Mark Balducci (in his capacity as executor of the Will of Averando Balducci) v Marco Bonacci (in his capacity as an Attorney of Daniela Balducci) (Appeal No. 37 of 2023) (27 November 2024) – ZambiaLII

I THE COURT OF APPEAL OF ZAMBIA Appeal o. 37 of 2023 I IO LDE AT OOLA (Civil Jurisdiction) BETWEE : MARK BALDUCCI (in his capaci ~-- o;:: .• Appellant of the Will of Averando Balducci ------ RTOFAp AND 2 7 NOV 2024 ... MARCO BONACCI (in his capa .. .-., .._ cspondent IL REcii - '•- Attorney for Daniela Balducci) CORAM: Chashi, Makungu, and Sharpe-Phiri, JJA on 12 and 27 November 2024 For the Appellant: Ms. E. Chirwa of Kate Weston Legal Practitioners For the Respondent: Mr. M. kunika and Ms. . Mwila of Simeza. Sangwa & Associates JUDGMENT SHARPE-PHIRI, JA, delivered the judgment of the Court. legislation referred to: I. The Wills and Administration of Testate Estates Act, Chapter 60 of the Laws of Zambia Cases referred to: I. Wintle v ye ( 1959) I All CR 552 2. NFC Africa Mining Pie v Lofoyi Enterprises Limited. SCZ /\ppeal No. 27 of2006 3. Anderson Mazoka and Others v Patrick Mwanawasa (2005) Z.R. 138 4. Sablehand Zambia Limited v Zambia Revenue Authority (2005) ZR I 09 (SC) 5. Mwala Mwala v Liseli Mwala (Single Woman) ( 1995-1997) Z.R. 199 6. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 JI !. l 7. Face v Cunningham and Another (2020) EWHC 3119 (Ch) 8. Morrit v. Douglas (1872) 3P & DI Other authorities referred to: 1. The Halsbury's Laws of England, 4th Edition, Volume 50 2. The Halsbury's Laws of England, 5th Edition, Volume l 02 3. J.B. Clark & J.G Ross Martyn, Theobald on Wills, 15th Edition Sweet & Maxwell, 1993 1.0 INTRODUCTION I. I This is a judgment of the Court in respect of the appeal lodged against the decision of Judge M.C Kombe dated 3 August 2022, under cause no. 2013/HP/0845. 1.2 The appeal challenges the High Court's finding that the purported last Will and Testament of the late Averando Balducci ( deceased), dated I 0 December 2011, was a forgery and declared null and void. 2.0 BACKGROUND 2.1 The late Averando Balducci, whose estate is the subject of this dispute. is alleged to have executed a Will in Lusaka, Zambia, on IO December 2011, prior to his death in Foligno, Italy, on 15 March 2012. He is survived by three biological children, Daniella Balducci, Alessandro Balducci, and Valentino Balducci, as \Veil as a stepson, Mark Balducci, who was the Defendant in the Court below and is the Appellant in this matter. J2 2.2 Daniela Balducci, as Plaintift: substituted by her Attorney, Marco Bonacci, now the Respondent, instituted an action in the Lusaka High Court by amended writ of summons and statement of claim filed on 29 March 2016 contesting the Will purportedly made by the deceased, on grounds or forgery that the purported signature was not genuine. and the Will contained inaccuracies, including the incorrect year of birth of the testator and should be declared null and void. 2.3 The Respondent asserted in the Statement of Claim filed in the lower Court that the deceased passed away intestate on 15 March 2012 and did not execute a Will prior to his death. Consequently, the deceased did not bequeath Property No. F/44 la/l 54, Lusaka, or any other property within the jurisdiction of this Court, to his biological children or any other individual, whether within or outside Zambia. 2.4 The Respondent contended that she became aware of the existence or a purported Will and was provided a copy thereof by the Registrar of Lands and Deeds after her Advocate lodged a caveat on her behalf at the Deeds Registry concerning the deceased's property. Upon reviewing the alleged Will, the Respondent observed that the signature appearing on the document was inconsistent with the deceased's usual signature, vvith which she was quite acquainted due to her longstanding familiarity with his signature. 2.5 In addition to observing the inauthenticity of the signature, the Respondent also noted a misrepresentation in birthdate of the deceased in the purported Will stating it as 11 February 2012 instead of 11 February 1934. J3 2.6 The Respondent subsequently engaged Professor Francesca Innocenti, an Italian expert in handwriting analysis, to assess the authenticity of the signature on the purpo11ed Will of the deceased. Following a forensic examination, Professor Innocenti concluded that the signature on the purpot1ed Will was a forgery. 2. 7 The particulars of forgery as alleged in the statement of claim were: (i) The purported Will does not bear the true signature of the late Averando Balducci: (ii) The date ofb irth oft he late Averando Balducci was mispresented to read l l February 2012 as opposed to 11 February I 034. 