In
the early 1980's, the late Dr John Joseph Manolakakis arrived in
Zimbabwe. He is of Egyptian descent. He set up a medical practice in
Bulawayo where he resided until his death on the 2nd of July
2006. At the time of his demise, the late Dr. Manolakakis lived with his
girlfriend of 12 years, ...
In
the early 1980's, the late Dr John Joseph Manolakakis arrived in
Zimbabwe. He is of Egyptian descent. He set up a medical practice in
Bulawayo where he resided until his death on the 2nd of July
2006. At the time of his demise, the late Dr. Manolakakis lived with his
girlfriend of 12 years, Evangelia Patrinos. A Will, dated 3rd
June 2005, was found at the late Dr Manolakakis's residence soon after his
death. In terms of the Will, which is now the subject matter of these
proceedings, the deceased bequeathed his entire estate, in Zimbabwe, Greece,
and South Africa to Evangelia Patrinos. Evangelia Patrinos was appointed executrix
testamentary in the estate of Dr Manolakakis. Evangelia Patrinos later
died in Greece on 11th November 2008.
The
sole issue for determination by this court is whether the handwritten Will,
dated 3rd June 2005, was written and signed by the late Dr John
Joseph Manolakakis….,.
The Merits
The
sole issue for determination is whether the disputed Will is that of the late
Dr Manolakakis. It is not in dispute that the Will that is at the centre
of these proceedings was allegedly executed by the late Dr. Manolakakis
while he was admitted at Milpark Hospital, at Johannesburg, South Africa on 3rd
June 2005.
The Plaintiff's
Evidence
The
plaintiff led evidence from Leonard
Nhari a handwriting expert. He produced his curriculum
vitae and proof of his qualifications.
He
presented his report and his findings based on the examination of the
questioned document and the standards handed to him. His conclusion was that
the questioned document was not authored or signed by the late Dr Monalakakis….,.
The
plaintiff then led evidence from Dr
EL Madawy, a close friend
and professional friend of the late Dr Manolakakis. He explained that they
both settled in Zimbabwe in the early 1980's and became friends as they both
hail from Egypt. This witness produced the standards that were used by Mr
Nhari in his forensic examination, namely, a letter dated 16th
November 2005, a compliment slip dated 21 February 2006, and a letter addressed
to the Registrar General dated 24 October 2005. Dr EL Madawy testified
that when the late Dr Manolakakis died, on the 6th July 2006, Mrs
Patrinos came to inform him of his death. He enquired whether the burial
would take place in Greece or Zimbabwe. It was then that the issue of the
will was brought up. Mrs Patrinos indicated that the late Dr Manolakakis
had prepared a Will. She then produced the Will from one of the cupboards
in their flat. At that stage, Dr EL Madawy, his wife, and another friend
were present. He looked at the flimsy piece of paper which was the alleged
last will and testament and could not believe that the late Dr Manolakakis
would not have authored such a will for the following reasons:-
(a)
The will was executed at 23:12 hours when the late Dr Manolakakis would have
been heavily sedated because he was undergoing an operation the following day.
(b)
He would have prepared a proper Will because he had access to competent lawyers
and other professional people.
(c)
He was familiar with this handwriting as Dr Manolakakis used to refer patients
to him and the document purporting to be his Will was not possibly authored by
him.
The
plaintiff then led the evidence of Mrs
EL Madawy (also referred to as Gamila Atwa Ibrahim Yousef El
Zont). She was also a close and personal friend of both the late Dr
Manolakakis and the late Mrs Patrinos. She tendered the Power of Attorney
given to her by the plaintiff. She led evidence of the circumstances
surrounding the discovery of the Will. She was present when the Will was
opened by her husband in the presence of Mrs Patrinos. She says that she
simply laughed at the suggestion that the purported Will was an authentic
document from the manner it was written and produced by Mrs Patrinos. The
witness conceded that she could not state that Mrs Patrinos was the one who had
forged the document.
