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[2011] ZAKZPHC 46
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Haribans NO and Another v Haribans (AR227/11) [2011] ZAKZPHC 46 (28 October 2011)
In
the KwaZulu-Natal High Court, Pietermaritzburg
Republic
of South Africa
Case
No : AR227/11
In
the matter between :
Shanil
Haribans NO
…...........................................................................
First
Appellant
Shanil
Haribans
…............................................................................
Second
Appellant
and
Norosh
Haribans
…...................................................................................
Respondent
Judgment
Lopes J
[1] The deceased, Widthit Haribans,
died leaving a will dated the 21
st
October 2004. All
parties to the application in the court a quo accepted that that will
had been validly executed. The Master of
the High Court in Durban was
on the point of winding-up the estate of the deceased pursuant to
this will, when a copy of a later
will (‘the disputed will’)
surfaced. It was dated the 24
th
June 2005. The validity of
the disputed will was in issue in the court a quo.
[2] The main protagonists are the two
sons of the deceased. Norosh, the respondent, who was the applicant
in the court a quo, sought
an order validating the disputed will.
Shanil, the second appellant, was a respondent in the court a quo and
is also the first
appellant in his representative capacity as
executor of the deceased’s estate, sought the dismissal of the
application.
[3] The deceased also had two
daughters, Nirmala Devi Moodley and Anusha Ramroop. They were
respondents in the court a quo. Nirmala
was also cited in her
representative capacity as an executor in the estate of the deceased.
.
[4] A judgment was handed down on the
10
th
December 2010, in terms of which;-
an interdict was granted, preventing
the winding-up of the estate of the deceased in terms of the will of
the deceased dated 21
st
October 2004 (annexure “C”
to Applicant’s Founding Affidavit);
the copy of the disputed will (
annexure “D” to the Applicant’s Founding Affidavit
) was declared to be valid;
the Master of the High Court
Pietermaritzburg was directed to accept the disputed will for the
purposes of administering the estate
of the deceased; and
the costs of the application were to
be borne by the estate of the deceased jointly and severally with
the parties who had unsuccessfully
opposed the grant of the order,
the one paying the other to be absolved.
[5] The matter comes before us by way
of leave to appeal granted by the court a quo on the 10
th
February 2011.
[6] The matter may be summarised as
follows :-
the deceased passed away in Zanzibar
on the 20
th
November 2005;
during his lifetime the deceased was
married to Taramathee Haribans who died on the 3
rd
February, 1998. She left a will which was accepted by the Master of
the High Court, Pietermaritzburg on the 6
th
March 1998,
under the Master’s reference number 1704/98;
after the death of the deceased and
pursuant to letters of executorship issued by the Master, on the 1
st
December 2005 Shanil and his sister Nirmala were appointed as
co-executors to the estate of the deceased; Shanil was later
appointed as the sole executor by the Master in terms of letters of
executorship dated the 28
th
January 2009;
the Master accepted as the last will
and testament of the deceased, the will dated 21
st
October 2004;
at a stage when the estate of the
deceased was all but wound-up, the wife of Norosh (Louana Haribans)
was allegedly asked by their
attorney to obtain a copy of the will
of the deceased’s late wife;
Louana then proceeded to the Master’s
office in Pietermaritzburg and requisitioned a copy of the last will
and testament
of Taramathee Haribans;
Louana and Norosh were attended to by
a representative of the Master’s office, Mr Mlaba. When he
handed to Louana the copy
of the deceased’s late wife’s
will, a copy of the disputed will was attached to it;
the respondent then brought an
application in the High Court in Durban to have the disputed will
declared to be the last will
and testament of the deceased. That
application was opposed and referred to the hearing of oral evidence
before Gyanda J;
Gyanda J found in favour of the
respondent resulting in the issue of the order set out above.
[7] Shanil appeals that decision both
in his capacity as executor of the estate of the deceased and in his
personal capacity. His
contention is that the judgment of Gyanda J
falls to be set aside because the respondent did not prove on a
balance of probabilities
that the copy of the disputed will
represented the last will and testament of the deceased.
[8]
S 2(3)
of the
Wills Act, 1953
provides :-
‘
If a court
is satisfied that a document or the amendment of a document drafted
or executed by a person who has died since the drafting
or execution
thereof, was intended to be his will or an amendment of his will, the
court shall order the Master to accept that
document, or that
document as amended, for the purposes of the Administration of
Estates Act, 1965 (Act No 66 of 1965), as a will,
although it does
not comply with all the formalities for the execution or amendment of
wills referred to in subsection (1).’