2.8 The alleged Will of the late Averando Balducci, is shown at page 295 of the record of appeal and reads: l O December 20 I l 'l, Averando Balducci born in Bevagna on I 1/02/2012 hereby revoke all my previous Wills and leave all that l stand possessed of in or ,vi thin the Republic of Zambia to my three children Alessandro, Mark and Valentina Balducci/or their own use absolutely. l appoint my eldest son Mark Balducci as executor of my will. ' Lusaka this l 0th day ofD ecember 20 I l Signed by me Averando Balducci [..,fjnature} Witnesses: Sailas Njobvu NRC 414776/1 !II { &{f'ned] Sichande Douglas NRC I 94206/12/1 [ eJ(j,ned] J4 2.9 The Appellant, as executor and beneficiary of the contested Will, refuted the claims of forgery in a defence filed on 9 July 2013 and maintained that the Will was validly executed. The Appellant contended that the testator·s signature may have been affected by illness, as he had been diagnosed with a serious medical condition in Italy on 7 March 2012, resulting in par1ial paralysis. 2.10 The Appellant further contended that the Respondent lacked sufficient familiarity with the deceased's signature to challenge its authenticity. That the incorrect year of birth was a typographical e1Tor with the day and month correctly stated. 2.11 The matter proceeded to trial with Marco Bonacci, the Respondent. testifying on behalf of the Plaintiff, while the Appellant and Silas jobvu. testified on the Appellant's behalf. 3.0 DECISION OF THE LOWER COURT 3. I In considering the matter, the trial Court held that the burden or proving the authenticity of a contested Will lies on the party asserting its validity. The Appellant, as the propounder of the Will, was required to establish its proper execution under Section 6 of the Wills and Administration of Testate Estates Act,1 particularly the execution and witness attestations. JS 3 .2 In its judgment, the lower Court, as recorded on page 59 of the record of appeal, identified several grounds raised by the Respondent challenging the validity of the deceased's purported Will. The Respondent alleged forgery and highlighted the follov,·ing irregularities: (i) The incorrect recording of the deceased's date of birth in the Will reflecting "20/2'' insteadof "/934",· (ii) A discrepancy in the testator's signature,· (iii) The absence ofo ne oft he attesting witnesses, Douglas. 111ith no credible explanation.for his unavailability,· (iv) The preparation oft he Will by a non-professional and its discovery under circumstances deemed suspicious by the Appellant,· (v) The exclusion ofo ne oft he deceased's children, (the Respondent) from the provisions oft he Will. 3.3 After examining the te timony of the Respondent·s witnesses. the trial Court, as documented on pages J40 and J42 of the judgment and appearing on pages 4 7 and 49 of the Record of Appeal, identified multiple factors raising suspicion about the authenticity of the Will: (i) The Appellant )\las absent during the Will's purported execution and discover). (ii) DW2 SaiLas 's credibility as a ,ritness was undermined by evasive behaviour and inconsistent signatures. (iii) DW2 's association with the Appellant and the lack ofc orroboration from the second witness. (iv) The deceased's.failure to inform the Respondent, who accompanied him for medical treatment, about the Will. J6 3.4 The trial Cou11 concluded that when the circumstances surrounding the ....., preparation of a Will give rise to a well-founded suspicion that it does not reflect the true intent of the testator, the Court should not uphold it unless such suspicion is adequately dispelled. The Court relied on the authoritative text, Halsbury's Laws of England Vol 102, 5111 edition at paragraph 55 which provides that: "However, whenever the circumstances under which the Will has been prepared raise a well-grounded suspicion that it does not express the testator's mind, the Court ought not to pronounce in favour of it unless that suspicion is removed." 3 .5 The Court additionally referenced the case of Wintle v Nye, 1 wherein the English Court held that: "The circumstances which are held to excite the suspicions of the Court must be limited to circumstances attending, or at least relevant to, the preparation and execution of the Will itself." 3.6 The Court observed that, while both DWI and DW2 testified that the testator's signature had altered in his final days due to illness. specifically Cervical Spinal Cord lschemia Spastic Quadriplegia, predominantly affecting his left side, no fu11her evidence was presented to demonstrate how his handwriting had changed as a result of his illness. o documentation, such as a rejected cheque from the bank or any other records, was provided to substantiate this claim. Additionally, the Cou11 observed that the Respondent had failed to provide expert testimony to J7 demonstrate the purpo11ed changes in the testator· s signature. Upon evaluation of the evidence. the Cou11 found that the Appellant failed to provide sufficient corroborative evidence to substantiate the assertion that the testator"s signature changed due to an illness. 