THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 644/09

In the matter between:

LEVIN, LARRY IVAN

First Appellant
LEVENBERG, STEPHANIE

Second Appellant
and

LEVIN, FREIDA

First Respondent
MILLER, NORMAN

Second Respondent
ZIEGLER, RAYMOND

Third
Respondent
ZIEGLER, LYNNE

Fourth Respondent
STEINGO, LEONARD

Fifth Respondent
BRESS, ERNEST

Sixth Respondent
WOOD, WENDY

Seventh Respondent
BERSANO, ANNA

Eighth Respondent
RIASUN, PHILIP

Ninth
Respondent
WORTELBOER, MONIQUE

Tenth Respondent
WORTELBOER, MADELEINE

Eleventh Respondent
MASTER OF THE HIGH COURT

Twelfth Respondent
ZIEGLER, LEWIS

Thirteenth Respondent

Neutral citation: Levin v Levin (644/09) [2011] ZASCA 114 (03 June 2011)

Coram:
HARMS DP, NUGENT, MAYA, MALAN JJA AND PLASKET AJA
Heard:
09 May 2011
Delivered: 03 June 2011

Summary: Will – validity thereof – whether provisions of s 2(1)(a) of the Wills Act 7 of 1953

complied with.

___________________________________________________________________
ORDER

On appeal from: South Gauteng High Court (Johannesburg) (Pienaar AJ sitting as
court of first instance):
The appeal is dismissed with costs including the costs of two counsel.
____________________________________________________________________
_
JUDGMENT
__________________________________________________________________
MAYA JA (HARMS DP, NUGENT, MALAN JJA AND PLASKET AJA
concurring):

[1] This appeal concerns the validity of a will (the disputed will) allegedly
executed on 4 August 2002 by the late Mrs Minnie ‘Minna’ Breslawsky (born Lom)
(the deceased), who died a widow on 19 October 2002 at age 107. The disputed will,
in which the second, third and fourth respondents were nominated as the co-executors
of the deceased’s estate, was lodged with and accepted by the Master of the High
Court.

[2] The appellants and the first, third, fourth, sixth to the eleventh and the
thirteenth respondents are all members of the deceased’s family. The deceased bore
five children, the late Nathan, Vera, and Molly and the first and the eight respondents.
The appellants are the children of the first respondent who, together with her husband
Gerald Levin, worked for the deceased until her death. The third, fourth and
thirteenth respondents are Vera’s children. The sixth and seventh respondents are

Nathan’s surviving children. The ninth, tenth and eleventh respondents are Molly’s
children. The second respondent, Mr Miller, is the attorney who prepared the disputed
will and the fifth respondent was the deceased’s cardiologist and one of the
beneficiaries under that will.

[3] On 3 March 1999 and 8 August 2001 respectively, the deceased executed two
wills which were the last in a series of at least nineteen such documents said to have
been made by her during her lifetime. The one dated 3 March 1999 dealt with the
deceased’s assets within the State of Israel which the deceased bequeathed to the first
respondent and the appellants. The one of 8 August 2001 (the 2001 will), related to
her assets situate in South Africa and the deceased nominated the first respondent as
executor (together with her accountant Ryan Feinberg and the Standard Bank of
South Africa Ltd) of her estate and granted the first respondent and the appellants
further, substantial bequests. Under the disputed will, on the other hand, in addition to
appointing Mr Miller and the third and fourth respondents as executors, the deceased
bequeathed her estate as follows – (a) 25 per cent to the first respondent, (b) 25 per
cent to the eight respondent, (c) 25 per cent to Vera’s three children to be shared
equally among them, (d) 25% to Molly’s children to be shared equally among them,
(e) R500 000 to each of Nathan’s two children and (f) R50 000 to Dr Steingo.

[4]    The appellants brought an action in the high court challenging the disputed will
on a number of grounds. By the time of the trial those grounds had dwindled to the
following: (a) that the signature on the will was not that of the deceased, and in the
alternative (b) that the signature on the will was not affixed in the presence of two
witnesses who were both required to be present at the signing and placed their
signatures on the document in the presence of each other and the deceased.

[5] Only the second, third and fourth respondents defended the action. It was
common cause between the parties that if the disputed will was declared invalid, the
2001 and 1999 wills would be accepted as the deceased’s last wills in relation to her
estates in South Africa and Israel, respectively. After hearing evidence, the court
below (Pienaar AJ) dismissed the matter on the finding that the appellants had not
discharged, on a preponderance of probabilities, the onus of proving that the disputed
will was not the deceased’s valid last testamentary disposition duly executed in
compliance with the provisions of s 2(1)(a) of the Wills Act 7 of 1953 (the Will Act).1
The court below further refused to order the costs of the proceedings to be paid from
the estate on the basis that the appellants had unreasonably instituted the proceedings
at the behest of their mother to thwart the forfeiture provisions contained in clause 11
of the disputed will which divested a legatee or heir of the deceased, who contested
the will, of any benefit under it. Thus, the appellants were mulcted with the costs of
the suit.

