This
is an application seeking an order that:-
1.
The
estate Anita June Bruk-Jackson and that of the late Chester
Bruk-Jackson be declared joint; and
2.
The
Will by the late Chester Bruk-Jackson should apply to half of the
joint estate.
In
the alternative, the applicant seeks an order that:
1.
The property known as section 8 in the building known as St. ...
This
is an application seeking an order that:-
1.
The
estate Anita June Bruk-Jackson and that of the late Chester
Bruk-Jackson be declared joint; and
2.
The
Will by the late Chester Bruk-Jackson should apply to half of the
joint estate.
In
the alternative, the applicant seeks an order that:
1.
The property known as section 8 in the building known as St. James
Terrace, St.
James,
Cape Town, South Africa be excluded from the estate late Chester
Bruk-Jackson.
2.
The first
respondent
to return to estate of Anita US$225,000= being rentals expended by
the deceased from Anita's immovable property and US$100,344= being
an equivalent of the devaluation of the immovable property.
3.
The first respondent to return 25 thousand pounds and R110,000=
deposited in the deceased's accounts by Anita.
The
applicant is a daughter to Anita June Bruk-Jackson. On 8 April 2013,
the applicant was appointed the curator bonis of Anita June
Bruk-Jackson as the said Anita was bedridden and mentally
incapacitated.
The
first respondent is a nephew to the late Chester John Bruk-Jackson
who died at Harare on 22 October 2012. The first respondent was
appointed testamentary executor in terms of the late Chester
Bruk-Jackson's will.
The
brief facts leading to this case are that on 23 September 1987, Anita
June Bruk-Jackson married the late Chester Bruk-Jackson in South
Africa. A day before the marriage the parties entered into an
antenuptial contract wherein they agreed that there would be no
community of property as between them for the duration of their
marriage. That ante-nuptial contract provided, inter
alia,
that:
First…,
that there shall be no community of property between the said
intended Consorts, but that he or she shall respectively retain and
possess all his or her estate and effects, movable and immovable, in
possession, expectancy or contingency, or to which he or she has or
may have any eventual right or title, as fully and effectually as he
or she might or could have if the said intended marriage did not take
place.
Fourth…,
that each of the said intended Consorts shall be at full liberty to
dispose of his or her property and effects, by will, codicil or other
testamentary disposition, as he or she may think fit.
Fifthly…,
that there shall be no community of profit and loss between the said
Consorts, but that each of them shall, respectively retain the
profits made by or accruing to him or her, and shall in like manner
separately and solely bear and sustain the losses happening to him or
her during the subsistence of the said intended marriage.
These
are some of the terms the parties expressly agreed to….,.
In
his submissions, the applicant's counsel also argued that the ante
nuptial
contract became ineffectual when Anita was mentally incapacitated by
illness as by then Anita was disposed of the legal capacity to
contract. By virtue of this incapacity the antenuptial
contract terminated. Thus, for the 11 years that the deceased
administered Anita's estate he did so in the absence of an
ante-nuptial
contract
and in his capacity solely as an unauthorised husband. As a
consequence, the marriage became a marriage of community of property
regime whose incidence arise joint holding of matrimonial property.
I,
however, did not hear counsel to allude to any legal principle that
converts an out of community marriage regime to an in community of
property marriage regime simply because one spouse has become
mentally incapacitated….,.
It
is important to appreciate that ante
nuptial
contracts must be interpreted in accordance with the ordinary rules
applicable to bona fide contracts. Where the intention of the parties
is clear, that should be adhered to.
At
common law, under this form of antenuptial
contract, the general capacity and property rights of the parties
remain unaffected by the marriage. They retain their separate
estates. They are not liable for each other's debts, with the
exception of debts contracted for household necessities.
The
contracts and other juridical acts of one spouse are not binding on
the other. If the husband alienates or encumbers his wife's
property without her consent, she may recover it from the third party
with the rei
vindicatio…,.
In
addition, the spouse whose property was improperly alienated,
hypothecated or otherwise disposed of has a personal action for
damages against the other. The South African Law of Husband and Wife,
5th
ed, H. R. HAHLO..,.
The
object of an ante-nuptial contract is to exclude the normal legal
consequences of marriage, particularly community of property, and to
replace them with the consequences desired by the spouses and which
the law allows them to choose.
In
Introduction to Family Law, P J VISSER and J M POTGIETER…, the
esteemed authors stated that:-
“The
most important characteristic of an antenuptial contract is that it
regulates the matrimonial property system of the parties. Only in so
far as an antenuptial contract, for example, also provides for
donations between spouses can it be regarded as a contract which
creates obligations. In other words, an ante nuptial contract
primarily determines the nature of the legal principles which govern
the financial position of the spouses and it does not actually lead
to contractual claims against each other.”
At
the demise of one of the spouses, the estate of the first dying
spouse devolves upon his or her heirs, while the surviving spouse
retains his or her estate unaffected by the dissolution of the
marriage by death.
It
is also a principle of such ante-nuptial contract that if one of the
spouses had, during the marriage, disposed of the property of the
other without the latter's consent, the latter may now, if he has
not done so before, claim damages. The same holds true if, owing to
the fault of one of the spouses, property of the other spouse was
destroyed, damaged or lost.