3.7 The trial Cou11 acknowledged that, while the law does not invalidate a Will solely due to an incorrect date. the error concerning the testator"s date of bi11h raised doubts regarding his intentions in drafting the purported Will. The Court questioned whether the testator could have made an error regarding his own date of bi11h and observed a discrepancy in the year mentioned- 2012-when the Will was purportedly executed in 2011. The discrepancy in the date (2012) did in the opinion of the lower Court undermine the reliability of the Will. 3.8 The trial Cou11 found DW2. the key witness, to lack credibility, noting his evasive demeanor when questioned about discrepancies between his signature on the National Registration Card and the one on the purported Will. During cross-examination. ow2·s reaction to allegations of forging the signature, including visible shaking, was interpreted by the Court as evidence of dishonest.,. Consequently. the Court afforded minimal weight to his testimony. The Court further determined that DW2's evidence required corroboration from two witnesses who were allegedly present during the execution of the Will. However, the second witness was not called to testify, and no adequate explanation was provided for his absence, despite indications that he was still alive. J8 3.9 The trial Court observed that the Will was discovered solely by the Appellant, who was alone at the time and a beneficiary under the purported Will. It further noted that the Appellant did not accompany the deceased to Italy for medical treatment but instead remained at the testator·s residence with DW2. Additionally. the Court remarked that the testator did not disclose the existence of the Will to the Respondent. who accompanied him to Italy. Given the suspicious circumstances surrounding the preparation and execution of the Will, the Court concluded that the Appellant bore the burden of providing stronger and more conclusive evidence to dispel doubts and establish that the Wi II accurately reflected the testator· s intentions and was duly executed. 3.10 The Court dismissed the argument that the Will's recognition by the Probate Registry precluded its contestation, affirming the legal right to challenge the validity of a Will. 3.1 1 The trial Court concluded that, as the Respondent contested the validity of the Will on grounds of forgery, the burden of proof shifted to the Appellant to establish that the Will was not forged and had been validly executed. The Court determined that the Appellant failed to discharge this burden or and dispel the suspicions surrounding the authenticity and execution the Will. Consequently, finding that the Respondent had succeeded in proving her case on a balance of probabilities, and the Will was deemed invalid. J9 4.0 THE APPEAL 4.1 Dissatisfied with the judgment delivered by Judge Kombe on 3 August 2022, the Appellant filed a notice of appeal and a memorandum of appeal, raising the following four grounds of appeal: (i) Tl,e learned Puisne Judge erred in law and fact when she found that t!,e last Will and Testament of the late Averando Balducci was forged, null and void based on her suspicions and not on the facts or law. (ii) The learned Puisne Judge erred in law and fact when, in determining t!,e validity of the Will and Testament of the late Averando Balducci,failed to apply t!,e test in accordance with the Wills and Administrations of Testate Estates Act Chapter 60 of the Laws of Zambia. (iii) The learned Puisne Judge erred in law and fact by taking into consideration and applying weight to evidence that tl,e Honorable Judge ought not to have considered. Further, she did not consider evidence that s!,e oug!,t to have considered. (iv) The learned Puisne Judge erred in law and fact by negating the settled principles of law that instruct t!,at a witness's testimony is evidence. JI 0 5.0 ARGUMENTS OF THE PARTIES 5.1 The Appellant filed his heads of argument on 8 February 2023. The Respondent filed his heads of argument on IO March 2023. We will refer to these arguments where necessary in our analysis and decision section below. 6.0 HEARING OF THE APPEAL 6.1 The appeal was heard before us on 12 November 2024. The Appel !ant and the Respondent were represented by their respective counsel as shown above. We will address the collective arguments of the parties as advanced in their filed arguments together with their respective viva voce submissions simultaneously, where necessary, in our decision section below. 7.0 OUR DECISION ON THE APPEAL 7.1 We have carefully reviewed the record of appeal, the arguments advanced. and the submissions of the parties. The grounds of appeal raise the following issues for determination: (i) Whether the trial Court erred in law and fact in finding the Will to be forged, null, and void based on suspicions rather than facts or law. (ii) Whether the trial Court applied the correct legal test under the Wills and Administration of Testates Act. JI I (iii) Whether the trial Court improperly considered or failed to consider evidence. (iv) Whether the trial Court erred by negating settled principles of law concerning the credibility and admissibility of ,vitness testimony. 7.2 Under the first ground of appeal, the Appellant asserts that the trial Court erred in law and fact by determining that the Last Will and Testament of the late Averando Balducci was forged, null, and void. The Appellant contends that this finding was based on mere suspicions rather than being grounded in factual evidence or applicable legal principles. 