GAMINI RANASAGALLA COREA V. ERNESTINA COREA AND OTHERS

017-SLLR-1988-V2-GAMINI-RANASAGALLA-COREA-V.-ERNESTINA-COREA-AND-OTHERS.pdf


GAMINI RANASAGALLA COREAV.ERNEST1NA COREA AND OTHERSCOURT OF APPEALf
BANDARANAYAKE, J.. AND VIKNARAJAH. J:.
CANO. 115 – 116/78F
D. C. CHILAW 21/T
NOVEMBER 25, 26, 27 AND 30, 1987.
' Last Will – Execution attested by five witnesses — Section 4 of the Prevention ofFrauds Ordinance (Cap. 70) — Should testator sign in the presence of each andevery one of the five witnesses at the same time — Presumption of due execution—Apphca non of maxim: Omnia prassumuntur rite esae acta.
Shirley Corea. Attorneys-Law, M. P. and Speaker of Parliament executed a LastWill attested by five witnesses: Hilary Fernando. Emmanuel Anthony Fernando,Walter John Fernando. Godfrey Fernando and Bandara. Harold Herat Attorney-at-law was named Executor. The principal devisee was one Gamini-Corea anadopted son of Shirley Corea. On Shirley Corea's death (04.03.1974) HaroldHerat applied for probate but the Will was challenged on.the basis of lack of dueexecution. At the inquiry before the District Judge Walter John Fernando.Godfrey Fernando, and Emmanuel Anthony Fernando, three of the fivewitnesses to the .Will and Harold Herat who was seeking to propound the Willgave evidence in support of the application while one of the witnesses to theWill Bandara gave evidence that the other witnesses-did riot sigo the Will at thetime he “signed the Will but only he and the deceased testator Shirley Coreasigned on that occasion. After inquiry the Judge refused Probate.
Held:
For granting Probate the rules are:
The party propounding the Will must satisfy'.the conscience of theCourt that the instrument propounded is the Last Will of a true and. capable testator.
ilf a suspicion attaches to the Will the Court should not pronounce infavour of it until the suspicion is removed. If a party uirrites or preparesla Will under-which he takes a benefit that is a circumstance that ought
'generally to incite the suspicion of the Court. The Court must then be'vigilant-and jealous in examining the evidence in support of the Willthough this does not mean that a special measure of proof, or aparticular species of proof is required. The principle is that whenever aWill is prepared under circumstances, which raise a well-grounded’suspicion that it does not express the mind of the testator, the Courtought not to pronounce in favour of it unless that suspicion is removedby the propounder.-.■
1 In addition the.Wiil must be executed according to law. Under Section
.4 of the Prevention of Frauds Ordinance (Cap. 70) no Will attested byfive witnesses is valid-unless it shall be in writing and executed inmanner hereinafter mentiond: that is to say it shall be signed at the footor end thereof by the testator or by some other person in his presenceand by his direction and such signature shall be made oracknowledged by the testator in the presence of five or more witnesses"present at the same.time andsucb witnesses shall subscribe the Will in.the presence of the testator but no form of attestation shall benecessary.'
The only question was vyhether all the witnesses signed the Will at the sametime in the presence of the testator and when he signed. In the last paragraph ofthe Will Shirley Corea himself had declared he signed in the presence of the fivewitnesses thus contradicting Bandara. The propounder Harold Herat anattorney-at-law who was present at the execution testified that-all the witnessesand the testator signed oh the same occasion in the presence of one another.Hilary Fernando an attorney-at-law did not give evidence. The evidence ofBandara jstood uncorroborated. The presumption of due execution expressed in.the maxim omnia prasumuntur rite esse acta applicable where the Will is inregular form was not displaced.
The Will sought to be propounded was the act and deed of a free and capabletestator: there were no. suspicious circumstances; there was satisfactoryevidence that the Will had been duly executed and as it was in regular form the' maxim omnia praesumuntur rite esse acta will hold.
Though the appellate tribunal’will not interfere.with the findings of fact .of the original Court yet where-these are based, as here, not on the'basis of seeing and listening to the witnesses but upon the trial Judge'sevaluation of the facts the Appellate Court is in as good a position asthe trial Judge to evaluatesuch facts and no sanctity attaches to thefindiriTgs of the trial Judge.
Cases referred to;
Barry v. Butlin(1838) Moore's P.C. 480.
Tyretl v. Painton 0894) P.D. 151: 70LT 453.
