CIVIL APPEAL NO 530 OF 2022 ALLEN RUTATEKURURWA RUGAZIA VS PARFECTUS RUTEGANYA

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWARI3A. J.A., KENTE. J.A. And MURUKE. J.A.^t CIVIL APPEAL NO. 530 OF 2022 ALLEN RUTATEKURURWA RUGAZIA......... .................................. APPELLANT VERSUS PARFECTUS RUTEGANYA.................. ....................................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Temeke High Court Sub-Registry, One Stop Centre) fMuaeta, J.t dated the 13th day of September, 2022 in Probate & Administration Cause No. 16 of 2021 JUDGMENT OF THE COURT 15th August, 2023 & 8th July, 2024 MURUKE 3. A.: On the 13th day of September 2022, the High Court of Tanzania, Temeke registry (Mugeta, J.) delivered a judgement in a succession dispute relating to the Estate of the late Hon. Projest Aloys Rugazia (deceased), who had died on the 4th august 2019, following illness. He left surviving him his wife Judith Kokumanya Rugazzia, and his two sons Aloys Rwehabura Rugazia (Stephen) and Allen Rutatekurura Rugazia. The deceased was said to have died testate and the dispute concerned the validity of the will and distribution of the Estate. The respondent who was named the executor filed probate and administration cause No 16/2021 with the will annexed seeking to have the will of the deceased confirmed. Following the institution of the petition for probate and the issuance of the general citation in the government gazette, Allen, the appellant, being one of the deceased's sons filed a caveat challenging the validity of the will. After citation to caveat and filling of all necessary documentation, the trial court then proceeded with the hearing in which the respondent called six witnesses to prove the validity of the will, whereas, the appellant had two witnesses including himself. At the conclusion of the hearing, the caveat/ objection was dismissed and the will was declared to be valid, accordingly the respondent was appointed the executor of the deceased's will. Dissatisfied with the High Court judgment, the appellant filed the present appeal raising four grounds of appeal, namely: 1. The High Court erred in law when it failed to comply with the requirement of section 52 (b) and 59 (1) and (3) of the Probate and Administration of Estate Act (cap 352 RE 2019) and rule 82 (6) of the Probate Rules, 1963 (GN No 369 of 1963). 2. The High Court erred in law and fact when it failed to hold that the appellant was constructively disinherited and thus invalidate the will. 3. The High Court erred in law when it failed to properly evaluate and analyze the evidence on record. 4. The High Court erred in law and fact when it failed to consider evidence in form of affidavit which contains evidence that the will is invalid. Both parties filed their written submissions for and against the appeal in terms of rule 106 (1) and (7) of the Tanzania Court of Appeal Rules 2009. On the date set for hearing of the appeal, Mr. Daimu Halfani assisted by Mr. Odhiambo Kobas, both learned counsels jointly represented the appellant, whereas Mr. Eustace Rwebangira also learned counsel represented the respondent. Apart from adopting submissions in support of the appeal filed earlier, Mr. Daimu submitted on ground one that after the respondent had lodged petition for probate on 13th October 2021 under section 55 of the Probate and Administration of Estate Act Cap 352 RE. 2019, (the Act) and an order for publication for general citation, the appellant became aware, thus filed a caveat on 8th November 2021, opposing the grant of probate to the respondent. It was followed by appellant entering appearance by filing form no 65 (appearance by caveator) and accompanying affidavit. After such appearance by caveator, then the procedures prescribed by Rule 82 (b) of Probate Rules, 1963 (GN 10 of 1963) as amended (the Rules) needed to be complied with. The said rule provides as follows: "W hen a ca v e a to r e n te rs an appearance, th e p ro ce e d in g s s h a ll be num bered a s a s u it a n d th e R e g istra r s h a ll a p p o in t a d ate upon w h ich th e s u it s h a ll be lis te d b efo re a ju d g e in C o u rt fo r su ch o rd e rs a s to p le a d in g s an d d ate o f th e h e a rin g a s th e ju d g e m ay m ake." The above procedures under rule 82 (supra) is an implementation of section 52 (b) and 59 (1) and (3) of the Act. The appellant's counsel insisted that from the above provisions, when a caveat is entered, the proceedings become contentious and where a caveator enters an appearance the proceedings take, as nearly as possible the form of a suit, in which the petitioner for the grant of probate becomes a plaintiff and any person who appears to oppose the proceedings becomes the