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[2009] ZAGPPHC 272
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Froud NO v Lewitt and Others (18987/2005) [2009] ZAGPPHC 272 (22 September 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
AND SOUTH GAUTENG HIGH COURT, PRETORIA)
DATE:
22/09/09
CASE
NO.:18987/2005
In
the matter between:
LINDA
NATALIE FROUD
N.O
......................................................................
PLAINTIFF
And
MARC
BRANDON LEWITT
…........................................................
1ST
DEFENDANT
LLOYD
BRADLEY FROUD
….........................................................
2ND
DEFENDANT
MASTER
OF THE HIGH
COURT
.....................................................
3RD
DEFENDANT
JUDGMENT
RAULINGA.
J
Introduction:
The
plaintiff instituted an action against the defendant for an order
declaring a purported will invalid on the basis that the signature
on
the purported will is false.
Alternatively,
the plaintiff claims that, since the will was not signed by the
testatrix in the presence of two competent witnesses,
the will is
invalid in terms of the stipulations of section 2(1)(a)(ii) and (iii)
of the Wills Act, 7 of 1963 (“the Wills
Act”).
The
first defendant (the only defendant) who contests the action admits
that the will was not signed in the presence of two witnesses,
and
the formalities for the execution of wills as contemplated in section
2(1) of the Wills Act, were not complied with.
The
first defendant denies, however, that the will itself is forgery and
counterclaims that the court should declare the document
to be the
will of the testatrix in terms of section 2(3) of the Wills Act.
It
transpired as the trial commenced that the second defendant Lloyd
Bradley Froud did not intend opposing the action. At the time
of the
trial the second defendant was living in England and this information
was sent per letter dated 13 April 2009 exhibit “A”.
Prior
to the adducing of evidence, it was agreed between the parties as per
pre-trial minutes that the plaintiff would carry the
onus to show
that the will was a forgery. The first defendant would carry the onus
to show that the purported will was the last
will and testament of
the testatrix. It was also agreed that the first defendant would
adduce evidence first.
The
following bundles and documents were produced as exhibits; the trial
bundle including the purported last will, liquidation and
distribution account, the pleadings, the Rule 35 bundle, Rule 36
bundle and Rule 37 bundle. A transparency reflecting the signature
of
the testatrix referred to as a “standa” as well as a
family tree of the plaintiff’s and testatrix’s
family.
Before
embarking on the evidence as tendered by the witnesses, it is prudent
to explain the relationship of the parties testatrix
and the
witnesses as reflected on the family tree exhibit.
The
plaintiff and the deceased Marina Charlotte Vieira (testatrix) are
half-sisters, they share a mother. Marina is 17 years younger
than
the plaintiff. The plaintiff and the second defendant
Lloyd
Bradley Froud are brother and sister - they share both parents. The
first defendant (Mark Lewitt) and Marina were long time
lovers who
lived together. The first defendant and Gillian Gabriel Ehlers are
brothers-in-law - Ehlers is married to the first
defendant’s
sister one Tanya. Ehlers is an attorney who drew the purported last
will on behalf of Marina. Having sketched
out the family tree I now
turn to the evidence tendered on behalf of the parties.
The
Evidence
First
Defendant’s Evidence
Mr
Ehlers testified that he is a criminal law attorney who practices in
Centurion. He is not an expert on drawing of wills. The
matter of
drawing a will was discussed with Marina during a social afternoon
when they had gathered to watch rugby. Both the first
defendant and
Tanya were present at this gathering. This was followed up by a
telephonic instruction from Marina as to the detail
of the content of
the will. The prepared will was typed by his wife Tanya at their
home. On 1 July 2004 when he had a case at the
Johannesburg
Magistrate’s Court he met Marina there when Marina read and
signed the document in his presence. However, his
wife Tanya signed
it at home in the absence of the testatrix.
At
the bottom of the page containing the purported will the following
statement appears above his signature and that of his wife.
“
Attestation
and witness:
Signed
by the testatrix in the presence of both of us being present at the
same time and attested by us in the presence of her and
each other.”
He
admits that his wife was not present and also that the statement is
false. He, however, claims that he is not an expert in civil
law and
as a result he did not know that the absence of the second witness
(ie his wife) was wrong.
