edeling said the following about the impairment, concluding that the result
of the „mini mental status examination 20 over 30 . . .  is diagnostic of dementia‟:
„…Now this “left sided unilateral spatial neglect” is a very serious problem and you would not
expect that even just from where the stroke was. Because neglect means your brain is not
aware of the fact that there are things on the left side of you and in her case even her
paralysed left arm she did not realise that she had a left arm, she did not realise that her arm

was paralysed. … That is a severe impairment of cerebral cortical processing at a basic
level, it is far more basic than the mental function of understanding and insight and complex
decision making, I do not even know that there is a left side to the world.‟

[38] Mr Ormond-Brown's conclusion based on the MMSE results is that the
deceased who had suffered two strokes 'was dementing because she had had a
series of tiny little strokes that had compromised her brain function, that is the multi
infarction dementia component of the diagnosis‟. The MMSE score of 20/30 bolstered
his „suspicion that the deceased may have been suffering from multi-infarction
dementia and not simply the sequelae of two cerebrovascular accidents, that the
deceased had major cognitive dysfunction . . .‟ „that is clearly defined, which is
indisputably a major impairment of mental functioning'.

[39] Mr Ormond-Brown concluded that the deceased suffered from multi-infarction
dementia. It was later conceded by Dr Rowji that a score of 20 out of 30 on the
MMSE indicated vascular dementia. According to Mr Ormond-Brown, the
neuropsychological evidence in the Milpark and Netcare hospital records
conclusively established that the deceased's executive functioning and reasoning,
which are based in the left hemisphere frontal lobes, were cognitively impaired as a
result of the two strokes the deceased suffered. Mr Ormond-Brown said that the
fragmented nature of the clock diagram was suggestive of impaired mental
functioning and cerebral vascular pathology.

[40] In regard to the post-mortem findings referred to above, Mr Ormond-Brown
said that blood supply to a major section of the brain had been compromised. Dr
Edeling said that the findings confirmed his diagnosis of „a progressive decline‟ which
indicated that the blood supply to the whole brain had been compromised.

[41] Dr Edeling concluded that it was improbable that the deceased would have
had testamentary capacity on 28 November 2006. Mr Ormond – Brown shared this
view and said it was not possible that the deceased would have been capable of
processing the information in the disputed will as it would not have been possible for

her to make sense of what she was reading given the combination of hemianopia,
her unilateral left spatial neglect and dementia. Professor Vorster and Mrs Viljoen
shared this view.

Dr Rowji’s opposing view
[42] Prior to the stroke, Dr Rowji had never met the deceased. His impression of
her, however, was that she was a difficult person who exercised her will at all times.
He was not convinced that the deceased had been confused. He rather believed that
she was just difficult, wanting things done her way. Dr Rowji said the following about
dementia:
„Dementia implies that the person has cognitive impairment and the cognitive impairment we
are looking for is a variety of neurological deficits of higher executive function. The way we
would associate is to use as a basic screen the mini-mental state examination and based on
the score that we would get and the impression we get from the examination we would then
go into specific areas of the brain function to guide us with attention, registration, short-term
memory, geographical orientation, language insufficiencies which would guide us towards a
specific clinical diagnosis and the mini-mental state would obviously help us do that.
Dementia implies that the person has significant cognitive impairment. We categorise
impairment into mild, moderate and severe. We consider anybody with mild cognitive
impairment as somebody who might go on to develop a dementing disorder. A person with
moderate to severe dementia or moderate impairment would then be regarded as a
demented person.‟ (own emphasis)

[43] Dr Rowji who attended to the deceased from 15 June until the end of the
period relevant to this judgment, did not think that the first stroke had introduced
dementia in the deceased. Instead he described the first stroke as a subcortical
stroke or an infarct, occurring in the sub cortex – the area of the brain housing the
fibres or „Telkom wires‟ as he described it that take information to the part of the
spinal cord that ultimately supplies that segment of the body. According to Dr Rowji,
this is not something that affects the cortical area where the real reasoning and
functions exist. He said that the brain was divided into different sections and that
damage to one section does not necessarily impair other brain functioning.

