In the case of Pret Lourenco and Another v Lourenco and Others at the Johannesburg High Court, Rudy Lourenco and Tanya Chammas initiated a rescission application against Tracey Lourenco (first respondent), the Master of the High Court, Johannesburg (second respondent) and Capital Legacy (Pty) Ltd (third respondent). They aimed to rescind a declaratory order which was granted by default in terms of section 2 of the Wills Act.

This order declared that a document including instructions and information provided to Capital Legacy, (a company specialising in will drafting and estate administration), to be the last will of Jose Manual Lourenco ("the deceased"). The deceased was the applicants' father and the husband of Tracey Lourenco. According to this will, Tanya and Tracey were appointed as co-executors of the deceased's estate.

The applicants argued that the declaratory order was based on an ex-parte application where neither of the applicants was cited. Therefore, the High Court had to determine whether the applicants had an interest in the proceedings concerning the declaratory order and as such, they should have been joined to the proceedings or been given notice of the proceedings.

The High Court noted that, although the parties seemingly had discussions on how the estate must be distributed, it was common cause that the applicants were not entitled to inherit anything in terms of the will of the deceased. The court also noted that the application which resulted in the declaratory order being granted was instituted on 13 July 2020. The applicants only became aware of the application on 19 February 2021 by email from a consultant at Capital Legacy.

The applicants contended that they should have been given notice of the application as interested parties, and because this was not done, the order declaring the document to be the will of the deceased should be set aside.

In considering rule 42 of the Uniform Rules of Court, the court remarked that from a plain reading of the rules, an applicant bringing a recission application did not necessarily need to be an affected party in terms of the order sought to be rescinded. In addition, the court stated that "in general terms, a judgment is erroneously granted if there existed, at the time of its issue, a fact of which the Court was unaware, which would have precluded the granting of the judgment and which would have induced the Court, if aware of it, not to grant the judgment".

The court pointed out that the judge who granted the order, was under the impression that no other party would or could dispute the relief sought. The Johannesburg High Court found this statement to be false.

In particular, the court noted that Tanya was a co-executor, a fact of which Tracey was aware. In addition, there was a dispute between the co-executors regarding the method to follow in administering the estate. The court stated that at the very least, Tanya as a co-executor, had a direct and legal interest in the administration of the estate, which could have been prejudicially affected by the order of the court.

Consequently, the court concluded that the order was granted in stealth, rather than with the knowledge of all interested parties. In addition, the Johannesburg High Court found that Tracey acted in bad faith in seeking the order and had in fact breached her fiduciary responsibilities as co-executor of the estate.

The Johannesburg High Court therefore ordered that the previous order granted should be rescinded and Tracy was ordered to pay costs on an attorney and client scale (ie a punitive scale).

Parties that institute legal proceedings should be careful to ensure that all interested parties are cited in the proceedings.

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