Ella wait y. Wije wardens and Another
WIJEWARDENA AND ANOTHER
FERNANDO, J„ KULATUNGA, J. & DHEERARATNE, J.
S. C. SPL. LEAVE APPLICATON NO: 118/91CA/LA (SC) NO: 15/91CA NO: 323/89 (F) WITHCA (REV) APPLICATION NO: 1031/89DC COLOMBO CASE NO: 29901/TESTYDECEMBER 10TH, 1991.
Appeal – Special Leave to Appeal to Supreme Court – Testamentarycapacity – Suspicious circumstances – Failure to consult medical opinion onthe Testator's mental condition – Duress and undue influence.
The deceased who was ill and hospitalised at a private hospital got downhis regular legal adviser/notary public and after necessary consultations andinstructions executed his last will having revoked his previous last will. Hebequeathed his assets to his wife and the younger daughter (the 1st respond-ent) to the exclusion of his elder daughter (the petitioner) who was marriedand was residing away from the parental home. The petitioner had been dis-inherited under the previous last will as well executed several years back.The petitioner challenged the last will on grounds of (a) lack of testamentarycapacity by reason of illness (b) duress and undue influence by thedeceased's widow; and (c) the last will was not lawfully executed. The Dis-trict Judge upheld the objections and invalidated the last will, held that thedeceased had died intestate and dismissed the application for probate.
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[1991) 2 Sri L. R.
The Court of Appeal set aside the order of the District Judge andordered that the last will be declared proved and be admitted to probate. Onan application by the petitioner for Special Leave to Appeal from theJudgment of the Court for Appeal,
The finding of the Court of Appeal did not call for review. The lastwill is a rational or natural will. The evidence does not warrant thesuspicion that the testator lacked testamentary capacity; and the fail-ure of the attesting notary to consult the testator's medical advisersas to his mental condition before executing the last will was not, inthe circumstances, a suspicious circumstance.
According to applicable principles of law, undue influence, if it is tovitiate the will, must be something in the nature of coercion or fraudexisting at the time of the making of the will.
The fact that the son-in-law and the daughter of the attesting notarypublic who are his partners and assistants were witnesses to the signingof the last will, is, neither in law nor as a matter of ethics, a matteraffecting due execution. In the absence of any suspicion or improprietytouching the attesting notary it is of no relevance on the question oftestamentary capacity.
APPLICATION to the Supreme Court for Special Leave to Appeal fromjudgment of the Court of Appeal.
Miss Maureen Seneviratne P.C., with R. K. W. Goonesekera and R.Rajapaksa, W. Wijewardana, Miss K. Perera and R. Pcrcra for Petitioner.
P. A. D. Samarasekara, P.C., with R. de Silva, P.C., G. Jayasinghe, S.Mahendran and A. R. Surendhran for Respondent.
December 19, 1991.
At the close of the hearing of this application, we refusedspecial leave to appeal from the judgment of the Court ofAppeal against which the intervenient petitioner – respondent- petitioner (hereinafter called the intervenient-petitioner)sought to appeal and reserved the reasons for that Order. Wenow state our reasons.
EUawala v. Wijewardena and Another (Kutatunga, J.)
The intervenient-petitioner is the elder daughter of thedeceased D. J. Wijewardene. At the time of the death of thedeceased she had been married to one Mr. EUawala and wasresiding away from her parental home. In the District Courtshe successfully challenged the last will of the deceased bywhich the deceased devised and bequeathed his assets to hiswife and his younger daughter, the 1st petitioner-appellant-respondent (hereinafter called the 1st petitioner-respondent) tothe exclusion of the intervenient-petitioner. The deceased alsocreated a trust over one immovable property in favour of hisgrand daughters who are the children of the 1st petitioner-respondent. The deceased appointed the 1st petitioner-res-pondent and another person (the 2nd petitioner-respondent)who is a close family friend of the deceased as the executorsunder the will.
On the application of the petitioners, the District Courtentered order nisi declaring the will proved and issued alimited grant of probate to the petitioners necessary for theefficient and effective management of the companies of whichthe deceased had been a share holder.