defendant. Then, the hearing proceeds as a civil suit. Insisting further, the appellant's counsel argued that, in the present case after the caveat was entered, and appearance by caveator, proceedings were not (i) presented to the Registrar (ii) not numbered as suit i.e. civil case, (iii) the trial judge did not make orders in relation to pleadings (iv) worse enough, the trial judge dealt with the proceedings for petition for probate in probate and administration cause no 16 of 2021, received evidence and delivered judgment in disregard of the mandatory provisions of the law. To support his argument Mr. Daimu reffered the Court to the case of Monica Nyamakare Jigamba v. Mugeta Bwire Bhakome as an administrator of the estate of Musiba Reni Jigabha and Another (Civil application No. 199 of 2019) [2020] TZCA 1820 (16 October 2020) where the Court held at page 1A of the judgement, that: "w here a p e titio n h as been opposed, th e p ro b a te o r a d m in istra tio n p ro ce e d in g s change a s n e a rly a s can be, in to an o rd in a ry c iv il s u it, w here th e p e titio n e r becom es th e p la in tiff a n d ca v e a to r becom es th e d e fe n d a n t a n d p a rtie s a re re q u ire d to file s p e c ia lp le a d in g s. The m ain p u rp o se o f th a t p ro ced u re is to fa c ilita te th e in v e stig a tio n o f ca v e a to r's o b je ctio n a n d its e ffe c t is to en ab le th e e n tire p ro cee d in g s, b u t n o t ju s t a p a rt o fitf to be d e a it w ith in to ta lity a s in a s u it an d to be co n clu d e d a s one w hole." Mr. Dai mu argued further that, in the present case, there are no pleadings/ or special pleadings, more so as the proceedings were not turned into a civil case. It was improper for the parties to adduce evidence as caveator and petitioner respectively where there were affidavits on record which in law, were evidence. He referred the Court to the case of Revenath Eliawory Meena v. Albert EMaworry and Another, Civil Revision No. 1 of 2019 where the Court at page 13 held that: "Our observation o f the proceedings has convinced us that, on the fillin g stage o f the petition to the general citation , basicaiiy there was com pliance with the procedure requirements. We note that, the procedural for dealing with probate and adm inistration causes in a situation where a caveat has been entered, are governed by the provisions o f section 58 and 59 o f the Probate and Adm inistration o f Estate A ct Cap 352 RE. 2002 and Rule 82 o f the probate rules." Mr. Daimu concluded on ground one by insisting that the irregularity is fatal, because the appellant's caveat/objections were not properly investigated rendering the proceedings a nullity for want of jurisdiction. In response to the submission in ground one, Mr. Rwebangira submitted that the appellant's counsel has not, authoritatively, shown which mandatory requirements of law were not followed. The cited provision of Sections 52, 57-82 of Act and Rule 82 (6) of the Rules were fully complied with. Equally so, the appellant counsel does not mention or demonstrate what could have been special pleadings and procedures to be followed, the documents filed after appearance; including affidavit and counter affidavit were special pleadings argued respondent counsel. The cited provisions and the case of Monika Nyamakare Jigamba (supra) which is attached to the appellant's submission, are relevant. The laid down procedures were followed. The case of MONICA supports in full the judgment of the trial court subject to this appeal. In that decision, the Court emphasized the compliance with the provisions of Sections 58, 59 (3) and 52 (b) of the Act at page 13 of decision, argued Mr. Rwebangira. 7 More so, the case of Revenath Eliawory Meena (supra) attached to the appellant's submissions, the stages after entering a caveat under Rule 82 of the Rules were not complied with in that case. The Court held at page 17 as follows: "... A fter the caveat had been entered by the applicant on the 12th November, 2015, the subsequent stage as elucidated under rule 82 above were never follow ed." This is different from the case at hand as rule 82 was fully complied with. The application for citation was filed, the citation was issued, Caveator entered appearance and the matter took the form of a suit. As such that case is distinguishable, not relevant to the case at hand. Having so submitted, Mr. Rwebangira then prayed for dismissal of ground one for lack of merits. Having heard both counsel in their clarifying submissions on ground one, the issue before us is whether after filing of a caveat by the appellant under section 58 (1) of the Act the procedures were complied with. Our starting point is the record of appeal before us