Alim Will Case (1919) 20 NLR 481.
Re Vere Wardale. Johnson {1949) 2.All ER 250.
Wright v, Rogers LR 1 P. & D. 682.
•6. Re Denning (1958) 2 All ER 1.
In the Goods ofPeverett (1902) P 205:87 LT 143.
Re Collins deceased (1972) 2 All ER 729.
Daysmen v. Dayman (1894) 71 LT 699.
Wyatt and another v. Berry and others (1893) 68 LT 416.
Wright v. Sanderson (1884) 50 L.T. Rep. 769:9 P.D. 149.
Lloyd v. Roberts (1858) 12 Moore's. P.C ' 158.
Wimatawathie v. Opanayake 74 NLR 308.
De Silva and others v. Seneviratne and another (1981) (1981) 2 Sri LR 7.APPEAL from judgment of the District Court,' Chilaw.
P. A D. Samarasekera P.C. with G. L. Geethananda and K. Abeypala for 11th. respondent – appellant.
Dr. H. W. Jayewardene O.C: with Miss J. Keenwinna and Harsha Amerasekera for2nd to'10th respondent-respondents.
Cur. adv. vult.
January 22, 1988VIKNARAJAH.J:
This is an appeal by the 11th respondent-appellant (GaminiCorea) from an order made by the learned District Judge on3.5.78 under section 285 (1) of the Administration of JusticeLaw No. 44 of 1973 whereby he held that the Last Will of
Charles Shirley Corea made on 20th September 1973 beforefive witnesses and produced marked PI is proved not to havebeen duly executed in the manner required by section 4 of thePrevention of Frauds Ordinance.
The petitioner respondent Harold Herat the executor named inthe Last Will had on 15th May 1978 given due notice of appealagainst the order of the learned District Judge dated 03.05.78.Since then the petitioner respondent had informed his registeredAttorney-at-law Thajudeen that he does not propose to continuewith the appeal.
The five witnesses to the Last Will PI are (1) Hilary Fernando,Anthony Fernando, W. John Fernando, Godfrey Fernando andBandera. –
Charles.Shirley Corea died oh 4th March 1974. .
The executor named in the Will Harold Herat made adeclaration to the Public Trustee under section 278 of the A. J. L.forwarding one original of the .Last Will, dated 20th September1973 and on. application by the executor, the Probate Officermade an interim order under section ?83 declaring Harold Heratas the executor and that probate will be issued.
The 1st to 8th respondents appearing by their Attorney-at-law,
J.E. Corea filed objections to the interim order stating that thedocument dated 20th September 1983 was not executed inaccordance with the provisions of Section 4 of the Prevention ofFrauds Ordinance (Cap. 70) in that the Testator's signature wasnot made in the presence of each and every one of the fivewitnesses at the same time and averred that the matter in disputebe referred to the District Court of Chilaw under section 284 ofthe Administration of Justice Law to.be decided on the issuessuggested by them.
The Probate Officer on 17th March 1985 referred the mattersin dispute under section 284(1) of the said Administration ofJustice.Law Ntf. 44 of 1973 to the District Court of Chilaw orvthe following issues.
'■ (1) Is the Last Will produced in these proceedings the actand deed of the deceased?
'Was the signature of the deceased made in the presenceof each and every one; of the five witnesses namedtherein all being present at the same time.
Did such five witnesses subscribe to the Last Will in the
presence of the deceased and in the presence of eachother.. j
. (4) Should the said Last Will be identified as the Last Willand Testament of-.the deceased by all the five persons
' who have already subscribed to it as witnesses.
. Depending on the answers given to the above issuesshould-the. Interim Order dated 12th September 1974made in these proceedings be made final or be vacated.
At the inquiry before the learned District Judge. Harold Herat,the executor, and three Witnesses to the Will namely Walter John'Fernando. Godfrey Fernando and Emmanuel Anthony Fernandogave evidence to propound the Will and the only witness calledby the respondents against the proof of the Will was witnessBandara who was one of the witnesses to the Will.
The learned District Judge preferred to accept and act on theevidence of the one and only witness Bandara and held that the'Will was not duly executed.
Learned Counsel for the 11 th respondent-appellant submittedthat there has been no proper assessment of the evidence ofHarold Herat which amounts to an error of law, and that dueweight has not been given to the evidence of the three witnessesto the Last Will. He further submitted that there was over-whelming evidence for the Judge to act in favour of the Will andthere was a presumption of due execution.