[9] Although there is no suggestion
that the copy of the disputed will (the document relied upon) does
not comply with all the formalities
of the
Wills Act, 1953
, the
respondent nonetheless bore the onus to establish on a balance of
probabilities that the document was a copy of a valid will
executed
by the deceased. (
Van Wetten and Another v Bosch and Others
2004(1) SA 348 (SCA) at 354 D – F.) Once the court is satisfied
in that regard it has no discretion but to order the Master
to accept
the document as a will for the purposes of the Administration of
Estates Act, 1965. (
Harlow v Becker NO and Others
1998(4) SA
639 (D) at 642 I – 643 B;
Smith v Parsons NO and Others
2010(4) SA 378 (SCA) at 379 I – 380 B.)
[10] What is not in dispute in this
matter is that the document upon which the respondent relied was a
copy, and not an original
document. A number of witnesses gave
evidence for the respondent and it is relevant to the reasoning of
the court a quo to summarise
their evidence.
[11] Peter Rex Clover testified that
he had worked in the office of the Master of the High Court in
Pietermaritzburg, for twelve
and a half years as Assistant Master. He
testified to the procedure followed when a will is submitted to the
Master’s office.
That procedure is :-
a registry clerk opens a file and
places an acceptance stamp on a submitted will;
if the Assistant Master is satisfied
that the will complies with the necessary formalities he or she
will register and accept
the will, which he or she does by date
stamping it and by signing on the stamp;
if a will bears the stamp
‘registered and accepted’, and it is signed by an
Assistant Master and dated, that should
indicate that an original
of that will was lodged in the Master’s office;
once the Assistant Master has dealt
with the will, it is sent back to the registry clerk who makes a
copy of the will and the
original is kept in a box file in a
strongroom in the wills’ registry. If the will is not
accepted, a will slip is put
into the file noting that the will was
not accepted and the reasons for not doing so;
any file which had been opened in
1998 (in this case containing the will of the deceased’s late
wife) would have been
kept by Docufile, a company which specialised
in the storage of records;
Mr Clover referred to a requisition
made on the 12
th
November 2009 by Louana who wished to
view a copy of the will of the deceased’s late wife. That
requisition for the file
was given to Mr Mlaba, and Mr Clover said
that he had worked with him for a number of years at the Master’s
office;
the file duly arrived at the
Master’s office in Pietermaritzburg and it bore reference
number 1704/98; and
Mr Clover was referred to a stamp on
the disputed will which states ‘REGISTERED AND
ACCEPTED/GEREGISTREER EN AANVAAR’
with a line thereunder
providing for the signature below it of the Master of the High
Court. He said that the initials on the
stamp which was dated the
24
th
November 2005, appeared to belong to the late Mr
Potgieter who was an Assistant Master of the High Court in
Pietermaritzburg
at the time, and a person whom he had known for
many years and who had in fact trained him. He further said that,
in the circumstances,
Mr Potgieter would also have signed the
original will;
Mr Clover, however, had no
explanation as to why the disputed will should have ended up in the
file of his late wife’s
estate. He had seen the disputed will
in the file of the deceased’s late wife stapled to her will;
Mr Clover searched for the register
which was supposed to reflect that the original of the disputed
will was despatched to the
Assistant Master dealing with wills on
the 24
th
November 2005, but could not locate the
register;
there was also a second register
which could have revealed the details of the lodging of the
disputed will, but Mr Clover did
not look for that register;
Mr Clover asked his staff to look
for the original of the disputed will, but it could not be located;
in cross-examination, Mr Clover
stated that although the registers were kept in the same strongroom
as the wills, he had been
unable to locate the missing register in
this case. If it had been in the strongroom, he would have found
it. Access to the
strongroom was restricted to staff only;
Mr Clover agreed that it was a very
unusual occurrence that the register was mislaid. In addition, a
thorough search had been
carried out in the Master’s office
to try to locate the original of the disputed will, but it could
not be found. He
conceded that he was unable to explain how the
disputed will had ended up in the file of the deceased’s late
wife. He
also conceded that there could have been a file in respect
of the deceased, which had disappeared as the registers had done.
He had been unable to locate anything relating to any other file on
the computer. The only file relating to Haribans was the
file under
reference 1704/98. Mr Clover was unable to establish the identity
of the person who had initially lodged the disputed
will on the
26
th
June 2005; and
under re-examination Mr Clover
conceded that it was very unlikely that the file of the deceased’s
late wife could have
been in the office of the Master at
Pietermaritzburg in 2005. At that stage it would have been sent off
to Docufile. He surmised
that if the person who brought in the
disputed will gave the registry clerk the number 1704/98 the clerk
might have unthinkingly
placed that number on the disputed will.