that laid down the sequence of events from when the petition was filed as follows: 1. The petition for grant o f probate was duiiy filed as seen a t page 10 o f the record; 2. General publication was made in the Government Gazette at page 24 o f the record; 3. Caveat was entered by the appellant a t page 51 o f the record; 4. Application fo r Citation to Caveator was file d as seen a t page 54; 5. Citation to Caveator was issued by the Deputy Registrar a t page 56 o f the record; 6. Caveator (appellant) entered appearance as seen a t page 57 o f the record; 7. A ffidavit with annexures accompanying appearance by Caveator stating why he object the petition was file d as seen at page 60 o f the record; and 8. Respondent's Counter A ffidavit with annexures was filed as seen at page 83 o f the record. As such the documents filed after caveat were the special pleadings. Upon receipt of respondent's (petitioner's) counter affidavit, the appellant did not file any affidavit in reply or rejoinder affidavit. Up to that stage, the pleadings were complete. 9 From the above listed series of events all steps were taken in compliance with the cited provisions of the law, in particular Section 52(b) of the Act in which the proceedings was taken as nearly as the form of a suit as reflected at page 103 of the record reproduced below: "D ate: 1 3 /1 2 /2 0 2 1 Coram : Hon. I. C. M ugeta, J. F o r th e p e titio n e r: A b se n t R ep rese n te d b y G eorge N gem eia, A d vo cate F o r C aveator: P re se n t R ep rese n te d b y O dhiam bo K obas, ad vocate C o u rt C ie rk : K a tw iia N oem efa: M y Lord' the case is for hearing. We have received an affidavit o f the Caveator. We have also filed a counter affidavit to it. I pray for another hearing date as the petitioner is absent K obas:- M y Lord, we have filed a il the necessary documents. The proceedings are co n te n tio u s. We a re re a d y to p ro ce e d . The proceedings being contentious, the Court proceeded to frame issues. The respondent (petitioner) and his witnesses started to adduce evidence, as such the requirement of section 52 (b) of the Act was fully complied with. 10 Failure of the trial court to write that the proceedings had changed into a civil suit, and failure to change the status of petitioner and caveator in the title of the case, to be respectively the plaintiff and defendant, while in essence proceedings reveal that they were conducted as a normal civil suit, the appellant cannot be heard complaining that he was not given the right to be heard because: One, he filed affidavit which is evidence to challenge the petition including the validity of the will. Two, appellant gave his evidence in support of his objection as DW1 and assisted by his aunt, the deceased's sister who testified as DW2. Three, issues for determination were framed by the court basing on pleadings. Four, the appellant through his advocate was given the right to cross examine all six witnesses for the petitioner who proved the existence of the will. As correctly submitted by Mr. Rwebangira, the mode adopted by the High Court in disposing the matter was agreed upon by all parties and no one was prejudiced as the parties were heard on the framed issues. If there 11 was any irregularity then it was not fatal. In totality, ground one is without merits, thus dismissed. On ground two, Mr. Daimu counsel for the appellant submitted that, the appellant disputed and is still disputing the validity of exhibit PI, the will of his late father. Clause B of the will contains properties of the deceased and clause C deals with distribution of the properties listed in clause B. There are two groups of properties i.e. those situated in Dar es salaam and those in Kagera region. The evidence reveals that, the properties which the deceased could have bequeathed to any person and such other person can transfer them without conditions are based in Dar es salaam. On the other hand, the properties in Kagera were mostly clan/ family properties and their succession goes to those who hold them for the clan. They cannot be sold without the consent of the clan or certain members of the clan, forests being one of such properties. The appellant's counsel insisted that the appellant was disinherited because: One, Clause C (i) is the clan land and the proviso shows that the land did not belong to the deceased as his personal property like the one in Dar es salaam, therefore not subject to inheritance. 