ANDRADO v. SILVA et al

002-NLR-NLR-V-22-ANDRADO-v.-SILVA-et-al.pdf


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Present: Bertram C.J. and Shaw J.ANDRADO v. SILVA el al.
131—D. C. Colombo, 6,537.
Last.will— Undue influence—Suspicious circumstances—Burden of proof—
, Observations as to the proper scope of medical evidence.—Whenever a will is prepared and executed under circumstanceswhich arouse the suspicion of the Court, it ought not to pronouncoin favour of it, unless the party propounding it adduces evidence-which would remove such suspicion and satisfies the Court that thetestator knew and approved of the contents of the instrument.
“ The burden of proof of undue influence is on those who allogeit. It cannot be presumed. The burden of proving mental,competency, on the other hand, lies on the propounders. Theyare not bound to show affirmatively that the testator’s mind is freefrom any'influence which the law considers ‘ undue ’
I do not mean to say that the principle that it is the duty of thepropounders to remove suspicions does not apply to undue influence.I think it does so apply in exactly th6 same manner as it applies tofraud …. if the circumstances are such that a suspicion
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arises that the apparent approval by the testator is not a real 1920.
approval, that his act was not the expression of his own free will'
but of a will coerced or dominated by another, then it is for the Andradopropounders to remove the suspicion, and if they fail to do so their v‘ *whole case fails, even though the suspicious circumstances do hotconstitute a primd fade case of undue influence, and even thoughon a review of the evidence on both sides it cannot be said thatundue influence was positively established.”
To amount to undue influence, the influence exercised must besomething in the nature of coercion.
It is for the medical witness to describe the mental conditionof the testator; it is for the Court to determine whether tliat *condition was such as to impair his testamentary competency.
?| tSE facts appear from the judgment.
H. J. £7. Pereira (with him Elliott, B. F. de Silva, Cooray, and ■
£7. W. Perera), for appellants.
A. St. V. Jayawardene (with him Drieberg, Bartholomeusz, and
E. Garvin), for respondent.
Gw. adv. vuM.
July 20, 1920. Bertram C.J.—
I have had the advantage of reading the judgment of Shaw J*
I concur in that judgment, and have only to add the followingobservations.
We were much pressed by Mr. Elliott, in his very able reply, to holdthat this case was covered by the case oi Peries v. Silva,1 and to decidethat as the Judge’s finding was accompanied with a misgiving, theonus which lies upon the propounded of the will was not discharged.
In the case on which Mr. Elliott relied, Peries v. Silva,1 the Judgeindicated that his judgment was founded upon a bare possibility.'
In this case it is based upon substantial reason, and upon a logicalprocess, which seems to me unassailable.
Wjth regard to testamentary competency, the grounds on whichit is usually impeached are two, that is to say, either the existence ofdelusions, or the fact that .the testator’s^ mind was so enfeebled byphysical conditions as to be incapable of mental concentrationsufficient to enable him to envisage his affairs as a whole, and totake account at once of his obligation to his family and of the effectof his dispositions. J^t was the latter ground that was alleged inthis case. On this point great weight is, no doubt, to be attached tothe evidence of Dr. Paul. But such a .condition as he describes,though fine of progressive deterioration, would necessarily, be oneof a fluctuating character. A man in this condition may well beworse on one day than another, and Dr. Paul’s evidence mustbe compared with that of other witnesses who had opportunitiesof observing the mental capacity of the testator at this time.
1 (2919) 7 <7. W. R. 89.
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1920.
Bbbtram
C.J.
4 Andradov. Silva
I may add that I agree with the observations of Shaw J. as tQ theproper scope of medical evidence in such a case as this. It appearsthat passages were read to the medical witnesses from Taylor’sMedical Jurisprudence, and that they were asked to give what wasin effect a legal opinion, on the supposition that these passagescorrectly expressed the law. The principal passage, as a matterof fact, related to the case of a mind impaired by delusions, and notto the case of a mind whose power of concentration was supposedto be defective.x This illustrates the danger of asking a medicalexpert to proceed on the basis of such a passage apart from thefacts to which it relates. It is for the medical witness to describethe mental condition of the testator; it is for the Court to. determinewhether that condition was such as to impair his testamentarycompetency.
