Basil Matanga v Firomina Denhure and Master of the High Court

The applicant and first respondent were siblings of the deceased, who died on 24 July 2004 at age 61. The deceased was single and had no children. A will dated 6 January 2004 was filed with the Master on 24 September 2004 and accepted, appointing the first respondent as sole beneficiary and executor. The deceased executed the will while hospitalized at Harare Central Hospital for a broken leg. The applicant sought to set aside the will, alleging the deceased lacked mental capacity when making it, that the will was forged by the first respondent and her daughter, and that the deceased used the name "Egnias Denhere" instead of her real name "Fungai Agnes Denhere". The applicant also claimed the deceased and first respondent were not on good terms. The first respondent denied all allegations, stating the deceased had only a broken leg (not affecting mental capacity), was commonly known as "Egnias" and signed documents that way, and had voluntarily decided to leave her estate to the first respondent. Supporting affidavits were filed by Emily Matanga (first respondent's daughter) and Jacob Chininga (the deceased's tenant and witness to the will).

• Whether the deceased had the mental capacity to execute a will at the time of making it
• Whether the will was a forged document
• What evidence is required to challenge a will on grounds of mental incapacity
• Whether the use of a common name (Egnias) instead of formal registered name (Fungai Agnes) invalidates a will

The application was dismissed with costs. The court found that the will of the late Fungai Agnes Denhere (also known as Eginas Denhere) dated 6 January 2004 was properly accepted by the Master in terms of the Wills Act.

A person challenging the validity of a will on grounds of mental incapacity bears the onus of proving that incapacity and must provide medical evidence from attending practitioners to establish the testator's mental state at the time of execution. A will that is complete and regular on its face is presumed valid. Allegations of forgery require expert evidence to establish that a signature is not genuine; mere assertion is insufficient. The use of a common name or nickname by which a testator is known does not invalidate a will where there is no confusion as to the identity of the testator.

The court observed that ideally, in cases challenging mental capacity, evidence should be obtained not only from medical practitioners but also from close relatives who were with the deceased during the relevant period. The court also noted that hospital policy regarding will-drafting, while relevant to administrative matters, does not establish the mental state of any particular patient. The timing and duration of an illness leading to death may be relevant to determining mental capacity, but only if the illness existed at the time of will execution and affected mental functioning.

This case reinforces important principles in Zimbabwean succession law regarding the evidentiary burden required to challenge the validity of a will. It emphasizes that: (1) a will regular on its face enjoys a presumption of validity; (2) medical evidence from attending practitioners is essential when challenging a will on grounds of mental incapacity; (3) the onus of proving mental incapacity rests firmly on the person alleging it; (4) the use of a common name by which a person is known does not invalidate a will; and (5) expert evidence is necessary to establish forgery of signatures. The case provides guidance on the standard of proof required in will challenges and the type of evidence courts will find persuasive in such matters.