7.3 Mrs. Chirwa relied on the Appellant's heads of argument filed on 8 February 2023. She emphasized the necessity of distinguishing between the validity of a Will and allegations of forgery. In cases concerning the validity of a Will. considerations include testamentary capacity, the testator"s intent. the \\Titten document. the intention of the witnesses. and comp I iance with the attestation requirements under Section 6 of the Wills and Administration of Testate Estates Act. Conversely, in allegations of forgery, Counsel argued that the Court must examine the purportedly forged document the false claim, falsified signatures, and the fabricated content within the document. 7.4 Counsel submitted that the pnmary issue before the lower Court was whether the Will of the late Averando Balducci had been forged, as the Respondent had not pleaded the validity of the Will as a matter in dispute. Consequently. it was improper for the trial Judge to delve into an assessment of the validity of the deceascd's Will. She asserted that parties J 12 are bound by their pleadings, as established in Anderson Mazoka and Others v Patrick Mwanawasa.2 She argued further that the Respondent failed to present any documentary evidence to support the allegations of forgery. 7.5 Counsel submitted that the law does not require the propounder of a Will to be physically present during its execution by the testator. Counsel argued that a testator retains the prerogative to select individuals to witness or be present during the execution of the Will. Additionally, the Appellant submitted that a testator may choose to disclose the existence of their Will at their discretion. It was further contended that the primary issue before the High Court for determination was the alleged forgery of the Will. 7.6 Mrs. Chirwa acknowledged that the trial Judge had shifted the burden of proof to the Appellant, as the propounder of the Will. However, she referred to the decision in Sablehand Zambia Limited v Zambia Revenue Authority,3 where the Cou11 held that a party alleging fraud must ensure that it is clearly and distinctly pleaded, and that sufficient evidence is adduced at trial to prove the allegation on a balance of probabilities. Counsel argued that the shifting of the burden of proof did not absolve the Respondent of the obligation to substantiate the allegations of fraud to the requisite standard. 7.7 Counsel asserted that both parties acknowledged the error in the testator's year of birth, and the Appellant provided a reasonable explanation for this discrepancy, suggesting during testimony that the error likely occurred during the transcription of the Will. The Appellant refuted the Jl3 Respondent's assertion that the deceased would not have made such an error regarding his birth year, emphasizing that errors are inherent to human nature and arguing that the Court's focus should have been on assessing the impact of this error on the validity of the Will. 7.8 Counsel emphasized that the proceedings in the lower Court were initiated based on forgery allegations by the Respondent. Referring to documents on page 292 of the Record of Appeal, the Appellant contended that no comparative document or expert evidence was provided by the Respondent to substantiate the claim of a forged signature. It was submitted that the absence of expert testimony precluded the trial Court from adequately assessing the authenticity of the alleged distorted signature. 7.9 The Appellant maintained that while he did not dispute the possibility or a distortion of the deceased's signature, he posited that it could have been caused by the deceased's medical condition at the time of execution of the Will. The Appellant stated that the deceased, aged approximately 78 at the time, was suffering from cervical spinal cord ischemia spastic quadriplegia, which primarily affected his left side. 7. IO Counsel also argued that there was a gross miscarriage of justice by the High Court Judge in determining that the Will of the late Averando Balducci was forged in the absence of evidence. She added that it was also a miscarriage of justice to determine that the Will was forged based on her well-grounded suspicion that was insufficient. J 14 7.11 Counsel submitted, based on OW I's testimony in the lower Cou11, that the deceased had diminished use of his hands, a condition observed during their cohabitation. The Appellant emphasized that his witnesses attested to the fact that the Bank frequently had to authenticate the deceased's signature whenever he issued cheques. Consequently, the Appellant argued that the burden of proof rested with the Respondent to demonstrate that the signature on the Will did not belong to the deceased. 7.12 The Appellant also contended that the trial Court erred in conflating the testimony of Marco Bonacci, acting under a power of attorney for the Respondent, Daniella Balducci, with substantive evidence from the Respondent herself. This conflation, according to the Appellant, led to unwarranted inferences that unfairly prejudiced his case. 7.13 The Appellant argued that the trial Court failed to justify its findings that DW2, a witness to the Wi!L was present alongside another witness. Douglas, during its execution. Referring to the Supreme Court decision in NFC Africa Mining Pie v Lofoyi Enterprises Limited,-1 the Appellant argued that trial Courts must clearly articulate the factual basis and rationale for their conclusions. 