T Learned Counsel for the respondent submitted that the mainquestion was whether the Last Will was signed and attested by
witnesses as required by law and when there are two conflictingversions as in this case it is essentially a.matter for the trial Judgeto come to a decision. He further submitted that the trial Judge .had the. inestimable advantage of seeing the witnesses and ofhearing them and if having seen and heard the witnesses, theJudge disbelieves certain witnesses and there is nothing ex faciein the evidence which would show that the Judge hadmisdirected himself or drawn some wrong inference, the Court ofAppeal will not interfere with the findings.
. The deceased Shirley Corea was a practitioner in the DistrictCourt of Chilaw and a Notary. He had a large civil and criminalpractice. He was the Speaker of the House of Representatives atone time and a well-known popular figure and he was a.Ministerof State.
'.* v,
Harold Herat an attorney-at-law gave evidence. He was. theexecutor named in the Will. He produced three copies of the LastWill marked P1, P2 and P3 all three of which have been signedby the testator and by the same five witnesses. He also producedmarked P4 the original draft of the Will in the handwriting ofShirley Corea. He also produced the earlier Wills made by ShirleyCorea. P5 is a Will dated 6.5.55. P6 is a Will dated 2.4.62. This ,is a notarial Will. P5 bears ah endorsement in the handwriting ofShirley Corea that it is cancelled by the Last Will of 22.10.72. He■ produced another Will dated 8.2J2, in three copies, two ofwhich are typed and one is in the handwriting of .Shirley Coreaand it is. witnessed, by 5 witnesses, this has, been produced.marked P7, P8 and. P9. In the-typed .copy P7 there is anendorsement "cancelled by will dated 22.10.72". .Thisendorsement is in the handwriting of the deceased. Harold-Heratis named a$ executor in P7, P8 and P9. Harold Herat stated thatshortly before the 8th of February 1972 the deceased ShirieyCorea visited his house and asked him to be his executor. Hesaid he was riot too. keen. Then Shirley Corea told him that hewas .concerned about his son Gamini Corea and that it will be astraight Will and that Harold Herat had nothing to worry about it,and as'Harold Herat was getting on well with Shirley Corea’sbrothers and sisters and with Gamini Corea too he would be thebest person to be the executor, and he had the highest
confidence in him, Harold Herat stated that after this discussion,he did not know anything about the Wills. <
Harold Herat stated that deceased Shirley Corea alwaysreferred to Gamini Corea (11th'respondent appellant) as his son.He was unable, to say whether he was legally adopted. Buteverybody, in Chilaw- knew that he was the adopted son andShirley Corea told Harold Herat that Gamini was his adopted son.
Harold Herat said that on 15.3.74 there was a meeting of theintestate heirs at Mahagedera. He stated that he did know how it. came about but he was informed that the last Will would bebrought from Colombo to Mahagedera and the time was fixed at.5 or 5.30 p.m. Harold Herat said that he went to the Mahagederathe residence of the deceased. He said that apart from 1 -7respondents* and Charles Corea and Gamini Corea, there wasHilary Fernando, one of the witnesses to the Will, looking afterthe interests of Gamini Corea. Attorney-at-Law Thajudeen waswith Herat, J. E. Corea (who is the Attorney-at-Law for therespondent, in this case) was present looking after the interests ofthe heirs. There was also Raju a very close friend of Shirley Coreapresent. At this meeting witness Bandara was not present.
Harold Herat stated that Raju brought a brief case which is inCourt and Raju opened the brief case with the key he had. Fromthe brief case the Will PI was taken and was read by Herat.,Hetook the handwritten draft and the Will was passed round.
.Harold Herat stated that those present were satisfied with thedevises in the .Will and somebody said it was a fair Will, and heremembered Charles Corea* saying that he was happy that Herathas been appointed executor. According to the last Will thedevise of the ancestral property went to the intestate heirs, theacquired property went to the son Gamini Corea. TheMahagedera was to be sold at the upset price amongst the heirsand if that fails it was to be put up for public auction and out ofthe proceeds of sale Rs. 50.000/- Was to be given to hisadopted son Gamini Corea for him to purchase a house and outof the balance if any Vi goes to the brother and sisters, of thedeceased and the other Vi to Gamini’s two children. If a salecould hot be effected the house was to go to Gamini Corea.
