WKK v WKL

The dispute in Suit No 3 of 2021 was between two sons of the late SCH, who died in May 2020, over which of two wills was valid. The plaintiff, the youngest child, relied on a will said to have been executed on 28 September 2019. Under it, he and his brother would be executors, he would take the family flat and a car, his debts to his father would be forgiven, and in return he would pay his brother and sister $300,000 by monthly instalments over 20 years.

The defendant, the older brother, claimed that the only valid will was one executed on 29 August 2016, which made him sole executor and directed that the estate be sold and divided equally among the three children. He claimed that SCH had suffered from Parkinson's disease since 2008 and had deteriorated over the years. The plaintiff's claim was struck out for failure to set down for trial, and two attempts to reinstate it failed, so the trial proceeded only on the defendant's counterclaim.

1. Whether the will of 29 August 2016 was duly proved.
2. Whether SCH knew and approved of the contents of the will dated 28 September 2019.

On the 2016 will, the solicitor who drafted it identified it as the will he prepared for SCH, in substance identical to his wife's. His secretary and an associate witnessed the execution and testified that the will was read and explained to SCH, who said he understood it, signed it and initialled every page. The court was satisfied that it had been duly proved. The plaintiff was represented at trial, but his counsel did not challenge this evidence.

On the 2019 will, the court was satisfied that SCH would not have known or approved of it and that it was not properly proved. It found it incredible that SCH expected the plaintiff to repay a fresh loan of $25,000 made in September 2019, recorded by the plaintiff on WhatsApp, and then two days later forgave all his debts in the new will. Many other contemporaneous WhatsApp messages supported the defendant's account.

The High Court allowed the counterclaim, granting an order in terms of prayers 1 to 6 of the amended Defence and Counterclaim, pronouncing against the 2019 will, and fixing costs at $20,000 plus disbursements.