HARID and Others v GWATIDZO and Another (301 of 2025) [2025] ZWHHC 301 (12 May 2025)

4 HH 301 - 25 HCH 2525/21 DAVID SOLOMON TENDAYI HARID and PHILIP ALDAI PADYERA HARID and AGNES MATIONESA HARID and DEBORAH TADZIRIPA DONDO (nee HARID) and ABRAHAM CHAMBERAKANI HARID and JANE ABIGAIL HARID versus ZEZIWA MOIRA GWATIDZO (in both her personal capacity and in her capacity as The Executrix Testamentary of the Estate Late Abdulman Eric Harid) and MASTER OF THE HIGH COURT HIGH COURT OF ZIMBABWE WAMAMBO J HARARE; 12, 17 & 18 July 2023, 16 May 2024, 16 October 2024, 13 November 2024 & 12 May 2025 Civil Trial L Ziro, for the first plaintiff 4th plaintiff in person No appearance for the 2nd, 3rd, 5th and 6th plaintiffs T.T.G Musarurwa, for the 1st defendant No appearance for the 2nd defendant WAMAMBO J: Abdulman Eric Harid a man who contributed for many years in the high echelons of the civil service in various posts died on 20 July 2022. Thereafter pandemonium broke out within his remaining family members over two purported wills. Pitted on one side is the niece (The first defendant). On the other side are Abdulman Eric Harid’s children particularly the first plaintiff while third plaintiff has since died and the rest are based abroad and by all accounts are cited as plaintiffs but did not make any appearance at trial or authorise someone else to appear in their stead. Fourth plaintiff was however represented by Patricia Darangwa. An application for first defendant to be absolved in respect of the absent plaintiffs was duly granted. For expedience and simplicity l will refer to Abdulman Eric Harid as the deceased. The joint pretrial conference memorandum identifies the sole but broad issue for trial as follows: “Whether or not the last will and testament of the late Abdulman Eric Harid executed on 3 December 2009 should be declared invalid and set aside” During the course of the trial two applications were made by the first defendant. The first one was made at the commencement of the trial. The application was to strike out para 11b of plaintiff’s summons which contains the allegation that first defendant was in an incestuous relationship with her uncle, the deceased. The application was founded upon Rule 42(10) of the High Court Rules, 2021. The application was resisted by the first and fourth plaintiffs. I will hereinafter refer to them as the plaintiffs and if need be specifically refer to them separately as first or fourth plaintiffs. I made a ruling dismissing the application and gave my reasons ex tempore. The next application launched by the first defendant was that of absolution from the instance at the close of plaintiff’s case. Again the plaintiffs were opposed to the application. I wrote a cyclostyled judgment addressing this application and dismissed it. At the very heart of this trial are two wills purportedly made by the deceased. The first purported will was executed on 14 July 1988. The second purported will; was executed on 3 December 2009. Plaintiffs seek the invalidation of the second purported will. In the closing submissions plaintiffs seek an amended order which in the main is a declaration that the will of deceased executed on 3 December 2009 is invalid and should be set aside. Further that first defendant is ordered to stop administering deceased’s estate and the revival of the will dated 14 July 1988. Lastly it is proposed that second respondent should convene an edict meeting within 30 days of the order and an order of costs. The alternative amended order sought is for the invalidation of the will executed on 3 December 2009. Further it is proposed that first defendant should be ordered to stop administering the assets of the deceased in terms of the said will. It is also proposed that deceased’s estate should be declared intestate with second respondent convening an edict meeting within 30 days for the appointment of a new executor dative to administer deceased’s estate, It is also proposed that there be no order as to costs. Plaintiffs attack the will executed on 3 December 2009 (hereinafter called the 2009 will) on two fronts. It is averred that same is a forgery and falls short of formalities required by law such as the signing on each page by each witness. It is argued and expressed in the alternative that if the court finds that the signatures on the 2009 will are valid, then the alternative argument is that first defendant unduly influenced the deceased to draft and sign the 2009 will. There are allegations of an incestuous relationship between the deceased and the first defendant. First defendant’s two children are alleged to have been fathered by the deceased. Eighteen exhibits were tendered as follows; - Exhibit 1 – Will executed on 14 July 1988 Exhibit 2 – Will executed on 3 December 2009 Exhibits 3 to 8 – Identification cards and birth certificates of deceased’s children Exhibit 9 – Master’s report Exhibit 10 – Expert’s report compiled by L.T. Nhari Exhibits 11 to 16 – Deceased’s documents assessed by L.T. Nhari Exhibit 17 – A letter from Ronros Estate Agents to Dube, Manikai and Hwacha legal practitioners Exhibit 18 – A draft unsigned will drafted by Mrs Rejoice Chieza I note here that the last exhibit was erroneously entered as exhibit 11. The witnesses in plaintiffs’ case