MAKONI
J: The plaintiffs approached this court
seeking an order declaring the will of the late Chitsamatanga, dated 26 May
2000, null and void, that the testator died intestate and an order for costs.
The
basis for the order being sought is that at the time the testator executed the
will, he was not in a mental state to execute a valid will as he was aged 86
and was senile.
Alternatively
the testator could not appreciate the nature of his actions as he had high
visual impairment. This necessitated that the will be read to him and he could
have been misled into executing the will.
Alternatively
the testator executed the will under the undue influence of the first
defendant. The basis for the averment is that the testator bequeathed his
entire estate to the first defendant contrary to his dying declaration that his
estate devolves upon all his surviving children and his wife. The testator
appointed the first defendant's attorneys as his executors of his will.
Further,
alternatively, the testator executed a will contrary to the laws of Zimbabwe in
that the will completely disinherits his only surviving spouse married to him
in terms of the Marriage's Act [Cap 5:11].
The
background to the matter is that the tenth plaintiff was married to the testator
in terms of Marriages Act [Cap 5:11]. All the other plaintiffs and the
first defendant are children born out of the marriage with the first defendant
being the first born. During his lifetime, the testator was the registered
owner of farm number 96 Lancanshire in Charter District measuring 125,581 8 hectare (“the farm”). He held it under Deed
of Grant Number 5990/76. On 26 May 2000, the testator executed a will in which
he bequeathed his entire estate, more specifically, the farm, to the first
defendant. The testator passed on on 13 January 2005. After that the first
defendant with the assistance of the second defendant registered the estate
without consulting or informing the other members of the family including the
tenth plaintiff. She only became aware when she sent the ninth plaintiff to the
Master of the High Court to enquire about the procedure to register an estate.
She consulted the other plaintiffs and they agreed to mount the present
challenge to the will.
The
tenth plaintiff was 92 years old when she testified in court. She might have
been of advanced age but she had a very sharp mind. Her evidence was very clear
that it has always been her husband's intention that all her children live on
the farm. All the male children had been invited to come and set up their homes
on the farm. The females were advised that in the event that they had problems
in their marriages they could always come and live on the farm.
She
was also very clear that they never went to Chivhu with the first defendant for
the purposes of executing a will. The only time they requested the first
defendant to accompany them to Chivhu was for the purpose of closing their bank
accounts. She even recalled the amount she got which she then gave to the first
defendant for safe keeping with instruction to hand it over to her relatives
when she passed on.
The
next witness Obert Chitsamatanga is a son to the testator and the first
witness. He confirmed his mother's evidence that it had always been his
father's wish that all his children live on the farm. He also confirmed that
his parents went to Chivhu in the company of the first defendant, to close
their bank accounts. He did not know anything about the will until his mother
had sent his sister to the Master of the High Court. They were advised by the
magistrate at Chivhu to contest the will since it disinherited their mother.
He
had not moved onto the farm as he had established his home in the communal
lands. All his other brothers except for Boaz had been invited to come and set
up homes on the farm. Boaz is mentally challenged. He was very clear that the
signature on the will does not read Jairos. He said it was just a sribble. He
said the first letter was J but he could not make out the others. He maintained
this position even under searching cross-examination. He said after the
deceased received treatment to his eyes, his vision was blurred. He would
identify you by your voice if you were some distance away from him. The
deceased had gotten to a stage whereby he would lead him wherever he wanted to
go.
In
cross examination, he was shown exhibit number 5. He agreed to writing the
letter on behalf of the deceased. He denied that it suggested that the first
defendant was being invited to take over the farm. My own analysis of the
document does not support that position by the first defendant. The first
defendant was being invited to come to the farm to discuss issues relating to
the farm.
He
denied that his father called for a meeting on 9 January 2005 to discuss about
the inheritance of the farm. One of the people present of that day was Chief
Chapwanya who was a deacon in the Anglican Church. He had come to pray for his
father. He was accompanied by his nephew Jongwe. The only issue that was raised
by the deceased was Aaron's disrespect for the first defendant.
The
next witness was Muroro Aaron Chitsamatanga, the second plaintiff and the third
born to the late Chitsamatanga and the tenth plaintiff. His evidence was to the
effect that the signature on the will could not be his father's signature. His
father would sign J Chitsamatanga. He never saw any document where he signed
'Jairos'. He could not read the signature on the first page of the will. He was
shown a book where the late would record his transactions. He identified the
late's signature which reads “J Chitsamatanga”. By the time it is alleged that
he made the will, he was now using his thump print for a signature. This is
after he had had his eyes treated in 2002. He was generally physically fit. He
could not comment on whether his late father led the first defendant to the
lawyers who drafted the will as he was in Bulawayo.