He
further testified that the letter contained in pages 6 to 12 of
annexure “B” (of the “trial bundle”)
were
also handed over by Marina to him at the same time. He handed the
purported will and the letters to the plaintiff after the
death of
Marina on 12 August 2004 before the funeral.
Mr
Ehlers admitted that he had done a course in administration of
estates, but he did not have detailed knowledge about how wills
are
drawn.
Marina
was diagnosed with cancer (leukaemia) and would succumb to cancer
after a nine months battle against it.
He
could advise the testatrix (Marina) with ease because he himself was
once diagnosed with cancer. The deceased (Marina) requested
him to
hand over the will and the letters to Linda once she died. He did not
discuss the fact that two witnesses had to be present
when a will is
signed with his wife. He never discussed the contents of the will
with his brother-in-law (Mr Lewitt). He met with
Marina several times
before she died. He had also met with the plaintiff before. It was
the second defendant who gave him the plaintiff’s
telephone
numbers before he phoned her after the death of Marina. The signature
that appears on the will is that of Marina, however,
the place where
the will was signed is not reflected on the will.
He
kept copies of the letters. At one stage or another he faxed the will
to somebody at ABSA.
Mark
Lewitt Brandon testified that he and the deceased (Marina) were long
time lovers. They lived together from February 1998 until
August 2004
when she died. In December 2003 Marina was diagnosed with leukaemia.
Although
the relationship was a long one it had its ups and downs. There were
times when they separated albeit living in the same
house. In 2002 he
asked the deceased to move into another bedroom in the same house.
They reconciled in 2003 but Marina did not
move back to the main
bedroom. After her diagnosis with cancer she went for chemo-therapy
several times. She succumbed to the decease
on 6 August 2004 while
undergoing treatment for Septicaemia. Marina was employed and she
managed to make some savings. She kept
her affairs separate. He did
not know about her funds and policies.
However,
under cross-examination he admitted that he knew about two policies.
When she was at the hospital it was he who paid part
of the medical
bills. His father also assisted her with some payments. He had first
said that Linda never paid anything but under
cross-examination he
changed and said she made one payment when she was at the hospital.
Linda and Mynon also went to see her.
Her mother never came to see
her when she was ill. Her mother lives in England. Linda never acted
like a mother to Marina, although
she had signing powers and was
entrusted with her financial matters. Marina consulted with Linda on
major decisions on finances.
He
had intended to propose to Marina at Autonique Mountains and he
bought a ring for the occasion but this was never to be. At one
stage
Marina told him that there were letters she had written to several
people. Although he had enquired from her about a will,
she never
discussed the purported will with him. He only knew about the will on
a Saturday after Marina’s death. The documents
on page 13 of
the trial bundle were found by him in the deceased’s bag (after
her death). It was a list of things that she
owned. He called these
documents a “makeshift will”. This he found a week after
her death. He only saw the letter on
page 12 of exhibit “B”
on the day of the funeral.
Kruger
National Park was Marina’s favourite place, particularly
Satara. Her ashes were scattered at Satara.
Although
the will was signed on 1 July 2004 his sister Tanya never told him
until he discovered same on 7 August 2004. There are
a lot of things
he did not know about Marina because she was a secretive person. The
signature on the purported will looks like
that of Marina. Marina
took a policy that covered her decease. At that stage there was no
need for anybody to make a contribution
towards her medical bills. He
did not collude in the manufacturing of the will after Marina died.
Plaintiff’s
Evidence
The
plaintiff called the following witnesses in support of its case.
Linda
Natalie Froud testified that she is the plaintiff in the matter and
executrix of the estate. Marina is her half-sister. She
and Marina
are of the same mother but different fathers. There is a 17 year age
gap between the two of them. She took care of Marina
from her birth.
After her mother left she lived with Marina and her stepfather
(Marina’s father) in her house at Westernaria.
She continued to
look after Marina even when Marina was working. She helped her
financially.
The
relationship between Marina and the first defendant was not a happy
one. She was scared of Mark because he was possessive of
her.
However, Mark was always there when Marina was sick. Marina died at
the age of 27.
She
had signing powers on the ABSA bank account of Marina which she
opened for her. She acted as her financial adviser. She helped
her
buy a car and she generally managed her affairs. She was logically
the person to be approached to draft a will for the deceased.