[12] The next witness was Mbuseni
Mlaba :-
he testified that he had been
employed until the 8
th
April 2010 at the Master’s
office in Pietermaritzburg as a senior administration clerk;
he was shown the requisition which
had been lodged by Norosh’s wife for the file of the
deceased’s late wife;
he confirmed that he had recorded the
requisition in his register for the 12
th
November 2009.
As a consequence of receiving the requisition one of his colleagues
contacted Docufile and Mr Mlaba personally
received it on the 19
th
November 2009. (As he testified that it would have taken three to
four days to arrive at the Master’s office it would have
reached there by the 17
th
November 2009);
Mr Mlaba recorded in his register the
address of Norosh and Louana’s attorney Mr Anand Nepal. He
said he did so because
Louana told him the name of their attorneys;
when Mr Mlaba opened the file he
found a copy of the disputed will stapled to the will of the
deceased’s late wife and marked
with the same estate reference
number, 1704/98;
Mr Mlaba then made copies of both
wills which he certified as true copies of the documents in the file
and gave them to Louana,
and she and Norosh were apparently
surprised by what had been produced from the file, so much so that
he described them as being
“like shaking”. Mr Mlaba then
telefaxed a copy of the disputed will to the Master’s office
in Durban and one
to Louana’s office; and
Mr Mlaba had left the employment of
the Master’s office on the 8
th
April 2010, having
been dismissed for allegedly failing to produce a sick note when he
had taken sick leave.
[13] Johannes Pieter Swanepoel
testified that he was a director of Docufile Durban (Pty) Ltd. They
were a national enterprise with
branches in the main cities. They
provided storage facilities to businesses and the State, and:-.
(a) file 1704/98 would have been
stored in the Docufile facility around May of 2006;
(b) the first time it was retrieved
from the facility thereafter was on the 17
th
November 2009
by one Deon Joubert an employee of the Master’s office in
Pietermaritzburg. It was requested a number of times
after that.
(c) Mr Swanepoel told the court that
files are requested by an email which is sent to the Docufile call
centre. The information
is then conveyed to an employee known as ‘a
picker’ in the warehouse who will find the box in which the
file is stored.
The agent then goes into the box and retrieves the
file. This is done by way of a bar code on the file,
cross-referencing the reference
number of the file and the name.
Files requested before 10 o’clock in the morning are delivered
to the Master on the same
day and sealed in a plastic sleeve.
(d) the records of Docufile show that
the file in question left the Docufile office on the 17
th
November 2009. Because of the standards required by the Department of
Justice, Docufile is required to deliver the files within
24 hours.
The contents of files mean nothing to the personnel working at
Docufile because they simply go according to the bar coded
numbers to
locate the file. Their software systems are developed in-house and he
was of the view that no-one from outside would
be able to work with,
or access, their software.
(e) Mr Swanepoel was unable to comment
on what had happened to the file whilst it was in the Master’s
office in Pietermaritzburg
between the 17
th
and 19
th
days of November 2009. He described the facility in which Docufile
kept the files as being very secure. Staff at Docufile were
required
to follow procedure in the recovery of a file and only a picker could
do so. The picker, in any event, would go and fetch
a box in which
the file was contained.
[14] (a) The next witness was Michael
John Irving whose expertise as a handwriting expert was not disputed.
He had been shown the
original of the will deposed to by the deceased
on the 21
st
October 2004. He was also given certain
admitted signatures of the deceased and asked to compare those
signatures with the purported
signatures of the deceased on the
disputed will. He had, initially been given a faxed copy of the
disputed will, but was later
given the copy which had been stapled to
the will of the deceased’s wife. Because the document was a
copy he could not be
certain that the deceased had in fact affixed
his signature to the original.
(b) Although he pointed out certain
differences between the undisputed signatures of the deceased and his
signatures on the disputed
will, his view was that it was highly
probable that the signatures on the disputed will were those of the
deceased.
(c) The differences which Mr Irving
identified were firstly that the deceased had a particular way of
writing the first “a”
in his surname. It appears that
this involved the deceased doing a circular movement, lifting his
pen, and then making a down-stroke
for the back of the “a”.
The second difference was the last character which was an “s”
which was more rounded
in the undisputed signatures.
(d) Mr Irving testified that although
no two signatures of an individual are identical, this is because of
variations of speed,
pen pressure and character formations. The
signatures of adults, however, follow a consistent pattern and so it
is important for
a forensic document examiner to look at the interior
construction of the signature and not the actual pictorial pattern.
The problem
with copies is that one is unable to determine variations
in pen pressure, etc. He was initially of the view that the
signatures
on the disputed will were not the product of what is
referred to as “cut and paste”.