He first got to know of the will when he was sent by his mother to Chivhu court
to register the Estate. He was then advised that those with civil marriages
register their estates at the High court. His mother then sent his sister.
On
9 January 2005 the first defendant sent the first plaintiff to the village to
call people who then gathered. There was chief Chapwanya, Jongwe, the first
defendant, Boaz and himself. The only issue that the testator talked about was
his (witness) disrespect of the first defendant. He never talked about the
farm. It was the first defendant's hope that he could do so. He could not
comment on whether the first defendant put undue pressure on the deceased to
execute the will as he was in Bulawayo.
He
indicated that he queried para 8 of the declaration with his erstwhile legal
practitioners Messrs Musunga & Associates. He did not give them
instructions that their father was senile. They did not agree on that issue
that is why they changed lawyers.
He
denied that his father signed the will. He conceded that he was not a handwriting
expert but he knew how his father signed on documents. He commented that there
was a difference between the signature on the first and the second page. He
disputed that this could be attributed to the fact that his father was frail
and had blurred vision. In any event by that time his father was using his
thump as a signature. They failed to get evidence from the bank as they destroy
documents after five years.
Under
cross-examination he persisted with his evidence that the first defendant
called people to the meeting of 9 January 2005. He disputed that it was his
father who called for the meeting. He could not understand why his father would
call for a meeting to discuss the inheritance of the farm in 2005 when he had executed
a will in 2000.
On
being asked by the court regarding the issue of senility, he explained that
they never based their claim on senility but on the issue of the signature.
The
next witness was the ninth plaintiff who is a daughter to the deceased and the
tenth plaintiff. Her evidence was to the effect that the signature on the will
was not her father's normal signature. She produced a diary where his signature
appears on the first three pages. She first came to know about the will when
her mother sent her to the Master of the High Court. A lawyer from the firm
that prepared the will confirmed that there was a will.
Her
parents requested the first defendant to take them to Chivhu so that they could
close their bank accounts. His father always said the farm belonged to the
children. She confirmed that her father was never senile until he died. Mr Musunga
was not acting according to instructions when he put the issue of senility in
the summons. After his father had received treatment to his eyes, she observed
that he could no longer read. He advised her that he now used his thump as a
signature at the bank. Her parents had no knowledge of wills and of lawyers.
The
plaintiff's evidence, in summary, is that the deceased never went to Chivhu, in
the company of the first defendant, to execute a will. The signature on the
will is not that of the deceased, as he used to sign “J Chitsamatanga”, when he
could. Later he would use his thump print for his signature. It has always been
his wish that all his children live on the farm. He did not call for the
meeting of 9 January 2005 and he did not declare the first defendant as his
heir. The deceased was never senile.
From
the evidence of the third and fourth witness, the issue of senility was never
raised with Mr Musunga. He did not act according to their instructions when he
included it as a claim in the summons. The issue of senility therefore falls
away.
The
first defendant gave evidence to the effect that between 1963 and 1972 his
father would implore him to come and live on the farm as he was the eldest son.
He could not at that time move to the farm because of other commitments. He
finally agreed in 1991 and built some houses on the farm. He said the first
plaintiff was aware of the fact that his father was asking him to move on the
farm. He even wrote the letter dated 3 March 2004. Para
6 of that letter invited him to come and live on the farm as his home.
On
26 May 2000 his father enquired of him whether he was going to Chivhu to get
some quotations. The father advised that he wanted him to take him and his
mother to Chivhu to settle a certain issue. He took them to Chivhu were his
father asked him to stop at the Post Office. From there he led them to 480 Jameson Street.
Whilst there he enquired where he could get Gutu Legal Practitioners. He was
advised that they had left that address five years back and that they
re-located to 248 Goete Street.
He drove them to that address where they found the offices of the legal
practitioners. He left them there and later came back to collect them when he had
finished his business. They were seated by the reception. He does not know what
transpired in his absence and he did not enquire of his father.
He
commented that his father's eye had been operated on and had no problems. He
could see. He attended his daughter's wedding in December 2002. When they
visited the legal practitioners, he is the one who led the way.
Regarding
the events of 9 January 2005, his evidence was that his father's relatives
visited him. These included Chief Chapwanya, his wife, Sidney Jongwe, Rodwell
Tashaya, Majaya Orbert, Francis Chenjerai, Boaz. He was also present. His
father raised the issue of Aaron's disrespect for him (the first defendant). He
also said if he passed on, the farm would be inherited by him (the first
defendant). When this was said, their mother was sitting by the steps that
faced the kitchen and she could hear what his father was saying.
