---

REPUBLIC OF SOUTH AFRICA

HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG.

Case No: 02266/2014

REPORTABLE

OF INTEREST TO OTHER JUDGES

REVISED.

20 October 2017

In the matter between:

ABDULHEY EBRAHIM KARANI                                                                                      Plaintiff

and

MOHOMEDALI AHMED KARANI N.O.                                                               1^st Respondent

MOHOMODALI AHMED KARANI                                                                      2^nd Respondent

ADBUSAMAAD KARANI                                                                                        3^rd Respondent

THE MASTER OF THE HIGH COURT, JOHANNESBURG                             4^th Respondent

 

JUDGMENT

 

Coram: RE Monama, J

 Introduction.

[1]   The matter came before me in terms of  the order of  my Brother Spilg J  of 1 June 2015[1]. That court  referred this matter  to trial. The Fourth Defendant is not opposing or supporting any of the affected parties.

[2]  The  issue between the  parties is the validity of the will allegedly executed during  7 February 2013 ( The Contested Will).  In this regard, the Plaintiff seeks two orders. The first order is to declare  the   will of the deceased dated 7 February 2013 to be null and secondly  the will of the deceased dated 15 September 2006 to be valid.  As a corollary thereto, he seeks an order of costs against the 2^nd and 3^rd Defendants for the  initial  application proceedings and this trial.

[3]  The main personae  dramatis are relatives. The  Testatrix is Rukeya Karani (herein referred to as “the Testatrix”  and or “the Deceased”).  The Plaintiff is her  direct brother . The Second  and the Third defendants  are the nephews to them. The First and Fourth  Defendants are cited  herein nomine officci. 

[4]  The Plaintiff’s relies on the evidence of Me. Lourika Buckley , the  hand writing expert,  Me. Sherifa Karani , the  Plaintiff’s wife,  Me. Ayeshabibi Nabee, the Plaintiff’s and the Testatrix’s sister, Me. Khatija Veeran  (born Karani and the sister to the  Second  and the Third Defendants) and  Mr. Ebrahim Mia,  the  Testatrix’s  neighbour ,  who resided  directly opposite the Testatrix’s   property. The family members testified about their relationships.

[5]  The  Defendants case is based on the evidence of the Second Defendant and. Mr. Yossi Vissoker ,who testified as a handwriting expert witness . Mr. Mohomedali Ahmed Karani  testified about the family relationships, particularly how the Contested  Will   came about.

The brief factual background.

[6]   As stated, this case involves the the Contested Will.  But there are   three other  wills which feature prominently in this matter. The first   will  is  dated  31 August 1994. It was drawn by an attorney. The second    will  is  dated 15 February 2006 and  was drafted by  the Third  Defendant. The third  will  is dated 15 September 2006. This will was drawn by an attorney, Ms. Singh. The fourth  will  is  dated 7 February 2013. This will was dawn by the  Third Defendant in Canada. It was downloaded by the Second Defendant from his electronic mail.

[7]  The beneficiaries in terms of the first will are  two unnamed  charities  to be chosen by her executors at their sole discretion, her sister Ayeshabibi  Abdul Razak or  Nabee, the Plaintiff and her nephew Dr Zeedat Karani. At that time of the execution of that will  the Testatrix was approximately 57 years old.

[8]  The beneficiaries  in terms of the second  will are the Second and Third Defendants and their brother Suleiman Karani. They  are also the executors. The Testatrix was 69 years old when this  was executed.

[9]   In terms of the third will the beneficiaries are the Plaintiff, the Second Defendants, the  sister of the Testatrix , Mrs Ayesha Bibi Nabee (born Karani),  Suleiman Karani, ( who is  the Testatrix’s  nephew and the brother to the Second and Third Defendants). The nephews are all the children of the Testatrix’s  late brother, Ahmed  Ebrahim  Karani. The  Plaintiff  was appointed an executor . The testatrix was 69 years old when this will was executed.