7.14 Ms. Chirwa further challenged the trial Cou111s observation that Douglas Sichande was not called to support the defence witnesses, and that no satisfactory explanation was provided for his absence other than the claim that he could not be found. Addressing the trial Cou11's criticism of the absence of Mr. Sichande. . Counsel for the Appellant contended that the explanation for his absence- that he could not be located- was reasonable Jl5 given the protracted nature of the proceedings, which scanned six years from their commencement in 2013. Counsel for the Appel !ant further highlighted that Douglas had previously attended Court proceedings with DW2 but contact with him was subsequently lost due to multiple adjournments. 7.15 Counsel for the Appellant further contended that the trial Court erred in casting doubts on the relationship between Douglas and the Appellant. The Appellant emphasized that evidence presented in the lower Court demonstrated the close ties between Douglas and the Balducci family, noting that Douglas frequently visited the deceased. 7.16 The Appellant's Counsel also submitted that the trial Court unfairly cast aspersion on the professional drafting of the Will, thereby prejudicing his case. 7.17 Ms. Chirwa further contended that the trial Court erred in finding the circumstances surrounding the discovery or the Will to be suspicious. It was emphasized that the Appellant resided with the deceased until the latter's evacuation to Italy, whereas the Respondent and other potential witnesses were absent from Zambia at the material time. Thus, the Appellant argued that the actions of the only individual available to manage the deceased's belongings after his death should not have been viewed with suspicion. In support, reliance was placed on Mwala Mwala v Liseli Mwala (Single Woman),5 wherein the Court upheld the testator's absolute right to dispose of their estate as they deem fit. J 16 7.18 It was further submitted for the Appellant that the trial Court erroneously deemed the deceased's failure to inform PW 1 about the existence of the Will, despite PW1 accompanying the deceased to Italy, as suspicious. It was also improper, the Appellant argued, for the Court to view with suspicion the fact that DW2, Sailas, did not accompany the deceased to Italy, given Sailas' role as the deceased's employee. The Appellant explained that, at the time of the deceased's evacuation, he was preoccupied with attending to his ailing ·wife, and the arrangements for the deceased's travel were made collectively. 7.19 The Appellant also addressed the absence of family testimony regarding the Respondent's lack of a relationship with the deceased, attributing this omission to the numerous adjournments the matter had undergone, including its being reallocated after the matter was initially before Judge Banda-Bobo. In conclusion. the Appellant stated that, dispelling the suspicions raised by the trial Court required a thorough evaluation of the evidence and proper application of the law. 7 .20 In response, Counsel for the Respondent, Mr. Nkunika, argued that in cases challenging a Will's validity. the burden of proof rests upon the propounder to demonstrate its valid execution. Citing Section 6 of the Wills and Administration of Testate Estates Act, Counsel emphasized that suspicious circumstances, such as those raised by the Respondent, necessitated scrutiny to determine if the Will was forged or invalidly executed. Jl7 7.21 On behalf of the Respondent, Mr. Nkunika relied on the Respondent's heads of argument dated 10 March 2023. Counsel contended that the matter served as a test case to establish the applicable law, criteria, and procedure for challenging a Will or testamentary instrument. He further submitted that the Court's task would be to determine vvhether the evidence before the lower Court had been misapplied, misapprehended, or whether the findings were perverse. 7.22 Counsel contended that the present matter was not a typical case of forgery to which the standard authorities on forgery would ordinarily apply. He argued that when challenging a Will or Testamentary instrument, the applicable legal principles differ. The critical inquiry he submitted, is whether there is evidence on record demonstrating that a particular suspicious circumstance justifies setting aside or declaring the Will to be forged, as is alleged in this case. 7.23 Counsel argued that the question in issue was the law on seeking to assail a Will or Testamentary Instrument. He contended that the lower Court was correct in holding that there were suspicious circumstances that warrant the assailing of the Will or Testamentary Instrument. 7.24 The Respondent's Counsel argued that the statement of claim filed in the lower Court sufficiently outlined the case, thus showing the presence of suspicious circumstances surrounding the production of the Will that required scrutiny. It was f-u11her submitted that the Respondent provided particulars of the alleged forgery. as detailed in paragraph 18 of the statement of claim, supported by evidence. Accordingly. the burden shi fled Jl8 to the Appellant to disprove the allegations and demonstrate that the Will was validly executed by the testator. 