[44] Dr Rowji disagreed with Dr Edeling‟s conclusions and questioned whether
Dr Edeling was qualified to make the assessment, claiming that at most the
deceased suffered from delirium, a temporary phase common in hospitalised elderly
persons. He said the condition would improve within 48 hours of return to normal
routine. Dr Rowji also criticised Dr Edeling‟s suggestion that the deceased had
suffered from vascular dementia, a slow progressive diminished cognitive faculty
which worsens with each subsequent event. Dr Rowji relied on the fact that the
deceased had improved, which he said indicated the absence of dementia.

[45] Dr Rowji also considered that the deceased was „a larger than life person, in
more than one way…[who] exercised her will over everybody, including myself…was
just upset with everybody…at that stage the first hospitalisation I could not wait to get
her out of the hospital….‟ During her stay in hospital he only had contact with the
deceased‟s husband and therefore formed this strong opinion on the deceased‟s pre-
stroke personality based on information received from her husband. On that basis, Dr
Rowji did not clinically interrogate the reason the deceased was still prone to wetting
her bed a week after her first stroke on 22 June 2006. Dr Rowji said the following
about the second stroke:
„Again this is a haemorrhage which occurred in the thalamus which is a group of nuclei that
are very important in relaying information. So this is a relay station for information in the brain
and it was a small haemorrhage . . .[a]n important consequence of this kind of a
haemorrhage is that they recover very quickly, which we saw in this patient and most
importantly when you get a haemorrhage into these areas you do not get cells dying in her. .
.we saw that in Mrs Kruger's case is that physically and cognitively in terms of what
happened initially was after each stroke we expect that there would be a little bit of
confusion, because there is new changes in the brain. The recovery is very quickly and the
reason for that haemorrhages are not as incapacitating as infarcts, especially if the
haemorrhage is small.‟

The findings of the court below
[46] The court below per Mokgoatlheng J dismissed the appellant‟s action with
costs, and found amongst others, that the deceased was not mentally competent

when she executed the disputed will, and that this was as a result of the two strokes
that she had suffered. The court below concluded:
„(283) . . . In my view, the Milpark and Netcare Hospital records from 15 June to 23
November 2006 respectively, the two vascular accidents suffered by the deceased on 15
June 2006 and 19 October 2006 respectively, progressively show as conceded by Dr Rowji
that the deceased's neuro cognitive impairment progressively worsened, that his acute
confusional state and clouding of consciousness degenerated into a delirium and ultimately
vascular dementia, a state which authoritative medical literature irrefutably concur is
sufficient cogent proof that on 28 November 2006 the deceased could not by any stretch of
the imagination be said to have possessed testamentary capacity to execute a valid will.
(284) . . . It is indisputable that the deceased's second stroke on 19 October 2006
exacerbated the deceased's cognitive impairment, consequently, up to her discharge on 23
November 2006 the deceased's cognitive impairment status remained unchanged.
(285) On the probabilities it is neuropsychologically improbable if not impossible that the
deceased's cognitive condition could suddenly within a period of six days after MMSE test
score of 20 out of 30 on 22 November 2006 which established that the deceased had
dementia, could change to the extent that on 28 November 2006 her cognitive impairment
and mental deficits were reversed, despite being severely afflicted with dementia an
irreversible permanent progressive disease.
(286) On the probabilities it is neuropsychologically not possible having regard to the
deceased's age of 78, obesity, diabetes, hypertension and cholestoromia, and two vascular
strokes, dementia, that the deceased could cognitively fully recover to such an extent that on
28 November 2006, it can be said that the deceased had full testamentary capacity to
execute a will.‟

