A family dispute over the distribution of a deceased mother’s estate worth nearly R22 million has ended in the Western Cape High Court, with the judge ruling that one son cannot be excluded from sharing in the residuary estate despite wording in the will that appeared to favour only three of the deceased’s four children.
The case centred on the estate of the late JER Orlik, who died in March 2022, leaving assets valued at just under R22 million. Her will, signed in October 2021, made several specific bequests to family members, including her children, grandchildren, and a niece.
The daughter, M, received all of her mother’s jewellery along with R200,000. The first son, R, received R750,000. Another son, S, received his mother’s loan account in the RSA & M Trust, including all assets related to that trust, and he was additionally designated as the follow-up trustee of the RSA & M Trust. Meanwhile, the last son, A, received R950,000.
However, a dispute arose over a clause dealing with the remainder of the estate after those bequests had been distributed.
Three siblings, M, R and A, together with the executor of the estate, approached the court seeking confirmation that the residual estate should be divided only among them. They argued that clause 3.8 of the will clearly stated that the balance of the estate, including all movable and immovable assets, was to be shared equally among the three of them.
Their brother, S, opposed the application, maintaining that their mother never intended to exclude him from the residue of her estate. He argued that another provision of the will, clause 3.11, specifically provided a mechanism for resolving disputes among all four children and required that they share equally in the inheritance.
Judge Daniel Thulare agreed with S’s interpretation.
The court found that clause 3.11 applied to all four of the deceased’s children and was triggered by any dispute concerning the bequests contained in the will. The judge held that the disagreement over whether S should benefit from the residue of the estate fell squarely within the scope of that clause.
The disputed provision appointed chartered accountant Marthinus Wessel Nagel as an arbitrator-like figure to resolve disagreements among the children. Crucially, the clause stated that, when resolving disputes, he had to ensure that the children shared equally in the inheritance.
Judge Thulare said the will had to be interpreted as a whole and that the deceased’s intention was the guiding principle. While clause 3.8 appeared to limit the residual estate to three children, clause 3.11 qualified that provision by requiring equal sharing among all of her children when disputes arose.
“The fundamental source of and basis for resolving the dispute between JER’s children,” the judge found, “was that all of her children should share equally in the disputed residual estate.”
As a result, the court concluded that S was entitled to be included alongside his siblings in the distribution of the estate’s residue.
The court therefore dismissed the application brought by the three siblings and the executor, rejecting their request for a declaration that only R, A and M should inherit the balance of the estate.
S, however, did not achieve complete success. In a counter-application, he sought the removal of Nagel as executor, repayment of executor’s fees, and the appointment of a replacement executor. He accused Nagel of bias and challenged aspects of the administration of the estate, including the treatment of loan accounts and offshore assets.
The court rejected those claims, stating that the disputes raised could not be resolved on the papers before it and that there was insufficient basis to conclude that Nagel was unfit to continue serving as executor. Judge Thulare held that the stringent legal requirements for removing an executor had not been met.
As a result, the court dismissed both the application seeking to exclude S from the residual estate and the counter-application seeking the executor’s removal. Given that the litigation concerned the administration and interpretation of the estate, the judge ordered that the costs of both proceedings be paid from the estate itself.
The ruling means that the late JER Orlik’s four children will ultimately share equally in the residue of her multi-million-rand estate.
sinenhlanhla.masilela@iol.co.za
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