[6] The only question to be determined in this appeal, which is pursued with the
leave of this court, is whether the validity of the disputed will has been established.
(Another issue initially raised by the appellants relating to the incidence of the onus

1 Section 2(1)(a) of the Wills Act 7 of 1953 reads as follows:
‘2 Formalities required in the execution of a will
(1) Subject to the provisions of section 3bis –
(a) no will executed on or after the first day of January, 1954, shall be valid unless –
(i)
the will is signed at the end thereof by the testator or by some other person in his presence and by his
direction; and
(ii) such signature is made by the testator … in the presence of two or more competent witnesses present at
the same time; and
(iii) such witnesses attest and sign the will in the presence of the testator and of each other and, if the will is
signed by such other person, in the presence also of such other person; and
(iv) if the will consists of more than one page, each page other than the page on which it ends, is also so
signed by the testator or by such other person anywhere on the page;’

of proof was abandoned before us.)

[7] Some background is required. The deceased and her husband, Mr Solomon
Max Breslawsky who died in 1966, built a very successful property investment
portfolio from a humble furniture shop which they ran in downtown Johannesburg.
Although she was illiterate and spoke little English (her mother tongue was Yiddish)
she was a very astute and successful businesswoman and personally managed her
business and financial affairs until her death, this despite being extremely frail,
wheelchair-bound and blind in one eye in the latter phase of her life.

[8] The deceased had a particularly close relationship with the Standard Bank, her
banker for over 75 years. She latterly dealt mainly with two of its officials, Ms
Bridgette Marais (who had passed away by the time of the trial) who assisted by Ms
Melanie Els, managed her investment portfolio and Mr Hendrik Strydom, an attorney
enlisted by the bank to assist the deceased with her financial and legal affairs. All her
wills but the disputed one were drawn by the Standard Bank and she executed the last
few with the assistance of Strydom with whom she had formed a relationship of trust.

[9] Each of the witnesses at the trial who personally knew the deceased, including
her daughters, the fourth respondent, the first respondent’s husband, Strydom and Els
described her as very difficult, domineering, manipulative, tight-fisted and
mistrustful, especially of her family whom she believed were interested only in her
money. This included the first respondent, who, despite attending to her daily needs
as her personal assistant, she accused of trying to poison her. The deceased sought to
control her family with her wealth (which caused conflict among them) and
frequently changed her will on a whim as she would increase or decrease bequests

and even exclude beneficiaries altogether depending on who pleased or displeased
her at the time. She similarly changed her executors and accountants regularly.

[10] According to the Miller, he was introduced to the deceased by a friend, the
fourth respondent, and befriended her some years before her death. He is fluent in
Hebrew and understood Yiddish in which the deceased preferred to speak. She liked
cucumber pickles which he would make for her and she nicknamed him the
‘cucumber man’ for that reason. He often visited her during weekend afternoons and
the deceased would then tell him stories of her past. This friendship was confirmed by
the fourth and eight respondents. In July 2002, the deceased requested to see him.
They consequently met at her flat, where he was let in by a domestic worker, on the
14th of that month. The deceased expressed her concern about the feuding between
her children and grandchildren. She told him that she wished to return to her Jewish
roots and wanted him to draw a will for her which would restore peace among her
family.

[11] She gave him specific instructions in that regard, which he recorded in
manuscript. In the process she revealed personal information, which he also recorded,
about the characters and foibles of each of her beneficiaries and her feelings about
them. He occasionally had to gently chide and remind her of her objective to treat
everyone fairly when she remembered things about them which annoyed her and
threatened to reduce their bequests. From these notes, he drafted the disputed will
which the deceased signed, on 4 August 2002 at her flat, after he read it to her, in his
presence and in the presence of two witnesses, Mr Barry Tannenbaum, his nephew,
and Mr Norman Aaron, his associate, whom he requested to attest the execution of
the will. The two men confirmed this version.