12 Two, according to Clause C (ii) of the will, the farm and the house at Mugana was given to the deceased's wife and will pass over to the appellant after death of the deceased's wife. Three, none compliance of the promise given by the deceased to the appellant. During his lifetime (deceased) who was the appellant's father promised to give him a plot at Mbweni, Kinondoni, Dar es salaam. However, in the will, the plot was given to the wife without there being a reason of the deceased not keeping his promise. Four, he has been given clan land, forests, farms whose existence and identities have not been established. More so, the will did not state and identify neighbors adjoining the forests and farms. Responding to the second ground, the respondent counsel submitted that, the will of the deceased has to be respected. The appellant is warm and cold at the same time. Initially at the trial court, he was saying there was no will, no valid will, the will is invalid because he has been disinherited, the will is forged, the will was written while the deceased was critically ill and that the will was written under influence. Now, which is which? In his submission, the appellant's counsel has stated that the appellant, through 13 the will has been given the properties which did not belong to the deceased or clan properties including land and cattle. Mr. Rwebangira further submitted that, according to the will admitted as exhibit PI, the deceased's properties are recorded thereto and are not objected to by any person. Surprisingly, the appellant, who is also a beneficiary, is the one who is alleging that those properties are not part of the estate of his late father. There is no clan member or family member who had come out to object the inclusion of those properties as part of the estate of the deceased. In the case of Monica Nyamakare Jigamba (supra) cited by the counsel for the appellant, it was held that: "since the 2nd respondent m issed the first boat and there is already in place an adm inistrator o f the deceased assets, it was expected o f her to approach the appointed adm inistrator, the 1st respondent, and raise her concern to him. This is the position we stated so in the case o f M G E N IS E IF v. M O HAM ED YAHA YA KH ALFAN I, C ivilApplication No. 1 o f2009 (unreported) that: "where a person claim ing any interest in the Estate o f the deceased m ust trace the root o f title back to a 14 letters o f adm inistration , where the deceased died intestate or probate, w/;e/7 the deceased passed away testate." Mr. Rwebangira insisted that in the case at hand, if the said properties did not fall within the estate of the deceased subject to administration, then, the person with interest could have filed a caveat or lodged a claim to the executor. Since the deceased died testate, then the appellant is the one who thought of disinheriting himself and not the will. In the proceedings the appellant admitted not to be conversant with Haya customs and he did not know the location of the properties. At page 178 of the record of appeal, the appellant is recorded to have said: "Despite this I have been disinherited. According to paragraph C (ii) o f the wifi, the property iisted has been given to the deceased's wife with life interest thereafter it becomes mine. However, there are conditions which I don t iike. According to paragraph C(ii) I have been given a farm with trees at Kyankurukumba to share with Aioys Rweyabura. There is aiso my share a t C (x) and D (ix). Yes, assuming exhibit P I is valid, I have a share in the 15 deceased's Estate. I do not know where the tree farm s are located." Mr. Rwebangira further submitted that, it was surprising to not that, the person to whom the Estate has been bequeathed by the will of the deceased disowns those properties without even objections from the third party and without knowing its location. Also, he admits that if the will is valid, then he had a share. Therefore, the court having concluded that the will is valid, the appellant cannot be heard arguing that he was disinherited by the will, but he is not satisfied with what he has been given as per the will. The respondent's counsel argued further that, it has been submitted that the appellant disputed the existence of the forests and that no witness came out to prove its existence. But here the question is who had a burden of proof? The said farms, houses, cattle and tree plantations (forest) were listed in the will as deceased's properties. Anyone who was disputing that those properties do not fall within the Estate of the deceased had a burden of proof. Whoever alleges must prove, this was held so in the case of Mrs. Zubeda Ahmed Lakha v. Hakibhai Kara Ibrahim & Others, Civil Appeal No. 238 of 2018, (unreported), at pages 15 and 16 as follows: ".. the burned o fproving a fact rest on the party who substantially asserts the affirm ative o f the issue and not upon the party who denies it; for negative is usually incapable o f proof. ...the Court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. U ntil he arrives at such conclusion, he cannot proceed on the weakness o f the other p a rty..."