who testified are the first plaintiff, Dhaka June, Truck Chikanda, Patricia Darangwa and lastly the expert Leonard Tendai Nhari. The witnesses to testify in the first defendant’s case are the first defendant, Rejoice Catherine Chieza (hereinafter called Mrs Chieza), Irene Rachel Walker Langeveldt (hereinafter called Irene Langeveldt) and Loreen Makumbirofa. The witnesses covered extensive issues regarding the deceased’s life and family and indeed volunteered a lot of detail on many other issues. I will principally address myself on the evidence in so far as it touches on the issue referred for trial as expanded during the trial. The first plaintiff testified of relevance to the issue referred for trial as follows: On Exhibit 2 (the 2009 will) two or more witnesses’ signatures are not there. The deceased’s beneficiaries’ names are misspelt. The witness testified as to what he alleges were the various differences of deceased’s signature and the one on the 2009 will. On the issue of undue influence he testified as follows:- First defendant is benefitting ahead of him and his siblings and she has also been granted control of deceased’s farm. He was of the view that deceased’s relationship with first defendant was suspect. He avers that he observed first defendant’s underclothing dress and skirts laid on his father’s bed. Dhaka June’s evidence was rather short. Summarised it reads as follows: - He has been employed at deceased’s Riverview farm for 16 years. Of the two houses at the said farm, one is occupied by deceased’s family members including his sisters and grandchild. First defendant stayed in the other house with deceased and was introduced as the mother who was going to be the guardian in deceased’s absence. He testified that deceased and first defendant’s relationship was too close as deceased placed a lot of trust in her. In cross examination he revealed that there was nothing untoward in the relationship between deceased and first defendant. He testified that he never observed first defendant blocking other deceased’s relatives from seeing him. Truck Chikanda testified next. His evidence was to the following effect:- He worked as a truck driver at deceased’s farm since 2010. First defendant occupied deceased’s house in his absence. When he came to the farm the two would share the house. He testified that besides the fact that first defendant managed deceased’s farm he only observed a work relationship between the two. Patricia Darangwa also gave evidence which was as follows – She is an estate administrator. She was approached by first plaintiff for assistance in the administration of deceased’s estate. She approached the Master’s office and contacted Mr Dube of Dube, Manikai and Hwacha Legal Practitioners. In cross examination she was asked that the power of attorney she relied on to represent fourth plaintiff does not speak to instituting litigation and her answer was that she was not sure. Leonard Tendai Nhari a Forensic Science Consultant testified next. First defendant’s counsel accepted the fact that he was testifying as an expert witness. His evidence unfolded as follows: - He was given the task of signature verification of the two wills. He gave long technical evidence and said that he found differences in design and consistency. He found variations in the signatures of deceased. He found that the questioned and standard signatures are inconsistent. In cross examination he was taken to task principally on what process he embarked on to come to the conclusion he reached. He was asked that all the signatures in the standard mode themselves have variations to which he agreed. I move to the first defendant’s case. First defendant testified first. Her evidence was as follows: - She found out she was a beneficiary of the 2009 will in December 2021. She approached the Master’s Office with her brother and deceased’s brother. She was surprised she was named as a co – administrator to deceased’s estate. After she did an inventory of the estate first plaintiff objected and the dispute thereafter escalated. She would occasionally visit deceased at the farm. She was adamant that her children were not sired by deceased. She took over the running of deceased’s farm after a soya field was burned by chemicals by a manager who quit his job in 2008. She testified that deceased was of the view that his children only visited him when they wanted something. As for herself she testified that she regarded deceased as her third parent. She testified that the other plaintiffs who didn’t participate in the proceedings didn’t give consent to be plaintiffs in this case. She related to her communication with third, fifth and sixth plaintiffs. She testified that it was untrue her underwear was seen by first plaintiff in deceased’s bedroom. The next witness to testify was Mrs Chieza, an estate administrator at Scanlen and Holderness where she has done a 27 year stint. Before that she was a Government employee holding the position of Assistant Master at the High Court, Bulawayo. Deceased called her office in 2009 and made an appointment to amend his will stored in her employer’s safe since 1988. When she met deceased he told her he didn’t want to amend much. He told her he wanted to remove his brother and substitute him