It was agreed by all that Gamini Corea should be the occupantof Mahagedera. None of the intestate heirs appeared to bewilling to reside there. On the 15th some movables were takenaway by those entitled to them as there was no dispute regardingthe Will and as ultimately they would reach the devise.
Herat stated that some of the intestate heirs wanted somephotographs and small items for sentimental reasons. Herat toldthem that they alt went to Gamini Corea under the Will and that ifGamini Corea consents they could remove what they pleased.Gamini Corea consented and they removed the articles and hedoes not know what they removed. Herat stated that throughoutthese proceedings on 15th at the Mahagedera Hilary Fernandoan attorney-at-law practising in Chilaw Court was present. HilaryFernando was the first witness to the Will. Harold Herat said thathe cannot say what Hilary Fernando's reactions to the Will were.He can only say that he did not raise any objections whatsoever.The main devisee under the Will was Gamini Corea. HilaryFernando was watching the interest of Gamini Corea. HaroldHerat stated that once all accepted the Will and when CharlesCorea expressed the view about his being happy that Harold wasappointed executor, he decided that he should go through withit. The lawyers present at the reading of the Will were Rajapakse,Thajudeen, J. E. Corea and Hilary Fernando. A. E. R. Corea retiredJudge and husband of the 5th respondent was also present.Harold Herat said that he presumed that all five witnesses andShirley Corea were present at the same time and signed the Willbecause Hilary Fernando a witness and an Attomey-at-Law didnot raise any objection. He said all the lawyers present knew thatShirley Corea was a lawyer and had a large civil and criminalpractice.
Harold Herat stated that he knew that he had to get affidavitsfrom the witnesses to file papers, and that he heard beforeaffidavits were prepared that Hilary Fernando and Bandara werenot willing to furnish affidavits. Harold Herat said that he wentwith Thajudeen Attorney-at-Law to the house of Hilary Fernando' and asked him whether it was true that he was not signing theaffidavit. Hilary Fernando said that he was not signing it. HaroldHerat then told Hilary Fernando that he was creating unnecessary
trouble having been present at the time that the Will was read.From there he proceeded to Bandara's house. He also said thathe would not sign the affidavit. Harold Herat stated that ShirleyCorea was a U'.N.P. stalwart right throughout his life. The.Electoral Association of the U.N.P: in Chilaw has had as itsPresident Shirley Corea, and Hilary Fernando was one.of severalVice-Presidents. Hilary Fernando was next in the running assuccessor to Shirley Corea. About 3 or. 4 months after the deathof Shirley Corea the talk went around that Gamini Corea andseveral others ..were in the field for nomination, Herat statedBandara was the Secretary of the U.N.P. Organisation in Chilaw.
Walter John Fernando a witness to the Will gave evidence. Heis a teacher in Chilaw. He stated that he along .with Anthony.Fernando and Godfrey Fernando signed the affidavit dated. 11.9.74 which was filed by Harold Herat the executor along withthe Will. John Fernando identified his signature as witness to the" Last Will PI, P2 and P3. He stated that the jeep was sent byShirley Corea.to his house with Bandara in the jeep. Th'e.driver ofthe jeep was Cyril. He dressed up and got into the jeep and on theway Godfrey Fernando was picked up and they came to ShirleyCorea's house in Chilaw. He stated that Shirley Corea signedfirst. Thereafter Hilary Fernando signed. as witness. AnthonyFernando signed second and he signed third. Bandara andGodfrey signed thereafter but he.cannot remember the order..Hestated that this was signed at about 6.30 or 7 p.m, JohnFernando stated that, he knew Hilary Fernando'well. He said thatthey were of the same, political party and that Bandara wassecretary of the Central Committee. John Fernando stated thatwhen he went with Bandara and. Godfrey Fernando to ShirleyCorea's house to sign the Will Hilary Fernando and AnthonyFernando were having a chat' with Shirley Corea. He furtherstated that .Gamini Corea and Hilary Fernando are aspirants'tothe Chilaw seat and that he supported Gamini Corea. He said heknew Godfrey Fernando for over 10 years and he-was also anactive member of the party and all were supporters of ShirleyCorea. John Fernando stated that Shirley Corea said that thedocument was his Last Will.and that'he was setting down his'signature to it and as.witnesses he wanted them to sign it. Hesaid that after Shirley Corea signed in their presence all the
CA 1 Gamini ftanasagalta Corea v. Ernestine Corea, and Others (Viknarajah. J.) 209
Ii
witnesses signed, It was suggested to John Fernando in cross-examination that he signed this Last Will before Shirley. Coreasigned it. The witness replied by saying that the suggestion was. acomplete falsehood.
