DISTRIBUTABLE (34)

Judgment No. SC 39/05

Civil Appeal No. 293/03

(1) ANDERSON GUNDA (2) DAISON GUNDA v

(1) CECILIA GUNDA (2) THE MASTER OF THE HIGH COURT

SUPREME COURT OF ZIMBABWE

SANDURA  JA, MALABA JA & GWAUNZA JA

HARARE, OCTOBER 12, 2004 & SEPTEMBER 15, 2005

L Mazonde, for the appellants

O Mushuma, for the first respondent

No appearance for the second respondent

GWAUNZA JA: This is an appeal against the judgment of the High Court, which declared invalid the purported will of the late Aaron Mukoki Gunda (“the deceased”). The deceased was married to the first respondent according to civil rites, on 28 December 1990.

The first respondent in the court a quo challenged the validity of the purported will - in terms of which the deceased made various bequests to his children and brothers - on two main grounds. Firstly she alleged that the will did not comply with the requirements of the Wills Act [Chapter 6:06]. Secondly, she charged that the signature purported to be that of the testator (i.e. her husband), was a forgery.

The learned judge in the court a quo noted correctly, in his judgment, that sufficient evidence had been placed before the court to prove that the signature purported to be that of the deceased, was indeed not his at all.

The learned trial judge’s reasons for declaring the will invalid are contained in the following passage from his judgment at pp 5-6:

“The issue for decision in this Case is whether the will is a genuine testimental document by the deceased or not. Several factors point against the genuineness and hence the validity of the will. The signature of the testator is not genuine. This is the conclusion reached by the hand-writing expert.

The Master was of the same view in his first report. I am of the same view after comparing the signatures in the late Gunda’s daughter’s home work books and on the will. It is quite clear, even of (sic) a layman that the signatures are indeed different.

The will was not executed in terms of the wills Act. It was not signed in the presence of each other of the testator and its witnesses.

Its purported custody by the (deceased’s) employer has been disproved; in fact the employer almost saying that he is not aware of the existence of the will.

The document executed by the late Gunda clearly does not comply with the prescribed formalities of s 8(1) of the Wills Act. I am satisfied that the deceased did not sign the will, because the will is simply a forgery, the signature is indeed a forgery …”.

In the argument before us, counsel for the appellants, Mr Mazonde abandoned the first three grounds of appeal, and relied only on the fourth ground which reads as follows:

“In all the circumstances, the learned court a quo erred at law and in fact by failing as it did, to appreciate that evidence of the testamentary intention by the deceased had been established in terms of the Wills Act as amended”.

Mr Mazonde submitted in support of this ground that while the signatures purported to have been those of the deceased were indeed forged, the same did not apply to the script, or contents thereof, which were genuine. This, he contended, indicated that the deceased wished the document to be his will. Mr Mazonde relied, for this proposition, on s 8(5) of the Wills Act [Chapter 6:06], as amended by Act 21/98, which provides as follows:

“5 where the Master is satisfied that a document or an amendment of a document which was drafted or executed by a person who has since died was intended to be his will or an amendment of his will, the Master may accept that document, or that document as amended, as a will for the purposes of the Administration of Estates Act [Chapter 6:01] even though it does not comply with all the formalities for:

(a) the execution of wills referred to in

subsection (1) or (2);

or

(b) … ”.

The learned trial judge was satisfied that the document that was purported to be the deceased’s will was a forgery. He noted further, that the document was not “very clear” in its provisions and that anyone who read it would come to a different conclusion as to what the disposition was.

Having considered the document in question, I agree with the trial judge’s conclusion. The document is written in Shona and no effort was made by the legal practitioners concerned to translate it into English. Based on my own understanding of the Shona language, I find the will long and rambling; it is disjointed and in some parts reads like a letter. In other parts it contains instructions to various people to do or not to do certain things that are normally not relevant to a will. The handwriting differs in parts and it is clear sections of the document were written on different occasions and then put together in an effort to create a document that is now being styled a will. It is not in dispute that the deceased affixed his signature to none of the various pieces of paper that are purported to constitute the will. Someone else did so after his death.

While the purported will, at least in some of its many parts, may have been drafted by the deceased, I am not persuaded one can conclusively say he intended the document to be his will. A will by definition is a statement - written or verbal – by the testator concerning how and on what conditions, if any he wishes to have his estate distributed.

It can safely be assumed that any reasonable testator who expects to have his wishes followed would take some care in drafting his will. He would for instance, want such document to be clear in its terms. More importantly, having taken the trouble as the deceased in casu might have done, to draft the document in his own handwriting, such testator would surely want to affix his signature to the document to ensure that it would be identified with him.

In my view, it can hardly have been the intention of the legislator in drafting s 8(5) of the Wills Act, that any document said to have been drafted by a deceased person during his/her lifetime, no matter how confusing and unintelligible its terms may be, should be regarded as having been intended by him/her to be his or her will. My reading of s 8(5) suggests that the document in question, must have some but not all of the recognisable characteristics of a will. In casu, one is at pains to identify a feature of the purported will that would satisfy any of the requirements of a valid will.

As long as it is accepted that the deceased’s signature on the purported will was forged, the possibility of the whole document, or at least part of it, having similarly been forged, cannot be ruled out. It would thus be unsafe to assume that the entire document was drafted by the deceased in his own handwriting. What is before the Court is therefore a document which, in addition to the other shortcomings already referred to, may not all have been drafted, and was certainly not executed – by the deceased. In short, it is not the sort of document envisaged in s 8(5) of the Wills Act.

The learned trial judge in the court a quo was in all respects correct in his finding that the purported will of the deceased, Aaron Mukoki Gunda, was not a valid will.

The appeal can therefore not succeed and it is dismissed with costs.

SANDURA JA: I agree.

MALABA JA: I agree.

Mutumbwa, Mugabe & Partners, appellants’ legal practitioners

Hove, Lemani & Associates, first respondent’s legal practitioners