Upon the publication of the order nisi, intervenient-peti-tioner entered an appearance and objected to the grant of pro-bate on the said will. After inquiry the District Judge upheldthe grounds of objection and made order (a) declaring that thelast will had not been duly proved and the same cannot beadmitted to probate, (b) holding that the deceased had diedintestate, (c) dismissing the application for probate, (d) declar-ing the limited probate granted to the petitioners-respondentsnull and void and recalling the same. On an appeal by thepetitioners-respondents the Court of Appeal set aside the orderof the District Judge and directed that the order nisi be madeabsolute. The Court further ordered that the last will bedeclared proved and be admitted to probate and probate beaccordingly granted to the petitioners-respondents.
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 2 Sri L. R.
Special leave to appeal was sought on the basis that in theDistrict Court the intervenient-petitioner had challenged thelast will on the grounds (a) that it was not the act and deed ofthe deceased in that he lacked testamentary capacity by reasonof illness, (b) that the last will was obtained by duress andundue influence by the deceased’s widow, and, (c) that the lastwill was not lawfully executed in that the attesting notary hadas witnesses to the said will his daughter and son-in-law whowith him are the registered Attomeys-at-Law for the petition-ers.
In seeking Leave to Appeal the intervenient-petitioner isparticularly aggrieved by the observation of the Court ofAppeal that in the instant case the testamentary capacity ofthe testator was never in question; it has neither been pleadednor put in issue. Learned Counsel for the interveneint-petitioner submits that this opinion is plainly erroneous-inthat the lack of testamentary capacity due to grave illnessaffecting the testator’s mind had been pleaded in the statementof objections; and that this very question arose for decisionunder the first issue raised by the petitioners-respondentsnamely whether the disposition under consideration was a law-ful and valid last will of the deceased. The counsel furthersubmits that by forming an erroneous opinion in the matter,the Court below deprived itself of the opportunity of fairlyconsidering the most vital issue in the case, namely, the issuerelating to testamentary capacity.
There is considerable force in the intervenient-petitioner’ssubmission that the statement of objections and the issues werewide enough to allow the question of testamentary capacity tobe raised. Thus one of the objections which was raised wasthat the last will was not the act and deed of the deceased; andthe statement of objections specifically states that at the timeof the execution of the said will on 07.01.1985 the testator wasan inmate of a private hospital undergoing medical treatmentfor an illness to which he succumbed on 14.01.1985.
Ellawala v. Wijewardcna and Another (Knlatunga, J.)
The opinion of the Court of Appeal to which theintervenient-petitioner has taken exception appears to be theresult of a failure to scrutinise, in the light of the pleadingsand the issues raised, a submission on the question of testa-mentary capacity made by the counsel for the petitioner-respondents. That opinion has also been influenced by certainanswers given by Ellawala the husband of the intervenient-petitioner in the course of which he said that the ground forattacking the will is undue influence exercised over the testatorover the years to exclude the intervenient-petitioner frombenefiting under the will. However, Ellawala does not appearto have taken up the position that undue influence is the soleground for challenging the last will.
Notwithstanding the opinion complained of, we see no rea-son, in the light of the available evidence, to.permit :tn appealon the question of. testamentary capacity. The Court of Appealitself has considered the evidence and concluded that the lastwill with which we are concerned is a rational or natural will;that the evidence does not warrant the suspicion that at thetime of the execution of the will the testator lacked testamen-tary capacity; and that Mr. Murugesu, the attesting notary wasnot obliged to consult medical opinion on the testator’s stateof mind before attesting the will, as was held by the DistrictJudge. In coming to this finding the Court of Appeal has beenguided by the correct principles of law set out in judicial deci-sions.