with his niece, first defendant and sister as executives. He also wanted to create a trust to benefit his mother, niece and children and wanted a clause to add his niece as a beneficiary of the Trust as well as his mother. She met the deceased personally and he came on his own. Deceased told her he had been working together with first defendant at the farm. She prepared the amended will and sent it to deceased by email. He called back and referred to four grammatical and spellings errors which she corrected and then sent the final corrected will to deceased. She identified exhibit 18 as a draft will she prepared. Deceased never returned. She sent him a bill for the preparation of the will. She never met any of deceased’s children. Irene Langeveldt testified as follows: She has worked at ZACC since 2009 as an executive assistant and an ICT officer. She identified her signature on Exhibit 1. The deceased signed the will (Exhibit 1) in her presence. She identified deceased’s signature. She was of the considered view that deceased suffered no mental or physical challenge at the time. She further testified to her interactions with deceased at the workplace. Loreen Makumbirofa was the last witness to testify. Her evidence can be summarised as follows: - She worked as deceased’s personal assistant from 2007 to about 2010 when his term as ZACC Chairman expired. She was adamant the signature appearing on exhibit 1 belongs to deceased. She also identified her signature and that of Irene Langeveldt on exhibit 1. She appeared unsure on when deceased signed exhibit 1 and when Irene Langeveldt signed. She however introduced evidence that appeared rather new. It was to the effect that after deceased signed Exhibit 1 she took it to Mrs Chieza’s office. She clarified however that she gave Exhibit 1 to personnel manning the reception and not to Mrs Chieza directly. I say it appeared new because none of the other witnesses adverted to this. In fact a reading of Mrs Chieza’s evidence is to the effect that after correcting deceased’s draft will he never returned to her office or sent the final copy of his will. The first question I will deal with is whether or not the 2009 will was forged. To buttress the plaintiffs’ case a handwriting expert, Mr Nhari testified. His evidence appeared quite detailed. He however pointed to what he called inconsistencies in the signatures. He was unable to answer to the question why even the standard samples varied. He was also unable to answer to the question relating to the age and health of the deceased and what possible effect this could possibly have on his signature. It is common cause that the 1988 will was one of the documents used by Mr Nhari as a standard document. The period between 1988 and when Mr Nhari carried out his analysis is clearly a lengthy period. The witness could not and did not say the signature of deceased on the 2009 will was forged. I find that his evidence does not conclusively prove that the 2009 will was a forgery. The evidence on Irene Langeveldt and Loreen Makumbirofa appeared candid and straightforward. The witnesses conceded where they were unsure. Indeed between 2009 and the time of testimony in 2024 is a considerable period of time. What strikes me is that the two were working at ZACC at the relevant time. Deceased was their senior. The two identified the deceased’s signature of the 2009 will and also identified their individual signatures. I find in the circumstances that the two did not rehearse their evidence alone or with each other in order to mislead the court. I say this because while Irene Langeveldt’s evidence seemed to retain a more detailed memory, the evidence of Loreen Makumbirofa had gaps where she was unsure of the sequence of events. Loreen Makumbirofa’s evidence that she took the signed will to Mrs Chieza’s office appears mistaken. I say so for the following reasons: Mrs Chieza would have welcomed receipt of the final will for Scanlen and Holderness where she is employed and which law firm already had deceased’s 1988 will. The 2009 will would result in the updating of the law firm’s records. According to Mrs Chieza deceased did not respond to the requests to settle the bill for the drafting of the draft will. I find Mrs Chieza’s evidence equally candid. She struck me as a professional who applied her mind to the amendment to deceased’s original will. She pointedly said deceased said he wanted to amend his will to accommodate his niece, first defendant and his mother. The contents of the 2009 will confirm this position. If indeed Loreen Makumbirofa took the 2009 will and left it at reception it could have been lost or misplaced in the process. The evidence reflects that the Master of the High Court received the 2009 will from the deceased himself. I note as well that Mrs Chieza’s evidence was that when deceased approached her office he was alone. First plaintiff points out to differences in the form and format of the will which can easily be explained by the fact that the documents could be photocopied and the format changed using technology. It is of importance to examine the 2009 will lodged with the Master and the draft will emanating from Mrs Chieza’s office. The two are exhibits 1 and 18 respectively. This is of particular importance