7 .25 Counsel argued that the core issue under grounds I and 2 was whether the formalities prescribed under Section 6(1) of the Wills and Administration of Testate Estates Act were adhered to, particularly considering the testamentary challenge alleging that the testator lacked knowledge and I or approval of the Will"s contents. The Respondent cited the case of Wilson Masauso Zulu v Avondale Housing Project Limited,6 emphasizing the appellate Cou11·s limited scope to interfere with trial Cou1ts findings, which is permissible only when findings are unsupported by evidence or are perverse. 7.26 The Respondents identified three grounds upon which this Court could interfere with findings of the trial Court: (i) findings of fact deemed perverse or unsuppo1ted by evidence, (ii) findings on the demeanor and credibility of witnesses. vvhich should not be lightly disturbed unless clear error is demonstrated. (iii) documentary evidence, subject to scrutiny at discovery or by objection during the hearing. They argued that the Appellant failed to meet the requisite threshold to challenge the trial Court's conclusions regarding suspicious circumstances surrounding the preparation of the Will under Section 6(1) of the Wills Act. 7.27 Ms. Mwila, also appeanng for the Respondent, submitted that where suspicious circumstances surrounding the preparation of a Wi II are alleged. the burden of proof shifts to the propounder of the Will to establish the testator's knowledge and approval of its contents. She argued that, in the JI 9 present case, the Appellant bore the burden of proving the validity of the Will but failed to do so, as evidenced by the lack of proof that the signature on the Will was that of the deceased. Counsel further contended that the suspicious circumstances surrounding the Will remained unresolved by the Appellant, thereby justifying its annulment. She prayed that the _judgment of the lower Court be upheld. 7.28 The allegation or forgery in this case pertains to the claim that the testator's signature was falsified and that the Will does not comply with the requirements stipulated under Section 6(1) of the Wills Act. In addressing these allegations and assessing the validity of the Will's execution, the trial Judge in the 10\,ver Court considered the relevant legal principles, case law, and the evidence presented. 7.29 In her determination, the trial Judge examined the key issues of whether the Will was validly executed or whether it was forged. It is a firmly established principle in litigation that the burden of proving allegations of forgery or fraud lies primarily with the pa11y making such assertions. However, the English case of Face v Cunningham & Another7 marked a departure from this principle, shitting the burden of proof to the individual propounding the Will. In that case, the Court held that the onus lies on the proponent to establish the validity of the Will. 7.30 Therefore, in considering this matter, the trial Court began her analysis by identifying the party bearing the burden of proof to establish the validity of the execution of the Will. J20 7.31 In doing so, the trial Court also placed reliance on Halsbury's Laws of England, Volume 102, 5th Edition, at paragraph 54, page 61, which states that the burden of proving a document's testamentary character lies with the party propounding it. 7.32 The trial Court correctly adopted this principle, underscoring the necessity of satisfying the requirements stipulated under Section 6(1) of the Wills and Administration of Testate Estates Act, which governs the formalities for the valid execution of Wills. lt provides that: 6. (]) A will shall be valid ifit is in writing and- (a) is signed at the foot or end, by the testator or by some other person in the testator's presence and by his direction; and (b) the signature referred to in paragraph (a) is made or acknowledged by the testator in the presence of two witnesses present at the same time who have also signed at the foot or end of the will. 7.33 The trial Court correctly determined that the burden of proof rested upon the Appellant to demonstrate that the Will was executed in compliance ·with the requirements set out in the Wills and Administration of Testate Estates Act. The Court's findings were grounded on Section 6(1) of the Act, which mandates the simultaneous presence of two witnesses during the execution of a Will. Furthermore, these witnesses must be made available to testify regarding the execution when the circumstances of the case require their testimony before the High Court. This provision serves as a safeguard under the Act, ensuring the authenticity and validity of the .121 Will, as well as confirming the testator's intention and capacity at the time of its execution. 7.34 The mandatory requirements under Section 6 of the Wills Act are designed to ensure the credibility of testamentary documents, eliminating the risk of tampering, falsification, or forgery of a document presented as a valid Will. It is our considered position that, where allegations of forgery are raised regarding the execution of a Will, the mandatory procedures outlined in Section 6 inherently address such issues. Consequently, we do not concur with Counsel's contention that the trial Court improperly focused on suspicious circumstances surrounding the execution of the alleged Will to the detriment of addressing the forgery pleaded by the Respondent. 