Marina
had an Old Mutual policy which paid out R300 000.00 in January 2004
after her diagnosis with cancer. She had applied for
this policy on
behalf of Marina. Marina signed for the benefits in her presence. She
once advised Marina to draw a will when she
visited her at the
hospital. When she talked to her, Marina had no knowledge of a will.
She also advised her to nominate a beneficiary.
She did this for the
benefit of Marina. Marina never told her about another will that she
had already made. After Marina died she
called the first defendant to
her house to discuss the funeral arrangements.
When
Mr Ehlers told her that he was in possession of Marina’s will
she could not believe it because Marina would have told
her about it.
When she read the purported will she immediately told Sean that it
was not Marina’s signature. She then decided
that the matter
should be referred to experts. She knows Marina’s signature
very well she cannot mistake it for any other.
Her
mother and herself are beneficiaries in the will. Although she did
not like the way Mark treated Marina, she would never bother
if he
were to benefit from the will - that would be Marina’s wish.
She found it strange that Marina would have chosen Mr
Ehlers instead
of her. At the time the purported will is alleged to have been
signed, Marina was sick and very weak. She read the
letters to
herself, her mother and brother. Marina was angry when she wrote the
letters. The letters are not disputed.
She
submitted her appointment as executrix to the Master because that is
a standard procedure.
She
and her mother are beneficiaries on the Sage policies. There is no
nominated beneficiary on the Old Mutual policy. She has no
problem if
Mark (the first defendant) gets the rest of the estate, however, the
signature on the purported will is not that of
Marina. There was
conspiracy in the construction of the will by the people who
witnessed the will. She does not know if Mark was
part of the
conspiracy. Marina was right-handed. She approached two experts - Mr
Uwe Otto and Mrs Grandin. Mr Otto received twelve
documents whereas
Mrs Grandin received four documents. She submitted originals to Mrs
Grandin. She does not know what happened
to them. She submitted the
will in September 2004.
The
plaintiff then called a handwriting expert Ms Silvana Grandin who
testified that she holds the following qualifications and
experience:
She
is a graduate of the basic and advanced courses in Forensic Documents
Examination, which course is conducted by Andrew J Bradley
and
Associates.
She
has been practicing in the field of Document Examination for
approximately twenty five years and as a professional handwriting
analyst for some thirty years and has covered +/- 4000 cases on
document examination.
She
is a professional member of Associazione Grafologica Italiana
(A.G.I.) Italy and profession (certified) member of the American
Association of Handwriting Analysts, Chicago.
Her
routine work consists of the verification of signatures and
handwritings on questioned documents such as wills and testaments,
bank deposit slips, identity and credit cards as well as a variety of
other documents. Included in her work is the task of identifying
authors of anonymous letters and compiling a personality profile on
the basis of the handwriting.
She
uses the latest technology including stereoscopic microscopes,
powerful magnifying glasses, calibrated plates, ultraviolet lights
and photographic equipment.
She
has examined the questioned document in this matter and has the
necessary qualifications and experience to enable her to render
an
expert opinion regarding the authenticity of the signature on the
questioned document.
She
has thoroughly examined the questioned document in order to establish
whether the signature on the questioned document is that
of the late
Marina Charlotte Vieira.
In
compiling her report dated 10 September 2004 in analysing ST1-/ST-12
she used genuine documents. The original magnified transparent
report
is available. The documents were given to her by the plaintiff
(ST1-ST12). The magnified signatures are only from ST1-ST8.
The
pen-motion is the same - there is no change of the structure of the
signature (ie set of the connecting parts). There will always
be
variations but they do not affect the structure. Irregular alignment
may be defined as prescribed lines and imaginary lines
- ie the
alignment of each letter. The deceased had an irregular alignment.
The downward stroke is stronger whereas the upward
stroke is lighter
(darker and lighter strokes). There exists a slanting tendency -
starting on the baseline going upwards (above
the baseline).
Questioned
signatures - QA and QB.
The
two signatures are almost identical - that refers to peculiarity.
Each letter rests on the prescribed baseline. The M and V
of the
signature are drawn and not written. The V is heavy on all sides -
the sides are straight - they are slow and not quick.