[10]  In terms of the fourth will, only the Second and Third Defendants are the beneficiaries. They are also the executors. When the will was executed the Testatrix was approximately 76 years old and living alone.

The dispute amongst the parties.

[11]  The issue  in this case as stated above,  is whether the will dated 7 February 2013 is  valid .The Plaintiff  contends that the Will of February 2013 is invalid. The first ground of invalidity  is  non -compliance  with the mandatory provisions of the Wills Act. The second ground of attack is the allegation that the will is a forgery.

The legal formalities for the execution of a will

[12]  Section 2(1)(a) of the Wills Act 7 of 1953  provides the formalities in respect of execution of wills.

 The Section provides that:

“(a) no will executed on or after the first day of January, 1954, shall be valid unless-

(i) the will is signed at the end thereof by the testator or by some other person in his presence and by his direction; and

(ii) such signature is made by the testator or by such other person or is acknowledged by the testator and, if made by such other person, also by such other person, in the presence of two or more competent witnesses present at the same time; and

(iii) such witnesses attest and sign the will in the presence of the testator and each other and, if the will is signed by such other person, in the presence also of such other person; and

(iv) if the will consists of more than one page, each page other than the page on which it ends, is also so signed by the testator or by such other person anywhere on the page;…” [Emphasis added]

The above provisions must be read together with the provisions of   Section 2(3) which provides that:  

“… 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 66 of 1965), as a will, although it does not comply with all the formalities referred for the execution or amendment of wills to in subsection (1)

The second ground of that he Plaintiff attacks the validity of the will is that the signature on the will was   forged by the Second Defendant.

 

The common cause facts.

[13]  There is no dispute between the parties that the first witness, Mr. Abudakr Cujee did not sign the will dated 7 February 2013 in the presence of the Testatrix or in the presence of  Mrs. Sarah Bulewan, who signed as the witness. 

[14]  It is also common cause that the  Third Defendant drafted the Disputed  Will in Canada and transmitted it to the  Second Defendant via electronic mail.  The  Second  Defendant printed the it.  He  took same  to his aunt, the testatrix, and  interpreted the contents thereof in the presence of his wife.  The Second Defendant’s wife returned the next day together with  Mrs. Bulewan.  During that visit   the testatrix signed the  Disputed Will and Mrs. Bulewan signed as witness.  The second witness to this Disputed Will, Mr. Cujee, was not present at the time the Will was witnessed by Mrs Bulewan.

The onus and the standard of proof. 

[15]  There several onus in this matter. First,  the Plaintiff  bears the onus  that the  Disputed Will dated 7 February 2013 is a fraudulent document with a forged signature .  The  Second and Third Defendants  must demonstrate that the Disputed Will complies with the legal formalities.  In both scenarios the standard is on the balance of probabilities.

The plaintiff’s case.

[16]  Me Khatija Amhed Veeran is the sister to the Second and Third Defendants. The testatrix is her aunt and  the Plaintiff is her uncle . She testified that, her uncle’s wife, Mrs. Karani and  Mr. Mia cared for the deceased. She was emphatic that the  Mr Mia played  a great part.

[17]   Mr. Ebhrahim Mia testified that he had an excellent relationship with the deceased and that he took care of the deceased. He assisted the deceased.  He also testified that he paid for the funeral expenses of the deceased and was subsequently reimbursed for some of the expenses by the  Second  Defendant. 4  Both Mr. Mia and Me. Karani testified that the deceased’s health was in a deteriorating state.   Mr. Mia used the services of Dr Bawa  who confirmed same.