With regard to the duty of the propounders of a will to removesuspicions, and the application of this principle to undue influence,the position, as I understand it, is as follows. There is no questionthat the burden of proof of undue influence is on those who allegeit. It cannot be presumed. (See the cases cited by Shaw J.) Theburden of proving mental competency, on the other hand, lies onthe propounders. But they are not bound to go further than this.They are not bound to show affirmatively that the testator’s mindis free from any influence which the law considers “ undue.” It istrue that there is a series of cases in which, where the Court isemphasizing the necessity of proof of testamentary competency,the word “free ” has crept in alongside the word “competent.”Mr. Elliott has pointed to an early and interesting case of this nature(Ingram v. Wyatt1), and it may well be, as he suggested, that inthat case we have the origin of this collocation of expressions. ButI cannot take these cases as laying down that wherever there aresuspicious circumstances connected with the making of a will, it .lies upon the propounders to establish that the testator’s mind was“ free ” as well as competent.
I do not mean to say that the principle that it is the duty of thepropounders to remove suspicions does not apply to undue influence.
I think it does so apply in exactly the same manner as it applies toftaud. • But it is necessary that the Court should ask itself, what arethe nature of the suspicions which are said to be excited. The onlymaterial suspicions are suspicions which affect issues the proof ofwhich is on the propounders. It lies upon the propounders to prove
the fact of execution, (2) the mental competency of the testator,
his knowledge and approval of the contents of the will. If thecircumstances are such that a suspicion arises affecting one of thesematters, it is for the propounders to remove it. The Court isrequired under these circumstances to watch the evidence tenderedwith special vigilance, and not to declare that the onus of proof is
» (1828) 1 Hagg. 384.
discharged unless the suspicion is removed. The suspicion maypoint to fraud. The onus of fraud js ordinarily on those who allegeit. But in the case of a will there may be a suspicion of fraudaffecting either the fact of execution, or the mental condition of thetestator at the moment of execution, or his knowledge and approvalof the document or part of the document. In such a case it is for thepropounders to remove the suspicion, and if this is not done the willmust be rejected, even though the suspicious circumstances do notamount to a primd fade case of fraud, and even though it cannotbe said, on a review of the evidence on both sides, that fraud hasbeen established. Undue influence, as it seems to me, is on thesame footing as fraud, and I observe that in Tyrrell v. PairUon1Davey L.J. speaks of them together:—“ If the. circumstances aresuch that a suspicion arises that the apparent approval by thetestator is not a real approval, that his act was not the expressionof his own free will, but of a will coerced or dominated by another,then I take it that it is for the propounders to remove the suspicion,and that if they fail to do so their whole case fails, even though thesuspicious circumstances do not constitute a primd fade case ofundue influence, and even though, on a review of the evidence .onboth sides, it cannot be said that undue influence has been positivelyestablished.” I take this tp be the meaning of Wood-Renton J.in his observations in the case of Pieris v. Pieris2But the suspicions must for this purpose be suspicions pointingto “ undue influence ” in the sense which these words bear in law.In this case I cannot feel that there are any suspicions which canreally be considered suspicions of this nature. That the will wasthe effect of the exercise of influence is, indeed, patent. That theinfluence was unjust and unconscientious there is every reason tosuspect. I cannot believe that a testator who had shown such atender and constant affection for his absent nephew would have soheartlessly cut him out of his will and left him in the distressingsituation in which he was left, if advantage had not been taken ofhis feeble health and vacillating will by those in whose domesticcircle he was living, and whose interest it was to bring persuasionto bear upon him, But though there was ample opportunityfor searching out the matter in oross-examination, there is not a -scintilla of evidence to suggest that in this domestic circle there
any exercise upon the mind of the testator either of coercionor of that mental ascendency which is equivalent to coercion. Thefact that Mr. Andrado wrote out in his own hand the instructionsfor the will; that he accompanied the testator on his visits to thenotary; that he avoided using the services of the notary who wasacquainted with the family circumstances, and who might, there-fore, remonstrate with the testator; and that he finally declined-to go into the box and give the very material evidence, which he
1 (1894) P. D. 151.» (1907) 9 N. L. B„ on page 23.