7.35 It is also our considered view that, once the validity of a Will or any aspect thereof is called into question before the Court, Section 6 of the Wills Act imposes an obligation upon the propounder of the Will to establish that it satisfies all the requisite elements of a valid Will. A Court is not constrained by technical deficiencies in pleadings challenging the validity of the Will if the trial proceedings uncover significant concerns that the propounder has failed to address, particularly in demonstrating the Will's validity and suitability for admission to probate. 7.36 In the present case, the trial Court also referenced the precedent established in Morrit v Douglas, 8 where the absence of evidence demonstrating the testator's knowledge and approval of the execution of the Will rendered the testamentary document invalid. In that case, a witness was summoned to the testator's room by a third party holding the Will and was asked to J22 attest to the testator's signature. Another witness was already present in the room, and a mark had already been placed on the Will. The two witnesses subsequently signed their names in the presence of the testator, who remained silent throughout the proceedings. By the time the matter was brought before the court, one of the witnesses had passed away, and the third party who had facilitated the attestation was not called to testify or to establish any connection betvveen the Will and the deceased. The Court held that, in the absence of evidence confirming the testator"s awareness of and participation in the events, and without any acknowledgment by the testator in the presence of both witnesses, the Will's validity could not be upheld. 7.37 Similarly, in the present case, the Appellant cannot substantiate the validity of the Will or refute the Respondent's allegation of forgery without producing the two witnesses, as mandated by the mandatory requirements of Section 6 of the Wills Act. The absence of compliance with this statutory provision precludes the Appellant from establishing the Will's validity in the face of a forgery allegation. At most, the Respondent's obligation was to present a prima facie case in support of his claim, vvhich he fulfilled through his pleadings and the particulars or forgery set forth in the statement of claim. 7.38 The Court undertook an examination of the evidence presented to determine compliance with this requirement. The Appellant's failure to adduce evidence demonstrating the simultaneous presence of both witnesses at the time of execution constitutes a significant omission . .123 7.39 Moreover the absence of definitive proof that the deceased had knowledge of and approved the contents of the Will contravenes the established legal principles governing the execution of testamentary documents. This deficiency renders the Wil I invalid. Consequently, the Court was justified in finding that the Appellant had failed to discharge the burden of proof. 7.40 In reaching its decision, the trial Court appropriately relied on the case of Face v Cunningham and Another, supra. which emphasized that the burden of establishing the validity or a Will lies squarely with the party propounding it. This principle is pa11icularly relevant in the present case. where the authenticity of the deceased·s signature ,,·as contested. and allegations of suspicious circumstances surrounding the preparation of the Will were raised. 7.41 Additionally, the case of Morrit v Douglas, supra, underscores the impo11ance of evidence demonstrating the testator"s acknmvledgmcnt or the execution of the Will in the presence or two witnesses. The absence of such evidence justifies a trial Court in finding that the Will was not validly executed. Where the propounder fails to provide proof to the contrary, the trial Court is compelled to accept the allegation of forgery as pleaded. 7.42 It is important to highlight that the trial Court"s finding or forgery was based on the Respondent's pleading, which placed the onus on the propounder to fulfill the requirements outlined in Section 6 of the Wills Act. J 7.43 This is in line with the guidance of the learned authors or Theobald on Wills3 who reiterated in chapter three that the burden or proving mental capacity and knowledge of a testator of the effect of his Will at the time of execution always lies upon the person propounding the Will. The learned authors in speaking to a scenario where there are suspicious circumstances around the validity of a testamentary document stated at page 36 as follows: "If a Will was prepared and executed under circumstances which raise a well-grounded suspicion that the Will (or some provision in it, such as the testamentary gift) did not express the mind of the testator, the Will (for that provision) is not admissible to probate unless that suspicion is removed by affirmative proof of the testator's knowledge and approval. A classic instance ofsuspicious circumstances is where the Will was prepared by a person who takes a substantial benefit under it. Another instance is where a person was active in procuring the execution ofa Will under which he takes a substantial benefit by,for instance, suggesting the terms of the Will to the testator and instructing a solicitor chosen by that person." 