Court case: Fraudulent Will

 

The below court case in the matter of Molefi v Nhlapo and others deals with the validity of a suspected fraudulent Will.

 

Molefi v Nhlapo and others
[2013] JOL 30227 (GSJ)

Reported in:	Judgments Online, a LexisNexis Electronic Law Report Series
Case No:	29990 / 2009
Judgment Date(s):	27 / 02 / 2013
Hearing Date(s):	05 / 02 / 2013
Marked as:	Unmarked
Country:	South Africa
Jurisdiction:	High Court
Division:	South Gauteng, Johannesburg
Judge:	Windell AJ
Bench:	L Windell AJ
Parties:	Tom George Molefi (P); Gladys Glory Nhlapo (1D), Gladys Glory Nhlapo NO (2D), The Master of the High Court (3D), Solomon Molefe Makgala (4D), Sinky Mirriam Makgala (5D), The Registrar of Deeds (6D)
Appearance:	Adv NT Havenga (P); Adv K Thipe (1–2D)
Categories:	Action – Civil – Substantive – Private
Function:	Confirms Legal Principle
Relevant Legislation:	Uniform Rules of Court

Key Words

Trusts and Estates – Wills – Validity of – Forged will

Mini Summary

A will allegedly made by the aunt (“the deceased”) of the plaintiff and the first defendant was at the centre of the dispute between the parties in this case. The deceased had made a first will in April 2006, naming the first defendant as her sole heir. In January 2008, she revoked the first will and made a second will, in which she named the plaintiff as the sole heir of her estate. The first defendant alleged that the deceased subsequently, in June 2008, made another will, naming the first defendant as sole heir and executrix of the deceased estate.

As executrix, the first defendant sold the house of the deceased to the fourth and fifth defendants.

Instituting action, the plaintiff sought a declaration that the disputed will was null and void as were all dispositions made in terms of that will.

Held that the only issue for determination was whether the contested will was valid.

In support of the contention that the will was forged, the plaintiff adduced the expert evidence of a handwriting expert. The expert was of the view that the will was forged. The plaintiff also called as a witness, the doctor who had treated the deceased at the time the disputed will was allegedly made. The doctor testified that the deceased had suffered from dementia at the time.

The Court concluded that the first defendant’s version was problematic and unreliable. Her evidence was therefore rejected in its totality. The disputed will was declared null and void, and the dispositions made in terms thereof were set aside.

Page 2 of [2013] JOL 30227 (GSJ)

WINDELL AJ:

[1] Setoti Agnes Gumede (the deceased) was the aunt of the plaintiff and the first defendant. She made a will on 6 April 2006 wherein she named the first defendant as the sole heir of her estate. On 11 January 2008 at Bara Mall she revoked the first will and made a second will, in which she named Tom George Molefe (the plaintiff) as her sole heir. She then became sick and was admitted to hospital twice in June 2008. Ms Gladys Glory Nhlapo (first defendant) alleges that the deceased made another will (the contested will) on 7 July 2008 at the time of the second admittance to hospital, in which she was named as the sole heir to the deceased estate. First defendant was also appointed as the executrix of the deceased’s estate. She then proceeded to sell the house to the fourth and fifth defendants. The house was subsequently transferred to them. It is this last will that is now the centre of the dispute.

[2] The plaintiff issued summons against the defendants for an order:

•

Declaring null and void the purported last will and testament of Setoti Agnes Gumede dated 7 July 2008 at the Chris Hani Baragwanath Hospital;

•

Declaring all dispositions in terms of the aforesaid purported will null and void;

•

Cancelling and setting aside the sale and transfer of the immovable property situated at Erf 1532 Pimville, Zone 1, Soweto, Johannesburg, Gauteng to the fourth and fifth defendants;

•

Declaring the will executed by Setoti Agnes Gumede on 11 January 2008 at Bara Mall to be her last will and testament;

•

Directing the first defendant to pay the cost of the suit.

Page 3 of [2013] JOL 30227 (GSJ)

[3] Ms Nhlapo, the first and second defendant, noted an appearance to defend. Third to sixth defendants did not oppose the matter and have written a letter indicating that they will abide by the decision of this Court,

[4] The only issue to be decided is if the last will, made at the hospital, wherein first defendant is named as the sole heir, is valid. It is the plaintiff’s case that the signatures on the contested will are forged, alternatively that the deceased was not in her sound and sober senses and therefore incapable of making any testamentary disposition or understanding and appreciating the nature and contents of the document which she signed. Plaintiff presented the evidence of two experts: Mr Greenfield, a handwriting expert, and Dr Inuratta, the doctor that treated the deceased in Baragwanath Hospital. The parties are in agreement that both these witnesses are indeed experts.