[12] Relying on the evidence of the various witnesses who testified on the
appellants’ behalf, their counsel argued that the court below erred in not finding that
the probabilities did not support Mr Miller’s evidence. It was submitted that the
following factors rendered the validity of the disputed will doubtful:
 it was produced only after the deceased’s death and no account had been sent
by Miller for his services until then;
 all the deceased’s previous wills had been prepared by the Standard Bank,
which was appointed as the executor of her estate, and executed with the
assistance of its officials whom she trusted, a procedure which was not
followed in the case of the disputed will. The disputed will was in a completely
different format and made no provision for the various charitable institutions
and the maintenance of the tombstone of the deceased and her late husband as
the previous wills did;
 the evidence of Mr Miller, Mr Aaron and Mr Tannenbaum differed on a
material point as they respectively estimated their visit to the deceased’s flat on
4 August 2002 to have occurred between 16h30 and 17h30, 16h00 and 16h30
and 15h00 and 16h00, which was unlikely in the light of the evidence of the
first respondent and her husband who were at the deceased’s flat during that
afternoon and did not see them;
 on 23 August 2002, after the alleged execution of the disputed will, Ms Marais
and Ms Els  met the deceased to effect changes to the earlier will;
 a handwriting expert, Mr Cecil Greenfield, testified that the disputed will was
possibly a forgery;
 the first respondent, who spent a lot of time with the deceased as her personal

assistant did not know Mr Miller; and
 Mr Miller, Mr Aaron and Mr Tannenbaum refused to consult with the first
respondent’s attorneys.

[13] The appellants’ attempts to refute Mr Miller’s claims to a friendship with the
deceased and the execution of the disputed will at the deceased’s flat was premised on
the evidence of three witnesses. The first respondent said that she did not know him
although it came to light in her cross-examination that she had actually heard of him
and knew that he had dealings with the third respondent who managed the deceased’s
properties. She and her husband testified that they routinely spent every Sunday
between 10h00 and 17h00 with the deceased at her flat and insisted that they would
have seen Mr Miller there on 4 August if his version was true. But according to Ms
Tholakele Ntuli, one of two of the deceased’s care-givers at the time, they did not
adhere to a strict time schedule and usually left anytime between 16h30 and 17h00.
She recalled that on 4 August they left at 16h30 because the first respondent was in a
hurry to get home to make a telephone call. When her version was put to the first
respondent and her husband they were constrained to admit that they left earlier than
they previously stated.

[14] Ms Ntuli alleged that she was on daily day-duty in August and worked until
18h00 even on Sundays to assist the deceased’s live-in caregiver, Ms Emily Zikalala,
as the deceased had become very ill. She saw Mr Miller only once, on a Friday
evening in early October 2002, when he visited the flat with the fourth respondent
and unsuccessfully tried to persuade the deceased to sign certain documents against
her will. She was adamant that she would have seen the second respondent if he
visited or at least heard from Ms Zikalala, with whom she worked shifts, if he had

come during her absence. She and Ms Zikalala were both on duty on 4 August and
only the first respondent and her husband had visited the deceased.

[15]    Ms Ntuli’s evidence was contradicted in material respects by a number of
witnesses, including the first respondent, according to whom Ms Ntuli was on duty
alone and not with Ms Zikalala as she testified, on Sunday 4 August. Contrary to Ms
Ntuli’s version that the deceased was too ill to receive callers during that month, Ms
Els had written records of meetings which she and Ms Marais had with the deceased
on 4 and 23 August 2002 and testified about the discussions they had with her at
those meetings. Surprisingly, the first respondent, to whom Ms Ntuli said she
reported, the second and fourth respondents’ October visit was not mentioned in her
evidence as would be expected. The eighth respondent who was visiting the deceased
and staying with her at the time denied the alleged visit, as did the fourth respondent
who, it turned out, was travelling overseas during that month. Even if one accepts that
the visit occurred as alleged, it is difficult to imagine what ‘documents’ Mr Miller
would have tried to influence the deceased to sign at that stage when the disputed will
had been executed some weeks before.

[16] Interestingly, three days after the deceased’s death, the first respondent took
Ms Ntuli to the police station to sign an affidavit which she had prepared for her,
stating that no one had visited the deceased and caused her to sign any documents on
4 August 2002. Curiously, on 11 December 2002 the first respondent took Ms Ntuli
back to the police station to depose to yet another affidavit prepared by her,
ostensibly to confirm what Ms Ntuli had said in the first statement. Ms Ntuli barely
spoke English and had worked for the deceased for only a few months before the
latter died, apparently having been hired merely to assist Ms Zikalala as she worked

only day shifts and lived in separate quarters, on another floor of the deceased’s
building. But Ms Zikalala, the permanent caregiver and a fluent English speaker who
actually lived with the deceased and would, logically, have been a better source of the
goings-on in the deceased’s lodgings, was puzzlingly not called to testify. I find it
most surprising that Ms Ntuli would unerringly remember the fine detail of the events
of 4 August 2002 four years later when, by her own account, there was nothing
remarkable about the day to jog her memory. These discrepancies and improbabilities
in her evidence, in my view, cast serious doubt on her credibility and it seems to me
that the court below rightly rejected her evidence.

