Van Niekerk v Kruger and Others

The deceased, Mrs Maria Johanna Kruger, executed a will on 28 November 2006, shortly after suffering two strokes and other serious medical conditions. The original will could not be found, and the appellant, her niece Elizabeth Aletta van Niekerk, sought an order declaring a copy to be the deceased’s valid last will and testament and directing the Master to accept it. The will substantially benefited the appellant and altered previous bequests to the deceased’s children. The deceased’s children and grandchildren opposed the claim, alleging that the deceased lacked testamentary capacity at the time of execution, that her signature was not authentic, and alternatively that the appellant had exercised undue influence. Extensive lay and expert evidence was led regarding the deceased’s neurological condition, cognitive impairment, and alleged dementia following her strokes.

The appeal was dismissed with costs, including the costs of two counsel. The order of the High Court was amended to dismiss the appellant’s claim with costs, including the qualifying fees of specified expert witnesses.

The case is significant for its authoritative treatment of testamentary capacity under South African law and its approach to evaluating expert medical evidence. It underscores that courts must scrutinise the reasoning underlying expert opinions and confirms that orientation to time and place alone is insufficient to establish testamentary capacity. The judgment provides guidance on assessing cognitive impairment and dementia in succession disputes.