[5] Mr Greenfield has over 60 years’ experience in the field of handwriting. He has an impressive curriculum vitae and has written numerous articles on the subject. He examined the following documents:

•

Will of Setoti Agnes Gumede dated 6 April 2006;

•

Will of Setoti Agnes Gumede dated 11 January 2008;

•

Affidavit purportedly signed by Setoti Agnes Gumede dated 19 June 2008;

•

Will of Setoti Agnes Gumede (contested will) dated 7 July 2008.

His opinion on the contested will is that the signature of the deceased was forged. The affidavit alleged to be signed by the deceased at the Kliptown Police Station was also examined by him. His finding is that the signature of the deceased on this document is also a forgery. The reasons for this conclusion are contained in his second report dated 8 March 2012. He found 10 differences between the deceased’s signatures on the acknowledged wills dated 6 April 2006 and 11 January 2008, and the contested will. The differences can be summarised as follows:

Page 4 of [2013] JOL 30227 (GSJ)

1.

The proportional height of the capital letter “A” in Agnes and the letters that follow is greater than that demonstrated in the first two wills;

2.

The gaps left in letters “A” brought about by the different line direction and stroke sequence;

3.

The connecting stroke from the tail of the “g” to the top of the following letter “n” was omitted;

4.

A connecting stroke occurs from the “n” to “e” which does not feature in the signatures in the first two wills;

5.

The gap left between the first name and the surname is excessive;

6.

The shape and line direction of the capital letters “G” varies considerably;

7.

The capital “G” is connected to the letter that follows but is disconnected in the signatures on the first two wills;

8.

The letter “u” is isolated and not connected to the letter “m”;

9.

The final stroke of the letter “m” is connected to the letter V;

10.

The final upstroke of the final letter “e” is extended to create another formation.

The crux of his finding is the following: the person that forged the deceased’s signature did a good job, but concentrated too much on the tremor and therefore the tremor is excessive and the forger forgot about the subtleties.

[6] Dr Inuratta testified about the deceased’s condition during both stays at the hospital and more specifically on the date on which the contested will was signed. Her opinion was that the deceased was in an advanced state of dementia. She was for example unable to turn herself, had difficulty to speak, could not state her name and faired poorly (–/15) [reading unclear on transcript – Ed] on the Glascow Coma scale. The Glasgow Coma Scale is a neurological scale that aims to give a reliable, objective way of recording the conscious state of a person for initial as well as subsequent assessment. The scale is composed of three tests: eye, verbal and motor responses. The three values separately as well

Page 5 of [2013] JOL 30227 (GSJ)

as their sum are considered. The lowest possible GCS (the sum) is 3 (deep coma or death), while the highest is 15 (fully awake person).

[7] The plaintiff testified about his relationship with the deceased and the first defendant. It is common cause that he stayed with the deceased before her death, although the exact period was later disputed by the first defendant. It is also common cause that the plaintiff and first defendant did not have a good relationship. Plaintiff testified that the deceased was very confused and disorientated on both occasions when she was admitted to hospital. The second time she was admitted he had to feed her and turn her head with his hand in order for her to recognise him. He denied that the first defendant was at the hospital on the day of the signing of the contested will.

[8] Ms Nhlapo is the only person that testified on behalf of the defendants. She testified that the deceased contacted her on 19 June 2008 and insisted that a will should be drawn up. This was the period between the first and second admittance to hospital. At that stage she was not aware that there was a will in which plaintiff was the sole heir. To her knowledge the first will, signed by the deceased in 2006, wherein she was the sole heir, still existed. She took the deceased to Nedbank on 19 June 2008 where they met with Vusi Hlabangane, a financial advisor. Mr Hlabangane told her that there had to be a witness present. She then left the deceased at Nedbank and went to fetch a person by the name of Jiyane to assist as a witness. The cover page was signed by the deceased and the witness, Jiyane. Mr Hlabangane then gave her the disputed will and he accompanied them to the SAPS at Kliptown in order for the deceased to make an affidavit. At the police station the affidavit was signed by the deceased in her presence as well as that of the police officer and Mr Hlabangane. The contents of the affidavit read as follows:

“To whom it may concern:

I Setoti Agnes Gumede (1808180330081) would like to refrain from any agreement that I made earlier regarding my house and its content

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to anybody. The reason is that I was not in a clear state of mind and I was sick when I signed any agreement. I was made to sign documents relating to my house: 1532 Zone 1, Pimville and was made to give ownership of my house to George Tom (my grandson), hence I want to change any agreement thereof and would like to give ownership of my house and its contents to (Gladys Glory Nhlapo 5109160372086), I am her aunt.”

[9] The deceased was then admitted to hospital for a second time. She was in a worse state than before. On 7 July 2008 Mr Hlabangane phoned the defendant and told her that she must bring the deceased to sign the will. As the deceased was in hospital, Mr Hlabangane then drove her to the hospital. They found the deceased sitting upright in her bed chatting with her fellow patients. The deceased introduced her to the other people inside the ward and the will was signed. One of the people, a visitor by the name of Semenya Nhlapo, signed the will as a witness.