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1920.
Bertram
G.J.
Andradov. Silva
Shaw J.—
This is a|L appeal from an order of the District Judge of Colomboadmitting to probate a document purporting to be the will ofAnthony Nicolas de Silva dated October 8, 1918.
The will was contested by the appellants, two nephews of thedeceased, who themselves propounded an earlier will dated January.23,1916, under which they largely benefited.
The.issues for trial were (1) due execution, (2) mental competency,(3) knowledge and approval of the contents of the documents,and (4) whether the execution was procured by the petitioner,T. H. de Andrado, by the exercise of undue influence.
The District Judge has, in a somewhat hesitating manner, foundin favour of the validity of the will, and the diffidence he expressesas to the correctness of his own judgment constitutes the principaldifficulty on the appeal. The contention on behalf of the appellantsis that the petitioner has not sufficiently discharged the onus ofproof of issues (2) and (3), and that certain circumstances of suspicionattaching to the will have not been sufficiently removed eitherwith regard to these issues or to that of undue influence.
I do not think it is necessary to go in detail into the facts ofthe case, which are fully set out in the judgment of the DistrictJudge.
Apart from the indirect evidence called on behalf of the opponentsof the petition, I can see nothing in the evidence to throw anyserious doubt on the mental capacity of the testator: He was an oldman, who had for some five or six years prior to his death sufferedfrom an affliction of the arteries common to old age, the effect ofwhich was to render him liable to paralytic seizures and to impairnot only his bodily health but also his mental vigour. There isnothing, however, in the evidence as to his conduct that in any wayappears to me to. point to any dementia or insane condition of themind.. No doubt he was, for some time shortly before his death,not the same man either bodily or mentally that he had been in
alone could give, are all very suspicious circumstances. But whatis it they cause one to suspect ? They oause one to suspect that hetook a very active interest in procuring the will; that the part heplayed did him little credit; and that he was consoious that he wouldnot figure to advantage as a witness. They do not cause one tosuspect that the will of the testator was either coerced or dominated.I cannot say, therefore, that there was any suspicion of coercion ordomination affecting the testator’s approval of the will, which itwas incumbent on those propounding the will to remove.
Under the circumstances 1 am of opinion that the appeal shouldbe dismissed, but that,in the circumstances of the case, the costs ofthe appeal should be paid out of the estate.
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earlier years, bat the facts that his memory had beoome defectivethat he sometimes called the children by the wrong names; that heallowed himself to be induced to give an order for glasses to a travel-ling touting optician that he knew nothing about, which glasses'he subsequently refused to accept; that he was in danger of walkingoff the end of the verandah unless watohed; and other small incidentswhich have been pressed upon us on behalf of the appellants,although they may show some deterioration of the mental facultiesof the testator, fail altogether to impress me with the idea that hecould not transact his ordinary business or was deficient in capaoityto make a will. Against such evidence of incompetency as theseincidents afford there is the testimony of several witnesses who sawand conversed with the testator at about the time the Will wasexecuted that seems to show that he was quite rational and capableof transacting ordinary business, and that his state o| mind wassuch as to render him quite competent to make a will. Mr. Wille,the notary who prepared the will in* dispute, saw him on fouroccasions concerning the matter. Two of these occasions musthave been fairly long interviews. At that ef October 7 Mr. Willewent through the old will with the testator clause by clause with thepaper of instructions so as to get his instructions clear for the newwill, and at the interview on the morning of October 8 he wentthrough the draft of the new will clause; by olause with the testatorto make sure that it carried out his intentions. ■
' The District Judge accepts the bona fides of Mr. Wille. Indeed,he could not do otherwise. Mr. Wille is a member of a well knownand respected firm of proctors, and he has no interest whateverin the matter. The Judge, however, thinks that Mr. Wille’sevidence that the testator was of mental competency and knewand approved the contents of the document must be receivedwith caution, and cannot be treated as in_any way conclusive ofthese matters,, because Mr. Wille did not know much about thehistory of the testator’s condition or his domestic affairs, and hadno reason to have any suspicion as to the testator’s state of mind oras to his approval of the dispositions directed by the papers ofinstructions. • It seems to me, however, that the Very fact of nosuspicion having been aroused in Mr. Wille’s mind at these interviewsis vdry strong evidence to show the actual competency of thetestator.
