Levin v Levin

The late Mrs Minnie 'Minna' Breslawsky (the deceased) died on 19 October 2002 aged 107. She executed a will (the disputed will) on 4 August 2002, prepared by Mr Norman Miller (second respondent), who was introduced to her by the fourth respondent. The disputed will distributed the estate equally among her children and grandchildren, differing substantially from her previous will dated 8 August 2001 (the 2001 will), which heavily favoured the first respondent and the appellants. The deceased had executed at least nineteen wills during her lifetime, frequently changing them based on her relationships with family members. Although illiterate and speaking primarily Yiddish, the deceased was a highly successful businesswoman who managed her property investment portfolio until her death. She was described as difficult, mistrustful, and manipulative, particularly of her family whom she believed were only interested in her money. All her previous wills had been prepared by Standard Bank officials, particularly with Mr Hendrik Strydom's assistance. The disputed will was prepared by Mr Miller, with whom the deceased had developed a friendship based on his ability to speak Hebrew and understand Yiddish. He testified that the deceased instructed him on 14 July 2002 to draft a will that would restore peace among her feuding family. The will was signed on 4 August 2002 at her flat in the presence of two witnesses, Mr Barry Tannenbaum and Mr Norman Aaron. The appellants challenged the validity of the disputed will on grounds that: (a) the signature was not the deceased's; and (b) alternatively, the formalities required by s 2(1)(a) of the Wills Act 7 of 1953 were not complied with.

• Whether the signature on the disputed will was that of the deceased
• Whether the disputed will was executed in compliance with the formalities prescribed by s 2(1)(a) of the Wills Act 7 of 1953
• Whether the disputed will was signed in the presence of two competent witnesses who were both present at the same time and who attested and signed the will in the presence of the testator and of each other
• Whether the costs of the litigation should be paid from the deceased's estate

The appeal was dismissed with costs, including the costs of two counsel, to be paid by the appellants (not from the estate).

The binding legal principles established are: (1) When the validity of a will is challenged on the basis of forgery or non-compliance with formalities under s 2(1)(a) of the Wills Act 7 of 1953, the party challenging the will bears the onus of proving on a balance of probabilities that the will is invalid. (2) Direct evidence from credible witnesses who were present at the execution of a will and who attest to compliance with statutory formalities should be preferred over expert handwriting evidence, particularly where the expert's opinion is based on incomplete factual information. (3) Expert handwriting evidence must be approached with caution, applying the principles in Kunz v Swart and Annama v Chetty, and an expert's failure to consider material factors affecting handwriting (such as medical procedures improving vision) undermines the weight of their opinion. (4) There is no general rule that costs in will disputes must be paid from the estate; costs should follow the result where the challenge was ill-conceived, unreasonable, or conducted improperly, notwithstanding the determination involves testamentary documents.

The court made several non-binding observations: (1) The court commented on the deceased's character and behavior, noting her mistrustful nature, tendency to manipulate family members with her wealth, and pattern of frequently changing her will based on who pleased or displeased her, suggesting these factors made the execution of a secret will with new legal advisors entirely consistent with her character. (2) The court observed that the Standard Bank officials' exceptionally attentive treatment of the deceased (daily calls, social visits, gifts) went 'far beyond the call of normal business relations' and suggested they did not trust she would not change executors, which was borne out by their pointed questioning about whether she had signed another will. (3) The court noted it was 'most unlikely' that three unrelated individuals with no interest in the outcome would conspire to forge a will that treated beneficiaries fairly and from which they stood to gain nothing. (4) The court commented unfavorably on the appellants' litigation conduct, noting they 'disingenuously sought to cast doubt on her mental capacity' despite knowing she remained mentally sound, and that the manner in which they conducted the litigation 'left much to be desired.' (5) The court observed that the nature of the disputed will itself - distributing assets far more equitably than previous wills - was 'most striking' and consistent with the testator's stated objective of wanting peace among her offspring in her final days.

This case is significant in South African law of succession for several reasons: (1) It confirms the approach courts should take to expert handwriting evidence in will disputes, emphasizing that direct testimony from witnesses to execution should be preferred over expert opinion, particularly where the expert was not provided with all relevant factual information. (2) It reinforces the strict application of s 2(1)(a) of the Wills Act 7 of 1953 formalities, while demonstrating how courts assess credibility of witnesses to execution. (3) It clarifies the circumstances in which costs in will disputes should be borne by the estate versus the unsuccessful party, rejecting the proposition that there is a general rule that estate pays costs even where the challenge was unreasonable. (4) The case illustrates the evidential difficulties in challenging wills of elderly testators and the importance of direct witness testimony. (5) It demonstrates judicial recognition of testamentary freedom, even where a testator dramatically changes dispositions in favor of more equitable distribution among family members.