[a t page 1896]. Likewise, in the present case the appellant who alleged that the properties which were given to him in the will were none-existent or were family/clan properties, had the burden of proof by evidence, a burden which was not discharged. Then Mr. Rwebangira pressed for dismissal of the second ground for lack of merits. Before resolving ground two, we will first endeavor to put the matter in proper perspective by defining what probate is. According to Blacks Law Dictionary, ninth edition, probate is defined thus: "P ro b a te being the ju d icia l procedure by which a testam entary document is established to be a valid w ill the proving o f a w ill to the satisfaction o f the court. Unless set aside, the probate o f a w ill is 17 conclusive upon the parties to the proceedings (and others who had notice o f them) on a il questions o f testam entary capacity, the absence o f fraud or undue influence, and due execution o f the will. But probate does not preclude inquiry into the validity o f the w ill's provisions or their proper construction or legal effect Also term ed p roof o f w ill." In a petition for probate, the court is concerned with the validity of the will as annexed to the petition. The questions which normally come up are whether or not the will has been properly executed; whether or not the testator had the capacity to make the will; in the case where the testator has disabilities like blindness, deafness or illiteracy, whether or not the contents of the will were made knowledgeable to him by reading over, etc and he had granted his approval; whether there was undue influence or not; whether there was forgery and fraud or not; and whether the will has been revoked or not. If the will passes all the tests enumerated above, it is taken to be proved, and the court will grant the executor the power to administer the will. These requirements of the law are reflected in sections 24 to 28 of the Act and also in the definition of "probate" in the Act which goes thus: 18 " p ro b a te " m eans th e co p y o f a w ill, o r, in th e ca se o f an o ra / w ill, a sta te m e n t o f th e co n te n ts th e re o f, c e rtifie d u n d er th e s e a l o f th e c o u rt w ith a g ra n t o f a d m in istra tio n o f th e e sta te o f th e te sta to r. " In probate, therefore, it is the wish of the deceased testator that is given effect as shown in the will. The appellant challenged the distribution in the will contending that it was not equitable, and that no findings were made in regards to the will, which allocated the lion's share of the vast estate to other beneficiaries leaving him with only clan properties. He maintained that, the deceased would not have favored some of the beneficiaries and adopted the inequitable mode of distribution in the will. He however blamed the court for failing to make any finding on the will which sought to give him a less share. To the best of our understanding, a will is a legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death. It is a unilateral document that takes effect after the death of the person making it. Normally no written will shall be valid unless: "O ne, the testator has signed or affixed his mark to the w ill, or it has been signed by some other person in the presence and by the direction o f the testator. Twof the signature or m ark o f the testator, or the signature o f the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the w riting as a w ill: Three, the w ill is attested by two or more com petent witnesses, each o f whom m ust have seen the testator sign or affix his m ark to the Will, or have seen some other person signing the will, in the presence and by the direction o f the testator, or have received from the testator a personal acknowledgement o f his signature or mark, or o f the signature o f that other person; and each o f the witnesses m ust sign the w ill in the presence o f the testator, but it shall not be necessary that more than one witness be present a t the same time, and no particular form o f attestation shall be necessary. " We have examined the impugned will, exhibit PI and we are satisfied that it meets the requirements. The will contains the name of the deceased, and directly below it, is his signature, which shows that the testator intended 20 to give effect to the will. The signature has been witnessed by two persons who signed below the testator's allocated section. In law where the will is regular on the face of it with an attestation clause and signatures of attesting witnesses and the signature of the testator, there is a rebuttable presumption of