( 208 )
Present: Ennis A.C.J. and Loos A.J.CBOOS v. CBOOS et «l.
46—D. C. Negombo, 1,701.
Last will—Unsound mini—Undue influence.
To impeach a will on the ground of undue influence, it must beproved thatthe influenceexercisedamounted to coercion,i.e.,
compelled the testator to do something he did not want to do.
'J'HE facts appear from tBe judgment.
A. St. V. Jayawardene (with him. Muttunayagam, Weerasinghe,and Hayley), for appellant.
Bawa, K.C. (with him Drieberg and Zoysa), for respondents.
Our. adv. vult.
October 28, 1919. Ennis A.C.J.—
This appeal is from a refusal of the learned District Judge,Negombo, to grant probate of a will dated September 27, 1918, ofthe late Gabriel Stephen Bodrigo of Negombo, which was pro-pounded by the appellant; and allowance of a grant of probate ofa will dated June 2, 1913.
At the hearing the third respondent opposed the grant to theappellant on the ground that the September will was a forgery, midthe eighth to the sixteenth respondents contended that the testatorhad destroyed the September will ammo revocandi; they further con-tended that both wills were made by the testator while of unsoundmind, and that the June will was made under the undue influence ofMr. G. M. de Croos, the September will under the undue influence ofMr. N. E. de Croos, the present appellant.
'The learned Judge found that both wills were executed by thetestator; that the testator made the June will while “ of sounddisposing mind, memory, and understanding,” and that the Septem-ber will was made while he was not of sound disposing mind, memory,and understanding; that Mr. G. M. de Croos did not exercise anyundue influence, and that Mr. N. E. de Croos did; and that theSeptember will was not destroyed by the testator, but was probablystolen.
On the appeal appearance was entered for the third respondent;there was no appearance for the other respondents.
For the appellant it was contended that the testator was “ ofsound disposing mind ” at the time of executing the September will,and that the appellant had not exercised undue influence to causethe testator to execute it.
These are purely questions of fact, and the learned Judge hasgiven reasons at length for his findings. I do not, however, findmyself in accord with the reasons upon which the findings on thesepoints are based. It is agreed that the testator was a lunatic at thetime of his death. The point of time when he became of unsoundmind is the question in the case, and the learned Judge appears tohave been greatly influenced in coming to a decision on this pointby the terms of the September will. Mr. Arthur de Silva, who drewup the June will, and of whom the learned Judge says, “ there is nodoubt whatever that what he says he honestly believes to be true, ”has given evidence that he used to see the testator practically fivedays in the week from about 1910; that he, the witness, went toKandy in April, 1914, and that before he went, the testator, although'not quite well in health, was all right in mind, and that he saw thetestator to ask him to ask his servants to look after his place. Thisis definite evidence from a trustworthy -source that the testatorwas of sound mind in April, 1914. Not a single witness speaks ofthe testator as of unsound mind prior to that. He had had epilepticfits, but that waB all.
( 210 )
The ease is very different from that>of Harwood v. Baker,1 wherewithin two hours of the. will being made it was found that, thetestator was not in full possession of his faculties, and he died a fewhours later. Between June and September, 1913 (viz., in July),Mr. G. M. de Croos, who has been the friend and confidant of thetestator, died, and Mr. N. E. de Croos (the appellant) appears tohave taken his place as the confidant of the testator. This however,is not proof of undue influence. There may have been influence,but unless that influence amounted to coercion, i.e., compelled thetestator to do something he did not want to do, it was not illegal. SeeVandrain v. Richardson.* There is no evidencfe of any such coercion.
It would seem that after the execution of the September will thetestator executed a promissory note, viz., on October 20, 1913;Mr. Kurera gives evidence of this transaction. He also appears tohave had a case in court, and to have executed a power of attorney.
The fact that the notary before whom the September will wasexecuted was subsequently convicted and sentenced for forgery ishardly a factor in the case, as it has been proved that the testatoremployed the same notary as far back as May 6, 1913 (P 2), i.e..before the June will, when the testator was of sound mind accordingto the Judge’s finding.
Finally, there is a significant fact in the case which has not beenmentioned by the learned Judge. The thirteenth respondent wasliving with the testator from 1911 to 1914 (see Mr. Arthur de Silva’sevidence), and he has not given evidence in the case, although he.appears to be the person who charged Mr. N. E. de Croos withexercising undue influence.
In the circumstances, I would set aside the order appealed from,and direct probate of the September will. The costs of both partiesin the Court below and on appeal to be paid out of the estate.
[His Lordship set out the facts, and continued]: —
There is no witness who establishes the exercise of any undueinfluence by the petitioner-appellant over the testator which inducedhim to execute the will of September, 1913, but the learned Judgeappears to have thought ,that there is sufficient internal evidencefurnished by the will itself to justify its validity being challenged.
The circumstances on which he relied in forming that opinionmay indicate that the petitioner-appellant did exercise someinfluence over the testator, but there is nothing to show that it wasan undue influence, that the testator was forced thereby to do whathe did not wish to do.
I agree with my Lord that the order appealed against must be setaside, and that the petitioner-appellant is entitled to obtain probate
-of the will propounded by him.
1 3 Moore P. C. Cases 282.
(1906) A. C. 169, at 84.
CROOS v. CROOS et al