(e) Significantly Mr Irving testified
that there was a difference between the way the first “a”
in Haribans was written
in the undisputed signatures of the deceased
and the way that letter was written in the disputed signatures. This
applied only
to the first “a” in Haribans. He conceded in
cross-examination that in the disputed signatures the design of the
character
had been changed. In all the signatures the second “a”
in Haribans was written in a conventional manner. Mr Irving also
conceded under cross-examination that one was unable to tell whether
a signature had been scanned onto a document if he was only
shown a
photostat copy. He did say that certain characteristics on signatures
could be identifiable, but it would depend on the
clarity of the
document he was looking at.
(f) Mr Irving testified that what he
had examined was a copy of a copy of the disputed will. He also said
that the signature of
any person may differ from time to time
according to whether that person was ill, under medication, his or
her age, etc. One explanation
for the difference in the first “a”
in each of the signatures of the deceased on the disputed will is
that signatures
might have been taken from documents (and cut and
pasted onto the disputed will) that were authored many years ago
before the deceased
established the peculiar pattern of signing the
first “a” in Haribans.
(g) In re-examination Mr Irving
pointed out that, despite the differences between the undisputed
signatures and the signatures on
the disputed will, he had found
thirteen similarities between those signatures. He maintained that
those similarities outweighed
the differences and made it highly
probable that the purported signatures of the deceased on the
disputed will were genuine.
[15] Louana Haribans then testified.
She told the court that she had married Norosh on the 21
st
December 2003, and that:-
Norosh had been deaf since birth and
was only able to communicate through sign language;
after she had married him they moved
into a house situated at 27 Shari Drive, Everest Heights, Verulam
which was registered in
the name of Norosh. They resided there with
the deceased;
Norosh worked in the family business
with the deceased and Shanil;
the business was a CMT business
operating in the clothing industry;
Norosh had his own motor vehicle with
a personalised number plate;
initially their relationship with the
deceased was a good one. However problems arose because there was a
flexibond over the home
they lived in. That flexibond was apparently
used from time to time to fund the running of the family business.
Amounts were
drawn against the bond to do so, and payments were made
from time to time by the business. The business was apparently a
surety
on the flexibond account. In addition Norosh had a Standard
Bank account against which monies were drawn for the business;
as a result of these withdrawals
Norosh became unhappy. This was exacerbated during May of 2004 when
the deceased was on a trip
abroad and Shanil required Norosh to sign
a further bond over his house against which further monies were
withdrawn. When the
deceased returned to South Africa the
relationship between him and Norosh deteriorated to the point where
the deceased asked
him to leave the matrimonial home;
at about the same time in July 2004
the deceased and Shanil took away the car keys of the vehicle being
used by Norosh. Things
deteriorated further and Norosh approached
the bargaining council to assist him with his dismissal from the
family business;
legal proceedings were then
instituted by the deceased against Norosh relating to the property
and the fact that Norosh had cashed
in certain insurance policies,
all or a portion of which were claimed by the deceased;
Norosh and Louana made certain
payments servicing the bond on the matrimonial home for which they
were responsible, but eventually
they could do so no longer, and the
property was sold in execution by the bank. There was also
litigation over the motor vehicle
which had been taken away from
Norosh. The deceased continued to live in the matrimonial home but
during 2005 became ill and
was visited from time to time in hospital
by Norosh;
in November 2005 the deceased went on
holiday to Zanzibar with one of his grandsons, and the deceased died
whilst scuba diving.
Norosh caused a summons to be issued against
Hari Fashions CC relating to the monies which were drawn against the
flexibond,
and in an affidavit in that action Shanil stated that the
monies had been received by the deceased. The estate of the deceased
was then joined in that litigation;
at some stage during 2009 Louana
Haribans had been asked by their attorney to obtain a copy of the
original will of the deceased’s
late wife, Taramathee
Haribans. This was apparently because the attorney wished to trace
back the process in terms of which the
matrimonial property
(originally registered in the name of Taramathee) had become
registered in the name of Norosh. Pursuant
to those enquiries Louana
and Norosh had gone to the Master’s office in Durban, from
where they were referred to the Master’s
Pietermaritzburg
office. They had requisitioned a copy of deceased’s late
wife’s will from that office and apparently
went there on the
20
th
November 2009 to obtain a copy of that will. When
they arrived in Pietermaritzburg they met Mr Mlaba from the Master’s
office and he gave them a copy of the deceased’s late wife’s
will. Attached to that copy, which was certified by Mr
Mlaba, was a
copy of the disputed will. According to Louana Haribans that was the
first time they had seen that document. They
then caused a copy to
be delivered to the Master in Durban;
in cross-examination by Mr
Topping
, Louana confirmed that part of the problem which had arisen with
the deceased was because Norosh had spent money on their honeymoon
in India on various items of electronic equipment. There was also an
allegation that they had removed some jewellery from a safe
in the
matrimonial home when they had vacated it. That, however, was
disputed;
Louana confirmed that various trusts
existed including the Haribans Charity Trust, the beneficiaries of
which were certain religious
and charity organisations, the Trust
Hari Fashions, the beneficiary of which was the charity trust, and a
Trust Family Hari the
beneficiaries of which were the family
members;
there was also a Trust Norosh
Haribans which was formed by the deceased, the purpose of which was
to benefit the deceased’s
children. No funds, however, were
put into that trust. This trust was not referred to in the will of
the 21
st
October 2004, but is referred to in the disputed
will; and
in the application papers for the
return of the BMW motor vehicle the deceased denied having insisted
that the vehicle was removed
from Norosh and denied intending to
disadvantage Norosh. This was disputed in replying papers by Norosh.