[17] It was not disputed that both Mr Tannenbaum and Mr Aaron obtained no
benefit from witnessing the execution of the disputed will. It is difficult to conceive
why these men who knew neither the deceased nor any member of her family would
conspire in the forgery of her will and perjure themselves in court as the appellants
would have it. This applies equally to Mr Miller, despite his friendship with the
fourth respondent, because he refused to accept his nomination as an executor and
arranged for another attorney to administer the deceased’s estate. Unfairly, no
imputation that these witnesses conspired to forge the will and were lying in court
was put to them when they testified to afford them an opportunity to deal with those
imputations.2 And, not unexpectedly, the appellants’ counsel could advance no reason
before us why any finding of dishonesty should be made against them.

[18] Other than the contradiction relating to the precise moment of the execution of
the disputed will during the afternoon of 4 August 2002, no other flaw was identified

2 President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC).

in the corroborative versions of the second respondent and his two witnesses. To
my mind, this difference is not unexpected considering that these witnesses were
testifying about events which had occurred some years earlier which they had not
recorded. The time frames they gave were merely estimates but the tenor of their
evidence was that their meeting with the deceased took place in the middle to late
afternoon. It can safely be accepted on this evidence, in view of the Levins’
concession regarding the time of their departure from the deceased’s flat, that the
disputed will was executed after 16h30.

[19]   The first respondent conceded that the intimate details about the deceased’s
children and grandchildren and her personal views about them which are contained in
the notes which the Mr Miller said he took during his consultation with the deceased
were accurate. But she suggested that Mr Miller probably got the information from
the fourth respondent. I find that possibility most unlikely merely from the nature and
tone of Mr Miller’s recordal which depicted an emotional and deeply personal
running commentary. But that apart, it was not put to Mr Miller that his notes were a
fabrication. Neither was there any hint that the fourth respondent had been present at
or was even aware of the meeting of 14 July 2002.

[20]   It is clear from the Standard Bank officials’ manner towards the deceased (the
daily telephone calls to check on her health, the constant social visits, the gifts she
was given etc. patently went far beyond the call of normal business relations) that
they did not trust that she would not change the bank as her executor and needed to
constantly keep her happy. This attitude is, in fact, borne out by Ms Els’ evidence that
at their meeting of 23 August 2002, Ms Marais pertinently asked the deceased if she
had signed another will. That question could only have been prompted by suspicion.

[21] It is not at all odd in view of the deceased’s impulsive and distrustful nature
that she could have asked Mr Miller to draw a secret will on her behalf. It is plain
from the evidence particularly that of the first respondent’s husband, Mr Miller and
Mr Strydom regarding their relationships with the deceased that she trusted people
who understood her home language with whom she could reminisce.

[22] The object of the disputed will was to divide the deceased’s estate fairly among
her children and end the conflict in her family. It had nothing to do with her previous
wills and there is no reason why Mr Miller would have adopted the Standard Bank
format which does not appear to have been brought to his attention and from which
the deceased wanted to depart in any case. Mr Miller’s evidence that the deceased
specifically instructed him not to send him a statement of account or a copy of the
will until she requested it and that he had gained the impression that she wanted to
keep its existence a secret tallies with her character. And I see no reason to draw an
adverse inference from his and the other witnesses’ refusal to consult with the
appellants’ attorneys, as we were urged to do, when it was not disputed that they were
advised against such a meeting by their attorney who had already been notified by the
Standard Bank that it was contemplating challenging the disputed will.

[23] Regarding the evidence of the handwriting expert, Mr Greenfield, the court
below found that it was trumped by the direct testimony given by Mr Miller, Mr
Tannenbaum and Mr Aaron and the evidence of the deceased’s ophthalmologist, Dr
Mark Deist. In reaching this conclusion, the court relied on the judgments of this

court in Kunz v Swart3and Annama v Chetty4 which enjoined courts to apply
caution before accepting handwriting expert evidence. I respectfully agree with the
finding of the court below in this regard.

[24] In the first of two reports on the authenticity of the testator’s signature in the
disputed will prepared by Mr Greenfield, he expressed the following view:
‘If on 4th August 2002, the late Ms Breslawsky’s general health had markedly improved – compared
with the state of her muscular control and eyesight, demonstrated in the signatures in the Will
written some twelve months earlier, it is my view, that she was, in all probability, the writer of the
disputed signatures. If however, it can be proved that her eyesight and muscular control had
dramatically deteriorated during the intervening period between the pen-ultimate and the questioned
Will; right up to the time of signing, then there is, in my view, a strong possibility that the disputed
signatures are very good freehand simulated forgeries.’

