MASHONGANYIKA & ANOR v PFUTE & ORS 2014 (2) ZLR 382 (H)

Flynote

Legal practitioner — conduct and ethics — citation of document, statute or authority — knowingly misstating contents — breach of ethics

Will — interpretation — general principles to be followed — rectification — when will may be rectified in terms of statutory and common law — principles D

Headnote

In interpreting a will, the court must look at all the provisions of the will in order to arrive at the testator's intention. Any particular clause must be interpreted in conformity with the testator's intention as a whole for the court to understand the clause in light of the general scheme or idea underlying the will as a whole. The testator's will should not be rectified or varied, if his intention can be implemented without rectification or variation. The court is not there to write a will for the testator but to interpret and give effect to the testator's intention. The purpose of interpreting a will is to ascertain the intention of the testator from the words he used in the will. In the interpretation of a will, if a word or expression is capable of bearing more than one meaning, the court must attach to it the meaning which will make it valid rather than invalid, or will make sense instead of nonsense, or according to which the beneficiaries will benefit rather than be placed under an obligation or prejudiced.

In interpreting a will the court must bear in mind the dominant provisions and clauses which must be given full effect, unless it appears from the rest of the will that the testator wished to qualify it.

In terms of s 20(1) of the Wills Act [Chapter 6:06], a testator's will can be rectified in consequence of —

• (a) a clerical error, which must clearly be identified as such. The court should not lightly impute an error where it cannot be identified with certainty; or
• (b) a failure to understand the testator's instructions, which failure must be based on the will being so worded as to be too difficult or impossible to understand. Minor difficulties must be overcome by giving effect to the testator's apparent intention gleaned from the scheme or idea underlying the will as a whole; or
• (c) a failure on the part of the testator to appreciate the effect of the words he used in the will. The testator must have used words which the context of the will proves to have not been intended. In addition to these specific statutory powers, s 20(2) allows the court to have regard to the common law.

Under the common law, the courts would be prepared to sanction a departure from the terms of a will in exceptional circumstances. It is not possible to draw up an exhaustive list of the circumstances in which the courts would be prepared to do so, but they have been prepared to do so where one or more of the following circumstances existed: (a) where the circumstances rendered the fulfilment of the testator's intentions practically impossible or utterly unreasonable; (b) where the strict enforcement of the testator's directions would have resulted in a failure of the testator's bequests or otherwise resulted in the testator's intentions being defeated; (c) where the machinery detailed in the will for carrying out the testator's intentions had failed or was likely to fail, or the his directions could be carried out only with serious loss to the estate; (d) where the necessities of a case demand a departure from the will; or (e) where the testator had based the dispositions on mistaken assumptions about the his assets or liabilities.

A legal practitioner has a duty to give correct and accurate information to the court, and should never knowingly give it incorrect information or advice or knowingly misstate the contents of a document, statute or like authority.