because first plaintiff in a bid to prove that the 2009 will is a forgery alleges that the deceased’s children’s names are either misspelt or are patently wrong in the 2009 will. He also points out that his correct names are David Solomon Tendayi Harid while the names appearing on the 2009 will are David Tendai Themba Harid. I will explore these averments in detail hereunder. Exhibits 1 and 18 bear the same spellings for Philip, Abgail and the first plaintiff’s names are reflected as David Tendai Themba Harid. It follows therefore that the unsigned will drafted by Mrs Chieza and the 2009 will reflect the very same names, mistakenly spelt if one goes by first plaintiff’s version. The reasons for the alleged misspelling cannot be attributed only to forgery. There are many possible explanations including that the deceased may well have been mistaken, made a genuine error or did not necessarily have the birth certificates of his children in front of him for verification. What it reflects however is that deceased had a will drafted for him by Mrs Chieza and that will and the will he tendered to the Master’s office are virtually identical in all material respects. In the above circumstances I am of the considered view that the 2009 will is not a forgery. I move to the issue of undue influence. It is not clear on this issue in what manner first defendant is said to have unduly influenced the deceased. The picture that emerges however is that it is alleged that deceased had an incestuous relationship with first defendant and that must have influenced him when writing his will which effectively benefits the first defendant. There are two non-consistent positions advanced that deceased fathered one or both of first defendant’s children. The reasons advanced are that the children’s birth certificates do not both bear a father’s name. Further that first defendant’s under garments were seen in deceased’s bedroom. First defendant was clear that she had no sexual affair with deceased neither did she bear his children. The version of first defendant’s undergarments being sighted on deceased’s bed appears to have been a red herring, thrown in to prove the allegation. The employees who were called to testify could not shed any light on the incest allegations. That a niece and an uncle can be close or that a niece is given responsibilities to run the farm is nothing new or unusual. There was clearly no link between the will and the alleged incest. I find that the sexual affair alleged between deceased and first defendant was speculative at best. There was no proof tendered to prove the same. In Corbert, Hofmeyer and Kahn’s, The Law of Succession in South Africa, 2nd Ed at p 93 undue influence is defined thus: “Undue influence has been described as an influence which has caused the execution of a paper pretending to express a testator’s mind but which really does not express his mind, but something else which he did not really mean” Plaintiff has enumerated some of the factors usually considered when undue influence has been raised as follows: lack of independent advice, unexplained unnatural changes to the will, secrecy and haste and the testator’s susceptibility to influence. It is common cause that the deceased was of sound mind. He was carrying out his duties as a senior government employee. Deceased approached a law firm to amend his will. He went there alone. The Master’s Office’s report reflects that deceased tendered his will on his own. Deceased explained the reasons why he wanted to amend his will to Mrs Chieza and those changes are reflected in the 2009 will. The evidence reflects that deceased resided in town most of the time and would visit the farm during some weekends. Deceased could thus be accessed by any of his children, siblings and mother. I found no evidence reflecting that first defendant created an atmosphere whereby the deceased had sole reliance upon her. I do not find that deceased was particularly susceptible to influence to amend his will. I have to comment that first defendant’s evidence appeared genuine. I did not find any embellishments or untruths. Her evidence that she only discovered the existence of the 2009 will well after deceased’s death have a ring of truth. First plaintiff appears to be of the mistaken view that because deceased was his father, he should of necessity benefit more than first defendant from deceased’s estate. In this belief he was not a straight forward witness, who was given to exaggerations. In the circumstances I find that there was no undue influence brought to bear upon the deceased to amend his prior will and execute the 2009 will. It then follows that the claim stands to be dismissed. Costs are being sought against first plaintiff on a higher scale. I agree that the claim was ill taken in the circumstances I however take the view that it was not necessarily taken malafide and that the claim has clarified issues for deceased’s family. To that end I find that costs on the ordinary scale are applicable. I therefore order as follows; The plaintiffs’ claim be and is hereby dismissed.The first plaintiff shall pay costs of suit at the ordinary scale. WaMambo J: ………………………………………………… Takaindisa Law Chambers, plaintiff’s legal practitioners Dube, Manikai & Hwacha, first