They sit on the
baseline faithfully. The “i” dots are well placed - which
indicates slowness rather than speed.
There
are no traces of forgery caused by nervousness. The pen-lifts are
different. The blunt-endings are a sign of control rather
than
fly-end.
Technical
comparison - the witness referred to two books by ... Hilton
“Scientific Examination of Questioned Documents”
-
Revised edition page 173 and W Harrison - “Suspect Documents”
- page 298 on similar signatures.
The
two authors confirm that where there is nervousness there is a lot of
control exercised in making the design. This is what happened
in the
signature in question. This is a simulated signature by a person who
studied the design and tried to replicate same.
The
letter i next to the V is always done in two movements - down and up.
The "i" looks like an V. This is not present
in QA and QB.
The third signature looks alike - this is an indication that they
were done one after the other. Under QA and QB
the two strokes of the
V are lower or the second V is slightly lower. In the Standa
signature the first stroke of the V is lower
than the second stroke -
there is speed of execution. (It is a very immature movement) (ie
under QA and QB). There are so many
elements of control and
variations as well. It can be accepted, however, that signatures
cannot be performed with much precision.
There
is a starting stroke under QA and QB signatures. (At this stage the
transparencies were produced as exhibit “D”)
QA and QB
are not really identical - it is, however, peculiar that there are
natural variations. There is a natural variation between
standa
and
6 which were signed on the same day, whereas under QA and QB there
are unnatural variations. (The witness refers to a book
by Osborne -
“Problem of Proof” second edition - chapter 17 and again
to Albert - “Questioned Documents”
page 270.) It can
therefore be concluded that the questioned signatures are simulated.
The QA and QB signatures are not written
in a free and natural
manner.
(The
witness was then referred to the Rule 37 Bundle) - Mr Greenfield)
(The line quality was then explained.) The fact that the
line quality
is good does not mean that there is no forgery. Missing a letter is
blatant - there is an ”i” missing
and also the connection
to “r”. When the person who signed simulated the
signature he/she applied pressure and as a
result missed the letter
“i”.
Conditions
and circumstances need to be defined. If it be true then the deceased
(Marina) was suffering from cancer, she could not
have aligned the
letters as she is purported to have done. The two signatures could
not have been more or less similar. The line
quality would have been
poor.
Under
cross-examination
The
line-quality is good although this was signed nineteen days after she
had purportedly signed the will. Even if she could have
received the
originals, that would not change her conclusion. However, she looked
at the originals which were handed to her by
the other experts.
One
must look at the overall picture, because according to literature a
forger may concentrate on something else and as a result
make a
mistake. A forger is unlikely to make a blatant error such as the
omission of the “i”. The general model was
faithful to
the signature. She does not think the forger was careless. This is an
isolated instance.
She
had an abundant documentation to compare. She had four documents of
the original signatures. The conclusion would depend on
the quality
of the signatures.
The
different signatures of the deceased have a lot of similarities in
their structure. The habitual characteristics are the same.
She was
given the specimen and she was satisfied with the quality. If there
were a wide range of natural variations, one would
have needed more
than one specimen.
The
purpose of her examination was not to prove that Mr Ehlers forged the
signature. She did not even know that the deceased suffered
from
leukaemia. She is a neutral and independent handwriting expert.
The
forger tried to simulate the deceased’s signature by using a
free hand. Both questioned signatures are slowly written.
Even if one
is slow one will not leave out important characteristics. There were
two omissions; the “i” and the gap
between the letters.
The down stroke on “i” would not be an “i”.
(The
witness then went on to explain the standa - in particular ST10 and
ST16. In comparing questioned signatures, it would not
matter whether
one is left or right-handed. She examined Mr Otto’s report.
(The witness was referred to exhibit E which she
explained
thoroughly.)
The
plaintiff closed its case.
Evaluation
In
its submissions the first defendant raises an argument that the
nature of the allegations in the particulars of claim and the
plea to
the counterclaim are such that the plaintiff must be accusing someone
of fraud. The first defendant referred the court
to the case of
Glaston House (Pty) Ltd v Inag (Pty) Ltd
1977 2 SA 846
(A) at 858 in
which the court quoted a passage from Gates v
Gates
1939 AD 150
at 155 where WATERMEYER JA remarked as follows:
“
In
certain cases more especially in those in which charges of criminal
or immoral conduct are made ... the reasonable mind A is
not so
easily convinced in such cases because in a civilised community there
are moral and legal sanctions against immoral and
criminal conduct
and consequently probabilities against such conduct are stronger than
they are against conduct which is not immoral
or criminal.” See
also Loomcraft Fabrics CC v Nedbank Ltd and Another
1996 1 SA 812
(A).