[18]  Me. Sherifa Karani, the wife to the Plaintiff  testified that she her husband, the Plaintiff had a good relationship with the Deceased and that she spoke with her  frequently.  Her husband did not testified as he had  voice problems.  She and Mr. Mia   were  each provided  with  a set of spare keys to the Deceased’s house.  She testified that when the Testatrix fell ill, Mr. Mia contacted  her and her husband.  Me. Karani testified that the Testatrix contacted her via telephone during the first quarter of 2006 to discuss the execution of  Will 2.   She testified that the Testatrix informed her that the Third Defendant visited her. He enquired from her about the ultimate destination of  her property after her death.  She informed him that she  had already executed  a Will.  He asked to see the said Will, took it away and told her that he will review it and return same  in two days’ time.  A week passed, the Deceased became worried, went to the  Second  Defendant’s house in search of the Third Defendant who was not available .  She  testified that the Testatrix felt uncomfortable with the second will . This  led to execution of the  of  third will. In this regards she engaged  and the assisted by an attorney of her own choice,  Me. Singh, who lived in vicinity. She retained these two wills  in her safe possession.

[19]  Ayesha  Nabee  is the sister to the Testatrix. She is curreenly staying I the house of he Testatrix . She testified and  confirmed that  the Contested Will 4was disclosed to the other family members at the funeral of the Testatrix and that the  family members were informed by the Deceased of  the second will. She confirmed  that the said  will  was also drafted by the  Third Defendant.

The evidence of the plaintiff’s expert witness

[20]  The Plaintiff’s expert witness, Me Lourika Buckley testified  about the signature of the Testatrix on the Contested  Will and compared them to the other specimen . She is a qualified Forensic Documents Examination Expert and member of the American Handwriting Analysis Foundation and of the South African  Chapter of the Association of Certified Fraud Examiners. She has been  involved in 828 cases both nationally and internationally including the High Courts of Zimbabwe, South Africa, CCMA hearings and Regional Courts[2].

[21]  Me Buckley testified that the signature on the Contested  Will 4 is a forged, copied or traced from a previous known signature of the Testatrix.  She  testified that the indentation of the signature signifies  that a person who made the  said signature has made it  with a lot of focus. The forger was focussing on getting the signature correct. She  indicated with reference to Exhibit F those items where the forger stopped and proceeded again with a letter. She stated that the forger made patch-ups in that the forger made a marking and correcting same afterwards. She testified that given the Deceased’s age, possibility of arthritis and health deterioration her signature especially in a period of  7 years would have changed substantially.

[22]  She testified that  the signatures on the Contested Will have not changed substantially from that compared to previous signatures in subsequent years. In her view,  a person’s last signature on a document where that person has signed six times would be substantially different.  She examined  fourteen signatures on  the Contested  Will and Power of Attorney.

[23] Me. Buckley explained that a person with arthritis would where his/her signature is made in poor quality, correct same in a spontaneous/ natural manner without much attention to try and correct every detail of the signature.  She further explained that the signatures of the testatrix on  Contested Will  were not done in a spontaneous manner. There was much attention paid as to the quality of the signatures.

The defedants version

[24] The  Second  Defendant, Mr Mohomedali Ahmed Karani, is the only witness who testified.  He testified that had a good relationship with the Deceased and took care of her and that there was nothing wrong with the deceased’s health condition.   He tendered a few pictures all taken on 11 February 2013 during the birthday party attended by him and his wife. He maintain that these pictures proves that he had a good relationship with the deceased.

[25] He testified that he received a copy of the Contested Will  from the Third Defendant . The will was sent to him from Canada. He downloaded it and he and his wife took it to the Deceased and explained it I her native language and in English.  The next day it was signed and witnessed to separately by Me Beluwan and Mr Cujee.

The testimony of the defendants’ expert witness

[25] Mr. Yossi Vissoker is a Forensic Graphologist and testified as an expert on the handwriting issues.  He  did not obtain any formal training or qualification in forensic document examination  but is certified by the American College of Forensic Examiners Institute.

[26] Mr Vissoker confirmed that the Deceased was not familiar with English language, her education extended to grade 4 and that had advanced and deteriorating arthritis[3].   He confirmed that he was pre-disposed to the facts of the case and did not consider  the impact of the arthritis  in the assessment of the signatures.