[25] What Mr Greenfield had not been told when he prepared his final report (after
being furnished with further signatures of the deceased), which concluded that the
disputed will was most probably a forgery, was that the deceased had in fact
undergone an eye cataract operation after signing the 2001 will. According to Dr
Deist, corroborated by the first respondent, this procedure had significantly improved
the deceased’s vision and hand-eye coordination. Dr Deist opined that it was
reasonable in the light of this improvement to expect the deceased’s handwriting to be
neater. Mr Greenfield conceded that in addition to this operation he was not aware
that the deceased was blind in one eye and did not consider the deceased’s position
when she signed the documents and that all these factors were relevant to his enquiry.
Whilst he still nursed some misgivings about the genuineness of the signature in the

3 Kunz v Swart 1924 AD 618.
4 Annama v Chetty 1946 AD 142.

disputed will, he fairly conceded that he would yield to direct evidence to the effect
that the signature was that of the deceased. If the evidence of Mr Miller and his
witnesses that the disputed will was signed by the deceased is accepted, as I think it
must, then Mr Greenfield’s opinion must be rejected.

[26] What is most striking about this case, in my view, is the nature of the disputed
will which distributes the deceased’s assets among her family far more equitably than
any of her previous wills. This is indeed consonant with Mr Miller’s account that she
wanted peace among her offspring in her final days. I reiterate that it seems to me
most unlikely that three individuals, unrelated to the protagonists, would conspire to
forge a will which treated the beneficiaries fairly and from which they stand to gain
nothing and to perjure themselves in a bid to uphold it.

[27] I have found no reason to doubt Mr Miller’s evidence regarding the making of
the disputed will. The incidence of the onus does not, therefore, arise. His evidence
and that of the witnesses to the signing of the will establishes that it complied with
the formalities required by s 2(1)(a) of the Wills Act. The appeal must, therefore, fail.

[28] There remains the question of costs. It was contended on the appellants’ behalf
that if the appeal failed the costs of all the parties both on appeal and in the court
below should nonetheless be paid from the deceased’s estate because there was a
reasonable basis to doubt and challenge the authenticity of the disputed will. I do not
agree. An order that the costs in a suit must be paid from the estate is not a general
rule, even in matters involving the determination of the true meaning of an

ambiguous will,5 which is hardly the issue here.

[29]   The manner in which the appellants conducted the litigation left much to be
desired. They knew all too well that the deceased remained mentally sound and
strong-willed despite her advanced age. But, despite this knowledge, some of the
grounds they pleaded as a basis for challenging the disputed will disingenuously
sought to cast doubt on her mental capacity and ability to make independent
decisions. The appellants also knew of the deceased’s mistrustful and impulsive
nature and cannot have been surprised by the existence of an undisclosed will. They
persisted with the litigation in total disregard of the evidence that her cataract
operation had favourably impacted her handwriting.

[30] The submission that if Mr Tannenbaum, Mr Aaron and Mr Miller had not
refused to consult with the appellants’ attorney the appellants would probably not
have launched the action has no merit in view of the fact that the appellants persisted
with their claim even after they had testified. I see no reason in these circumstances to
burden the deceased’s estate with the costs of ill-conceived litigation and hold that
they should follow the result.

[31] Accordingly, the appeal is dismissed with costs including the costs of two
counsel.

____________________

5 Cuming v Cuming 1945 AD 201 at 216.

MML MAYA

Judge of Appeal

APPEARANCES
APPELLANTS: K.R. Lavine

Instructed by Cranko Karp & Associates, Johannesburg;

Lovius Block Attorneys, Bloemfontein.

RESPONDENT: H. Epstein SC

(Ms) K Schneid

Louis H Garb and Raymond

Joffe Attorneys, Johannesburg;

Claude Reid Inc, Bloemfontein.
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:  The Registrar, Supreme Court of Appeal
Date:  03 June 2011
Status:  Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

Levin v Levin (644/09) [2011] ZASCA 114 (03 June 2011)

The Supreme Court of Appeal today dismissed an appeal against the decision of the South
Gauteng High Court which found the will of the late Mrs Minnie Breslawsky dated 14
August 2002 valid.

The Supreme Court of Appeal found no reason to doubt the evidence of Mr Normal Miller,
an attorney, who drew the disputed will and held that his evidence and that of the two
witnesses to the signing of the will, established that it complied with the formalities required
by s 2(1)(a) of the Will Act 7 of 1953.

---ends---