defendant’s legal practitioners 4 HH 301 - 25 HCH 2525/21 4 HH 301 - 25 HCH 2525/21 DAVID SOLOMON TENDAYI HARID and PHILIP ALDAI PADYERA HARID and AGNES MATIONESA HARID and DEBORAH TADZIRIPA DONDO (nee HARID) and ABRAHAM CHAMBERAKANI HARID and JANE ABIGAIL HARID versus ZEZIWA MOIRA GWATIDZO (in both her personal capacity and in her capacity as The Executrix Testamentary of the Estate Late Abdulman Eric Harid) and MASTER OF THE HIGH COURT HIGH COURT OF ZIMBABWE WAMAMBO J HARARE; 12, 17 & 18 July 2023, 16 May 2024, 16 October 2024, 13 November 2024 & 12 May 2025 Civil Trial L Ziro, for the first plaintiff 4th plaintiff in person No appearance for the 2nd, 3rd, 5th and 6th plaintiffs T.T.G Musarurwa, for the 1st defendant No appearance for the 2nd defendant WAMAMBO J: Abdulman Eric Harid a man who contributed for many years in the high echelons of the civil service in various posts died on 20 July 2022. Thereafter pandemonium broke out within his remaining family members over two purported wills. Pitted on one side is the niece (The first defendant). On the other side are Abdulman Eric Harid’s children particularly the first plaintiff while third plaintiff has since died and the rest are based abroad and by all accounts are cited as plaintiffs but did not make any appearance at trial or authorise someone else to appear in their stead. Fourth plaintiff was however represented by Patricia Darangwa. An application for first defendant to be absolved in respect of the absent plaintiffs was duly granted. For expedience and simplicity l will refer to Abdulman Eric Harid as the deceased. The joint pretrial conference memorandum identifies the sole but broad issue for trial as follows: “Whether or not the last will and testament of the late Abdulman Eric Harid executed on 3 December 2009 should be declared invalid and set aside” During the course of the trial two applications were made by the first defendant. The first one was made at the commencement of the trial. The application was to strike out para 11b of plaintiff’s summons which contains the allegation that first defendant was in an incestuous relationship with her uncle, the deceased. The application was founded upon Rule 42(10) of the High Court Rules, 2021. The application was resisted by the first and fourth plaintiffs. I will hereinafter refer to them as the plaintiffs and if need be specifically refer to them separately as first or fourth plaintiffs. I made a ruling dismissing the application and gave my reasons ex tempore. The next application launched by the first defendant was that of absolution from the instance at the close of plaintiff’s case. Again the plaintiffs were opposed to the application. I wrote a cyclostyled judgment addressing this application and dismissed it. At the very heart of this trial are two wills purportedly made by the deceased. The first purported will was executed on 14 July 1988. The second purported will; was executed on 3 December 2009. Plaintiffs seek the invalidation of the second purported will. In the closing submissions plaintiffs seek an amended order which in the main is a declaration that the will of deceased executed on 3 December 2009 is invalid and should be set aside. Further that first defendant is ordered to stop administering deceased’s estate and the revival of the will dated 14 July 1988. Lastly it is proposed that second respondent should convene an edict meeting within 30 days of the order and an order of costs. The alternative amended order sought is for the invalidation of the will executed on 3 December 2009. Further it is proposed that first defendant should be ordered to stop administering the assets of the deceased in terms of the said will. It is also proposed that deceased’s estate should be declared intestate with second respondent convening an edict meeting within 30 days for the appointment of a new executor dative to administer deceased’s estate, It is also proposed that there be no order as to costs. Plaintiffs attack the will executed on 3 December 2009 (hereinafter called the 2009 will) on two fronts. It is averred that same is a forgery and falls short of formalities required by law such as the signing on each page by each witness. It is argued and expressed in the alternative that if the court finds that the signatures on the 2009 will are valid, then the alternative argument is that first defendant unduly influenced the deceased to draft and sign the 2009 will. There are allegations of an incestuous relationship between the deceased and the first defendant. First defendant’s two children are alleged to have been fathered by the deceased. Eighteen exhibits were tendered as follows; - Exhibit 1 – Will executed on 14 July 1988 Exhibit 2 – Will executed on 3 December 2009 Exhibits 3 to 8 – Identification cards and birth certificates of deceased’s children Exhibit 9 – Master’s report Exhibit 10 – Expert’s report compiled by L.T. Nhari Exhibits 11 to 16 – Deceased’s documents assessed by L.T. Nhari Exhibit 17 – A letter from Ronros Estate Agents to Dube, Manikai and Hwacha legal practitioners Exhibit 18 – A draft unsigned will drafted by Mrs Rejoice Chieza I note here that the last exhibit was erroneously entered as exhibit 11. The witnesses in plaintiffs’ case who testified are the first