Johannesburg court voids July 2014 will of 94-year-old businessman as dementia evidence holds

A will signed in July 2014 by a 94-year-old Johannesburg businessman has been set aside, along with every will and codicil he signed after it, after the South Gauteng High Court found he had probably lost the mental capacity to understand what he was signing.

The judgment, handed down by Judge Norman Manoim, declares that the businessman, identified in the ruling only as BK, lost testamentary capacity sometime in mid-2014 while suffering from dementia and Alzheimer’s disease. His April 2012 will, as amended by a codicil signed six days later, must now govern the winding-up of his South African estate. The Master of the High Court has been ordered to register that version.

As IOL reported on 18 September, the ruling resolves a long-running dispute between the businessman’s first and second families over an estate that spans South African assets, a family trust and a separate estate in Israel.

Who BK was

BK was born in Minsk in 1923 and emigrated from Russia with his family in the 1930s, settling in what was then Pietersburg, now Polokwane. He studied mechanical engineering at the University of the Witwatersrand and built a business manufacturing hub caps in Wynberg, Johannesburg. He later acquired an interest in Form-Scaff, which grew into an exporter and listed on the stock exchange. He sold his shares in 1983, retired, and invested his own money in the financial markets.

The court heard his wealth fell into three broad categories: South African assets, the Family Trust, and the Israeli estate governed by a separate will. The Israeli estate and the trust are the subject of separate litigation, but evidence about them was relevant because changes were made across all three areas of his estate planning during the same period.

What the court had to decide

The dispute was not about whether BK signed the disputed documents. Everyone agreed he had. The question was whether he had the mental capacity to understand what he was doing at the time.

Section 4 of the Wills Act provides that a person may make a will unless, at the time of making it, they are mentally incapable of appreciating the nature and effect of the act. The burden of proving incapacity rests on the person alleging it.

Five medical experts testified retrospectively, because none had examined BK during the relevant period. They disagreed over exactly when he lost capacity, but the judge found the medical evidence pointed to a loss of capacity during 2014.

The treating doctor, geriatrician Dr Brent Tipping, was central to the case. He first saw BK in January 2011 after an incident in which BK fell asleep while driving. He detected signs of dementia and described BK at the time as moderately impaired in insight, judgment and functional status.

Cognitive test results deteriorated from there. BK scored 28 out of 30 on a Mini Mental State Examination in May 2011, 27 in September that year, and 24 in March 2012. By February 2014 the score had fallen to 23 out of 30. He could not recall any of three words used in the test, and Tipping’s referral to another doctor described his dementia as moderate.

The 2014 wills and the question that stood out

The court paid particular attention to wills signed in July and August 2014.

On 25 July 2014, BK signed a new will that substantially reorganised his estate. The Nygren assets, an offshore investment held through a British Virgin Islands company that represented a significant portion of his wealth, were left to his second wife, G, with his daughter, L, named as beneficiary should G predecease him. The July will also created a testamentary trust from the residue of the estate, with G receiving income and the administrator holding discretion over distributions to the children after her death.

A further will was signed in August 2014 after estate-planning discussions involving BK, his wife G, financial adviser David Nathan and attorney Michael Bloom. The judge described this period as involving the most complicated estate planning BK had undertaken, because his South African estate, Israeli assets and family trust were being dealt with together. The court found the changes required him to understand not only who benefited but who was disadvantaged.

Evidence about the circumstances of the July 2014 signing featured prominently. BK’s son recalled that on the day the will was signed, BK asked his wife: “what am I signing today”. The judge found that remark alone was not enough to establish incapacity, but it formed part of the wider evidentiary picture of his cognitive decline.

Investment adviser Daniel Roy, who interacted with BK regularly, testified that he noticed his client’s mental decline and in 2016 secretly recorded a conversation in which BK struggled to understand what was being discussed and forgot information moments after it was explained. The judge regarded the recording as compelling evidence of the extent of the deterioration.

The court was also critical of Nathan’s evidence. Nathan, closely involved in the estate planning and present when the disputed documents were signed, maintained that BK understood what he was signing. Judge Manoim found his evidence too general and placed little weight on his observations of BK’s cognitive capacity.

A 2015 letter from BK’s second wife to Dr Tipping was also important. She described him as forgetful, frustrated and prone to repeating himself, and said he had experienced a “huge deterioration” in his memory. She also observed that he functioned well socially and that people who met him socially would not necessarily realise there was a problem. The judge found this significant because it supported the concept of social masking, where a person with cognitive impairment appears relatively normal in social interactions despite substantial underlying deterioration. Superficial observations of BK being conversational, sociable or polite did not outweigh the medical evidence, the court found.

The widow’s inheritance, and what happens now

The first family also sought an order declaring G an indignus, meaning legally unworthy to inherit. The court rejected that application. Judge Manoim found that although BK had probably lacked testamentary capacity from sometime in 2014, the evidence was not conclusive enough to establish that G was an indignus beneficiary.

The judge noted that G had died before the trial and could not explain why she had not told Nathan and Bloom about Dr Tipping’s concerns. Her conduct in not intervening was criticised, but the court found the evidence insufficient to make it legally consequential.

In its final order, the court declared BK had lost testamentary capacity by mid-2014, set aside all wills and codicils signed from July 2014 onwards, and declared them void. The April 2012 will and its codicil will govern the estate. The costs of the litigation are to be paid from the estate, including the qualifying fees of three experts whose evidence assisted the court.

For families across South Africa, the case turns on a point of law that applies to every will signed in this country. Capacity is judged at the moment of signing, not in hindsight, and the burden of proving otherwise rests on whoever challenges the document. Where a testator’s cognitive decline is documented by a treating doctor, as it was here, that record carries weight that recollections of sociability cannot displace.

Source: IOL, Court sets aside will signed by father with dementia after family fight over multi-million-rand estate, 18 September 2026.