due execution (Omnis ese ritcatta). Given that a will, which is regular and complete on the face of it, is presumed to be valid until its invalidity has been established, the onus is on the person alleging invalidity to prove such allegation. The standard of proof is the same as that which applies in all civil cases - proof on a balance of probabilities. We are equally satisfied in this matter that exhibit PI, the will of the deceased was regular on the face of it, and we find no reason to deviate from the finding by the learned trial judge that, the will was valid. The impugned will was signed and attested to, and there was no evidence that could dislodge the presumption that it was properly executed. We therefore, uphold the finding of the learned trial judge that the will was properly executed and witnessed, and was therefore, valid. 21 On the second limb of ground two, the appellant alleges that there was no equity in the distribution set out in the will. However, no evidence was adduced to show that any beneficiary was left out of the will, or not adequately provided for as to be rendered destitute. A court can only interfere with the wishes of a deceased person expressed in his will with respect to distribution of his estate in exceptional situations, such as where the will fails to provide for a dependant of the deceased either totally or adequately. Appellant is recorded at page 10-14 of record of appeal while in examination to have said that: " W hen m y b ro th e r A lo y s m arried , m y fa th e r g ave him a p lo t a t K ijic h i. M y fa th e r u se d to sa y w hen I m arry, he s h a ii g iv e m e th e p lo t a t M b w e n i H ow ever, u n d er th e w ill, th e p ro p e rty a t M b w e n i is g ive n to h is w ife w ith o u t sta tin g w hy it is n o t g ive n to m e a s he k e p t p ro m isin g ." With due respect to the appellant, although deceased said many times on giving him Mbweni plot as supported by the evidence of DW2, the same did nothappen for no apparent reason. Legally subject to the caveat, there is no legal requirement for equitable distribution by a testator disposing of his property in a will, and a testator has the right to dispose his property in whatever way he desires, The distribution may be influenced by his rapport with the dependants, and this may result in some being favoured. The appellant as a dependant of the deceased, being his son qualified for a share of inheritance. Nevertheless, we are not persuaded that he was not adequately provided for in the will and so as to justify the Court interfering with the distribution made by the deceased in his will. We agree with Mr. Rwebangira in his submission that, considering that the deceased left behind a valid will, his estate cannot be administered or distributed as in the case of a deceased who died intestate, in the manner the appellant would wish. With the above arguments ground two lack merits thus dismissed. On ground three, the appellant's main complaint is failure by the trial court to properly evaluate and analyze the evidence on record. Mr. Daimu firmly submitted that, the court was duty bound to give its reasoned decision which had to consider, evaluate and analyze the pleadings and evidence of both sides. It had to evaluate and analyze by pointing out contradictions if any in the adduced evidence. It is worth noting that this is a first appeal and the mandate of this Court in such an appeal the law is well settled. The mandate is for the Court to reconsider the evidence that was adduced in the trial court, evaluate it and draw its own conclusion, bearing in mind that it did not see or hear the witnesses, and should make due allowance in that respect. In analyzing the evidence on record, the Court cannot introduce or address extraneous matters that were not addressed by the trial court. In disputing the validity of the will the appellant had relied on six grounds which he exhaustively explained in his evidence at pages 60-68 of the Record of Appeal and his affidavit on the following grounds: first, the deceased made the will when he had no mental capacity due to the illness at the moment he lost hope; second, the appellant had been disinherited by the will as he has been given clan and family land and, forests whose existence and identities have not been established and nobody even the deceased's wife was or is aware of them in spite the facts that she testified that she contributed to the acquisition of the deceased's properties since she had a bigger salary than the deceased's salary. Third, the will was written under undue influence to favor the wife of the deceased for the reason that the people who participated in its making had interests; fourth, failure of the advocate who