I
must hasten to say that although the plaintiff (Ms Froud) herself
does not name the person who might have simulated Marina’s
signature she categorically stated that her sister’s signature
was forged. Her evidence is corroborated by Mrs Grandin who
said that
the forger simulated Marina’s signature. There was no need for
them to name the forger. I am convinced that this
accords with the
particulars of claim and the plea to the counterclaim.
The
dictum in Regional Magistrate du Preez v Walker
1976 4 SA 849
(A)
855(G) may not always hold water. As it is clear from the statistics
that we have, there are a number of officers of the court
who have
been found wanting, albeit the number is very insignificant. There is
no need to deal with the detail of this issue. This
does not at all
affect the good office and conduct of Mr Ehlers whose good character
has not been directly challenged. I remain
impartial on this issue.
The
first defendant admits that the will was not signed in the presence
of two witnesses and therefore the formalities for the execution
of
wills as contemplated in section 2(1 )(a)(ii) and (iii) of the
Wills
Act, 7 of 1953
, were not complied with.
Section
2(3)
was promulgated to ameliorate the hardships and injustice
occasioned by insisting on strict formalities in all cases and to
reaffirm
the sanctity of the testator’s last wishes, however,
in doing so it made it clear that this purpose had to be served
within
the framework of the following three requirements: there had
to be (1) a document (2) drafted or executed by a person who had died
since the drafting or execution and (3) who intended the document to
be his will - Ex Parte Williams: In Re Williams’ Estate
2000 4
SA 168
(T) 172D-E.
In
the ordinary parlance of interpretation of wills this offers no
difficulty. However, in casu one is dealing with a purported
will the
authenticity of which is challenged by the plaintiff. There are
allegations that the signature on the purported will was
simulated.
Ordinarily, once the abovementioned requirements are met, the draft
will be regarded as a will. The courts in interpreting
a draft may
disregard some of the formalities and declare the draft a will. In
doing so the court approaches the matter objectively.
It is not a
forgone conclusion that every draft where one or some formalities
have not been met will be declared a valid will.
In
instances where the signature on a purported will is challenged, the
first entry of analyses will be to deal with authenticity
and
thereafter examine the formalities. If authenticity is approved then
the easier the requirements will succeed. However, if
authenticity is
not approved the more difficult it will be to condone any of the
requirements.
Is
the purported “will” a valid will?
In
Kunz v Swart and Others 1924 (A) 618 - the matter concerned the
validity of a will and in particular the fact that it was allegedly
forged. The court held that the onus of proving that the will was a
forgery lay upon the plaintiff, and that as he had failed to
discharge that onus he was not entitled to succeed in his claim. In
casu the defendant argues that in order for the plaintiff to
succeed
in her action she must prove fraud, because the onus lies on her to
do so. However, in the Kunz case supra at 652 SOLOMON
JA quoted Voet
(5.3.4) treating of the hereditatis petition, says:
“
For
the rest, he who sues for an inheritance ab intestate is not bound to
prove that the deceased died intestate; it is sufficient
if he has
proved that he is the nearest and therefore the heir according to
law. When that has been done, the whole foundation
of the action has
been established and defendant will then have to prove his exception
by what testamentary disposition he contends
that the heir whom the
law recognises has been excluded. For without any doubt the onus is
upon the defendant to prove his exception,
not upon the plaintiff
whose declaration cannot be affecte4d by any exception.”
The
petition hereditatis in Roman Law was an action brought by the heir
of the deceased, whether under a will or ab intestatio,
to recover
the estate from someone who was in possession of it. Under that law,
upon the death of any person his estate devolved
upon his heir, who
was his universal successor. The converse is applicable in casu in
that the plaintiff is one of the heirs to
Marina’s estate. It
therefore holds that in arguing the issue of onus and in his
reference to the Kunz case, the first defendant
was not candid with
the court in failing to explain the minute detail of its
implications. I say this against the backdrop that
the parties agreed
that the plaintiff carries the onus to show that the will was a
forgery. In my view, it is sufficient for the
plaintiff to discharge
the onus without naming the forger.