He
testified that the signature on the will was his father's signature. He
produced two letters, exh 9a and 9b. He explained that if you look closely at
them, you will note that the letters 'R', 'S' and 'J' match with those on the
will. He did not forge the will. He commented that the signatures on the will
reflect that the author was old. His father was 85 years old then.
He
confirmed using Messrs Gutu & Chikowero as his legal practitioners. He said
he got to know about them on 10 March 2005 after his father's death. His
brother, Aaron, had obtained a peace order against him, so that he would be
prevented from setting foot on the farm. He then decided to consult legal
practitioners. He decided to consult those legal practitioners who had assisted
his father. He consulted Mr Chikowero (“Chikowero”). When Chikowero went
through the affidavit, he enquired of the first defendant whether he was the
one who had accompanied his parents to see him. When he answered in the
positive, Chikowero advised that the purpose of the visit was to make a will to
the effect that upon his death, the first defendant would inherit the farm.
He
said at all material times, his mother was aware of the position. She was
influenced by Aaron and three of her sisters to shift her position. The other
plaintiffs who did not attend, i.e. fourth, third, seventh and eighth
plaintiffs had no interest in the matter.
He
ended his evidence in chief by commenting that her mother can continue to stay
on the farm at her homestead.
In
cross-examination he confirmed that he had obtained his father's death
certificate and prepared the inventory for the registration of his father's estate.
The estate was registered by Messrs Gutu & Chikowero.
On
being asked about the contradiction between his summary of evidence and his
evidence in chief regarding the issue of whether or not he knew his father's
business when he took them to Chivhu, he insisted that he did not know why they
had gone to Chivhu. He explained that he gave evidence that his mother's fears
were allayed after the will was done because he had been informed by Chikowero
when he saw him in connection with the peace order. After his father's death
and had got to know about the will, he did not inform his mother and the other
siblings as Chikowero had said he will inform them.
He
agreed with the plaintiffs that his father would sign J Chitsamatanga but he
said he used the signature for his farm business and at the bank. He signed the
will “Jairos” as he was aware that the name Chitsamatanga did not appear on the
title deed. He denied that his father was now using a thump print.
On
being asked by the court to clarify how he had come to know Chikowero, he said
he taken his parents to the reception of Messrs Gutu & Chikowero and left
them there. When he had finished his business he went to collect his parents.
He found them seated at the reception. As he was in the reception Chikowero
entered and enquired of him whether he was the one who had brought his parents.
Chikowero did not introduce himself but he asked him his name. When he told him
he just said “Ok”. He commented that maybe his name coincided with what he had
done. He does not know whether it was by coincidence that Chikowero came to the
reception.
His
next witness was Benjamin Chikowero, a partner in Messrs Gutu & Chikowero.
He is in charge of the Chivhu office. He has been in practice for 11 years.
On
26 May 2000 he received a new file from the reception. The testator and his
wife were ushered in. They gave him instructions to execute a will bequeathing
his farm to one of his sons Fanuel. He requested for the testators
identification particulars and those of Fanuel and the title deed to the farm
and was furnished with the documents. The testator requested that he
(“Chikowero”) be the executor of the estate. He then requested the testator and
his spouse to leave his office. He drafted the will. When it was ready, he
called them back to his office. He read the first draft to them. The testator
confirmed the correctness of the contents of the draft will. The final copies
were done. He requested his receptionist and two students on attachment to come
to his office. He read the final draft in their presence. The testator again
confirmed the correctness of the contents. He signed on the cover of the will.
He directed the testator and witnesses where to sign. The testator did not
object to the will being lodged with the Master of the High Court for safe
keeping.
There
was no suggestion that the testator was mentally unstable. He gave his
instructions very well. He executed the will in the official language but
explained the contents in the vernacular. When he went to the reception to leave
the will he met the beneficiary who was taking away the testator and his
spouse. He enquired as to who he was and he told him. He got to know of the
testator's death when he was consulted by the first defendant in connection
with the peace order application filed by the second plaintiff. He advised the
first defendant that he will register the estate first and then advise all the
interested parties. He registered the estate. On a date when he was at the
Master's Office, he met the testator's wife and others intending to register
the estate. He then advised them that he had registered the estate.
Under
cross examination, he insisted that he saw the testator's spouse and some other
person at the Master's Office. He said the meeting at the Master's office and
the peace order proceedings pre-empted his disclosure of the will to the
interested parties. He did not include the issue of the will in the notice of
opposition to the peace order proceedings as it was irrelevant. He denied that
the delay in advising the interested parties about the existence of the will smached
of bad faith and that he had an interest in the estate. He admitted that it was
not wise to take up the peace order matter when he was an executor in a will
where the first defendant was a beneficiary.
