Fam­ily feud over ‘men-only’ will

Five sis­ters want their sons to be able to in­herit land which has been awarded to their male cousins

YOU (South Africa) - - CONTENTS -

IT SOUNDS like the plot of a grip­ping book or a thrilling TV se­ries: valu­able land in the Lit­tle Ka­roo in the Western Cape, cousins who grew up to­gether but no longer speak to each other, and a grand­fa­ther who rules with an iron will from the grave. Yet this hap­pens to be the true life drama which re­cently played out in the high court in Cape Town. When Carel Jo­hannes Cor­nelis de Jager and his wife, Catharine Dorothea, drew up their fi­nal will and tes­ta­ment in Novem­ber 1902 they couldn’t have dreamt that three gen­er­a­tions later it would di­vide their fam­ily.

Carel, a suc­cess­ful farmer from Oudt­shoorn, stip­u­lated that when he died his farms at the foot of the Swart­berg moun­tains were to be di­vided be­tween his four sons and two daugh­ters.

But de­ter­mined to en­sure his ex­ten­sive land re­mained in the con­trol of blood fam­ily, he added a clause that’s now prov­ing to be the source of much heartache for his great-grand­chil­dren. He dic­tated that af­ter his chil­dren died the land could be left only to male de­scen­dants, mean­ing girls born into the fam­ily would get noth­ing.

When his grand­son Kalvyn de Jager died in 2015 – af­ter years of farm­ing the land – with no male heirs, Kalvyn’s five daugh­ters – Su­rina Ser­fontein (66), Elna Slab­ber (62), Tru­dene For­word (58), Ka­lene Roux (55) and An­nelie Jor­daan (52) – were up­set at the prospect of los­ing the prop­erty.

Des­per­ate to keep it in their branch of the fam­ily, they went to court and chal­lenged their great-grand­fa­ther’s will on the grounds that it’s dis­crim­i­na­tory, and asked that the land be al­lowed to pass down to their male chil­dren.

But their three cousins – brothers Al­ber­tus (70), Arnoldus (67) and Jo­han de Jager (68) – op­posed their le­gal ac­tion. They say the will spells out that Kalvyn’s land should be trans­ferred to them.

Al­though many saw the will as un­fair and dis­crim­i­na­tory, Judge Lee Boza­lek’s hands were tied. He ruled the will could not be con­tested.

The law states that for a court to set a will aside on the grounds that it’s dis­crim­i­na­tory, it must be clear that it “of­fends against pub­lic pol­icy”. Boza­lek ex­plained that while pre­vent­ing fe­males from in­her­it­ing may be dis­crim­i­na­tory, this is a pri­vate will and not a law that pre­vents women in gen­eral from in­her­it­ing prop­erty. If a court were able to “rewrite” pri­vate wills that were dis­crim­i­na­tory it would open a “Pan­dora’s box of lit­i­ga­tion”, he added.

So the will stands, mean­ing Kalvyn’s land is di­vided among his three neph­ews while his daugh­ters get noth­ing.

But his chil­dren aren’t go­ing to let this hap­pen with­out a fight – they in­tend ap­peal­ing the judge’s ver­dict. When ap­proached by YOU they de­clined to com­ment be­cause the mat­ter still has to be re­solved in court. And what about their cousins? “We have no feel­ings of ill will toward our fe­male cousins,” Jo­han says. “But the le­gal sys­tem has ruled in our favour and we only hope we can one day put all of this be­hind us and that the fam­ily can once again look each other in the eye.”

THE cousins grew up to­gether among the os­trich en­clo­sures on the plains of the Lit­tle Ka­roo and in their younger days of­ten vis­ited one an­other, Arno re­calls. “We have no bad feel­ings to­wards them,” he says, echo­ing his brother’s sen­ti­ments. “It’s not our fault our great­grand­fa­ther chose to leave his land to his male heirs.”

He says be­fore the court case he and his brothers tried to set­tle the mat­ter but their cousins ap­par­ently in­formed him via SMS that they would pre­fer to com­mu­ni­cate through their lawyer.

“And then the lines of com­mu­ni­ca­tion were closed,” Arno says. “We haven’t had any con­tact in the past two years.”

Great-grand­fa­ther Carel and his wife

were mar­ried in com­mu­nity of prop­erty and owned farms all over the area, as well as land fur­ther afield.

Their es­tate con­sisted of plan­ta­tions and build­ings all along the Grobbe­laar’s River, prop­er­ties in Oudt­shoorn, as well as the farms Stolsvlakte, Wel­gevon­den, Wilde­hon­dek­loof, Vo­gel­fontein and Vink­nestriv­ier.

In their will they left land and prop­erty to each of their four sons and two daugh­ters. But clause seven set the prover­bial cat among the pi­geons. It states: “It’s the de­sire of the un­der­signed (Carel and Catharine Dorothea) that af­ter the death of their chil­dren such land be in­her­ited by their sons and their sons af­ter their pass­ing. In the event of any sons pass­ing on with­out male heirs the land must be trans­ferred to brothers or the sons of their brothers.”

IN THEIR court ap­pli­ca­tion the sis­ters fo­cused only on the farms that were owned by their grand­fa­ther Cor­nelius Al­ber­tus de Jager. He died in 1957 at the age of 76. Cor­nelius – or Bokkie, as he was called – had three sons, Cor­rie, John and Kalvyn, who each in­her­ited a third of his farm­ing prop­er­ties.

Cor­rie didn’t have any chil­dren but was well trav­elled and had lots of over­seas contacts in the os­trich in­dus­try. Kalvyn was mu­si­cal and passed his tal­ent down to his five daugh­ters. John was a ded­i­cated farmer and served on many agri­cul­tural ad­vi­sory boards.

The three brothers lived on dif­fer­ent farm­steads mere kilo­me­tres from each other and Kalvyn and John’s chil­dren grew up to­gether. They of­ten spent hol­i­days to­gether and there were plenty of fam­ily get-to­geth­ers at Cor­rie’s hol­i­day home in Buf­fels­baai.

Be­cause Cor­rie had no chil­dren his share in the farm was split be­tween Jo­han and Kalvyn when he died. Af­ter John’s death in 2005 his third of the land as well as the sixth which he had in­her­ited from Cor­rie passed on to his sons.

When Kalvyn died in May 2015 his daugh­ters de­cided to take le­gal ac­tion re­gard­ing their fam­ily’s land. In doc­u­ments their lawyer, James King, pre­sented to the court, he states that the will dis­crim­i­nates against fe­males in an un­fair man­ner by lim­it­ing bene­fac­tors to “sons” and “male de­scen­dants”.

He adds that the five sis­ters don’t want to change the will but rather wish to make an amend­ment. Ac­cord­ing to them in­stead of their dad’s land be­ing di­vided among their cousins, the will can be in­ter­preted in a way where Kalvyn’s five grand­sons in­herit. Su­rina, Elna and Tru­dene each have a son while Ka­lene has two. An­nelie is the only sis­ter who doesn’t have any sons.

It was no se­cret that Kalvyn re­ally wanted a son, Jo­han says. When he re­alised that it wouldn’t hap­pen, he made an ar­range­ment where his neph­ews leased the land from him.

“Kalvyn knew that we would in­herit the land and that’s why he didn’t want to in­vest in it,” Jo­han adds.

“I’m dis­ap­pointed that this has gone so far. We’re not up­set with any­one but we stand by the court’s de­ci­sion. We love our fam­ily and our cousins very much. In the long term I hope we can move on from this and don’t drift fur­ther apart.”

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