Then there is the evidence of Mr. Namasivayam of his interviewwith the testator shortly before the will was executed, when thetestatorasked him to become executor. Not only is this gentleman’sevidence very strong to show mental competency, but it clearlyshows, as the Judge has held, that the testator knew and approvedof the most important thing effected by the will, namely, thedisinheritance of the appellants, and the leaving of the testator’sproperty to others.
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1920.
Shaw J.
Andradov. Silva
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1920.
Shaw J.
Andradov. Silva
There is also the evidence of Mr. Abeywardena, who went with thetestator about three weeks before his death, and, therefore, afterthe will was executed, to look at a house which the testator thoughtof buying. Has evidence also seems to show that the testatorquite knew what he was about and was quite capable of transactingbusiness.
The evidence of Dr. de Silva, who. saw and conversed with thetestator on Ootober 16 and 21, when he was attending othermembers of his family, also seems to point to a perfectly competentstate of mind at that date. . The only real doubt that appears tome to be cast on the competency of the deceased and on hisknowledge and approval of the contents of the will arises from the'medical evidence given on behalf of the respondents to thepetition. I myself attach no great importance to the evidenceof Dr. Parsons. He never saw the testator, and his evidence isonly that of an expert. Having had put to him by counsel all, the acts of the testator which were relied on as showing mentalincapacity and none of the evidence showing the contrary, thewitness expressed an opinion that the testator was wanting intestamentary capacity.
An expression of opinion so obtained has very little value, and itis quite possible that had Dr. Parsons had the conversation of thetestator with Mr. Namasivayam and the details of the interviewwith Mr. Wille put to him he might have expressed an entirelycontrary opinion.
The evidence of Dr. Paul is, however, entitled to much weight.This witness examined the testator professionally a fortnight beforethe will was executed. He found him suffering from degeneratingchanges of the brain, consequent oh his physical condition; he foundthat he was silent and depressed and suffered from impairment ofmemory, and had a. difficulty in collecting his thoughts. As aresult of the examination made by him, he is of opinion that themind of the testator was not, at the time he examined him, capableof giving instructions for a will of the kind now before the Court..It will be noticed, however, that the witness does not say that hedoes not think the testator was incapable of making any will dis-posing of his property, and the opinion he expresses is on a matterthat is more a question to be decided by the Court than bya witness.Dr. Paul, however, admitted in cross-examination that had thetestator in fact had the conversation with Mr. Namasivayamdeposed to by that witness, he would consider it a sufficient indica-tion of his testamentary capacity.
That this conversation took place has been found as a fact .by theJudge; the evidence of Dr..Parsons, therefore, is by no meansaltogether opposed to the validity of the will. There are, no doubt,ciroumstances- in the case which throw a certain amount of sus-picion on the will propounded. 'The physical and mental conditions
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of the testator, the fact that he was disinheriting two relations inwhose favour previous wills had been made,' for one of whom, atany rate, he had up to shortly before the will been on terms of the' greatest affection, and whom he continued to support in Englandup to the time of his death, and the fact that the paper containingdirections for the will is in the handwriting of the petitioner, whosefamily benefit by the will to the exclusion of the former beneficiaries,are all points that should make the Court jealously scan theevidence in support of the will.