[27] Graphology refers to the determination of personality characteristics, physical attributes or injuries to an individual based on the appearance of one’s handwriting.  To the contrary, forensic document examination refers to determination of authenticity of a document or disputed signature[4].

[29] In Mr. Vissoker’s report it is stated that he used more documents to analyse the signature. He makes six distinct determinations that equates to :

‘An individual and unique elements or characteristics’

He stated such elements  and characteristics cannot be forged. He concluded that:

“Based on and in accordance with accepted and proven examination standards and in view of the certain individual characteristics, as has been described above (including the elaborated description of the paradoxes that have been found in Grafex report) and considering the attached technical report (with especially attention to  clauses 14, 17 to that report and other clauses that specify An individual and unique element/    characteristic)  I can positively conclude that Set 1 and Set 2 were signed by the same person-be it RE Karani.”

He referred to paragraph 29 of his report[5] where he stated that the upper turn of the letter “N” is round – therefore “an individual and unique element / characteristic”.    He  explained that it is not possible for a forger to duplicate the N in a round motion.

 

The analysis and evaluation

[30]   I have stated the issues in dispute between the parties earlier. These are alleged non – compliance with the provisions of the Wills Act and  the alleged forgery on the Contested Will.

[31]  The legislation  provides that two or more witnesses must sign a will and do so in the presence of the testator and in the presence of each other. The  Second  Defendant  testified  that the Will was signed the next day with Mrs. Bulewan and later with another witness Mr Cajee.  Mr. Cujee did not sign the Will in the presence of the Testatrix and  Mrs. Bulewan.  Such a conduct violates the provision of the relevant law.  In Van der Merwe v Master of the High Court & another  it was held:-

“It is clear that the formalities prescribed by s 2(1) and s 2(2) in relation to the execution of a will and amendments thereto are to ensure authenticity to guard against false or forged wills.”[6]

The formalities are peremptory but S2(3) of the Wills Act provides  some amelioration from the rigorous implementation of the law.  But the provision of the said section must be complied with. There are therefore two requirements that must be satisfied before relief can be granted in terms of s 2(3):

a) that the document was drafted by the deceased personally, and

b) that the deceased intended the document to be her will.  

The Contested Will was  drawn by the Third Defendant in Canada.  It was downloaded from the electronic mail by the Second Defendant.  The said document is in English and the Testatrix had rudimentary understanding of the language.  Accordingly,  the said document cannot be said to have been  drafted by the Testatrix personally[7].

[30]  There were problems regarding the availability of Me Bulewan to testify   It is irrevelant  whether or not Mrs. Bulewan signed the  Contested Will in the presence of the Testatrix .  The  issue is that  Contested Will was not signed by two or more witnesses in the presence of the Testatrix and at the time  in the presence of each other. The rational for such a provision is to eliminated fraud and misrepresentation.  The court  in  Harpur NO v Govindamall and Another[8]  restated quite eloquently the purposes and the rationale when it held that:-

“The requirement for signatures of witnesses to a will provides a main safeguard against the perpetration of frauds, uncertainty and speculation.”

The other safeguard is the signature and or initial by witnesses on each page. The Contested Will is only signed on the last page. The Wills Act is silent on the issue of whether witnesses are required to sign each page or only the last page  and our courts have accepted that witnesses need only sign the last page of a will containing a Testatrix’s signature .  In my view,  the Act that requires the signature must be interpreted  widely to mean that each and every page must be signed  by all. To hold otherwise would lead to an anomaly. If witnesses do not sign each and every page of a Will, it creates the risk whereby anyone can amend pages to a Will which no longer safeguards against fraud and legal uncertainty.

[32]  The  Contested Will does not comply with the requirements stipulated in Section 2 of the Wills Act in more than  one way. This failure to comply renders the Contested Will invalid. In, my view on the non –compliance renders this Contested Will invalid.  The last will and testament is an important document. The importance is demonstrated by the strict requirements.