plaintiff, Dhaka June, Truck Chikanda, Patricia Darangwa and lastly the expert Leonard Tendai Nhari. The witnesses to testify in the first defendant’s case are the first defendant, Rejoice Catherine Chieza (hereinafter called Mrs Chieza), Irene Rachel Walker Langeveldt (hereinafter called Irene Langeveldt) and Loreen Makumbirofa. The witnesses covered extensive issues regarding the deceased’s life and family and indeed volunteered a lot of detail on many other issues. I will principally address myself on the evidence in so far as it touches on the issue referred for trial as expanded during the trial. The first plaintiff testified of relevance to the issue referred for trial as follows: On Exhibit 2 (the 2009 will) two or more witnesses’ signatures are not there. The deceased’s beneficiaries’ names are misspelt. The witness testified as to what he alleges were the various differences of deceased’s signature and the one on the 2009 will. On the issue of undue influence he testified as follows:- First defendant is benefitting ahead of him and his siblings and she has also been granted control of deceased’s farm. He was of the view that deceased’s relationship with first defendant was suspect. He avers that he observed first defendant’s underclothing dress and skirts laid on his father’s bed. Dhaka June’s evidence was rather short. Summarised it reads as follows: - He has been employed at deceased’s Riverview farm for 16 years. Of the two houses at the said farm, one is occupied by deceased’s family members including his sisters and grandchild. First defendant stayed in the other house with deceased and was introduced as the mother who was going to be the guardian in deceased’s absence. He testified that deceased and first defendant’s relationship was too close as deceased placed a lot of trust in her. In cross examination he revealed that there was nothing untoward in the relationship between deceased and first defendant. He testified that he never observed first defendant blocking other deceased’s relatives from seeing him. Truck Chikanda testified next. His evidence was to the following effect:- He worked as a truck driver at deceased’s farm since 2010. First defendant occupied deceased’s house in his absence. When he came to the farm the two would share the house. He testified that besides the fact that first defendant managed deceased’s farm he only observed a work relationship between the two. Patricia Darangwa also gave evidence which was as follows – She is an estate administrator. She was approached by first plaintiff for assistance in the administration of deceased’s estate. She approached the Master’s office and contacted Mr Dube of Dube, Manikai and Hwacha Legal Practitioners. In cross examination she was asked that the power of attorney she relied on to represent fourth plaintiff does not speak to instituting litigation and her answer was that she was not sure. Leonard Tendai Nhari a Forensic Science Consultant testified next. First defendant’s counsel accepted the fact that he was testifying as an expert witness. His evidence unfolded as follows: - He was given the task of signature verification of the two wills. He gave long technical evidence and said that he found differences in design and consistency. He found variations in the signatures of deceased. He found that the questioned and standard signatures are inconsistent. In cross examination he was taken to task principally on what process he embarked on to come to the conclusion he reached. He was asked that all the signatures in the standard mode themselves have variations to which he agreed. I move to the first defendant’s case. First defendant testified first. Her evidence was as follows: - She found out she was a beneficiary of the 2009 will in December 2021. She approached the Master’s Office with her brother and deceased’s brother. She was surprised she was named as a co – administrator to deceased’s estate. After she did an inventory of the estate first plaintiff objected and the dispute thereafter escalated. She would occasionally visit deceased at the farm. She was adamant that her children were not sired by deceased. She took over the running of deceased’s farm after a soya field was burned by chemicals by a manager who quit his job in 2008. She testified that deceased was of the view that his children only visited him when they wanted something. As for herself she testified that she regarded deceased as her third parent. She testified that the other plaintiffs who didn’t participate in the proceedings didn’t give consent to be plaintiffs in this case. She related to her communication with third, fifth and sixth plaintiffs. She testified that it was untrue her underwear was seen by first plaintiff in deceased’s bedroom. The next witness to testify was Mrs Chieza, an estate administrator at Scanlen and Holderness where she has done a 27 year stint. Before that she was a Government employee holding the position of Assistant Master at the High Court, Bulawayo. Deceased called her office in 2009 and made an appointment to amend his will stored in her employer’s safe since 1988. When she met deceased he told her he didn’t want to amend much. He told her he wanted to remove his brother and substitute him with his niece, first defendant