What
can be gleaned from the
Rule 36
bundle is that reports of three
experts were obtained and submitted. Silvana Grandin and Uwe Otto for
the plaintiff are ad idem
that their expert opinion is that the
signature on the questioned document is not that of the testatrix
whereas the expert opinion
of Cecil Greenfield is in the contrary.
Only Silvana Grandin was called by the plaintiff to testify. The
defendant called no expert
witness.
In
Annama v Chetty
1946 AD 142
at 174, the court confirmed the function
of a handwriting expert as follows:
“
His
function is to point out similarities or differences in two or more
specimens of handwriting and the court is not entitled to
accept his
opinion that these similarities or differences exist, but once it has
seen for itself the factors to which the expert
draws attention, it
may accept his opinion in regards to the significances of these
factors.”
I
can add that in a trial the court will also draw inferences from the
demeanour of the witnesses, as well as any observations that
it
notices during the trial. The court must be satisfied on a balance of
probabilities that the contents of the will do truly represent
the
testator’s intention. This is the standard that the courts
require in order to arrive at a proper conclusion - Fuller
v Strum
2001 EWCA-CIV 1879 at 109E-J.
In
Mapota v Santam Versekerings Maatskappy Bpk 1977 4 (AA) the court
held that the . medical evidence could only refute the strong
and
otherwise acceptable and corroborated evidence of appellant if that
evidence unquestionably showed that the reasonable possibility
did
not exist that the accident could have occurred as described by the
appellant.
I
must immediately mention that there are a number of reasonable
possibilities and probabilities in this case.
Mr
Ehlers, is a brother-in-law to Mr Lewitt, it being that Mr Lewitt is
a brother to Mr Ehlers’ wife, Tanya. There is no need
to
question their close relationship taking into account that sometime
before Marina “signed” the purported “will”,
they were together at a social gathering. My guess is that whatever
Marina discussed with Mr Ehlers which in turn was discussed
with his
wife Tanya who signed as a witness, must have been discussed with Mr
Lewitt.
I
am not saying it is so, but that probability cannot be excluded.
Marina
“signed” the will on 1 July 2004, and she died on
August
2004. Mr Ehlers hands over the “will” and letters to her
sister,
the plaintiff, immediately thereafter. After a week Mr Lewitt hands
over the “make-shift” will (the other documents).
Mr
Lewitt had been living with Marina for about six years. He knew about
Marina’s preferences and dislikes. He even knew about
the
differences between Marina, her mother and her siblings.
Probabilities exist, by way of inference that he stumbled upon the
letters and the “make-shift will” when Marina was still
alive or immediately after her death. He was aware that there
was an
Old Mutual policy for which there was no beneficiary. After all
Marina was too sick to control certain of her belongings.
He was
living with her and he was the one closest to her. Marina was an
extrovert as put by the first defendant, she could have
told the
plaintiff where to get when the plaintiff approached her about the
will.
The
probabilities are that at the time when Marina was suffering from
leukemia and had undergone chemotherapy, she would have needed
her
sister (the plaintiff) dearly for advice. Although she had lived with
the first defendant for about six years, one should remember
that
there were times when they separated and they would not even talk to
each other. Her sister was her financial adviser who
at that time
could have been her sanctuary for a will. There are no convincing
reasons why she could have chosen Mr Ehlers instead
of the plaintiff.
Mr
Ehlers is a trained lawyer. If he realized that he was not adequate
enough to deal with the “will” (because he confesses
to
be a criminal lawyer) he could have approached a colleague who could
have advised him accordingly. One does not understand why
Marina for
so many years of knowing Mr Ehlers, she would so late in their
relationship only then choose him as her confidant.
The
first defendant was a bit generous when he testified. However, in so
doing he contradicted himself. He testified that Marina
had a lot of
secrets but at the same time he said she could say anything - she was
an extrovert. He admits that Marina would approach
the plaintiff for
advice but then he further said that Marina did not like the
plaintiff. He tried to paint a picture that the
plaintiff did not
visit Marina regularly at the hospital, he then changed and said she
visited her. The plaintiff proved otherwise.
