Where there’s a will, there’s a relative

THE unusual stipulation in the will of a deceased father of three required a judge to have the wisdom of Solomon to entangle.

It was the father’s wish that the three children – who do not get along – live in the house on a rotational basis.

The will, which caused a family feud, left the High Court in Bloemfontein with the dilemma of having to interpret the will. This proved a tough task, as the judge said it was not up to the court to change the will’s wording.

Judge Mareena Opperman said: “This unseemly family feud is highly regrettable. It is plain on the papers that hard, inflexible positions have been adopted on both sides. Ultimately, no one wins in a matter such as this.

“The more desirable outcome, beneficial to all concerned, is to bury the hatchet and to co-exist in harmony on the property. One can only hope that good, common sense will prevail.

“It has been lamented as far back as 400 years ago that the interpretation of wills fell into a despair of jurisprudence. The explanation, therefore, may be that ‘no will has a twin’.

“The golden rule of the interpretation of a will is to ascertain the wishes of the testator from the language of the will as a whole.”

The problems started when the father, AJM Wessels, died and left his modest home to his three children and stipulated each had to stay there on a rotational basis.

His two daughters turned to the court to ask for an order making it clear that each of them had one-third of the right to live in the house. However, according to them, their brother was staying there, and he denied them their share.

Justice Opperman said: “This court may not change the words of the will and declare on the meaning of the will by ordering occupation on a rotational basis at this stage. It seems as if the judgement of Solomon is the solution.

“In the story from the Hebrew Bible, Solomon ruled between two women, both claiming to be the mother of a child and suggested the baby be cut in two, each woman to receive half. Might the dwelling be ‘cut’ in three portions.”

She noted that the cause of the litigation was “the morally disgraceful conduct” of the the brother.

“He is abusing the words of the will to sabotage his siblings in the de facto use of their right of habitation of property bequeathed to them by their father.

“The (brother) has nothing but invaded the property. He, in a crafty manner, prevents the applicants from realising their right to habitation given to them,” the judge said.

The house comprises one bedroom, a lounge area, a kitchen and a bathroom. It came to light that the brother had taken permanent primary residency of the property without contributing to the maintenance and basic upkeep of the property.

The allegations are that he resides there free of charge. He moved into the property with his girlfriend and her child. He claimed that he has a right, in terms of the will, to the unlimited tenure of the property in accordance with the wording of the will.

The brother maintained that he did not obstruct his sisters’ rights and had invited them to stay with him. The real truth was that there was not enough space for the two sisters, their husbands, and children, the judge said.

It also came to light that there was a lot of animosity between them, and they attempted to obtain interdicts against each other in terms of the Family Violence Act. Judge Opperman said if she listened to the brother, it would mean that they would all have to share one bedroom, for instance.

“The suggestion of the (brother) is not tenable and executable on the circumstances and the facts of the case; it is far-fetched and underhanded sabotage.”

But, it seems that for now, the siblings will have to endure the situation, as the judge said the habitation was not yet registered in favour of the sisters or their brother as the estate had not yet been finalised.

Judge Opperman turned down the sisters’ application as it was premature.