[47] In addition to the above, the court said „the plaintiff‟s false and improbable
denial that she did not discuss the content of the alleged disputed will of the
deceased is a contrivance to distance herself from the obvious probability that she
must have influenced the deceased in her enfeebled cognitively impaired state to
devolve her estate in the alleged original of Annexure X1 [the disputed will] by
making her a beneficiary of the Westdene property, and to disinherit the fifth
defendant as a beneficiary of the Westdene property against her better judgment
because the deceased on 23 September 2006 and on 28 November 2016 was of
unsound mind and memory and lacked testamentary capacity.‟

Conclusion
[48] An expert is there to assist the court, not to be partisan towards the party who
calls them. A court of appeal can test the expert‟s reasoning and is therefore in the
same position as the trial court to determine an expert‟s credibility.2 When faced with
conflicting expert opinions, it is for the court to determine which, if any, of the
opinions to accept based on the reasoning and reliability of the various expert
witnesses. „Objectivity is the central prerequisite for his or her opinions.‟3

[49] In our view, the signs were there, as Ms Russell and Dr Edeling and Mr
Ormond-Brown concluded, that the deceased was mentally dysfunctional after the
two strokes. The contemporaneous medical notes and the post-mortem findings,
from which it is apparent that the blood supply to the whole brain had been
compromised, bears that out. It follows that Dr Rowji‟s evidence that the brain was
only partially affected was wrong. The deceased‟s fluctuating confused state further
appears from the evidence of Ms Ncube, the caregiver, who took care of the
deceased from 27 November 2006 until her death on 24 December 2006. She
testified that the deceased had told her „sy dink nie dat haar kinders sal enige iets erf
uit haar bates nie‟, at a time when the disputed will had already been signed.
Moreover, on 7 December 2007, the deceased told Dr Rowji that she had
disinherited her children, when she had not.

[50] Dr Rowji formed an opinion about the deceased‟s personality prior to her first
stroke without having met her before. He therefore failed to do the most basic
psychological inquiry into the deceased‟s confused state and did not interrogate her
continued incontinence; he showed lack of insight into her condition. When
confronted with the MMSE scores and the numerous indications in the medical

2 Stock v Stock 1981(3) 1280 (A) at 1296E–G.
3 Jacobs & another v Transnet Ltd t/a Metrorail & another [2014] ZASCA 113; 2015 (1) (SCA) 139
paras 14–15; Roman’s Transport CC v Zihlwele (13/2014) [2015] ZASCA 13 (16 March 2015) „[9]…An
expert‟s opinion represents his reasoned conclusion based on certain facts or data, which are
common cause, or established by his own evidence…Before weight can be given to expert‟s opinion,
the facts upon which the opinion is based must be proved.‟

records indicating brain damage, he reluctantly conceded that the severe depression
could have been linked to brain damage. It follows that his reasoning is of limited
assistance. Conversely, Dr Edeling, Mr Ormond-Brown and Professor Vorster took
the court logically through their reasoning based on the objective facts and confirmed
by the post-mortem findings. In the light of Dr Edeling‟s well-reasoned opinion,
supported by the medical records and post-mortem findings, and further confirmed by
the other professionals, including Mr Ormond-Brown, Professor Vorster, Ms Viljoen
and Ms Russell, there is no reason to find that the trial court erred in holding that the
deceased was not of sound mind at the time of signing the disputed will.

[51] In argument before this court, counsel who appeared on behalf of the
appellant submitted that the affidavit, which the deceased made to Claasen,
contained personal detail such as the deceased‟s identity number, residence and an
account of her dissatisfaction with her children, all of which indicated that she was
alert and thus contradicted any opinion that her mental capacity was steadily
declining. We disagree. The information referred to largely appears from the first
respondent‟s complaint, which Claasen had in his possession. Claasen had found
some of the 11 firearms in an unsecured safe. The deceased clearly lacked insight to
appreciate the real risk to life and property the unsecured firearms posed. The court
below, correctly, did not place any weight on Claasen‟s assessment of the deceased.