He also conceded that
there were times when he quarreled with Marina to an extent of
separation.
In
my view the plaintiff had a duty to protect the interest of her
sister’s estate. She was appointed as an executrix and
she
therefore was obliged to submit all the documents pertaining to the
estate to the Master including the purported will. Her
evidence is
satisfactory in all material respects.
Mrs
Silvana Grandin was the only expert witness who testified. She was
cross-examined extensively and she did not contradict herself
except
for minor discrepancies which are a norm in matters of this nature.
The reports of the other two experts were not examined
nor did the
experts testify. There is no need for me to regurgitate Mrs Grandin’s
evidence.
She
is a competent expert who gave satisfactory evidence. She gave
evidence of comparison to similarities and differences. The court
itself was able to make the necessary comparisons and managed to
access the cogency of her evidence. Handwriting samples were produced
from which the court could make conclusions on the genuineness
thereof. Mrs Grandin has special skills as an expert. Her resume
and
experience of many years bear testimony to this. She has for more
than thirty years covered +/- 4000 cases on document examination.
Mrs
Grandin’s assistance as an expert is therefore very important.
Expert evidence on handwriting has advanced to an extent
that the
value and weight thereof can no longer be doubted.
The
court also relied on circumstantial evidence as well as viva-voce
evidence by both the plaintiff and Mrs Grandin. It was apparent
from
their evidence as well as the observations made by the court that
similarities and dissimilarities exist on the questioned
signatures
and the original signatures of the deceased.
Mrs
Grandin referred to authors whose arguments sustain her conclusions.
It can therefore be held that the signatures appearing
on the
purported will are simulated.
In
casu the opinion of Mrs Grandin was not challenged by any other
expert.
In
Diehl and Others v Master of High Court Pretoria and Others 2008 (4)
All SA Reports 430 (T) 448 para 56.1 LEGODI J found that
the witness
for the plaintiff contradicted herself. This is in sharp contrast to
this case where no material contradictions are
present. Further at
page 449 para 57 the evidence of the expert witness for the plaintiff
was strongly contested by the evidence
of the expert witness for the
defendants, this is absent in the present case. While I align myself
with the decision of LEGODI
J, I, however, find that the facts and
the evidence in the two cases differ.
A
point was raised that Mrs Grandin did not compare the original
signatures to the questioned signatures. However, to the contrary
she
testified that she looked at the originals of Mr Otto and Mr
Greenfield. She had four originals herself. She reviewed a number
of
documents which were handed to her by the plaintiff. She further
testified that it was not necessary for her to enquire into
the
condition of the deceased. She explained the variations.
It
can be confirmed that after scrutinizing the standa and observing her
in the witness box I am convinced that her demeanor accorded
that of
an expert who knew and understood what she was testifying about.
I
have already indicated that the validity of the will or not based on
lack of formalities is dependent on the authenticity or not
of the
signature. If the authenticity is not approved it follows that the
formalities which were not met in terms of
section 2(1
)(a)(ii) and
(iii) cannot be condoned. In casu, the first defendant admits that
the will was not signed in the presence of the
two witnesses and
therefore the formalities for the execution of the
Wills Act were
not
complied with. Further, the place at which the will was signed is not
mentioned. The first defendant also concedes that the
statement
appearing above the signatures of Mr Ehlers and his wife is not a
true reflection of what happened. The statement reads
as follows:
“
Attestation
and witness:
Signed
by the testator in the presence of both of us being present at the
same time and attested by us, in the presence of her and
each other.”
Although
the failure to comply with the formalities falls under the
alternative claim, this is evidence that supports plaintiff’s
case that the deceased’s signature was forged.
Conclusion
The
purported will is declared invalid on the basis that the signature is
false.
In
the premises I would make the following order:
1.
The plaintiff’s claim is granted with costs.
2.
The first defendant’s counter-claim is dismissed.
3.
The first defendant is ordered to pay the costs.
T
J RAULINGA
JUDGE
OF THE NORTH GAUTENG HIGH COURT
18987/2005/sg
Heard
on:
For
the Plaintiff: Adv
Instructed
by: Messrs
For
the Defendants: Adv Instructed by: Messrs
Date
of Judgment: