1939Present : Wijeyewardene and Nihill JJ.
GUNASEKERE v. GUNASEKERE et ah139—D. C. Kandy (Testy.), 26.
Last will—Proof of due execution—Presumption that the testator knew andapproved of contents—Shifting of burden to objector—Bed~head ticketsnot a public document—Evidence Ordinance, s. 74 (.Cap. 11).
Where the propounder of a last will proves the due execution of.thedocument, a presumption would arise that the testator knew andapproved of its contents, unless suspicion a priori' (aitaches to thedocument by its very nature.
If, after proof of due execution, there is nothing intrinsically unnaturalin the document, the burden is shifted to the. objector to_show. that therewas undue influence or fraud or that the deceased was not of a sounddisposing mind when he made the will… ;
Held, further, that where the testator is able, while instructions aregiven to the will, to address himself to the matter and indicate his mind,it would not be fatal to the will that he may not have been able to followall its provisions when it was read out to him before signature.-C
Quaere, whether a bed-head ticket is a public 'document within the-meaning of. section 74 of the Evidence Ordinance ?'
1 (1904) 7 N. L.H. 1S2.
Gunasekere v. Gunasekere.
Gunasekere v. Gunasekere.
HIS was an appeal from an order of the District Judge of Kandy.
The appellant applied for probate to a document purporting to be
the last will of Don Adirian Appuhamy. The appellant was namedexecutor in the document, which devised the whole of the estate to himand his brother. The objector-respondent who was the brother of thedeceased Opposed the grant of probate. The learned District Judgerefused probate.
H. V. Perera, K.C. (with him L. A. Rajapakse, Dudley Senanayake andC. C. Rasa-Ratnam), for petitioner, appellant.—The general rule is thatthe onus-probandi in every case is upon the party propounding the will,and he must satisfy the conscience of the Court .that the instrument sofar propounded is the last will of a free and capable testator. (Barry v.Butlin *; Fulton v. Andrews'.) The will is, on the face of it, a rationaldisposition of the small estate of the deceased, substantially amongst histwo favourite nephews, as otherwise this small estate may have had to bedivided amongst so many nephews.
Therefore if a &ill is natural on the face of it, it is presumed, in theabsence of evidence to the contrary, to be valid. (Foot v. Stanton3.)
The notary received clear instructions when he was first called in, andin pursuance of the instructions the notary prepared the will, brought itand read it over to the deceased, who understood it as the one in pursuanceof his instructions. This is borne out by the evidence. A thumb-impression had to be taken owing to the trembling of the hand of thedeceased. Parker v. Felgate' and Perera v. Perera' (a judgment of thePrivy Council) are authorities for the proposition that it is not essentialthat the testator should at the1 time of his signing the will be mentallycompetent, if the instructions were given while he was mentally com-petent ■and the will is prepared in accordance with them, and if, at thetime he signs the will, he understands that it is the one for which he gaveinstructions. Then the will is valid, although, at the time of signing it,he may not be able to understand the provisions in detail. (Jarman onWills, p. 54.)
Further, Voet (28.1.36) says, that not only healthy but also those.situated in the struggle of death can rightly make a will, provided thatthey are still sound in mind.
All the circumstances in the case point to the disposition of the propertyby the deceased as a rational act and that he had testamentary capacityin the way that the law has always upheld.
N. Nadarajah (with him E. B. Wikremanayake), for objector-respondent.—The question is essentially a question of fact and the findingof the trial Judge should not be disturbed. See Fradd v. Brown & Coy.Ltd." and Powell & Wife v. Streatham Manor Nursing Home ’. The deceasedwas a very old man. The medical evidence is that for some days prior tothe execution of the will the testator’s brain capacity was impaired and hetalked nonsense. This is corroborated by the bed-head tickets which are
' 8 L. R. P. D. 171.
5 (1901) A. C. 356.
" 20 N. L. R. 282.
' 2 Moo. P: C. 480.
1 L. R. 7 : H. L. 448.3 1 Dick 268.
■ t. R. (1935) A. C. 243.
NIHILL, J.—Cunasekere v. Gunasekere.
admissible as public documents. It is clear from the evidence that thedeceased talked nonsense even at the execution of the will. His referenceto the Bodhisath clearly shows that his mind was wandering. The presenceof the witnesses to the will in hospital at that time is suspicious. Theevidence of the notary has not been accepted by the Judge. The burdenwas on the propounders to satisfy the Court that the testator, when heexecuted the will, was aware of what he was doing. The Court has not;been satisfied and it cannot be said in the Court of Appeal that it shouldhave been satisfied. See Rajasuriar v. Rajasuriar1; Mitchell v. Thomas *.
}i. E. Weerasooria, K.C. (with him H. A. Wijemanne), for Syrus Guna-sekere, respondent to the appeal.
Cur. adv. vult.
November 16, 1939. Nihill J.—
This is an appeal from an order of the District Judge of Kandy refusingprobate to a document purporting to be the last will of Don AdrianAppuhamy, who died on December 31, 1937. The appellant who wasthe petitioner for probate was named executor in the document which• devised the whole of the deceased’s estate equally to the appellant andhis brother who is the respondent in these proceedings. The objector-respondent, Don Allis Appuhamy, is a brother of the deceased.
The estate which consists of landed property is not a big one, somethingin the region of Rs. 2,000. It is clear from the judgment appealed againstthat the learned Judge took an early view that there was something apriori unreasonable and unnatural about the terms of the will propounded,which at once raised a cloud of suspicion that could only be dissipated bystrong evidence that the will sought to be proved was the clear act anddeed of a legally competent testator.
Now the learned Judge’s careful and exhaustive review of the authoritiesbearing on the onus of proof lying on the propounder in such circumstancesis unimpeachable, but T find a difficulty in accepting the originalhypothesis.
The facts bearing on this point are shortly these. The testator was anold man, eighty-four years at least if not older, unmarried and withoutissue; the beneficiaries are his nephews. He had other brothers and asister living and these had children. There is evidence that the twobeneficiaries had been special favourites of the testator, that at timesthey had lived with him, worked for him and generally paid him attention.
Is there anything very '^remarkable or strange that this old bachelorshould have wished to single, out these two amongst his nephews for hisbeneficence and, having regard to the modest nature of his estate, was itan unnatural decision if he formed the view that it was better to leave twoof his nephews a small but satisfactory legacy rather than to divide hisproperties pro rata amongst all his other nephews and nieces with whomhe appears to have had little to do ?
To my mind and in the light of my experience of the ways of testators—other than Sinhalese—I should not have thought so, and my brotherwhom I have consulted assures me .that he can see nothing in the testator’sdisposition of his property which would at once strike a Sinhalese as an
1 39 N L. if. 494.2 6 Moores' P. C. 137.
J. N. B 17627 (6/52).
NIHIL.L J.—Gunasekere v. Gunasekere.
outrage to family conventions. If this be so, then the learned Judge. Ithink, erred in placing so heavy a burden as he did on the shoulders of thepropounder.
Certainly the propounder had to show that the document producedwas the properly attested and valid act of the testator but if he provedthe due execution of the will, there was a presumption that the testatorknew and approved of its contents, unless suspicion a priori attached tothe document by its very nature. If there was nothing intrinsicallyunnatural in the document, then after proof of due execution the burdenshifted to the objector to show that there was undue influence or fraudor that the deceased was not of a sound disposing mind when he madethe will.
It must be admitted that there were circumstances surrounding themaking of the will from' which a doubt as to the soundness of the testator'sdisposing mind might reasonably arise and the Court below wasundoubtedly right in addressing itself to this question.
However, as Mr. Perera has. stressed there is a world of differencebetween a doubt as to testamentary capacity which may be dispelled bytrustworthy evidence and suspicions engendered by the character of thedocument itself, suspicions involving all concerned with the preparationof the will and those who benefit under it.