[10] After hearing the evidence of both parties the following timeline can be established:

2003	:	Plaintiff moves in with the deceased at her house in Pimville Soweto.
2005, December	:	Plaintiff moves out in order to build a house for his mother.
2006, January	:	Defendant moves her business (a tuck-shop) to the deceased’s premises.
2006, April	:	A will is drawn up by the deceased wherein the first defendant is the sole heir.
2006, April	:	Plaintiff moves back in with the deceased.
2008, January	:	A second will is drawn up by the deceased wherein plaintiff is named as the sole heir.

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2008, 12 June	:	The deceased is admitted to hospital.
2008, 16 June	:	The deceased is discharged from hospital.
2008, 19 June	:	Deceased makes a third will (the contested will).
2008, 27 June	:	Deceased is admitted to hospital for the second time.
2008, 7 July	:	The contested will is signed at the hospital.
2008, 21 July	:	The deceased is discharged from hospital.
2008, 29 July	:	Deceased passes away.

[11] The plaintiff’s expert handwriting witness’ testimony was left undisputed. His conclusions were not contested in cross-examination and no expert witness was called by the defendant to challenge his findings. 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.”

The Court itself was able to make the necessary comparisons. Handwriting samples were produced from which the Court could make conclusions on the genuineness thereof.

[12] The first defendant’s version of the events leading up to the signing of the contested will does not make sense. A will is drawn up by Mr Vusi Hlabangane on 19 June 2008 at Nedbank in the Bara Mall. They then realise that they need a witness to sign the will. The cover page is signed by the deceased and the witness, but not the rest of the will. No explanation is furnished by the first defendant why the deceased did not sign the whole document and finalised the will there and then. They then go to the Kliptown Police Station to depose of an affidavit. No logical reason for this unusual step is provided. On 7 July 2008, the day of the signing of the contested will, it is

Page 8 of [2013] JOL 30227 (GSJ)

Mr Hlabangane who phones the defendant and drives her to the hospital for the will to be signed. What possible reason could there be for Mr Hlabangane to go through so much effort in order to make sure that the will is signed when the first defendant has the will in her possession?

When they arrive at the hospital they find the deceased sitting upright in her bed chatting away. This is in direct contrast with the evidence of the medical doctor as to what the deceased’s condition was. First defendant said she was unaware of the will that was signed in January 2008 wherein the plaintiff was the sole heir. According to her she only knew about the will that was signed in April 2006 wherein she was the sole heir. If so, why was it necessary for her to go through all the trouble in assisting the deceased to make a will if she has one in which she is the sole heir?

There were several people present when the deceased signed the will and the affidavit: Hlabangane, Jiyane, Semenya Nhlapo and the police officer at Kliptown. No witnesses were called by the defendant. Taking into consideration the number of people that could have been called, I make an adverse deduction for the failure to call any witnesses.

[13] On the one hand the Court has the plaintiff’s expert’s opinion that the signature of the deceased was forged. On the other hand the Court has the direct evidence of the first defendant testifying that the contested will was signed in her presence. In the case of Motor Vehicle Assurance Fund v Kenny 1984 (4) SA 432 (E) at 436H–I Eksteen J said the following:

“Direct or credible evidence of what happened in a collision, must, to my mind, generally carry greater weight than the opinion of an expert, however experienced he may be, seeking to reconstruct the events from his experience and scientific training . . ., An expert’s view of what might probably have occurred in a collision must, in my view, give way to the assertions of the direct and credible evidence of an eyewitness. It is only where such direct evidence is so improbable that it’s very credibility is impugned, that an expert’s opinion as to what may or may not have occurred can persuade the Court to his view.”

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The first defendant’s version and the circumstances under which the disputed will was signed are so improbable, that its very credibility and reliability were impugned. The first defendant’s evidence is rejected in its totality. In light of the undisputed evidence of Mr Greenfield coupled with the undisputed evidence of the medical doctor, I am convinced that the signature on the contested will is not that of the deceased. I am satisfied that the plaintiff discharged the onus in proving that the contested will is a forgery.

[14] In the result the following order is made:

•

The last will and testament of Setoti Agnes Gumede dated 7 July 2008 at the Chris Hani Baragwanath Hospital is declared null and void;

•

All dispositions in terms of the aforesaid purported will are declared null and void;

•

The sale and transfer of the immovable property situated at Erf 1532 Pimville, Zone 1, Soweto, Johannesburg, Gauteng to the fourth and fifth defendants is cancelled and set aside;

•

The will executed by Setoti Agnes Gumede on 11 January 2008 at Bara Mall is declared to be her last will and testament;

•

First defendant to pay the cost, including the qualifying and reservation and preparation cost of Mr Greenfield for 8 October 2010, 12 March 2012 and 5 February 2013;

•

Reserved cost of 8 October 2010: cost in the cause.