The probative value of the experts’ testimony.

[33]   I now turn to the evaluation of the experts. The Defendant’s expert was pre-disposed to the facts of the case. That brings me to the function of experts in any litigation. The expert  must be objective irrespective of the party calling it[9]. The expert must be properly qualified and provide the factual basis for the opinion[10]. The evaluation of such evidence must be done according to the accepted principles[11].

[34]  It is accepted that the health condition of the Testatrix was not ideal. On the version of the Defendants’ evidence he was suffering from arthritis. She was approximately 76 years old. This condition must have affected her signature.  Therefore  any reference to old signatures on the old paper cannot be reliable. Yet the Defendants’ expert concluded that the signature on  the Contested Will  is that of the Testatrix. The Defendants reliance on the volume of documents is equally unhelpful. It is not the quantity but the quality that is important.  His further evidence that the ink faded when the Testatrix signed is unconvincing because it subsequently improved.

[35]  Me Buckley’s  view that fading demonstrated the patch up. That explanation is sensible and reasonable. She explained the patch-ups found in her examination of the Testatrix’ signature. She referred to the  following text on the subject where it is stated that the :

“On the other hand, retouching and patching done in the course of simulations (forgeries) tends to be less obvious, more subtle, often requiring examination by microscope to confirm its existence [12].”

As regards the  traced signatures, she referred to page 292 of the  book mentioned above  where it is stated that :

“Traced signatures usually depart from genuine signatures (1) in fluency that is the result of greater speed of execution in normal, natural writing, (2) in line quality that a racing lacks, (3) the presence of pen lifts and/or retouching that is indicate of the uncertainty of the writing instrument movement, and (4) the attendance of guidelines in the form of graphite or carbon lines or indentations[13].”

“Typical tracing contains a rather uniformly heavy stroke without the variations in pen pressure characteristic of natural writing.  Also symptomatic of tracings are frequent interruptions in the movement of the writing instrument that may be found as full pen stops or as pen lifts in abnormal locations that display some care and accuracy in the subsequent application of the instrument to the paper.  These hesitations or interruptions provide the individual with a momentary opportunity to review and to plan the ensuing course to be taken by the pen.  Imperfections in the product are often corrected or concealed by patchings or retouchings[14]”

In my view, she materially substantiated her findings. I find  her to be credible. Her opinion is , therefore more probable and reliable.

[36]  Mr Vissoker’s findings are unsubstantiated and  improbable. He does not give convincing reasons.  For example,  the alleged athratis,   the advanced age  and the poor health in his views  could not have affected the Testatrix signature patterns. I am conscious that the witness had language  problems. But the difficulty of language did not appear to be so serious.  His opinion, for the reasons already mentioned  defies logic.

The Conclusion and order

[41 ] In my view , the Plaintiff discharged the burden of proof  that the signature on the Contested  Will is forgery. The Defendants have failed to  prove that the Contested Will   does  comply with the  requirements of the Wills Act.

[42] In the circumstance I make the following order, namely:

1. The Contested Will dated 7 February 2013 is declared invalid,

2. The Master of the High Court is order not to act in terms of said Will;

3. The Will dated 15 September 2006 is the only Will and Last of the Testatrix; and

4.  The  First, Second  and Third  Defendants are  ordered to pay the costs of  the application proceedings  and costs of suit jointly and severally the one paying the other to be absolved.

 

__________

RE MONAMA

JUDGE OF THE HIGH COURT

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

Appearances

For the Plaintiff: Adv. Z Roloff

Instructed by: Mohamed Seedat Attorneys

 

For the 1^st and 2^nd respondents: Adv. D Pool

Instructed by: SSLR Incorporated, Johannesburg

Date of hearing: 11 August 2017

Date of judgment: 20 October2017

 

[1] . See page 234-235 of Bundle 3 of the record.

---