The problem in this appeal, as I see it, is for us to decide whether on theevidence the learned Judge was justified in coming to the conclusion thatthe evidence of the notary who took the. instructions and attended to theexecution of the will together with that of the witnesses has been over-borne by the medical evidence called by the objector.
It will be necessary to consider in detail the real probative value of themedical evidence but before doing so I think it will be convenient to setout the facts which are common ground.
Don Adirian Appuhamy was admitted to the Kandy Civil Hospital onDecember 13, 1937, where he occupied a bed in a paying ward. He wassuffering from a form of kidney disease which affected his bladder andmade it difficult for him to pass urine. It was a painful malady and thetreatment was probably as painful as it involved injections and frequentcatheterising. For so old a man his position was obviously serious fromthe start. On December 22 his condition was so unsatisfactory that theSuperintendent of the Hospital telegraphed Don Baron Gunesekereasking him to come. Now Don Baron whom I will hereafter call thepetitioner is the appellant and propounder of the will.
In passing it should be noted that it was the petitioner who has madethe arrangements for the old man’s admission to hospital which explainsno doubt why the telegram was sent to him. It had its effect for on thenext day the petitioner arrived at the hospital with a notary and thealleged will was executed.
I will, however, deal separately in detail with the events which tookplace on December 23. Following December 23, Don Adirian’s conditionremained much the same with possibly a slow deterioration. OnDecember 29 he was removed from hospital by his relatives. OnDecember 31 he died.
NIHILL J.—Gunasekere v. Gunasekere.
Now to return to December 23. On the morning of that day accordingto Mr. W. J. Wijewardene, a young Proctor and Notary, the petitionercame to his office with Proctor M. J. Perera. It appears that thepetitioner had been to see Mr. Perera first but Mr. Perera not being aNotary Public passed on the business to Mr. Wijewardene.
in consequence of what he was told, Mr. Wijewardene went with thepetitioner to the Kandy Civil Hospital and saw Don Adirian at about11 a.m. From this point the* notary’s evidence becomes of first impor-tance. He says that he had an interview with Don Adirian which lastedabout twenty minutes, and that during that time although the old manwas obviously weak and feeble, he was able to give him clear instructionsin regard to the making of his will.
It has been regarded as a suspicious circumstance that Mr. Wijewardeneon his own admission took no notes of the instructions. I think too muchcan be made of this. It was a very simple will and the instructions weregiven to a young man whose mind was not overburdened with the weightoi his professional practice. Even if he received some prompting fromthe petitioner as to names and addresses this would be immaterial providedhe can be believed when he says that Don Adirian clearly indicated to himwhat his intentions were with regard to the disposition of his property.
Having got his instructions Mr. Wijewardene returned to his office andimmediately set about drafting the will. This done he returned' to thehospital about 1 p.m. again with the petitioner. He says he read overand explained the will to the testator in the presence of two witnesses.He then tried to get the testator to sign but his hand trembled so muchthat he was unable to form the characters properly, so an ink pad wasobtained and a thumb impression taken. Then the two witnesses signedthe document. Again at this second interview Mr. Wijewardene hassworn that he was satisfied that the testator understood what he wasdoing.
Now Mr. Wijewardene’s evidence, if it be trustworthy, so stronglysupports the contention that this will is valid, that it is not surprisingthat an attempt was made at the trial to attack his bona fides. I do notthink I need consider in detail the material on which this attack was based.It was persisted in only in a half hearted manner during the hearing of theappeal and it was a matter upon which the learned Judge himself came tono definite conclusion.
Much has been said about this young notary’s inexperience but thathe was a party to a conspiracy in collusion with the beneficiaries hascertainly not been established nor has that been seriously persisted in. Itis only fair to this young professional man to place this on record.