We are ourselves satisfied that the facts adduced before theDistrict Court do not establish suspicious features sufficienteven to create a doubt as to the testamentary capacity. Brieflythe facts relied upon by the intervenient-petitioner are asfollows:—
THE PHYSICAL CONDITION OF THE TESTATOR
The testator had been admitted to the Frazer Nurs-ing Home, Colombo on 18.12.1984 and was under con-stant treatment. He had cirrhosis of the liver, chronic
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diarrhoea coupled with enlargement of the liver and thespleen and a heart condition due to a leak in themicrovalve of the heart. According to the medicalreports he was feeble. However, it has not been shownthat this physical condition had in any way affected themental condition of the testator. Thus on 02.01.1985 hegot down Mr. Neelakandan and gave instructions toprepare a power of attorney which he wished to sign on04.01.1985 as he contemplated going abroad fortreatment. He also arranged for Mr. Murugesu to bringa copy of his previous last will as be wished to executea new last will. On 04.01.1985 he signed the Power ofAttorney and gave instructions for the preparation of anew last will; this he did after perusing the previouslast will and the codicil. On 07.01.1985 Mr. Murugesubrought the new last will and the testator read it seatedon the bed; he also wanted clarification of certain mat-ters which were explained after which he signed the lastwill. Mr. Murugesu knew that the testator was ill butfound his mental capacity quite normal and that he wascapable of making a decision and did not have theslightest doubt as regards his competence. This is sup-ported by the evidence of Dr. A.T.S. Paul who hadbeen a frequent visitor at the hospital though not in amedical capacity, and found the testator mentally quitealert.
RELATIONS BETWEEN THE INTERVENIENT PETITIONER AND THETESTATOR
They were estranged from about 1974. In his pre-vious last will made in 1975 the testator left nothing tothe intervenient-petitioner. In a codicil in 1980 he con-firmed that will subject only to a change of executor-ship. There is some tenuous evidence of attempts atreconciliation, spoken to by Ellawala, the intervenient-petitioner’s husband consisting only of four or five tel-
Ella wain v. Wijewardena and Another (Kulatunga, J.)
ephone conversations between the testator and Ella-wala. The testator had no contact at all with theintervenient-petitioner.
CIRCUMSTANCES SURROUNDING THE EXECUTION OFTHE LAST WILL
The last will in question was attested by Mr.Murugesu the testator’s regular legal adviser. In mak-ing the previous will in 197S the testator instructed Mr.Murugesu to specifically exclude the intervenient-petitioner. The testator said that she was a difficultcharacter and gave many other reasons which Mr.Murugesu did not wish to mention in Court. Mr.Murugesu thought that it was “a paternal break”. Thetestator told him that she was not worthy of being hisdaughter. In the last will in question the testator againexcluded the intervenient-petitioner and merely madesome minor adjustments between his wife and the otherdaughter, the 1st petitioner-respondent. The fact thatthe son-in-law and th'e daughter of the attesting notarypublic who are his partners and assistants were wit-nesses to the signing of the last will is, neither in lawnor as a matter of ethics, a matter affecting due execu-tion. The Court of Appeal has upon a consideration ofauthorities and judicial decisions so concluded; and weagree with that opinion. In different circumstances suchexecution might have been a suspicious circumstance.However, in the absence of any suspicion or impropr-iety touching Mr. Murugesu, it is of no relevance onthe question of testamentary capacity.
FAILURE OF THE NOTARY TO CONSULT THE TESTATOR’SMEDICAL ADVISORS
The District Judge held that the attesting notarywas obliged to consult the testator’s medical advisorsas to his mental condition before the execution of the
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last will and that in the absence of such medical opin-ion the petitioners-respondents failed to establish thatthe last will was duly executed. We are of the view thatin the circumstances of this case such failure or thefailure to get a doctor to be a witness to the will is notper se a suspicious feature where the notary had nodoubt in his mind as to testamentary capacity.
The District Judge was also of the opinion that thedeceased was over a period of time under the influence of hiswife and had a poor degree of independence. She was herselfpresent at the time of the execution of the last will. The Dis-trict Judge said that it was difficult to believe that thedeceased had not been influenced when he gave instructionsfor the preparation of the will. Accordingly, he held that thewill was obtained by duress or undue influence. The Court ofAppeal held that according to the applicable principles of law,undue influence, if it is to vitiate the will, must be somethingin the nature of coercion or fraud existing at the time of mak-ing the will; and that in the instant case evidenceof such undue influence is woefully lacking. We see no reasonto disagree with that finding.
In the result we are of the view that the application forspecial leave to appeal does not raise any question fit forreview by this Court.
FERNANDO, J. — I agree.DHEERARATNA, J. — I agree.Application refused.
ELLAWALA V. WIJEWARDENA AND ANOTHER