drafted the will to disclosed the will timely even when he read the purported will and it was the said Advocate alone who had the custody of all copies of the will; fifth, that the will was not endorsed on every page by the deceased and/or the witnesses and in the circumstances of the alleged making, custody and objections of the children before it was read; sixth, signatures of the deceased are doubtful; and names of the deceased are different. To support his arguments, he referred the Court to the case of the Ramki Vagella v. Mahendra Vaghella 12000] TLR 223 in which, at page 227, this Court held: "It is settled that in order fo r a w ill to be legally enforceable it has to be valid, and its validity in turn derives from the capacity o f the testator and the circum stances attending its making. A lunatic cannot make a valid w ill during the subsistence o f his insanity and a w ill obtained by fraud or one im properly executed cannot count for a valid testam ent. " The appellant counsel has raised the issue of te sta m e n ta ry ca p a city of the deceased while writing the will. Generally, in addition to the 25 requirement that the testator must have reached the specified age, he must have sufficient mental capacity to understand the nature and effect of the testamentary act; understand and recollect the nature and situation of his or her property; and remember his or her relations and those whose interests are affected by the will. The question is whether, as a consequence of the sickness or impairment, the deceased was mentally incapable of understanding the nature and effect of his act. According to the evidence of PW1, PW2, and PW3, all testified at trial court that the deceased was of sound mind while signing exhibit PI. Their evidence was not contradicted by the appellant even on cross examination. To the contrary it is the appellant who had a duty to prove his allegation on testamentary capacity of the deceased at the trial court. Secondly, appellant complained to have been disinherited by being given clan land. As discussed earlier, a beneficiary cannot predict what the testator will give him in his will. More so, a beneficiary has no control of what or what not to be given, it is all in the discretion of the testator. Thirdly, the appellant has raised the issue of undue influence by deceased's wife while the deceased was preparing exhibit PI. It is worth 26 noting that the expression of a testator's last wishes must be the result of the exercise of his, or her own volition. Any impairment to the free expression of the testators wishes at the time the will is made may result in a will being declared invalid. In a persuasive case from South Africa, that is Spies NO v. Smith en Andere 1957 (1) SA 539 (A) the court pointed out that acts such as flattery, professions of extraordinary love or respect, meek tolerance of continual humiliation, direct requests or unusual affection do not necessarily constitute undue influence. To have a will declared invalid on this ground, certain principle factors must be considered and conduct akin to coercion or fraud is required. The question in the Spies case was whether a person who was 'mentally retarded' was unduly influenced by his uncle, who was also his curator bonis, in the making of a will in which the uncle's children benefited. The court commented as to what constituted undue influence, by holding that: "...a la s t w ill m ay in fa c t be d e d a re d in v a lid if th e te s ta to r h a s been m oved b y a rtific e s o f su ch a n a tu re th a t th e y m ay be e q u a te d ... to th e e x e rcise o f co e rcio n o r fra u d to m ake a b e q u e st th a t h e w o u ld n o t o th e rw ise have 27 m ade a n d w hich th e re fo re exp resses a n o th e r p e rso n 's w ill ... In su ch a case one is n o t d e a lin g w ith th e a u th e n tic w ish es o f th e te s ta to r b u t w ith a d isp la ce m e n t o f v o litio rf’. The key question therefore, is whether there has been a displacement of volition and thus whether the will contains the wishes of someone other than the testator. The testator's mental state, his or her ability to resist prompting and instigation; and the relationship between the people concerned, are all factors to be taken into account. The mere existence of a relationship of a particular kind does not give rise to a presumption that the will of another has been substituted for the testator's will. In another South African persuasive case of Katz and Another v. Katz and Others (2004) 4 All SA 545 (C), it was alleged that, the testator had been improperly influenced by his second wife to make a new will. The Court emphasised that an allegation that one or more of the factors was present had to be supported