Fernando v. Petrie,
Present: Jayetileke and Canekeratne JJ
FERNANDO, Appellant, and PEIRIS, Respondent.
88—D. C. (Inly.) Chilaw, 2,324.
Where a testator, when he was seriously ill, executed a will devisingand bequeathing to bis wife all his property and the validity of the willwas challenged on the ground of undue influence the only evidence insupport of the plea being that at the time of the execution of the willthe wife was present and was weeping—
Held, that the Court was not entitled to presume that the wifeexercised undue influence on the testator.
^ PPEAL from a judgment of the District Judge of Chilaw.
A. Rajapakse, K.C. (with him G. S. Barr Kumarakulasinghe andT. B. Dissanayaka), for the petitioner, appellant.—
The doctrine of undue influence is taken over from the English Law.We have adopted it. It is a doctrine applicable to transactions intervivos, e.g., conveyances, deed of gifts, &c.
This is a case of a Last Will.
No such doctrine is applicable in the case of Last Wills. The existenceof a fiduciary relationship or active confidence does not create any pre-sumption of undue influence. It is on the ground of fraud or coerciononly that a last will can be avoided—Peiris v. Peiris1 ; Gray v. Kretser2 ;Perera v. Tisseraa; Boyse v. Rossborough*; 14 Hailsham pp. 230-231.Ordinary influence, importunity or persuasion is not undue influence inthe case of Last Wills—Croos v. Groos8; Spencer Bower on ActionableNon-Disclosure—p. 414, see. 447.
The burden is on the party alleging the coercion—Brampy Nona v.Vitanage6 ; Gunasekera v. Gunasekera7. There is no doctrine of undueinfluence in the Roman-Dutch Law; it deals with only unsoundness ofmind—Soysa v. Soysa.8
N. Nadarajah, K.C. (with him S. W. Jayasuriya), for the firstrespondent.—
There are circumstances in this case which arouse suspicion as in thecase of Andrado v. Silva9.
The devisee has not given evidence to clear these suspicions. Shehas not discharged the onus. The testator was in a physically helplesscondition and may have agreed to execute the Last Will or otherwise hemay have been left to die. His mental condition may have beenimpaired too.
Cur. adv. vuU.
1 (1906) 9 N. L. R. 14.
(1916) 2 C. W. R. 190.
= (1933) 35 N. L. R. 257.
(1856) 6 H. L. C. 2.
5 (1919) 21 N. L. R. 208.■ (1942) 23 C. L. W. 110.
(1939) 41 N. L. R. 351.
(1916) 19 N. L. R. 314.
* (1920) 22 N. L. R. 5.
10—H 16792 (8/68)
JAYETILEK.E J.—Fernando v. Petrie.
April 11, 1946. Jayetilekjs J.—
By his will dated June 28, 1944, the testator, Simon Peiris, devised andbequeathed to his wife, the appellant, all his immovable and movableproperty of the value of Bs. 8,000 to do as she pleased with it. At thetime of the execution of the will the testator was seriously ill having beengored by a bull but was in full possession of his mental faculties. He wasremoved from the Chilaw hospital as the doctor pronounced his case to behopeless and, on the way, he was taken to the house of his proctor, whotook instructions from him, prepared the will, and obtained his thumbimpression to it. The validity of the will was challenged by the res-pondents, who are the brother and sister of the testator, on the groundof undue influence. The trial Judge upheld the plea and declared thewill to be invalid. The appeal is against that order. The only evidencein support of the plea was that at the time of the execution of the willthe appellant was present and was weeping. The question we haveto decide is whether on the materials before him the trial Judge wasright in holding that he was entitled to presume that the appellantexercised undue influence on the testator. It is well-settled law that thewill of a person who was not acting of free will but under undue influenceis invalid. In Pieria v. Pieria1 it was held that in order to be “ undue ”the influence must amount to coercion or fraud and that the burden ofproving undue influence lies upon the person challenging the validity ofthe will. In Gray v. Kretser 3 Shaw J. said :—
“ In order to establish undue influence there must be something inthe nature of coercion or fraud. It must in fact be shown that thedocument impeached is not really that of the maker, in the sense thathe had not a consenting mind to its terms …. It must, as Isaid before, be shown that the document was such the terms ofwhich the testator would not have executed unless he had been in-fluenced by coercion or fraud ”.
The evidence in the case shows that the testator wanted to execute adonatio mortis causa, and that, on the advice of his proctor, he agreed toexecute a will. He gave instructions himself for the preparation of thewill, and he signed it of his own free will without in any way beingurged to do so by the appellant. He had lived happily with the appellantfor over twenty years and had every reason to leave his property to her.The trial Judge seems to have thought that the appellant was in a positionto dominate the ■will of the testator owing to the helpless physicalcondition in which he was, and to have fallen into the error that, in thesecircumstances, he could presume that the appellant had exercised undueinfluence. In Pieria v. Pieria (supra) Wood-Renton J. held that in thecase of wills, unlike that of gifts, the existence of even a fiduciaryrelationship does not create any presumption of undue influence, and thatan attorney or a child may legitimately importune a client or a parent fora legacy so long as the importunity does not amount to coercion orfraud. The evidence does not disclose that the appellant even im-portuned her husband to devise or bequeath his property to her. She
probably wept through grief.
N. L. R. 14.
*2C. W. R. 190.
Si/ti Kadija v, de Saram.
I think it is only fair to the trial Judge to say that many of the casescited to us were not before him. Had they been cited to him I have nodoubt that he would have come to a different conclusion.
I would set aside the judgment of the trial Judge and allow the appealwith costs here and in the Court below.
Cankkkratne J.—I agree.
FERNANDO , Appellant, and PEIRIS , Respondent