7.44 The above authoritative text. Theobald on Wills, reiterates that when a testamentary document is surrounded by suspicious circumstances, the burden lies on the proponent to remove such doubts through cogent evidence. J25 7.45 The trial Judge in considering the matter also relied on Halsbwy's laws of England, Volume 2, paragraph 55, vYhich states: ·· ... 111henever the circumstances under which the Will has been prepared raise a well grounded suspicion that it does not express the testator's mind. the Court ought not pronounce in favour ofi i unless that suspicion is removed. " The authority underscores that a Will cannot be upheld if there are well grounded suspicions regarding its authenticity. unless those suspicions arc effectively dispelled through conclusive evidence. 7.46 The trial Cou11 identified numerous suspicious circumstances surrounding the preparation and execution of the purported Will of the deceased. These included the conditions under which the Will was discovered, irregularities in the deceased·s signature. and an incorrect year of birth for the deceased. Considering these factors. the Court concluded that the Appellant bore the burden of proving the valid execution and attestation of the Will by presenting testimony from the two individuals alleged to have witnessed its signing. 7.4 7 Additionally. the learned trial Judge evaluated the demeanor and inconsistencies in the testimony or DW2. a crucial factor in ,,-cighing the reliability of the evidence. The Court noted that DW2 was evasive under cross-examination, which raised serious doubts about his credibility. The credibility of the evidence before the lower Cowt was also called into question, by the failure to bring the second attesting witness, Douglas Sichande to Court. who was supposedly present during the execution of the Will. .126 t ' • 7.48 In the circumstances, we are of the view that the trial Court acted appropriately in assigning limited probative value to the testimony of DW2 and in drawing adverse inferences from the absence of corroborative evidence. The trial Judge's findings regarding the lack of credibility of the witness should not be readily disturbed, as the Judge had the benefit of observing the witness's demeanor and testimony firsthand. 7.49 The above factors raised v,,ell-grounded doubts about the authenticity of the document. According to the authors of Halsbury's Laws of England, a Court is obliged to withhold its pronouncement in favor of the Will until these suspicions are dispelled. In the present case, it is evident that the Appellant, failed to provide any conclusive evidence to address the concerns raised by the Respondent, such as producing other documents bearing the testator's signature or providing an expert analysis of the contested signature. The trial Court's conclusion that the suspicions were not removed is therefore consistent with both the evidence and the applicable legal principles. 7.50 In conclusion, this Cou11 agrees with the trial Court's determination that the burden of proof rested upon the Appellant to demonstrate that the Will was not forged but validly executed in accordance with the requirements of the Wills and Administration of Testate Estates Act. As previously noted, the Appellant failed to meet this burden, including not producing evidence of the simultaneous presence of two witnesses at the time of the execution of the Will. J27 I, ( 7.51 The absence of expert testimony to support the claim that the deceased's signature had been altered due to illness further undermines the Appellant" s case. In light of these considerations, the Court finds that the trial Court was correct in concluding that the Appellant did not discharge the burden of proof. Consequently, in the absence of such evidence, the Court upholds the trial Court's findings and determination that the purpotted Will 1s invalid. This ground of appeal is therefore dismissed for lack of merit. 7.52 The findings on Ground I thoroughly address the validity of the Will, which vvas the central issue in the dispute. Given the failure to prove the Will's validity, the determination of intestacy follows logically and is legally sound, leading to the conclusion that the late Averando Balducci is deemed to have died intestate. 7.53 Addressing further grounds of appeal would be redundant under these circumstances. Therefore. grounds 2, 3, and 4 are rendered otiose. 8.0 CONCLUSION 8.1 In view of the dismissal of all grounds of appeal, it is hereby ordered that the Appellant shall bear the costs of th is appeal. J28 8.2 The parties are directed to endeavour to r ch greement on the quantum of such costs; failing which. the costs s II b taxed. COURT OF APPEAL JUDGE ~ tf C.K Makungu ~ <.rpe-Phirf COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J29