[16] What seemed clear from the
evidence of Louana, and what was put to her in cross-examination, was
that the deceased suspected
that she was behind the conduct of Norosh
which the deceased viewed as being financially excessive.
[17] Mrs Manoranjani Pillay, who had
been a legal secretary at attorneys Garach and Garach testified and
confirmed that she appeared
as a witness to the wills signed by the
deceased on the 13
th
December 2001, the 3
rd
December 2003 and the 21
st
October 2004.
[18] Mr Benjamin Jhuri testified that
he had been employed as a clerk at Garach and Garach. He was
responsible for preparing draft
wills and trusts documents for the
firm. He identified his signature and that of Mrs Manoranjani Pillay
on the wills of the deceased
dated the 3
rd
December 2003
and the 21
st
October 2004. He was also involved in the
preparation of the trust deed in the Haribans Charity Trust. He said
that the deceased
had been a long-standing client of the firm, for
more than seventeen years. He believed that Garach and Garach were
the only firm
used by the deceased for wills and trusts.
[19] Mr Jhuri was unequivocal that the
disputed will was not prepared by Garach and Garach, and that he did
not recognise the signatures
of the witnesses on that will. He
confirmed that in the will of the 21
st
October 2004
Norosh’s name, which had been in the previous wills was removed
and Norosh was deleted as a beneficiary of the
Trust Family Hari. He
confirmed that a month or so later the deceased had created the Trust
Norosh Haribans. Mr Jhuri was of the
opinion that the deceased was
going to transfer assets into that particular trust.
[20] Shanil then testified. His
evidence may be summarised as follows :-
his parents (the deceased and his
wife) had started the family business in the clothing industry in
1972;
they had built up the business and at
the same time built a house at 27 Shari Drive, Everest Heights,
Verulam where the family
lived. By 2003 Shanil was basically running
the business overseen by his father on a weekly or fortnightly
basis. At that time
Norosh was also involved in the business and
performing general duties. The business was run in the name of Hari
Fashions CC
the members of which were the deceased, Shanil, Shanil’s
wife and Norosh.;
there were a number of close
corporations and trusts which catered for the family’s
business activities and interests. They
included :-
Hari Fashions CC which conducted the
CMT business;
Niro Fashions which conducted a
similar business but was there for tax purposes;
God’s Glory CC which owned a
building in Lorne Street, Durban and from which the family
businesses traded;
Prop Hari Fashions in whose account
money was banked for recreation facilities;
Hari Fashions Recreation Club which
catered for the interests of a football team started by the
deceased;
Haribans Charity Trust formed for
the purpose of building a temple and charity interests of the
deceased;
H & R Creations, a wholesale
company started by the deceased and a partner which ceased to
operate during 1998, although
the H & R Creations CC was still
in operation;
Hari Fashions CC in which certain
savings were held in a First National Bank account, which monies
emanated from the business
Hari Fashions; and
Trust Hari Fashions which was a
charitable trust and nothing to do with the family business
interests but apparently designed
for the benefit of the Blind and
Deaf Society;
Shanil testified to the unhappy
relationship between Louana and the deceased. He confirmed the
deceased’s unhappiness at
the fact that Norosh and Louana had
overspent on the credit card on their honeymoon and the fact that
Norosh had made an arrangement
with the bank to pay off that account
from the business bank account;
the deceased had given each of Shanil
and Norosh a house. The houses were transferred into their names
with no money exchanging
hands at that point. Flexibonds were
registered over both houses and those bonds were paid for by the
business. The business
used both bond accounts in order to obtain
operating capital. In addition the BMW motor vehicle which was
driven by Norosh was
paid for by the business although it was
registered in the name of Norosh;
after the disputes arose between the
deceased on the one hand, and Norosh and his wife Louana on the
other, the deceased decided
to take back 50% of everything he had
given Norosh, and to put that money into a trust account for the
benefit of Norosh. This
was because of his unhappiness with Louana.
