The North West High Court’s judgment in Lombard v Van Der Merwe, handed down on 24 March 2026, is essential reading for anyone who has a will, is thinking about making one, or stands to inherit under someone else’s. It is a case about an elderly man, a disputed document, and the catastrophic consequences that follow when the elementary safeguards of the Wills Act are ignored, whether through carelessness, opportunism, or something worse.
The Facts in Brief
The late Jan Hendrik Lombard executed a joint will with his wife Rita on 27 January 2022. She died shortly thereafter, leaving him a 93-year-old widower in a state of severe cognitive and emotional decline. Some months later, a second document purporting to be his will came into existence, dated 1 November 2022. Under that document, the testator’s daughter, Ethel van der Merwe, was named as primary beneficiary and executrix. His son, Marthinus Lombard, applied to have the second document declared invalid and his sister removed as executrix.
What emerged in evidence was damning. The person who drafted the second will, and who also acted as a witness to it, admitted that the testator had signed the document not in Bloemfontein on 1 November 2022 as the document stated, but in Matlosana (Klerksdorp) roughly a month earlier. The two witnesses then signed in Bloemfontein, some 350 kilometres away, without the testator present. The formal requirements of the Wills Act had not merely been bent; they had been comprehensively disregarded.
Invalidity on Three Grounds
Judge Reddy found Will 2 invalid on three separate and mutually reinforcing grounds.
The first was non-compliance with section 2(1)(a) of the Wills Act. That section requires the testator to sign in the simultaneous presence of at least two competent witnesses. The court was unequivocal: this is not a technicality. It is the statutory mechanism through which the authenticity of the testamentary act is ensured. A 350-kilometre geographic separation between the testator at the time of signing and the witnesses at the time of their signing represents, in the court’s phrase, a geographic impossibility of presence. The document was void ab initio.
The second ground was the absence of animus testandi. Even if the formalities had been satisfied, the testator lacked the requisite intention and capacity. The person who presented the document to him for signature reportedly stated “dit moet nou end kry” – language that the court correctly characterised as coercive rather than facilitative. More telling still was what the court called the “Swanepoel enigma”: the daughter had claimed that the testator wished to benefit her eldest son, identified as EH Swanepoel. Will 2, however, named her other son, Johannes van der Merwe – a grandchild the testator barely knew. If the testator had truly understood and approved the document he was signing, he would not have named the wrong heir. This discrepancy was, in the court’s view, objective proof that he did not know or approve the contents of Will 2.
The third ground was undue influence and fraud. The circumstances – an elderly, bereaved, cognitively vulnerable man; a document executed in secrecy; a drafter who served simultaneously as witness – were consistent with a will procured by deception and pressure rather than free testamentary choice.
Unworthiness to Inherit
The doctrine of unworthiness – traditionally expressed in the maxim de bloedige hand neemt geen erf (the bloody hand inherits nothing) – was historically confined to those who had caused the testator’s death. The court confirmed the well-established extension of this doctrine to encompass serious moral wrongs more broadly: suppressing or falsifying a will, fraudulently procuring a testamentary benefit, and conduct so reprehensible as to render a claimant indigna.
Ethel van der Merwe fell squarely within this broader formulation. Beyond her role in procuring Will 2, she and her brother had apparently plundered their parents’ bank accounts in 2021. In the litigation itself, she relied on a fabricated document – a fictitious “Notice of Amendment” that had never been filed – to explain her failure to file answering affidavits on time. The court had no difficulty declaring her unworthy to inherit. By operation of section 2C(2) of the Wills Act, her notional share devolves upon her lawful descendants per stirpes, as if she had predeceased the testator.
Her appointment as executrix fell away as a necessary consequence. Marthinus Lombard was appointed in her place.
Lessons for Practitioners
For fiduciary practitioners, the judgment contains three enduring messages.
First, the formalities of the Wills Act are not bureaucratic niceties; they are the statutory guarantee of authenticity. Never allow a testator to sign a will without witnesses being present. The 350-kilometre separation in this case was fatal, and the drafter who permitted it, and then witnessed the document himself, found his conduct squarely before the court.
Second, when an elderly client presents for will-making shortly after bereavement, extreme caution is required. Document capacity meticulously. Record the testator’s instructions in their own words. If any indication of family pressure exists, decline the mandate or insist on independent advice. The remarks attributed to the drafter in this case – “dit moet nou end kry” – were, on the court’s assessment, the language of coercion. No practitioner should find himself in that position.
Third, the doctrine of unworthiness is alive and developing in line with the boni mores. Financial abuse of an aged parent’s estate, followed by attempts to mislead the court, will not be tolerated. A beneficiary who attempts to subvert justice in the very proceedings that determine inheritance forfeits the right to benefit. The declaration of indignitas in this case, with the attendant per stirpes devolution to the first respondent’s descendants, is a pointed illustration of the doctrine’s reach.
Lombard v Van Der Merwe reminds us that our law still protects the vulnerable testator’s true intentions while punishing those who would exploit grief and frailty for personal gain. In an era of increasing longevity and blended families, such vigilance has never been more necessary.
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