A Cape Town widow and her son have failed in their efforts to have her wealthy late husband’s entire family fortune, intended by him and his late first wife to be bequeathed to their two children, handed to them.
The case centres on a family fortune bequeathed to German-born Karin Anderson on the death of her mother. Karin and her husband, Harold Anderson, in 2001 executed a joint will and testament in terms of which the estate would go to the survivor should either of them die.
However, on the passing of the survivor, the accumulated wealth would remain in the family and be passed on to their children Mark and Christine Anderson.
Karin passed away in 2002 and German authorities initially refused to accept the joint will as valid and binding.
This led Harold to institute court proceedings in the District Court of Kassel in Germany. In support of his application, he deposed a sworn affidavit declaring that he and Karin had drawn up a joint will on June 23 2001 in Kassel. He deposed that the will complied with the German Civil Code, and he was therefore Karin’s sole heir.
In April 2003 the German court found the joint will to be effective and binding and Harold signed that he accepted the benefits of the inheritance. The terms of the joint will stated that the estate would go to the children on his passing.
Some years later, Harold entered a relationship with Barbara McGavin Rolfe, and they were married.
In October 2018 Harold drew up a new will in which he nominated Rolfe as the sole beneficiary of his estate.
Harold passed away on May 20 2023, and an estate executor was appointed in terms of the 2018 will.
This prompted Mark and Christine Anderson to approach the courts, arguing that the joint will of Harold and Karin remained valid. They said it was undisputed that Harold and Karin had consolidated their properties into a single unit for joint disposition after the death of the first spouse to pass away.
This, they said, followed Harold’s signed acceptance of the benefits of the joint estate under the terms of the joint will.
Mark and Christine told the court that they were not asking to have Harold’s 2018 will set aside, nor did they want to have his estate executor removed. They simply wanted a court order directing the Master of the High Court to accept the joint last will to be accepted as binding in terms of the joint estate their father had inherited on the passing of their mother.
They asked that the massed estate under the joint will, as at the death of Karin Anderson, be dealt with in accordance with the provisions of the joint will, and assets amassed by Harold after the death of their mother be dealt with according to his 2018 will.
Mark and Christine argued that in terms of the South African law of succession, when a party executes a joint will, the surviving testator remains bound by the terms of the joint will. They cannot, after the death of their spouse, change the arrangements.
They argued that only the new assets acquired by Harold after Karin’s death may be dealt with in terms of the 2018 will.
Barbara Rolfe and her son Simon actively opposed the application. They said while they accepted the validity of the joint will under German law, they did not believe it to be enforceable in South Africa. It was unconstitutional because it limited Harold Anderson’s freedom of succession and would disinherit second wife Barbara Rolfe.
Rolfe said she had obtained a legal opinion that advised that the Anderson joint will dealt with their assets in Germany and Italy and had no bearing on the South African estate or on the validity and enforceability of Harold’s 2018 will.
Mark and Christine countered her argument, providing legal opinion to the contrary. They said South African laws recognise the binding nature of joint wills and that the 2018 will was not enforceable on the entire Anderson family fortune.
Rolfe, in answering papers, argued that the Anderson siblings’ case was “premised entirely on unsubstantiated allegations, and inadmissible hearsay and unauthenticated evidence”. The court noted that this was not pursued in argument when the matter was heard.
Cape High Court judge Hayley Slingers said Rolfe had not disputed that Harold had inherited a massed estate whose benefits he had enjoyed since the death of Karin Anderson in 2002.
She argued that his children’s court application could not proceed and should be dismissed with costs because it was not supported by the active participation of the Master of the High Court. She said the joint will did not comply with South African formalities.
Slingers found that the application by Mark and Christine Anderson did not require the Master of the High Court’s compliance or assistance. The decision of the German court that the joint will was valid and binding meant there was no merit in challenging it for failing to comply with South African law requirements.
“It would be absurd to accept that because the assets are in different jurisdictions, that [Harold Anderson] had multiple estates which required winding up on his death. The fact that a testator has assets located in different jurisdictions does not detract from the fact that his assets constitute a single estate,” Slingers said.
Rolfe’s acceptance of the validity of the 2018 will was destructive to the argument that there cannot be multiple valid wills applicable to the administration of an estate. Harold's acceptance of the benefits under that joint will therefore amounted to adiation, which meant altering or revoking how the massed estate would be disposed of was prohibited.
“Once an election to adiate [or repudiate] is made, it is irrevocable,” Slingers said, explaining that South African law prevented a survivor from refusing to deal with the estate as decided by the joint will.
She said that Harold’s 2018 will would therefore apply only to assets amounted after Karin’s death.
Slingers found the joint will to be valid and binding, and Rolfe had failed to establish any factual or legal grounds that entitled her to the entire Anderson family fortune.
Only assets in the South African estate amassed by Harold after Karin’s death were to be dealt with in accordance with his 2018 will. The costs of the litigation were ordered to be borne by Barbara and Simon Rolfe.
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