As a result of the deceased’s unhappiness he removed Norosh as
a beneficiary
of the Trust Family Hari, although at approximately
the same time he formed the Trust Norosh Haribans, the beneficiaries
of which
were the deceased’s four children. That trust was
apparently formed with the intention to protect Norosh. The deceased
also removed Norosh as a trustee of the Trust Hari Fashions;
the deceased had also suspected that
when Norosh and Louana had moved out of the matrimonial home, Louana
had taken jewellery
from the safe. A complaint about this was made
to the police but the matter was not pursued;
Shanil confirmed the deceased’s
close relationship with attorney Kumar Garach and the fact that
Garach and Garach had prepared
all the deceased’s wills and
that the deceased had no association or business dealings with
anyone in Pietermaritzburg
in that regard. In addition he had no
relatives or friends in Pietermaritzburg;
Shanil stated that neither Norosh nor
Louana would have known of the deceased’s intentions to look
after Norosh by claiming
back the 50% of the monies which had been
given to him. He confirmed that it was the deceased’s wish as
expressed to Mr
Jhuri, that the Trust Norosh Haribans was ultimately
for the benefit of Norosh;
Shanil was unable to explain how, in
the disputed will, the statement appeared that the Trust Norosh
Haribans was for the benefit
of Norosh. Having conceded that ex
facie the terms of the trust document in the Norosh Haribans Trust,
the beneficiaries were
the four children of the deceased, and that
there was nothing in that document which suggested that the trust
would be administered
for the benefit of Norosh only, he suggested
that it was possible that Norosh and Louana had privately been told
this by the
deceased. In addition, it appeared that the signature of
Norosh as it appeared on the trust deed of the Norosh Haribans Trust
had in fact, been put there by the deceased. He later said that even
though that trust deed reflected all four children, he was
aware
that the trust was in fact for the benefit of Norosh;
Shanil also testified that the
matrimonial home had not been sold to a third party but an agreement
had been made between Louana
and the trustee of the Trust Hari and
that she and Norosh were still living in the house and also getting
rent from it;
he was referred to the application
papers in the matter relating to the BMW motor vehicle which the
deceased reiterated his concern
for Norosh and the fact that he
would not abandon him. Shanil was of the view that the deceased did
not intend to abandon Norosh
and that he had been taken care of by
way of various insurance policies and investments. He denied however
the suggestion that
the deceased would have made another will
because he said that was never discussed with the family, and the
deceased would not
have made a new will without discussing it with
the family;
in cross-examination, Mr
Shepstone,
appearing for Norosh, pointed out to Shanil that in terms of the
disputed will Louana would not benefit, and further that both Shanil
and his sister would continue to be executors, and the will would be
administered by Garach and Garach;
in re-examination Shanil said that in
2009 everyone in the family knew the contents of the Norosh Haribans
Trust; and
Shanil also said that he did not
believe the deceased wanted to hand over the managing of the
business to Norosh, which would
be the effect of the disputed will,
nor would the deceased want to disinherit virtually the entire
family as they were the beneficiaries
in the family trust, but
instead only benefit Shanil, Norosh and his two sisters.
[21] That was the evidence of the
witnesses. Having reviewed all the evidence, should the trial court
have been satisfied that the
disputed will was in fact the last will
and testament of the deceased? For the reasons which follow, I am in
respectful disagreement
with the approach taken by the learned judge
in the court a quo.
[22] Mr
Topping
submitted there
were sufficient suspicious circumstances which cast doubt on the
validity of the disputed will. Most of these matters
were raised
before the learned judge.
[23] The first matter dealt with by
the learned judge was the fact that there were two unexplained days
between the 17
th
and 19
th
November 2009 when
Docufile delivered the file to the Master’s office and when it
was seen by Norosh and Louana. This was
at a time when the Master had
indicated that he was about to finalise the estate in terms of the
will dated the 21
st
October 2004 and which did not favour
Norosh.
[24] The learned judge dismissed these
fears on the basis that the copy of the disputed will bore a stamp
from the Assistant Master
dated the 24
th
November 2005
certifying that the disputed will had been registered and accepted on
that date by the late Mr Potgieter whose signature
was confirmed by
Mr Clover who had worked with, and been trained by, Mr Potgieter. In
addition the person or persons who received
the will would have been
in possession of a legitimate copy of the deceased’s wife’s
will in order to be able to staple
them together.
[25] In dismissing the appellant’s
suspicions, the learned judge assumed that the disputed will had been
contained in the
Master’s file since the time it purported to
have been lodged – i.e. the 24
th
November, 2005. He
also relied upon an adherence to the practices in the Master’s
office as reassurance for the genuineness
of the disputed will.
