Vermeulen’s Disputed Will Declared Invalid

A CONTESTED will, which set off a family feud that was fought all the way up to Namibia’s highest court, was finally declared invalid by the Supreme Court last week.

The feud between the four surviving children of a farming couple from the Outjo area has proven the opposite of the saying that blood is thicker than water, it was commented in both a High Court judgement and now a Supreme Court judgement about the validity of the will of the late Fransina (‘Fransie’) Vermeulen.

In the Supreme Court’s judgement, Acting Judge of Appeal Simpson Mtambanengwe allowed an appeal against a previous judgement of the High Court and declared that a will signed by the late Mrs Vermeulen on 18 August 2000 is invalid. Judge Mtambanengwe,

backed by Chief Justice Peter Shivute and Judge of Appeal Sylvester Mainga, also declared that an earlier will of Mrs Vermeulen, dated 1 October 1994, is her valid will.

In terms of the 1994 will Mrs Vermeulen’s oldest son, Frederik Antonie (‘Frikkie’) Vermeulen, who works as a car mechanic at Outjo, inherits Mrs Vermeulen’s farm, Chaudamas, situated north-west of Outjo, while her oldest child and only daughter, Engela Rabald, inherits all her personal belongings, furniture and household goods. Her livestock were to be divided equally among her five children, Mrs Vermeulen directed in that will, but she no longer had livestock by the time she died.

In the August 2000 will, which split the Vermeulen siblings into opposing camps after Mrs Vermeulen’s death at the age of 70 at the end of March 2007, Rabald was disinherited and Frikkie Vermeulen inherited only a single rifle from his mother, while her farm and the bulk of her estate was bequeathed to her third oldest son, Gabriel Jacobus (‘Gawie’) Vermeulen.

Rabald and Frikkie Vermeulen disputed the validity of the August 2000 will, claiming that at that time their mother was already afflicted by Alzheimer’s disease and no longer in a fit mental state to make a valid will.

Their attempt to have their mother’s last will declared invalid was dismissed in the High Court, but the Supreme Court has now found that on the facts before the court the probabilities were overwhelming that at the time of the August 2000 will Alzheimer’s disease had already started to affect Mrs Vermeulen’s faculties to such an extent that she no longer had the capacity to make a valid will.

By all accounts the late Fransie Vermeulen was a formidable woman, Judge Mtambanengwe recounted in the Supreme Court’s judgement. Witnesses who testified during the hearing of the case in the High Court described her as highly intelligent and independent and as someone who was the right hand of her late husband, who was a farmer of substantial financial means. After his death in 1992 she continued to farm on her own. She was a hunter in her own right, carried out mechanical repairs on her farm, including repairs to her own vehicles, and was known as a good cook and a devoted and talented gardener.

Mrs Vermeulen was diagnosed with Alzheimer’s disease in November 2003, after her children had started to notice changes in their mother’s behaviour.

When her August 2000 will came to light after her death, Rabald and Frikkie Vermeulen recalled events preceding that date which according to them indicated that their mother had already been afflicted by Alzheimer’s disease before she made the second will.

Rabald testified in the High Court that when she visited her mother at her farm in January 2000, she noticed that she had not been cooking as usual, that her garden was being neglected, and that her mother – who was always as neat as a pin – had also started to neglect her personal hygiene.

By then, Gawie Vermeulen was also living at Chaudamas. He had lived at a neighbouring farm, Onduri, which he had bought with help from his parents, but later had to sell the farm due to financial difficulties. He then became dependent on his mother, who by 2000 was also in financial difficulties.

That was also a source of concern for Rabald and Frikkie Vermeulen, since their mother had always been careful with her finances, they told the court.

Frikkie Vermeulen told the court about an incident in which his mother, despite her knowledge of car maintenance and mechanics, drove her vehicle without water in its engine in June 2000, seizing the engine in the process. Around November that year, she put petrol in the fuel tank of her diesel bakkie and was found in an apparent confused state next to the road after the bakkie had broken down.

Judge Mtambanengwe also noted that the psychiatrist who diagnosed Mrs Vermeulen, Dr Reinhardt Sieberhagen, testified that he doubted she still would have had the capacity to make a valid will in August 2000. Dr Sieberhagen said Mrs Vermeulen would have been afflicted by the progressive degenerative illness already around 1998, or even earlier.

The psychiatrist estimated that by the time he diagnosed her, Mrs Vermeulen had already been in the second phase of the disease for about five years, Judge Mtambanegwe also noted.

Source : The Namibian