I
found the evidence of Dr EL Madawy and his wife to be credible. They spoke
of events they were familiar with and they were very close friends to the late
Dr Manolakakis. They knew him to be a sophisticated person who would not
have prepared his Will on some piece of paper. He loved his mother and
looked after her. They found it strange and impossible that the late Dr
Manolakakis would have failed to adequately provide for his aged mother in the
purported Will. The late Dr Manolakakis also had three sisters whom he was
looking after prior to his death. They were not provided for under the Will.
In
examining the evidence presented on behalf of the plaintiff, the following are
pertinent observations regarding the evidence of the expert witness, Mr Nhari:-
(a)
The plaintiff's expert testimony is based on the examination of the original
documents.
(b)
The pictures, impression, enlargements and charts contained in the report of Mr
Nhari were all produced from the original Will.
(c)
The standards which were used by Mr Nhari were originals save for the letter to
the Registrar General dated 24 October 2005.
(d)
The origins of the standards were verified by Dr El Madawy.
(e)
The plaintiff's expert evidence was therefore based on the best evidence
available.
(f)
A naked eye perusal of the signatures on the standards shows that the letters M
and J at the beginning of the signature are always pre-sentenced in the form of
a ballon whereas in the questioned document the construction is narrow.
(g)
Consistency was also found in the constriction of the letter “o” in the
standards but many variations of the same letter exist in the questioned
document.
(h)
The only reasonable inference is that the author of the questioned document was
forgetting how to construct the letters in the process of writing the Will. Such
dis-similarities cannot be attributed to natural variations.
The
defendant's case was opened by leading evidence from Cecil Greenfield, a
handwriting expert based in South Africa.
He
confessed that he did not have the advantage of working with original
documents. He only saw the original will for the first time a few minutes
before he gave his evidence. His report and conclusions was based on
photocopies supplied to him. The origin of his standard documents was not
disclosed, although the court may reasonably conclude that he obtained them
from the fifth defendant….,.
Mr
Greenfield stated that, in his expert opinion, the questioned document was
authored by the late Dr Manolakakis. He said the variations observed by Mr
Nhari are attributed to natural variations….,.
The
defence then led evidence from another expert witness, Mrs Louricka Buckley….,.
In
casu,
both experts for the defence were adamant that the questioned document was in
all probability, or with 100% certainty, authored by the late Dr.
Manolakakis. Both experts failed to explain how the Will could have been
authored at around midnight before a major operation was performed on the
author and yet there were no signs in the document that the writer was shaking
or was not comfortable. Mrs Buckley explained that the document was
written with ease and there was no evidence that the author was
struggling. She criticised Mr Nhari's report on the grounds that he only
used three standards. She stated that he should have used more standard
documents. She however did not comment of the evidence of Cecil Greenfield
at all. Mrs Buckley did not produce any charts or diagrams and the basis
for her conclusions had no real foundation.
The
evidence of the two expert witnesses for the defence is therefore not accepted
by this court.
The
defence then called Ismail
Moosa Lunat to testify.
He
confirmed that he was a close friend to the late Dr. Manolakakis and that he
worked as his accountant for several years. He had known him for more than
10 years. He also knew the late Mrs Patrinos. He told the court that
after the late Dr. Manolakakis had left Milpark Hospital, after his operation,
he had confided in him that he had executed a Will. He stated that the
late Dr. Manolakakis informed him that he kept the Will in a safe at his flat
at Ascot. He says he saw a copy of the Will. He verified that the document
was authored by the late Dr. Manolakakis. He said he was familiar with his
handwriting because he filed tax returns for him.
