The
first appellant is the executor of the estate of the late Francis
Mwene Nehwati (hereinafter referred to as “the deceased”). The
validity of the Will,
in terms of which the appellant was appointed executor, was
successfully challenged in the court a quo. The second appellant is
the wife of the deceased and the main beneficiary, in terms of the
Will
being challenged, of the deceased's estate.
The
respondents are relatives of the deceased who successfully applied
for the setting aside of the deceased's Will.
The
respondents, the applicants in the court a quo, contended that the
deceased revoked the disputed Will
before his death. The learned judge in the court a quo, having agreed
with the above contention, concluded as follows:
“In
my view, the second respondent is still entitled to benefit as if
there was no Will
because although the previous Will
was revoked, there was not yet a valid Will
to replace it at the time of the deceased's death.
Accordingly,
I make the following order –
1.
The Will
of the deceased, Francis Mwene Nehwati, executed on 14 December 1990,
is declared to have been revoked by the deceased prior to his death.
2.
The estate of the deceased is to be distributed in terms of the
Deceased Estates Succession Act [Chapter 6:02].
3.
The second respondent's rights to the estate are to be regulated by
section 3 of the Deceased Estates Succession Act.
4.
The Assistant Master is to convene the usual meeting of the parties
and consider appointing an independent executor and administrator of
the estate.
5.
The costs of these proceedings are to be borne by the estate.”
The
appellants were dissatisfied with the judgment of the court a quo and
now appeal against it.
The
facts of the case are as follows –
The
deceased signed and executed a Will
on 14 December 1990. The Will
was prepared by the first appellant who is a legal practitioner and a
former friend of the deceased. In terms of the Will,
the first appellant is the executor of the deceased's estate and
the second appellant is the main beneficiary.
Shortly
after the signing of the Will,
the second appellant left the matrimonial home and commenced divorce
proceedings against the deceased.
According
to the pleadings in the divorce case, it was common cause that the
marriage had broken down irretrievably. The parties, however,
disagreed on how the matrimonial assets should be distributed.
Negotiations over the distribution of the matrimonial property were
protracted and acrimonious. The deceased died on 24 February 1999
before the negotiations were concluded and the divorce could be
granted.
When
the second appellant left the matrimonial home she went to live at
the first appellant's house and later moved to his farm just
outside Bulawayo. The deceased and the first appellant were the best
of friends and this development soured that friendship.
The
first respondent averred, in his founding affidavit, that the
deceased had advised him that he, the deceased, had withdrawn his
Will
from the first appellant with the intention of formally cancelling it
and executing another Will
excluding the second appellant as a beneficiary of his Will.
He also avers that he was advised by Sansole & Senda, the first
appellant's firm of legal practitioners, which firm had drafted the
Will,
that the deceased had taken his original Will
and that they did not believe it to be in their possession.
This
turned out to be incorrect as the original Will
was subsequently found at the offices of Sansole and Senda.
The
first appellant's response to the averment that the deceased had
retrieved the original Will
from his firm of legal practitioners is contained in paragraph 10 of
the first appellant's replying affidavit. It reads as follows:
“The
correct position is that it is not a copy of the deceased's Will
which I could not locate. It was the original. The safety of all
original Wills
of my clients are kept in a separate cabinet which is under the care
and control of my secretary. When I retrieved the file, I saw there
on the copy of the Will…,
an entry made by me on the copy that the deceased had taken his Will.
Subsequently,
my secretary, Mrs Constance Ngwenya, advised me that the original
was, in fact, in the cabinet. As a result, I informed the applicant
of this discovery. If the applicant is challenging the validity of
this Will,
he has not said so.”
On
this evidence, the probabilities are that both the first appellant
and the deceased believed, erroneously, that the copy given to the
deceased was the original Will.
The
first appellant also initially agreed to withdraw as executor upon
the request of the respondents. The second appellant objected and the
first appellant withdrew his resignation as the executor.
It
has also been averred, and not seriously disputed, that while the
deceased was in Hwange Hospital he sent for Mr Justice Kamocha. Mr
Justice Kamocha did visit the deceased, and, upon the deceased's
request made during this visit, prepared a draft Will
for the deceased to sign. The deceased succumbed to his illness and
died before signing the Will
prepared by Mr Justice Kamocha.
The
deceased, after separating from the second appellant, married Jessie
Ncube in accordance with African custom.
The
appellants' contention, which was rejected by the court a quo, is
that the Will
executed by the deceased, on 14 December 1990, is valid, was never
revoked, and, accordingly, the deceased's assets should be
distributed in accordance with that Will.
The
learned judge in the court a quo, as I have already stated, rejected
the contention and concluded that the Will
had been revoked. The learned judge also rejected the unsigned Will
as the new Will
and ordered that the estate of the deceased be distributed on the
basis that he had died intestate.
I
find myself in agreement with the reasoning and conclusion of the
learned judge in the court a quo.
It
is common cause in this case that a Will
can be revoked by a testator. I agree with this proposition. It is
also common cause that the onus to prove revocation rests upon the
party alleging such revocation and such onus is discharged on a
balance of probability. See Marais v The Master and Others 1984 (4)
SA 288; The Law of Succession in South Africa by CORBETT, HAHLO,
HOFMEYR and KAHN…,.
