JUDGMENT
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Taj Mohammed (f/n Jiledaaed on 20 February 1999 leaving a lawful widow Jamina Bano and 4 children aged between 10 an10 and 26. But
at the time of his death Taj Mohammed was not living with his wife from whom he had in fact separated in 1980; he waing with another
woma womanima Bibi.
On 11 March 1998 Taj Mohammed made a document purporting to be his “last will and testament”. He appoinis youngest childchild Mohammed
and Fatima Bibi as his sole executives and trustees and devised and bequeathed his entire estatehem absolutely.
Following Taj Mohammed’s death the Public Trustee applied for a grant of Letters of Administration on behalf of his widow, Jamina
Bano. Fatima Bibi lodged aat in t in April 1999, relying on the purported will. This is aion by the Publicublic Trustee seeking
a pronouncement against the purported will on the ground that it was not executed inrdanch the requirementements of Section 6 (b)
of the Wills Act (Cap 59 – The Act) in that it hadt had not been signed by the testator in the presence of two witnesses present at the same time.
In addition to the Plaintiff’s affidavit of testamentaript there is also an affidavit sworn on 7 March 2000 by a by a Justice of the
Peace, Brij Bhan Singh, who acknowledges that when he witnessed the purported will no other witness was present.
Both Mr. Archibald and Mr. Veretawatini filed helpnd well researched written submissions.
Mr. Veretawatini did not seek to argue that the purported will complith Section 6 of the Act.&nbt. R, he suggested that Taj MTaj
Mohammed’s wishes were clear, nameat his de-facto wife aife and youngest son should have a share in his estate. He pointed out
thj Mohammehammed had not lived with his lawful wife for near years. Citing a number of English authorities he sube submitted that
it was only just and equitable those who had actually beeing with Taj Mohammed at that the time of his death should benefit.
By contrast, Mr. Archibald emphasised that the purpf the strict requirements of Section 6 of the Wills Act is t is to prevent fraud. These require, he submittemitted, could not be waived merely with the aim of securing “some vague notion
of justice”. While not entirely rejg thng the possibility thatma Bibi might be able to advance some form of interest in t in the
estate arising under a constructive trust as suggested by Mr. Vereini he submitted that the possible existence of such a trus trust
could not directly affect the validity of the purported will.
In my opinion the requirements of the Wills Act are clear and settled. Applying the Section 6 requirements to the purported will must, in my opinion lead to the conclusion that
it was not validly executed. In circumstances Taj Moha Mohammed died intestate and therefore his lawful wife Jamina Bano is entitled
to the grant of Letters of Administration. Thiclusies noevhowever entr entirely exclude Fatima Bibi sincesince, as pointed out
by Mr. Veretawatini, she may well have some equitablim onestate. These proceedings do noeveowever constitute such a claim and do
noto not prov provide any justification for the continuation of the caveat lodged to prevent the Plaintiff sealing a grant.
I pronounce against the purported will of Tajmmed dated 11 March 1998 and order that the caveat dated 24ed 24 April 1999 is to cease
to have effect forthwith.
p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> M.D. Scott
Judge
20 September 00
1"> HBC0333J.99S
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