The
evidence of Mr Lunat is problematic in that he was given a Power of Attorney by
the late Mrs Patrinos to bank monies from her businesses. When the late
Mrs Patrinos died in Greece he failed to account for all the funds collected on
her behalf. He stated quite boldly in court that all the monies he had
collected “disappeared with the zeros”, meaning to say all the monies were
eroded by the effects of hyperinflation. It is common cause that during
the era of hyperinflation various business entities lost monies. Some companies
and individuals converted their funds into foreign currency to hedge against
inflation. Mr Lunat hopelessly failed to account for all the funds he
collected on behalf of Mrs Patrinos. His evidence sounded hollow. He did
not impress as an honest witness. His evidence does not pass the
credibility test. He initially denied any association with Mrs Patrinos, apart
from a mere “friendship”, but when further pressed, he revealed that he was
involved with Mrs Patrinos in respect of the estate late Dr. Manolakakis. He is
the one who gave a Bond of Security.
I
have no hesitation in rejecting his entire evidence as being untruthful in all
material respects. His evidence could not be taken seriously at all….,.
I
found the evidence of Leonard Nhari to
be straightforward and easy to follow….,.
The Law
Section
18 of the Civil Evidence Act [Chapter 8:01], provides as follows:-
“Comparison
of any disputed handwriting with any handwriting proved to be genuine may be
made by any witness, and such writings and evidence of any any witness with
respect to them may be adduced to prove the genuiness or otherwise of the
handwriting in dispute.”
In
the case of R v Mayahle 1968 (1) RLR 133…, the
learned BEADLE CJ dealt with the issue of the evidence of handwriting experts
in a criminal case decided on similar principles. He pointed out that:-
“It
is desirable, when such experts give evidence, that not only should they
produce the photographs supporting their evidence, which show the points of
similarity between the accused's handwriting and the handwriting on the
questioned documents, but they should point out why they are similarities and
their significance.”
In
another decision in R v Chidota 1966 (3) SA 428, the
learned judge, QUERIET (JP), held in a criminal case, which is also relevant in
the present case, that:
“Where
the sole evidence concerning an accused with the commission of an offence is
that of a handwriting expert, precaution should be taken to remove the
possibility of error.”
It
is evident that the position to be taken by the court, where evidence of
handwriting experts is concerned, is that the court must observe for itself the
similarities and differences in the handwritings and then also take into
account other relevant circumstantial evidence in the matter. The court
must then assess all the evidence before it, including the evidence led from
the handwriting experts and satisfy itself that indeed the document was
authored by the person who is alleged to have authored it.
It
is my view that from all the evidence presented before the court, the
circumstances surrounding the writing and discovery of the Will are somewhat
suspicious in that the Will is supposed to have been made on the eve of a major
operation - at around midnight. This was a Will made when the testator
feared that he may not survive the operation. The reality though is that
Dr. Manolakakis survived for another year and had ample time to put his affairs
in order and write a proper Will. It is highly unlikely that he would have
reduced his wishes on a handwritten piece of paper. He made no provision
for his family, namely, his mother and sisters whom he was known to have loved,
as testified by Dr El Mandawy. The fate of his aged mother was left in the
hands of Mrs Patrinos. From visual observations of an untrained eye, it is
clear that the manner in which the signature on the questioned document was
executed is different from the handwriting in the body of the Will
itself. There was no shaking or uneasiness in the signature. It is
logical to conclude that the author of the Will took time to insert the
signature to the document (an act consistent with forgery), or that the
signature was on the piece of paper before the document was prepared.
For
the reasons given above, I am of the firm view that the disputed Will was not
written by the late Dr. Manolakakis. Further, the plaintiff has proved its
case on a balance of probabilities and is entitled to the relief sought in the
summons….,.
In
the result, I make the following order:-
1)
The Will, dated 3 June 2005, purported to have been written by Dr. John Joseph
Manolakakis, be and is hereby declared null and void and set aside.
2)
It is ordered that the late Dr. John Joseph Manolakakis died intestate.
3)
It is declared that the plaintiff is the sole heir to the deceased estate of
the late Dr. John Joseph Manolakakis (Estate Number DRB 611/06), and in respect
of any other assets wherever situate.
4)
It is ordered that the appointment of Evangelia Patrinos as the Executrix
Dative of the Estate Late John Joseph Manolakakis be and is hereby set aside.