The
issue that fell for determination in the court a quo, and which this
Court has to decide, is the sufficiency of the evidence adduced by
the respondents to prove that the deceased revoked the disputed Will
before his death.
The
respondents relied on both direct and circumstantial evidence as
proof of the revocation. In particular, the respondents relied on the
following direct and circumstantial evidence –
(a)
The deceased's withdrawal or repossession of his Will
from his erstwhile legal practitioner, the first appellant;
(b)
The pending divorce between the deceased and the second appellant and
the deceased's customary law marriage to Jessie Ncube before his
death;
(c)
The deceased's instruction to Mr Justice Kamocha to draft him
another Will.
I
will deal with the above seriatim.
The
deceased withdrew his Will
from the first appellant, who had prepared it and obviously kept it
for safe-keeping. The Court can take judicial notice of the fact that
most people keep their Wills
with their legal practitioners, bankers
and such like people held in trust. Why then would the deceased seek
to withdraw his Will
from the first appellant?
No
explanation by the first appellant has been proffered. The first
appellant was not only the deceased's legal practitioner but his
personal friend.
After
withdrawing the Will,
the deceased did not take it to another lawyer or institution for
safe-keeping. Given this situation, the inescapable inference is that
he repossessed the Will
from the first appellant with the intention of altering it.
Indeed,
there are numerous other factors pointing in the same direction. It
is virtually undisputed that the deceased told his son, the first
respondent, that he repossessed his Will
because he wished to revoke it.
Apart
from this, where a Will
that was known to be in the possession of the testator cannot be
found after his death, there is a presumption that it was lost or
destroyed by the testator animo revocandi. See Nelson v Currey (1886)
4 SC 355…,; Wynne v Estate Wynne 1908 25 SC 951…,; Ex parte Slade
1922 TPD 220; Ex parte Redgrove 1941 (2) PH G.50; and Davis v Steel
and Ericksen NO 1949 (3) SA 177…,.
This
presumption is based on the probability that a testator will take
steps to preserve his last Will
and that if it is lost or destroyed he would become aware of the loss
and would take the necessary steps to restate his disposition in a
new Will.
See Ex parte Warren 1955 (4) SA 326.
In
casu, the deceased was not only aware of the loss of his Will
but took steps to draft a new Will,
which, if it had been properly executed, would have effectively
revoked the disputed Will.
The
unaccounted for Will
was a copy and not the original. According to VOET 28.4.1 and Van der
LINDEN INST 1.9.11., the destruction of a copy of a Will will not
constitute a revocation of the Will. The accuracy of this wide and
sweeping proposition is doubtful. The learned authors CORBETT, HAHLO,
HOFMEYR and KHAN, in their book The Law of Succession in South
Africa…, comment on this statement of the law by VOET and Van der
LINDEN as follows:
“While
it is true that the destruction of a copy of a Will
does not ordinarily give rise to the inference that the testator
intended to revoke his Will,
it would seem wrong to elevate the views of the above authorities
into an immutable rule. There may be clear evidence as to why the
original Will
was not destroyed and that the testator destroyed the copy animo
revocandi. In these circumstances, the destruction of the copy should
result in an effective revocation.”
The
above view of the learned authors is in accord with common sense.
Whether the destruction of a copy of a Will
constitutes revocation or not is essentially a question of fact and
evidence and not law.
In
casu, both the first appellant and the deceased erroneously believed
that the Will
repossessed by the deceased was the original and not a copy. The
deceased must have believed the Will
that he had was the original. I have some difficulty in accepting
that the destruction of a copy in the belief that it was the original
could be critical to the determination of the existence or otherwise
of the animo revocandi.
Turning
to the relationship between the deceased and the second appellant at
the time the Will
was repossessed, it is apparent from the pleadings in the divorce
proceedings that the marriage had irretrievably broken down. The
parties were locked in a serious tussle over who should get what
matrimonial property. The second appellant was the main beneficiary
in terms of the contested Will.
It is highly improbable that the deceased would vigorously refuse to
give his assets to the second appellant upon divorce but seek to let
her have the same upon his death. It is equally improbable that the
deceased would marry another woman and bequeath his estate to the
woman he was divorcing.
All
these factors are supportive of the respondents' contention that
the withdrawal of and the un-accountability of the Will
in the possession of the deceased establishes animo revocandi.
Finally,
the deceased instructed Mr Justice Kamocha to draft another Will
for him shortly before he died. That Will
was not properly executed. The court a quo was quite correct in
rejecting it as the Will
of the deceased. That invalid Will,
however, provides explicit evidence of the deceased's state of
mind. That document explicitly reveals that the deceased intended to
revoke the disputed Will.
Indeed, if that Will
had been properly executed, the issue of the deceased's animo
revocandi in respect of the disputed Will
would not have arisen.
That
animo revocandi of the deceased cannot be given effect to, not
because it did not exist, but because it was not expressed in the
form and manner prescribed by law. It certainly provides evidence to
enable the court to determine the state of mind that accompanied the
deceased's withdrawal and subsequent loss of the contested Will.
In
the result, I am satisfied that this appeal is devoid of merit and it
is hereby dismissed with costs.