and sister as executives. He also wanted to create a trust to benefit his mother, niece and children and wanted a clause to add his niece as a beneficiary of the Trust as well as his mother. She met the deceased personally and he came on his own. Deceased told her he had been working together with first defendant at the farm. She prepared the amended will and sent it to deceased by email. He called back and referred to four grammatical and spellings errors which she corrected and then sent the final corrected will to deceased. She identified exhibit 18 as a draft will she prepared. Deceased never returned. She sent him a bill for the preparation of the will. She never met any of deceased’s children. Irene Langeveldt testified as follows: She has worked at ZACC since 2009 as an executive assistant and an ICT officer. She identified her signature on Exhibit 1. The deceased signed the will (Exhibit 1) in her presence. She identified deceased’s signature. She was of the considered view that deceased suffered no mental or physical challenge at the time. She further testified to her interactions with deceased at the workplace. Loreen Makumbirofa was the last witness to testify. Her evidence can be summarised as follows: - She worked as deceased’s personal assistant from 2007 to about 2010 when his term as ZACC Chairman expired. She was adamant the signature appearing on exhibit 1 belongs to deceased. She also identified her signature and that of Irene Langeveldt on exhibit 1. She appeared unsure on when deceased signed exhibit 1 and when Irene Langeveldt signed. She however introduced evidence that appeared rather new. It was to the effect that after deceased signed Exhibit 1 she took it to Mrs Chieza’s office. She clarified however that she gave Exhibit 1 to personnel manning the reception and not to Mrs Chieza directly. I say it appeared new because none of the other witnesses adverted to this. In fact a reading of Mrs Chieza’s evidence is to the effect that after correcting deceased’s draft will he never returned to her office or sent the final copy of his will. The first question I will deal with is whether or not the 2009 will was forged. To buttress the plaintiffs’ case a handwriting expert, Mr Nhari testified. His evidence appeared quite detailed. He however pointed to what he called inconsistencies in the signatures. He was unable to answer to the question why even the standard samples varied. He was also unable to answer to the question relating to the age and health of the deceased and what possible effect this could possibly have on his signature. It is common cause that the 1988 will was one of the documents used by Mr Nhari as a standard document. The period between 1988 and when Mr Nhari carried out his analysis is clearly a lengthy period. The witness could not and did not say the signature of deceased on the 2009 will was forged. I find that his evidence does not conclusively prove that the 2009 will was a forgery. The evidence on Irene Langeveldt and Loreen Makumbirofa appeared candid and straightforward. The witnesses conceded where they were unsure. Indeed between 2009 and the time of testimony in 2024 is a considerable period of time. What strikes me is that the two were working at ZACC at the relevant time. Deceased was their senior. The two identified the deceased’s signature of the 2009 will and also identified their individual signatures. I find in the circumstances that the two did not rehearse their evidence alone or with each other in order to mislead the court. I say this because while Irene Langeveldt’s evidence seemed to retain a more detailed memory, the evidence of Loreen Makumbirofa had gaps where she was unsure of the sequence of events. Loreen Makumbirofa’s evidence that she took the signed will to Mrs Chieza’s office appears mistaken. I say so for the following reasons: Mrs Chieza would have welcomed receipt of the final will for Scanlen and Holderness where she is employed and which law firm already had deceased’s 1988 will. The 2009 will would result in the updating of the law firm’s records. According to Mrs Chieza deceased did not respond to the requests to settle the bill for the drafting of the draft will. I find Mrs Chieza’s evidence equally candid. She struck me as a professional who applied her mind to the amendment to deceased’s original will. She pointedly said deceased said he wanted to amend his will to accommodate his niece, first defendant and his mother. The contents of the 2009 will confirm this position. If indeed Loreen Makumbirofa took the 2009 will and left it at reception it could have been lost or misplaced in the process. The evidence reflects that the Master of the High Court received the 2009 will from the deceased himself. I note as well that Mrs Chieza’s evidence was that when deceased approached her office he was alone. First plaintiff points out to differences in the form and format of the will which can easily be explained by the fact that the documents could be photocopied and the format changed using technology. It is of importance to examine the 2009 will lodged with the Master and the draft will emanating from Mrs Chieza’s office. The two are exhibits 1 and 18 respectively. This is of particular importance because first plaintiff in a