The law on the subject is that whenever a will is prepared andexeouted under the circumstances whioh arouse the suspicion ofthe Court, it ought not to pronounce in favour of it, unless theparty propounding it adduces evidence which would remove suchsuspicion and satisfies the Court that the testator knew andapproved of the contents of the instrument. I need not refer tothe authorities for this principle, whioh are fully set out andconsidered in two recent judgments of the Chief Justice in theAlim Will Case1 and Penes v. Silva.2
It would have been no doubt more satisfactory if the petitionerhimself had given evidence of the condition of the testator and ofthe circumstances under which the will was prepared, and also ifthe two doctors, who have been the regular medical attendantsof the testator during recent years, had been called, but there is norule of law to the effect that a person propounding a will to whichsuspicion attached should himself give evidence, or should produceany particular witnesses or class of evidence so long as the evidenceis sufficient to remove the suspicion attaching to it. (Vide WoodRenton J. in Pieris v. Pier is.3)
In the present case the-evidence before the Court, especiallythat of Mr. Namasivayam and Mr. Wille, appears to me to suffi-ciently remove the suspicion upon the will, and to sufficientlyestablish the competency of the testator and his knowledge andapproval of the contents of the document. The reasons given bythe testator to Mr. Namasivayam 'for leaving nothing to the firstopponent are quite intelligible, and although we may think that thetestator behaved with scant justice to him after the expectationshe had allowed him to entertain, and although we may consider thereasons given by him insufficient for the course he took, it is notpart of the duty of the Court to see that a testator makes a justdistribution of his property so long as he properly appreciateswhat he is doing.
With regard to the omission of the other opponent, from thebenefits of the will, I think the testator had quite sufficient groundsfor his action, as he had well provided for him since the date of theearlier wills.
1 (1919) 20 N. L. R. 48.* (1919) 7 O. W. R. 89.
J (1907) 9 N. L. R. 14.
1920.
Shaw X*
Andradov. Silva
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1920;
Shaw J.
Andradov. Silva
In my opinion the judgment of the District Judge is right, andthat the mental competency of the testator and his knowledge andapproval of the contents of the will in dispute have been sufficientlyestablished. .
It was also contended on behalf of the opponents that whensuspicions had been cast on a will is the duty of the personpropounding the will to satisfy the Court that the will is the actof a free as well as a capable testator, and that it must, thereforebe shown that the testator has not been induced to make thewill by undue influence, and that as the petitioner has not goneinto the witness box, he has not sufficiently discharged this burdenthat lay upon him.
It is well established that the burden'of proof of undue influencein an ordinary case lies upon the person alleging it. (Vide'Boyce v.Rossborough1 and Craig v. Lamoureux.2) I do not think that by theuse of the words “ free as well as a capable testator ” in some of thecases where suspicion has attached to a will it is intended that theusual burden of proof is to be shifted, unless, indeed, the groundsof suspicion are such as to amount to prima facie evidence of undueinfluence. In Tyrrell v. Painton,3 one of the cases in which thosewords are used, the fact that the onus of proof of undue influencestill lies on those who oppose the will is recognized. On page 157Lindley L.J. says:And whenever such circumstances exist andwhatever their nature may be, it is for those who propound the willto remove such suspicion and to prove affirmatively that thetestator knew and approved of the contents of the document, andit is only where this is done that the onus is thrown on those whooppose the will to prove fraud or undue influence or whatever elsethey rely on to displace the case made for proving the will.” Inthe present case I can see no evidence that raises any sufficientsuspicion of undue influence to throw any burden of proof on thepetitioner.
The only facts that can be pointed to are that the petitioner,whose family principally benefit by the will, was living with thetestator; that the paper containing the instructions for the will,although signed by the testator, is in the handwriting of thepetitioner; and that he accompanied the testator on the occasionsof his visits to the notary to give instructions for the will to beprepared.
These circumstances seem to me to be quite insufficient to raiseany sufficient suspicion of undue influence on his part, or, indeed, toraise any presumption of even legitimate influence. To amount toundue influence, the influence exercised must be something in thenature of coercion. Boyce v.. Rossborough1 and Bondains v.
.. Richardson,4 1
1 (1856) 6 H. L. 0.2.' * (1894) P. D. 151.
1 (1919) P. C. 122 L. T. 208.* (1906) A. O. 169.
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There is nothing in the present case to support that in any way.On the contrary, the evidence of Mr. Wiile is to the effect that thepetitioner took no part in the instructions for the will, and the onlyevidence of the conduct of the petitioner to the testator is that it wasthat of a servant.
In my opinion the petitioner has sufficiently discharged the.onusof proof upon him that the will was the will of a competent testator,who knewand approved of the oontents of the will, and the Judgmentof the District Judge is correct, and the appeal should, conse-quently, be dismissed. Under all the circumstances I would directthat the costs of the appeal should come out of the estate.
Appeal dismissed.
1920.
SBAW j.
Andradov. Silva