In re Aboud (dcd.), 1972-73 ALR S.L. 157

sECTION 24 IN RE ABOUD (DCD.),l972-73 ALR S.L. 157 IN THE ESTATE OF ABOUD (DECEASED), BLELL v. LEWIS and ANOTHER High Court (Agnes Macaulay, J.): November 14th, 1972 (Civil Case No. 254/69) H.C. [ 1 1 Evidence-burden of proof-wills-knowledge and approval-burden of proving illiterate testator knew and approved of will lies on party pro­ pounding it: It is essential to the validity of a will that at the time of its execution the testator should know and approve of its contents; if the will is executed under circumstances that give rise to suspicion, such as when the testator is illiterate, it should be prepared according to the formal requirements of the Illiterates Protection Act (cap. 104) and the burden of proving that the will was the voluntary and conscious act of the testator lies on the party propounding it (page 160, line 26- page 161, line 6). [2] Succession-wills-attestation-llliterates Protection Act (cap. 104) to be observed by person preparing illiterate's will: See [1] above. [ 3) Succession-wills-knowledge and approval by testator-essential to validity and burden of proving illiterate testator knew and approved of will lies on party propounding it-Illiterates Protection Act (cap. 104) applicable to wills: See [ 1] above. The plaintiff brought an action contesting the validity of a will and seeking the revocation of probate already granted to the defendants. The deceased was an illiterate whose will was prepared for him by the first defendant. The first defendant had no previous experience of such work and admitted that he himself did not understand the meaning of some of the legal expressions he used in the document, but despite this he said that he explained the contents of the will to the deceased. There was no reliable evi­ dence that the will was properly executed by the testator in the presence of two witnesses. On death of the testator probate was granted to the defendants and the plaintiff, a daughter of the deceased, brought the present proceedings contending that the will was not properly executed, that execution of the will was obtained by undue influence and that at the time of the purported execution of the will the de­ ceased did not know or approve of its contents. She claimed revocation of probate and a declaration that the will was invalid. The defendants denied all the plaintiff's allegations contending that the testator did know and approve of the contents of the will and that it was properly executed, but they gave conflicting evidence on this latter point. They sought the court's confirmation 157 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS of the grant of probate. Judgment was given for the plaintiff. Cases referred to: 5 (1) Hastilow v. Stobie (1865), L.R. 1 P. & D. 64; 13 L.T. 473, applied. (2) Tyrrell v. Painton, (1894] P. 151; (1894), 70 L.T. 453, applied. 10 15 20 25 30 35 40 Basma and Barlatt for the plaintiff; Marcus-Jones and G.E. Davies for the defendants. AGNES MACAULAY, J.: The plaintiff in this action, Olga Bleil, who is suing by her attorney, John Michael Blell, is one of the lawful children of the late Salim Aboud who died on September 20th, 1967. The defend­ ants are the executors of an alleged will purported to have been made by the deceased on May 13th, 1960. According to the plain tiff probate of the alleged will was granted by the then Supreme Court to the defendants in breach, she claimed, of an implied undertaking not to proceed with the said will. The plaintiff is therefore contending-( a) that the alleged will was not executed in accordance with the provisions of the Wills Act, 1837, s.9, (b) that the execution of the said will was obtained by undue influence and (c) that at the time the alleged will was purported to have been executed the deceased did not know or approve of the contents of the said will. The plaintiff is therefore claiming revocation of the said probate and that this court should pronounce against the validity of the said will. The defendants in their statement of defence deny all the allegations made against them and claim that the deceased duly executed according to law a will on May 13th, 1960 and that they duly and in accordance with the law obtained probate of the said will on May 14th, 1969 and by way of counterclaim are asking the court to decree probate of the said will of the deceased dated May 13th, 1960. As stated earlier one of the objections being made by the plain­ tiff concerning the validity of the will is that the will was not properly executed. According to Jarman on Wills, 7th ed., at 93 (1930): "The Wills Act, s.9 provides, 'That no will shall be valid unless it shall be in writing, and executed in manner herein­ after mentioned; (that is to say) it shall be signed at the foot or end thereof by the testator, or by some other person in his 158 IN RE ABOUD (DCD.), 1972-73 ALR S.L. 157 H.C. presence, and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and such wit­ nesses shall attest and shall subscribe the will in the presence of the testator.' " 5 See also The Practitioner's Probate Manual, 19th ed., at 4 (1956). As to the evidence adduced by the defendants that the will in question was properly executed, the court has to look at the evidence. [The learned judge reviewed the evidence, concluding that the 10 defendants' witnesses could not be relied upon, and continued:] The next point of objection raised by counsel for the plaintiff as regards the validity of the will in question is that the deceased did not approve the contents of the said will. At this stage this court must now clearly examine the evidence of Moses Lewis who 15 it is alleged drew up the said will of the late Salim Aboud. The witness deposed that the late Salim Aboud came to see him at 63 Circular Road and told him that he wanted him to prepare his will for him. He said that the deceased indicated to him what he wanted and this he put down on paper and he said he read it over 20 to him and the deceased was satisfied. He said that later he typed three copies of the will and read it over to him and the deceased was satisfied and signed one copy in his presence and then took the will away with the other two copies saying that he was going to have the will witnessed. He never saw him again. 