bid to prove that the 2009 will is a forgery alleges that the deceased’s children’s names are either misspelt or are patently wrong in the 2009 will. He also points out that his correct names are David Solomon Tendayi Harid while the names appearing on the 2009 will are David Tendai Themba Harid. I will explore these averments in detail hereunder. Exhibits 1 and 18 bear the same spellings for Philip, Abgail and the first plaintiff’s names are reflected as David Tendai Themba Harid. It follows therefore that the unsigned will drafted by Mrs Chieza and the 2009 will reflect the very same names, mistakenly spelt if one goes by first plaintiff’s version. The reasons for the alleged misspelling cannot be attributed only to forgery. There are many possible explanations including that the deceased may well have been mistaken, made a genuine error or did not necessarily have the birth certificates of his children in front of him for verification. What it reflects however is that deceased had a will drafted for him by Mrs Chieza and that will and the will he tendered to the Master’s office are virtually identical in all material respects. In the above circumstances I am of the considered view that the 2009 will is not a forgery. I move to the issue of undue influence. It is not clear on this issue in what manner first defendant is said to have unduly influenced the deceased. The picture that emerges however is that it is alleged that deceased had an incestuous relationship with first defendant and that must have influenced him when writing his will which effectively benefits the first defendant. There are two non-consistent positions advanced that deceased fathered one or both of first defendant’s children. The reasons advanced are that the children’s birth certificates do not both bear a father’s name. Further that first defendant’s under garments were seen in deceased’s bedroom. First defendant was clear that she had no sexual affair with deceased neither did she bear his children. The version of first defendant’s undergarments being sighted on deceased’s bed appears to have been a red herring, thrown in to prove the allegation. The employees who were called to testify could not shed any light on the incest allegations. That a niece and an uncle can be close or that a niece is given responsibilities to run the farm is nothing new or unusual. There was clearly no link between the will and the alleged incest. I find that the sexual affair alleged between deceased and first defendant was speculative at best. There was no proof tendered to prove the same. In Corbert, Hofmeyer and Kahn’s, The Law of Succession in South Africa, 2nd Ed at p 93 undue influence is defined thus: “Undue influence has been described as an influence which has caused the execution of a paper pretending to express a testator’s mind but which really does not express his mind, but something else which he did not really mean” Plaintiff has enumerated some of the factors usually considered when undue influence has been raised as follows: lack of independent advice, unexplained unnatural changes to the will, secrecy and haste and the testator’s susceptibility to influence. It is common cause that the deceased was of sound mind. He was carrying out his duties as a senior government employee. Deceased approached a law firm to amend his will. He went there alone. The Master’s Office’s report reflects that deceased tendered his will on his own. Deceased explained the reasons why he wanted to amend his will to Mrs Chieza and those changes are reflected in the 2009 will. The evidence reflects that deceased resided in town most of the time and would visit the farm during some weekends. Deceased could thus be accessed by any of his children, siblings and mother. I found no evidence reflecting that first defendant created an atmosphere whereby the deceased had sole reliance upon her. I do not find that deceased was particularly susceptible to influence to amend his will. I have to comment that first defendant’s evidence appeared genuine. I did not find any embellishments or untruths. Her evidence that she only discovered the existence of the 2009 will well after deceased’s death have a ring of truth. First plaintiff appears to be of the mistaken view that because deceased was his father, he should of necessity benefit more than first defendant from deceased’s estate. In this belief he was not a straight forward witness, who was given to exaggerations. In the circumstances I find that there was no undue influence brought to bear upon the deceased to amend his prior will and execute the 2009 will. It then follows that the claim stands to be dismissed. Costs are being sought against first plaintiff on a higher scale. I agree that the claim was ill taken in the circumstances I however take the view that it was not necessarily taken malafide and that the claim has clarified issues for deceased’s family. To that end I find that costs on the ordinary scale are applicable. I therefore order as follows; The plaintiffs’ claim be and is hereby dismissed. The first plaintiff shall pay costs of suit at the ordinary scale. WaMambo J: ………………………………………………… Takaindisa Law Chambers, plaintiff’s legal practitioners Dube, Manikai & Hwacha, first defendant’s legal practitioners