Ega Washington Sansole N.O. and Others v Charles Ncube and Others

The first appellant was appointed executor of the estate of the late Francis Mwene Nehwati under a will executed on 14 December 1990. The second appellant was the deceased's wife and main beneficiary under that will. Shortly after executing the will, the second appellant left the matrimonial home and commenced divorce proceedings. She moved to live at the first appellant's house and later his farm, souring the friendship between the deceased and the first appellant. The marriage had broken down irretrievably with protracted negotiations over property distribution. The deceased died on 24 February 1999 before the divorce was finalized. The deceased had withdrawn his will from the first appellant's law firm, believing he had taken the original (though it was actually a copy, with the original later found at the firm). While in Hwange Hospital, the deceased instructed Mr Justice Kamocha to draft a new will, but he died before signing it. The deceased had also married Jessie Ncube under customary law after separating from the second appellant. The respondents, relatives of the deceased, applied to set aside the 1990 will on grounds that it had been revoked.

• Whether the deceased effectively revoked his will of 14 December 1990 before his death
• What evidence is sufficient to prove revocation of a will on a balance of probabilities
• Whether destruction or loss of a copy of a will (as opposed to the original) can constitute valid revocation
• Whether the deceased possessed the animus revocandi (intention to revoke) when he withdrew his will
• Whether the estate should be distributed in accordance with the will or on intestacy

The appeal was dismissed with costs. The will of 14 December 1990 was declared to have been revoked by the deceased prior to his death. The estate was to be distributed in terms of the Deceased Estates Succession Act. The second appellant's rights to the estate were to be regulated by section 3 of the Deceased Estates Succession Act. The Assistant Master was to convene a meeting to consider appointing an independent executor and administrator of the estate.

The binding legal principles established are: (1) The onus to prove revocation of a will rests upon the party alleging revocation and is discharged on a balance of probabilities; (2) Where a will that was known to be in the possession of the testator cannot be found after his death, there is a presumption that it was lost or destroyed by the testator animo revocandi; (3) Whether the destruction of a copy of a will constitutes revocation is essentially a question of fact and evidence, not an immutable rule of law - there may be clear evidence as to why the original was not destroyed and that the testator destroyed the copy animo revocandi, in which circumstances destruction of the copy should result in effective revocation; (4) Where both the testator and others erroneously believed that a copy was the original, the destruction or loss of that copy in the belief it was the original can be critical evidence of animus revocandi; (5) Courts should consider all relevant circumstances including the testator's changed family relationships, instructions for new wills, and inconsistencies between the will's provisions and the testator's conduct in determining whether revocation has been proved.

The Chief Justice observed that the Court can take judicial notice of the fact that most people keep their wills with their legal practitioners, bankers and such like people held in trust, which informed the inference that withdrawal without placing it with another institution suggested intention to alter. The Court also noted that the unsigned will drafted by Mr Kamocha, while not a valid will and correctly rejected by the lower court, nonetheless provided explicit evidence of the deceased's state of mind and animus revocandi - the intention existed but could not be given effect because it was not expressed in the form and manner prescribed by law. The Court commented that it would be highly improbable that a deceased would vigorously refuse to give assets to his estranged wife upon divorce but seek to let her have the same upon his death, and equally improbable that he would marry another woman and bequeath his estate to the woman he was divorcing.

This case is significant in the law of succession as it clarifies the approach to proving revocation of wills in circumstances where the original will still exists but the testator withdrew and lost what he believed to be the original. It affirms that revocation is primarily a question of fact to be determined on a balance of probabilities, considering both direct and circumstantial evidence. The judgment importantly qualifies the rigid Roman-Dutch law rule that destruction of a copy cannot revoke a will, holding instead that where the testator believes he is destroying the original, this can evidence animus revocandi. The case demonstrates how courts will examine the totality of circumstances - including changed family relationships, subsequent marriages, inconsistent testamentary intentions, and instructions for new wills - to determine whether revocation has been established. It provides important guidance on the presumption that arises when a will last known to be in a testator's possession cannot be found after death.