25 The cross-examination of this witness who it is alleged prepared the said will proved to be very interesting indeed and I shall quote several portions of his cross-examination. Under cross-examination by Mr. Basma the witness deposed as follows: "I have never prepared any other will before in my life. I 30 used legal phrases to some extent. The legal phrases I am used to are prisoners, jurors, juryman. I am not conversant with any more. I am not conversant with legal phrases used in land law. I do not know what is the meaning of messuage. I do not know what is the meaning of hereditaments. I do not know 35 what is the meaning of testamentary expenses. I do not know what is the meaning of life interest." Continuing, he said: "I know that the deceased left houses but I cannot say whether he left monies." Under cross-examination by Mr. Barlatt the witness went on to say- 40 "Mr. Salim Aboud gave instructions in Creole. His instructions 159 THE AFRICAN LAW REPORTS to me were as follows: 'Me Ose dem nor for sell oh.' I do not know the meaning of the word hereditaments. I am sure I have never heard the word before. I took it that the word hereditaments meant that the house should not be sold 5 and this is what I explained to Mr. Salim Aboud." On the whole, the evidence of this witness was very contradictory; indeed, he appeared to remember only certain things which he wanted to remember and kept on changing his evidence at every stage. 10 It is clear from the evidence of several witnesses for the plain- tiff and the defendant that the late Salim Aboud was an illiterate. The second witness for the defendant said that he was in a position to say that the late Salim Aboud could sign his name. He never read in his presence and he never saw him write anything else 15 apart from his name. The first witness for the plaintiff also said in his evidence that he knew the late Salim Aboud very well since he was his brother but that he could not read and write English at all, though he could sign his name. He further told the court that he would not sign a document without getting someone to read it 20 and explain it to him. Even Moses Lewis who prepared the will said in evidence here in court that to the best of his knowledge the late Salim Aboud was not literate in the English language. Apart from the fact that in my opinion the provisions of s.2 of the Illiterates Protection Act (cap. 104) have been infringed, 25 Tristram and Coote's Probate Practice, 19th ed., at 34 (1946) states as follows: "If the testator be blind or obviously illiterate or ignorant, the court requires to be satisfied that the will or codicil was read over to him before its execution." It is a well known principle of law that it is essential to the 30 validity of a will that at the time of its execution the testator should know and approve of its contents and whenever any grounds for suspicion exist, the burden of proving that the will was the voluntary and conscious act of the testator lies on him who propounds the will. The degree of proof required may vary 35 with the circumstances of the case: see Jarman on Wills, 8th ed., at 28 (1951). In fact in the case of Tyrrell v. Painton (2) it was held that whenever a will is prepared and executed under circumstances which raise the suspicion of the court, it ought not to be pro­ nounced for unless the party propounding it adduces evidence 40 which removes such suspicion and satisfies the court that the tes­ tator knew and approved of the contents of the instrument. Again 160 IN RE ABOUD (DCD.), 1972-73 ALR S.L. 157 H.C. in the case of Hastilow v. Stobie (1), it was held that it is essential to the validity of a will that at the time of its execution the testator should know and approve of its contents. As stated, there are a host of decisions on the point and counsel for both parties referred to several authorities for and against the validity of the 5 said will. After reviewing the whole of the evidence as adduced before this court and the various authorities referred to by counsel for the plaintiff and the defendants, I am of the opinion that the testator did not know or approve the contents of the said will. I 10 have come to this conclusion purely and simply on the grounds that apart from the fact that the testator was an illiterate, the witness Moses Lewis who drew up the will did not himself under- stand the meaning of some of the words used by him in it so how then could he have been in a position to explain the contents of 15 the said will to the testator? In view of the reasons given above I hold that the said alleged will of the deceased Salim Aboud was invalid in that it was not duly executed according to law and that the testator did not know and approve of the contents of the said will. Since therefore it 20 appears on the evidence that on May 14th, 1969 probate of the will of the late Salim Aboud dated May 13th, 1960 was granted to the defendants, executors of the deceased, and that it has since been held by this court that the said will was not duly executed according to law, on the application of the plaintiff this court 25 hereby revokes the said probate and declares the same to be null and void. The counterclaim is dismissed. Costs are to be taxed in favour of the parties and to be paid out of the estate of the late Salim Aboud. 30 Judgment for the plaintiff. 35 40 161