The learned Judge thought that common prudence would at least haveprompted Mr. Wijewardene to call in one of the hospital doctors tocertify to the old man’s competency. Possibly a more experienced, manwould have done this but if Mr. Wijewardene is speaking the truth hissuspicions were not aroused. He had received rational and explicitinstructions at 11 a.m. and at 1 p.m., although in a feeble condition andunable to sign his name properly, the testator seemed able to understandwhat was said to him. A shakiness of fist in an aged invalid does notnecessarily connote irrationality.
NIHILL J.—Gunasekere v. Gunasekcre.
We now come to the evidence of the two witnesses to the will.Ekanayake Appuhamy and Rajapakse. Neither of them was present atthe first interview between the testator and Mr. Wijewardene, but theirevidence with regard to the testator’s condition at the second interview isimportant. Ekanayake Appuhamy stated that he was in the testator'sroom for about half an hour before the notary came on the second occasionand that he was talking to him. He says that the testator began toshiver when he was trying to sign the will and that he appeared nervous.He stated also that the testator asked in whose favour the will was drawnand that the petitioner replied that it had been drawn in favour of himselfand his brother. The testator then said, “ That is right, you are not theonly beneficiary. It should be given to both of you ”.
Then followed a remark by the testator which it is contended showsvery clearly that the testator’s mind was wandering, for according to thiswitness he inquired “ Is our Bodhisath here ? ” Should he also not begiven something ? ”
It is contended that the introduction of this holy name in such circum-stances is 'clearly indicative of the testator’s irrationality. The remarkwas not heard by Rajapakse or apparently by the notary.
Ekanayake Appuhamy confessed that he did not understand what theremark meant at the time but later he thought it might have referred toDon Cyrus, the respondent. Rajapakse, whose evidence did not impressthe learned Judge, said that he spoke to the testator who was able toanswer questions and that he heard the notary explain the will to thetestator before he signed it.
Now the evidence of these two witnesses leaves an impression that theold man’s condition may have been worse at the time of the signing of thewill than at the time the instructions were given, but there is nothing tc-suggest that he was in extremis. Both these witnesses were at pains tosuggest that their presence at the hospital that afternoon was more orless an accident, but even if it be assumed against the petitioner that hehad asked them to be there, I do not know that the case against the willis carried much further. It seems to me quite likely that the brothersexpected a will in their favour and that they were determined to give theold man every facility for its making and execution.
The crucial point is however the condition of the testator when he gavehis instructions. If he was then able, as Mr. Wijewardene says he was,to address himself to the matter and indicate his mind, it would not befatal to the will that he may not have been unable to follow all its provi-sions when it was read over to him before signature. See Parker v.Felgate 1 cited by Lord Macnaghten in the Privy Council appeal of Pererav. Perera
We are thus left with the final issue of determining whether the medicalevidence led by the objector is of such a nature as to force us to theconclusion that the notary, although honest, was grossly deceived whenhe assumed that the testator had a disposing mind at 11 a.m. on
' S P. D. 171 ; (1901) App. Cases Ml.
5 (1901) A. C. 316.
NIHIL.L J.—Gunasekere v. Gunasekem.
This brings me to the medical ^evidence. It consisted of Dr. E. L.Christoffelsz, the Superintendent of the Kandy Civil Hospital, andDr. Somasunderam, the senior visiting physician to the hospital, togetherwith a document knojwn as a “bed-head ticket’’. As regards theadmissibility- of_this document and the use to. wMcK'."3t^roas:4iuL_IrshalThave a good deal to say. The point is of importance because the evidenceof the two medical men and the conclusions they reached were based to avery large extent on data supplied by this document.
So far as Dr. Christoffelsz goes his evidence was really purely formal.He produced the “ bed-head ticket ” and gave the Court informationabout the general hospital rules with regard to the admission of patientsand visitors. He did not have anything to do with the testator in astrictly medical sense, as he was under the charge of Dr. Somasunderam.That Dr. Somasundaram is an experienced medical man there can be nodoubt and his opinions are entitled to respect but the difficulty in assessingthe value of his evidence is to distinguish between mere generalizationand particular conclusions based on his own observations of the patient.