by evidence and that, unfounded suspicion and speculation were not sufficient. The fact that the testator was dependent on his wife after his stroke was not sufficient proof of undue influence. Further, the amount of pressure resulting in invalidity may vary from case to case. In 28 the Katz case (supra) it was held that if, after the execution of a will, a period of time elapses during which the testator could have altered the will should he or she have wished to do so, the failure to take advantage of this opportunity is a circumstance from which it may be inferred that the will was not made against the testator's wishes. From the evidence on records, the appellant has not adduced any evidence to prove that the deceased was influenced by PW3 the wife to write exhibit PI the way it was. Equally so, the allegations that PW1 and PW2 are friends who meet regularly does not invalidate exhibit PI which they had witnessed. The appellant's complaint that according to their own evidence the three senior citizens were close friends and, to some, the relative of the deceased who knew each other and met frequently with the wife of the deceased than the appellant hence the possibility of supporting the deceased's wife in influencing deceased to disinherit the appellant does not hold water as no evidence was adduced to prove that allegation. As for the complaint that Mr. Rutabingwa, who was the best man when the deceased got married to PW3 and at the same time, was the petitioner's Advocate when the deceased was divorcing the appellant's mother thus having interest 29 to Polet and in liaison with PW3, heavily influenced the deceased who was not free thus disinheriting the appellant, is not also backed up by the evidence on record. Fourthly, the appellant complained of the advocate's delay to disclose the will. There is no time limit set by the law for when to disclose the will, it is within reasonable time. Exhibit PI was disclosed within reasonable time according to the records, thus the complaint is without merit. Fifthly appellant complained on exhibit PI not being endorsed at every page. Those who witnessed exhibit PI, PWland, PW2 signed on all necessary areas, thus the complaint is without merits Sixthly appellant has raised the issue of forgery of deceased's signature. It is true a will can be challenged on the ground that the document was forged or that, despite the will being genuine, the signature appended, intended to be accepted as the testator's signature, is forged. Where the authenticity of the will is in question or it is attacked on the basis that it is a forgery, evidence such as statements made by the testator, the testator's instructions and statements of testamentary intention are also admissible. With respect, there is no evidence to that effect. PW1, PW2 and PW3 were 30 both acquainted with the deceased signature. They both testified that exhibit PI contains signature of the deceased. Such evidence has not been shaken even in cross examination. In another persuasive case of Pillay and Others v. Nagan and Others 2001 (1) SA 410 (D) the validity of the will was challenged on the grounds of forgery. The plaintiff challenged the signature of the testator in the will, alleging that, it was not the testator’s. The plaintiffs bore the onus of proving that the will was invalid, which the court accepted had been successfully done. The plaintiffs argued that, because of the forgery involved, the first defendant should be disqualified from receiving any benefit from the estate. The court concluded that through such forgery, the defendant had sought to deprive his siblings of their share of the estate and therefore, was considered unworthy of inheriting. In the case at hand, there was no evidence to prove that the deceased's signature was forged. To the contrary, PW1 who had worked with the deceased for a long time identified the deceased's signature in exhibit PI thus there was nothing like forged signature that needed to be proved beyond reasonable doubts. In totality complaint number six is without merit, and it is thus dismissed. 31 The upshot of the above is that, this appeal fails in its entirety and is accordingly dismissed. In the light of the fact that, this is a succession dispute affecting members of the same family, we order that each party shall bear its own costs. DATED at DAR ES SALAAM this 8th day of July, 2024. A. G. MWARD A JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Judgment delivered this 8th day of July, 2024 in the presence of the Mr. Michael Kabekenga, learned counsel for the appellant and Mr. Thomas Brash, learned counsel holding brief for the Mr. Eustace Rwebangira, learned counsel for the respondent, is hereby certified as a true copy of the