[26] An acceptance of the fact that
the disputed will had been sitting in file 1704/98 since its
purported date of lodgement (the
24
th
November 2005) must
be based upon a foundation of fact.
[27] The learned judge accepted as a
fact that Mr Potgieter had seen the original will, signed it, copied
it and given instructions
to file it. He relies for this solely on
the stamp appearing on the disputed will. As Mr Potgieter was
deceased, his evidence was
not available to verify his signature. Mr
Clover who had worked under him, stated that he was sure that the
signature was that
of Mr Potgieter. However, in cross-examination he
was less certain, and could not discount the possibility of the
document having
been a scan of Mr Potgieter’s signature.
[28] What is clear from the evidence
of Mr Clover is :-
(a) the original wills and registers
are secured in a safe to which only the Master’s staff has
access;
(b) he could give no rational
explanation for the disappearance of the original of the disputed
will or the clerk’s register
and said that if they had been in
the strong room he would have found them;
(c) he could not explain how the
disputed will ended up in file 1704/98 – the disputed will
should have been placed in that
file, and no other file had been
opened to deal with the estate of the deceased;
(d) no file or document relating to
the deceased could be found anywhere in the Master’s office,
nor yet on the computer system;
(e) the registry clerk usually placed
the estate reference number on the will and if the Assistant Master
was satisfied that the
will complied with the provisions of the
Wills
Act, he
would register and accept the will, by date stamping and
signing it. No trace could be found of the registry clerk who did
this.
[29] No evidence was led at the trial
that any supporting documents (including the death certificate,
inventory and death notice)
relating to the deceased were in the
file. Mr Clover’s evidence was that where no such supporting
documents are available,
a file is nevertheless opened and given a
number. An estate controller will be given written instructions to
obtain the documents
from the attorney (or, presumably, the person)
submitting the will. When received, these documents are resubmitted
to the Assistant
Master for reconsideration. No correspondence
existed to suggest the lack of supporting documents.
[30] Accordingly the learned judge’s
approach in accepting that the disputed will had been placed in file
1704/98 on the 24
th
November 2005 as a starting point in
his analysis of the matter, is, with respect, not justified on the
evidence.
[31] The probability the disputed will
had been in file 1704/98 since four days after the death of the
deceased is in any event
disturbed by a number of circumstances and
it is necessary to consider the cumulative effect of those
circumstances, which are
:-
the fact that no member of the
deceased’s family was aware of the existence of the disputed
will until the copy emerged
on the 20
th
November 2009;
the identity of the person who lodged
the will with the Master’s office was unknown. I respectfully
differ from the learned
judge’s approach to this evidence. It
seems inherently unlikely that a member of the family, or someone
close to the deceased
would have lodged the will and said nothing of
it to any of the family members in the intervening period of over
four years.
This is a particularly strange circumstance when one
considers that :
the competing will dated the 21
st
October 2004 was being relied upon and had been available to the
Master and known to family members for a number of years;
and
the contents of that will, which
differed significantly from the contents of the disputed will, had
been the subject of a
great deal of tension and discussion in the
family of the deceased;
the standard procedure which should
have been followed in the Master’s office was not adhered to.
The learned judge relied
on the assumption that the original will
had been stamped and accepted by Mr Potgieter for the conclusion
that standard procedures
were in fact followed. The lack of
supporting documents or correspondence together with a complete
absence of any records indicating
the receipt of the will clearly
show that no evidence existed of standard procedures having been
followed;
the unexplained two days when the
file of the deceased’s late wife lay in the Master’s
office. The learned judge dismissed
the suspicions surrounding this
period as pure speculation. He concluded that the fraudster must
have had the foresight to predict
the death of Potgieter. But that,
of course, would only be correct if the will had been lodged on the
24
th
November 2005. When that fact itself is open to
doubt, it cannot be relied upon to establish further facts.
a perusal of the wills dated the 13
th
December 2001, the 3
rd
December 2003, the 21
st
October 2004, and the disputed will, reveal uncanny similarities.
These include :-
(i) the same paragraph numbering
expressed in words;
(ii) the same introductory preamble;
(iii) the same spelling error in the
first line of paragraph 1;
(iv) the same inappropriate capital
letters;
(v) the same somewhat quaint language
used in the paragraphs.
(f) Some of those similarities may be
ascribed to traditional legal usage, but in my view the similarities
in the documents show
that the same template stored on a computer was
used in the production of the disputed will. As it did not derive
from Garach and
Garach it could only have been scanned and then
altered;
(g) Also significant are the
differences between the undisputed will and the disputed will,
including :-
(i) the disputed will benefiting
Norosh and significantly reducing the share of Shanil;
(ii) the disputed will not containing
the Garach and Garach cover page;
(iii) the disputed will not containing
the details of the unknown witnesses as provided for on the
undisputed wills;
(h) the learned judge dismissed the
concerns of the appellant regarding the disappearance of the original
of the disputed will and
the register as speculation.