Never at my time did he examine the patient with the specific end inview of judging his rationality nor was he able to speak from first handknowledge as to what the patient’s condition was like on the morning ofDecember 23. It is clear that throughout his evidence he was relying on:the entries on the “ bed-head ticket ”. This is not surprising : the doctorstated that he might see two hundred patients a day and he was givingevidence six months after this particular patient had left the hospital.
Now if the “ bed-head ticket ” was a record of Dr. Somasunderam’sown observations of the patient from day to day, there would be nodifficulty in regard to it for the doctor would have been entitled to refreshhis memory by referring to it. Unfortunately it was not. It was onlypartly so and we have no evidence as to which items were entered on the“ bed-head ticket ” by Dr. Somasunderam and which by someone else,or if by some one else, whether they were read by Dr. Somasunderam atthe time or soon afterwards and known by him to be correct.
It appears that at the Kandy Civil Hospital there are house surgeons,junior men, whose duty it is to keep the patients under supervision andattend to them when necessary. Dr. Somasunderam. as the seniorvisiting physician would visit his patients twice a day and prescribesuitable courses of treatment in consultation with the house surgeons, butso far as observation is concerned, it is clear that the house surgeons wouldhave better and more protracted opportunities of studying a patient thanthe busy visiting physician on his daily round of two hundred beds.
It is unfortunate that we have not the assistance of the house surgeonsin determining the testator’s mental condition because they -were notcalled. We have the “ bed-head ticket ” on which some of their obser-vations were recorded but on the view that I take on the probative valueof this document, this tends to confuse rather than to clarify the case.
Now the learned District Judge . admitted the “ bed-head ticket ” orrather a certified copy of it because he held it to be .a “ public document ”within the meaning of section 74 of the Evidence Ordinance. If this wascorrect it involves, to my mind, an alarmingly wide application of thesection but this is not a point that I propose to discuss here as it is not
NIHILL J.—Gunasekere v. Gunasekere.
necessary to do so, for even if the document was rightly admitted in theform it was, the use to which Dr. Somasunderam was allowed to put the“ bed-head ticket ” was objectionable. He regarded it as data on whichhe could construct a theory as to the testator’s mental condition on themorning of December 23, that is to say, that he accepted the recordedobservations of some other person as accurate because it was entered onthe “ bed-head ticket
Now if it be accepted that a “ bed-head ticket ” being a public docu-ment, can be proved by the production of a certified copy, what is it thatthe document proved ? It proved that certain observations about thepatient were recorded by certain medical officers on various dates, it didnot prove that those observations were in fact accurate.
There is no presumption in any section of the Evidence Ordinance• relating to public documents which could take the documents as far asthat. A “ bed-head ticket ” is not placed in the same category as a map,plan, or survey signed by the Surveyor-General the accuracy of whichcan be presumed by section 83, nor are the recorded observations of ahouse surgeon included in the scope of section 78.
It would be patently absurd if it were so. It follows then that in so faras Dr. Somasunderam went outside the facilities allowed him by section159 of the Evidence Ordinance, his evidence was inadmissible and of noprobative value. Quite clearly he did so and it is for this reason that 1 amunable to accept his conclusions as to the probable state of the testator’smind when he made the will.
From Dr. Somasunderam’s recollections of the patient all that one cansafely deduce is that he was suffering from a malady which does induce ageneral toxic condition and that such a condition may impair braincapacity to some extent. He also said he remembered that on' some ofhis bed-side visits the patient talked nonsense but Dr. Somasunderamalso conceded that even up to December 27 the testator was at times“ giving me rational answers ”. In the face of this and bearing in mindthat Dr. Somasunderam did not examine the patient for brain capacity GnDecember 23, and that he has no first hand knowledge of his actualcondition at 11 a.m., it cannot, I consider, be said to be proved that thetestator had not a disposing mind at that hour.