[52] It was submitted further that the progressive decline theory was at odds with
the objective evidence that the deceased was able to attest to an affidavit on
18 October 2006. On the contrary, Claasen‟s observation that the deceased was
emotional supports the diagnosis that she was in „progressive decline‟. Dr Rowji
found her severely emotional on 15 September 2006 and conceded it could have
been symptomatic of brain damage. He further conceded that the deceased had
remained „blunted for the duration of her stay in hospital‟ and severely depressed.

[53] Counsel on her behalf, was constrained to agree that the appellant‟s sudden
rise to prominence in the life of the deceased in this time of crisis in her life appeared
calculated and aimed at serving her own interest. Prior to the deceased‟s illness, the

appellant was not an integral part of the family. The appellant facilitated the meeting
between the deceased and Van der Merwe, in which the deceased instructed Van
der Merwe to draft the disputed will, a mere four days after the deceased had left
Panorama against medical advice. As indicated above, the deceased had three
natural children and one adopted child. The fifth respondent appeared to be bitter
and was not an unbiased witness. When he married and bought a house, the
deceased had helped him. He said the deceased had furnished the house telling him
it was his inheritance because she feared that the other children would exclude him
upon her death. It follows that at that stage she envisaged leaving her estate to her
children. The premises upon which the appellant operated, the changes in the will
occurred because the deceased was disenchanted with her children and that she
repeatedly spoke out about disinheriting them, is not borne out by the evidence.

[54] On 23 September 2006, the day she left Panorama, the deceased gave the
appellant a power of attorney over her estate. Prior to her illness, not even her
husband had had signing powers in respect of her bank accounts. After her first
stroke, the second respondent took the deceased to the bank to draw money to pay
utility bills. The second respondent suggested that the deceased give authorisation in
respect of her accounts to allow the second respondent to make the payments on her
behalf. The deceased refused saying, „Ek het nie eers vir jou pa teken reg gegee nie,
wie dink jy is jy.‟

[55] The deceased paid her own way while she was convalescing at the
appellant‟s home notwithstanding the appellant‟s attempt to create the impression
that she bore those costs. All of the above show the appellant‟s calculating nature.
Despite the fifth respondent‟s asserted admirable conduct towards the deceased in
her hour of need, she left him only a motor vehicle. The evidence of the appellant
and the fifth respondent do not detract from the expert evidence. Similarly, no
reliance could be placed on the evidence of Mr Van Rooyen, the deceased‟s brother.

[56] Clearly, the above irrational behaviour of the deceased, confirms the expert
opinion that she was in a confused state after her first stroke that became

progressively worse after her further medical problems. The probabilities point to the
deceased being confused when she attested to the disputed will, evidenced by her
telling Dr Rowji that she had disinherited her children and Ms Ncube that she was not
sure whether her children would inherit after she had apparently signed the disputed
will.

[57] From the aforegoing, there is no reason to find that the court a quo incorrectly
found that on 28 November 2006, the deceased had not been of sound mind and
memory, suffered from a lack of insight and was unable to execute a valid will. The
order of the court below appears to be based on the erroneous assumption that the
respondents had counter claimed for the order in the terms that it had granted, an
error that must be corrected. On the facts it found to be proved, it should merely have
dismissed the appellants' action.

[58] The following order is made:
1 The appeal is dismissed with costs, such costs to include the costs of two counsel.
2 The order of the Court below is altered to read:
„The claim is dismissed with costs, such costs to include the cost of two counsel and
the qualifying fees of the following expert witnesses:
Dr Edeling, Mr Ormond-Brown and Professor Vorster.

_____________________________
H Saldulker
Judge of Appeal

_____________________________
E D Baartman
Acting Judge of Appeal

Appearances

For Appellant:
G C Pretorius SC

Instructed by:
Nerina Wessels Attorneys, Randburg
Phatshoane Henney, Bloemfontein

For Respondent:
G J Strydom SC (4th – 10th)

H Kriel

Instructed by:

Van der Merwe, Cronje & Kaplan, Krugersdrop

Schoeman Maree Inc, Bloemfontein