[32] In addition, there is an aspect
of the evidence which was not explored by the learned judge. That is
the matter of the signatures
of the deceased as they appear on the
disputed will.
[33] Although Mr Irving believed that
given the number of similarities between the signatures on the
disputed will and the undisputed
signatures of the deceased, the
disputed will was probably signed by the deceased, that is not the
end of the matter.
[34] It is clear from even a layman’s
perusal of the signatures of the deceased on the disputed will and
those of the undisputed
signatures of the deceased, that there is a
material difference in relation to the first “a” in
“Haribans”.
What is significant about the difference is
that it appears in precisely the same way in all three of the
deceased’s signatures
on the disputed will. The last “s”
in Haribans is also significantly different in the disputed will,
when viewed against
the admitted signatures of the deceased.
[35] Whilst it is true that Mr Irving
testified that there are reasons why a person may change their
signature, his evidence was
also that individuals will tend to sign
their signature in exactly the same way each time. Even if one takes
into account Mr Irving’s
evidence that a person’s
signature might change due to that person being upset, or on
medication, etc, that did not fully
explain the disturbing features
of the signatures on the disputed will.
[36] Mr Irving accepted that the
signatures on the disputed will evidence a complete change in the way
the deceased addressed the
writing of his signature. In all the
undisputed signatures there was not one in which the first “a”
in “Haribans”
matched those on the disputed will. Instead
of writing, as he had always done, the first “a” as a “c”
and
then lifting his pen and making the down-stroke for the back of
the “a”, this was clearly not done in the disputed will
where the handwriting was allowed to flow, writing the “a”
in a continuous movement. This is not something which can
lightly be
dismissed on the basis of the evidence given by Mr Irving.
[37] The learned judge also dismissed
the suggestion that the contents of the disputed will demonstrated
its falsity because of
the relationship between Norosh and the
deceased before the deceased’s death. It is clear from the
evidence that Norosh and
the deceased were at loggerheads.
[38] Even though the deceased may have
formed the Trust Norosh Haribans with the intention of benefiting
Norosh it may well be that
he died before being able to give effect
to his intention. There is no doubt that the disputed will, excluding
as it does beneficiaries
in the previous will and benefiting Norosh
with whom the deceased was at odds, is an improbable document. The
learned judge dismisses
the reasons for the deceased disinheriting
Shanil and other members of the family as speculation, and then
surmises as to why he
may have done so.
[39] It is important when assessing
the evidence in the matter not to take each individual circumstance,
weigh that circumstance
and apply it to the facts without considering
the cumulative effect of all the individual factors which must be
looked at and assessed.
[40] Looking at all the factors which
militate against the possibility of the disputed will being the last
will and testament of
the deceased, in my view there are simply too
many of them which are unexplained. In
Smit v Arthur
[1976] 3
378 (A) at 384 F – H, Miller AJA stated :-
‘
But the
proper resolution of the issues in this case must be sought not by
appraising each incident simply on its own circumscribed
facts, but
by a careful survey of the whole history of the relationship of the
parties and of their behaviour at all relevant times.
All the
relevant facts must necessarily go into the melting pot and the
essence must finally be extracted therefrom.’
[41] In making such an analysis it is
not necessary to find that the disputed will was a forgery. The onus
is on the party who avers
that the disputed will is valid to prove
it. The cumulative effect of the factors referred to above are
sufficient that it cannot
be said, on a balance of probabilities,
that the disputed will was in fact the last will and testament of the
deceased.
[42] In those circumstances the appeal
must succeed, and the costs thereof should follow the result..
[43] The appellants also sought
condonation for the late lodging by them of security in terms of rule
49(13)(a) of the Uniform Rules.
That application was not opposed,
and, in my view, ought to be granted.
[44] I make the following order :-
(a) the appellants failure timeously
to lodge security in terms of rule 49(13)(a) is condoned;
(b) the appellants are to pay the
costs of the application for condonation;
(c) the appeal is upheld with costs;
(d) the order made by the court a quo
is set aside and replaced with the following :-
“
The
application is dismissed with costs.”
I agree.
_____________________
Ndlovu J
I agree.
_____________________
Seegobin J
Date of hearing : 12
th
August 2011
Date of judgment : 28
th
October 2011
Counsel for the Appellant : I Topping
(instructed by Goodrickes)
Counsel for the Respondent : S
Shepstone (instructed by Anand-Nepaul Attorneys)