There was another little piece of evidence by Dr. Somasunderam whichis interesting but of no great moment. A day or two after the testatorhad been admitted to hospital somebody came to the hospital and askedfor a certificate as to the patient’s mental condition. The doctor askedfor a fee in advance and the person went away and never returned. Atthat time, nor indeed at any time afterwards, had Dr. Somasunderamexamined the testator in order to ascertain the. state of his mind and hetold the person who came to him that he could not say what the certificatewould be like. Dr. Somasunderam cannot recollect^ who the person was.I suppose the suggestion is that it was the petitioner or his brother andthat this shows an anxious and even guilty mind and a determination toprepare the ground against possible objectors. I doubt if this is ajustifiable inference.
NIHILL J.—Gtinasekere v. Gunasekere.
From the circumstances in which these two brothers had associatedwith their uncle, it is quite likely that they expected a will in their favourand knew also that if it came off they could expect trouble from a certainquarter. If then they were prepared to risk a possibly unfavourablemedical certificate, this was hardly the act of conspirators determined toget a will out of the old man by fair means or foul.
Finally I will touch on two further points of fact urged on behalf of theobjector respondent. First of all it is said that the notary’s account ofthe interview .at 11 a.ml is either unworthy of credence or that it showsthat the testator’s mind was wandering. It appears that he took twentyminutes to give instructions which the notary confesses could have beengiven in a couple of minutes. To my mind it would have been far moresuspicious had he only taken a couple of minutes and it does not needmuch imagination to conjure up what play would have been made uponit by the objector had the interview in fact been so limited in time ; theentry of the notary into the ward already provided with instructions bythe petitioner, a hurried question or two, hardly waiting for an answerthe notary is off hot haste to prepare the document. It seems to meconsistent with the truth of the notary’s account that the old man shouldhave paused, should have indulged in circumlocution; we all know thatis the way the very aged have.
Then secondly there is the remark about “ Bodhisath ” to which I havealready referred. Certainly that may be evidence of some lack of grip onthe situation by the old man towards the end of the second interview andI have already dealt with this; but it has another significance also. Itdoes not fit into the general theory of a conspiracy because evidence of itwas volunteered by the first witness to the will, a gratuitous offering to theobjector which I can hardly believe would have been made if Ekanayakewas in fact the mere tool of the petitioner.
To summarize my conclusions therefore I would say : —
That this will on the face of it is not an unnatural disposition therebyinvoking suspicion.
That the “bed-head ticket” introduced and.used in the way it wasinvolved the use of inadmissible evidence, and that its use should havebeen limited to the refreshment of Dr. Somasunderam’s memory alone.
That the evidence of Mr. Wijewardene and the witnesses to the willestablishes the presumption that it was the valid act of the testator.
That the medical evidence tendered by the objector does not removethe presumption because it does not show that the testator could not have,had a disposing mind at the time.
One last point I should mention. It has been contended that thefailure of the petitioner to go into the witness box is by itself a verysuspicious circumstance, but the question is what is it in this case whichthe circumstances cause one to suspect ? Undue influence has not beenalleged. He had a burden of proving .mental competency which heelected to discharge by the evidence of the notary and the witnesses tothe will. Perhaps he might have added further weight to that testimonybut if that testimony has not been dislodged by contrary testimony thenthe fact that the petitioner did not share in the testimony is immaterial.
360WIJEYEWARDENE J.—Gunosefccre v. Gunasekere.
I would, therefore, for the reasons I have given, allow the appeal withcosts and admit the will to probate.
In view of my conclusions it is not necessary for me to consider theposition of Cyrus Goonesekere, the respondent, on whose behalfMr. Weerasooria raised an objection in law on certain grounds to theproceedings in the District Court so far as they concerned him.
I have had the advantage of reading the judgment of my brother andI agree that the learned District Judge should have admitted the will toprobate. I would allow the appeal and direct the objector-respondent topay the petitioner-appellant the costs of this appeal and the costs of theproceedings in the District Court.
GUNASEKERE v. GUNASEKERE et al