He
does not know whether the first defendant knew the purpose of the visit by his
parents. He said it would be speculation to say he knew since the testator
produced his identification document. He said the tenth plaintiff was present
throughout the process. He denied that the first defendant was his client
before the peace order issue. He insisted the testator and his wife came to his
offices as he satisfied himself through their identification documents.
The
next witness was Edwin Mharadzi Muzembe Chapwanya. He is the Chief of the
Chapwanya clan in Buhera. He is related to the testator through ancestry. On 9
January 2005 he attended a gathering at the testator's farm. He was invited by
the first defendant. He went with his uncle Sidney Jongwe and his wife. Present
were the testator's children i.e the first defendant, the first plaintiff and
second plaintiff. The testator's wife was sitting outside on the steps. Also
present was Rodwell Tashaya and Francis Chenjerayi.
The
testator talked about the second plaintiff's disrespect for the first
defendant. He said in the event of his death, the farm would be inherited by
the first defendant as he is the eldest son. He did not want the second
plaintiff to built on the farm but if he needed land to farm he would consult
the first defendant as he had assaulted him. The tenth plaintiff was within
hearing. He denied that the sole purpose of the meeting was to talk about the
second plaintiff's disrespect for his brother.
In
cross examination, after some probing, he admitted staying at the first
defendant's place awaiting to give evidence. He insisted that the tenth
plaintiff was not in the kitchen.
As
I have already alluded to in this judgment, the plaintiffs no longer rely on
the ground that at the time of execution of the will, the testator was not in a
mental state to execute a valid will in that he was aged 86 and senile. It was
their evidence that they never gave such instructions to Mr Musunga. The main
ground falls away.
The
first alternative claim is that the testator could not appreciate the nature of
his actions because he had high visual impairment which necessitated that the
contents of the will be read to him by some other party. This claim presupposes
that the testator executed the will but did not appreciate the nature of his
actions. This is in direct conflict with the plaintiffs' evidence. The tenth
plaintiff's evidence was that they never visited any lawyers for purposes of
executing a will. There is therefore a contradiction in the plaintiff's evidence.
The
second alternative in para 11 of the declaration again pre-supposes that the
testator executed the will under the undue influence of the first defendant.
Again this is in direct conflict with the plaintiff's evidence.
The
two above alternative claims resulted in the formulation of the first issue
which is whether or not the testator executed the will under the undue
influence of the first defendant.
The
thrust of the plaintiffs' evidence is that the testator did not execute any
will. He did not visit the offices of Messrs Gutu & Chikowero for purposes
of executing a will. The signature on the will is not that of the testator. By
the time the will was said to be executed, the testator would use a thump print
for a signature. He did not know anything about lawyers. The net effect of this
evidence is that their late father did not execute a will. Unfortunately this
is not what they pleaded in their pleadings.
On
the other hand the first defendant's story makes very interesting reading. He
is led by his old and fragile father to offices of legal practitioners. The
father must have suspected that the lawyers might need documents. He got
possession of the first defendant's I.D. The first defendant does not talk
about this aspect in his evidence. He speculates that his father might have
signed “Jairos” because the name Chitsamatanga does not appear on the title
deed. Chikowero had, according to his evidence, the title deed and the
testator's I.D. He did not comment about the discrepancies of names. By chance,
the first defendant and Chikowero meet in the reception as the first defendant
collected his parents. Chikowero did not introduce himself but when the first
defendant was served with peace order papers he consulted Chikowero. The two
arranged for the registration of the Estate without informing the other
relatives. Chikowero represents the first defendant in the present proceedings.
Of the people who attended the meeting of 9 January 2005, he decided to call
Chief Chapwanya and leaves out the testator's brothers who were present. He
hosts the witness and yet the witness had a relative where he initially stayed.
The
first defendant's story might make interesting reading but it does not assist
the plaintiffs' case. The plaintiffs have failed to establish on a balance of
probabilities that the testator executed a will under the undue influence of
the first defendant.
The
second issue is whether or not the will is contrary to the laws of Zimbabwe in so
far as it disinherits the surviving spouse. In my view this is a very important
point of law which has to be determined by our courts. However the parties in
this matter did not give it the due importance it deserved, in their
submissions. The plaintiffs' dealt with the issue in two paragraphs and the
defendant in one paragraph. The submission do not offer any assistance to the
court for it to make an informed decision.
I
will refrain from making a determination of the issue based on the cursory
submissions made by the parties.
In
the result the court will make the following order:
1)
The plaintiffs are granted absolution from the instance.
2)
The plaintiffs to pay the defendants costs.
Madanhi Mugadza & Co Attorneys, plaintiffs' legal practitioners
Gutu & Chikowero
Attorneys-At-Law, 1st and 2nd defendant's
legal practitioners