The next witness to the Will called to give evidence is.CalixtusGodfrey Fernando, an employee under a fish mudalali. Heidentified his signature in the Last Will P-1, P2 and P3 and he saidthat all five witnesses signed-thp Last Will at the same time. Healso stated Shirley Corea signed first in their presence and thatthe'signing'took place between 6 and 7:p.m. He also.saidrthat.hesigned the affidavit dated 11th September 1974. In;the affidavitthe| name of this witness has been given as MihindakulasooriyaGodfrey Calixtus .Perera'. It should have been 'Calixtus Fernando'.A greatdeal of time was spent in cross-examination of all thewitnesses with regard, to this error arid it was suggested that theaffidavit was drawn up hastily and in a slipshod manner. I do notthink one can blame the witnesses if the affidiavit was drawn upcarelessly Godfrey Fernando stated that the-affidavit was readOver to him and explained by the J.P. but he cannot rememberwhether the J.P. read the whole name or said only Godfrey. Thiswitness has signed the affidavit as Godfrey. What is sworn to oraffirmed to is.the contents of the statement in the affidavit. Thename js only description of the person takingthe £>ath. In anyevent the testator Shirley Cprea cannot be responsible for themistake made in the- affidavit after his death. Godfrey Fernandoalso stated that he went by jeep belonging to Shirley Corea withWaiter.Fernando and BTandara to.Shirley Corea's house to signthe Will and that the jeep was driven by a driver and^that whenthey went to Shirley Corea's house Hilary Fernando and AntonyFernando were there.*
The next witness to the Will Emmanuel Antony Fernando gaveevidence and stated that he is a businessman dealing in tenders,for fish He owns two lorries and once in three months he paysabout Rs. 1,000/- as Business Turnover Tax. He said he knewShirley Corea.
He identified his signature on the Last Will as a witness. Hesaid that Shirley Corea signed first and after that the witnesses
signed. Hilary Fernando signed first and thereafter he signed itand thereafter Walter Fernando signed third, Godfrey signedfourth and Bandara signed fifth. He said he knew all of them. Hesaid that all were present at the same time with Shirley Corea. Hesaid he and others signed three copies of the Last Will. He alsosaid that later he signed an affidavit before Vernon Perera J.P.Emmanuel Antony Fernando stated that Shirley Corea sent thejeep in the evening to his place and he went in the jeep driven byCyril and the signing took place at about 7 p.m
' As against the above evidence which was led in support of theLast Will the respondent led the evidence of Bandara who wasalso a witness to the Last Will. Bandara described himself as aJournalist residing in Chilaw. He said.he knew Shirley Corea verywell and that he was the Secretary of the U.N.P. in Chilaw from1965 while Shirley Corea was the President. He resides withinabout Va, mile distance from Shirley Corea’s house. He said hevisited Shirjey Corea's house regularly for personal reasons andfor party matters. He said hie remembers the execution of the LastWill towards the end of'1973. He stated that daily in the eveninghe used.to visit Shirley Corea at his house and when he waschatting to him Shirley Corea offered some documents .forsignature. He said Shirley Corea gave three copies one afteranother. He was' seated at the dining table. There were severalpersons seated there. Some of whom he knew. School masterWalter was also present. He is one of the witnesses'to the Willand he gave evidence for the petitioner, He said there was oneAppuhamy. a strong supporter of the U.N.P. He is called "BarAppuhamy". There were several, persons from Madampe. Somewere seated,, some were standing.
Bandara stated that amidst these people at the table, ShirleyCorea gave him one document first covered with a paper andasked Bandara to sign. Bandafa stated after signing the firstcopy, he questioned Shirley Corea when he gave the secondcopy for signature and Bandara asked Shirley Corea whether itwas his Last Will. Then Shirley Corea told him 'do not be apundit'. He signed the second copy also. He then asked ShirleyCorea whether it was his Last Will. Then Shirley Corea smiled inorder to indicate assent. Bandara signed the third copy also. Allthree copies were.covered when he was asked to sign. Bandara
stated that he left the place after he signed. When he was therenobodv else wa^ asked to sign. He said Walter Fernando.was. seated)opposite to him. He did not see Walter Fernando signing.Bandara stated that Shirley Corea.signed in his presence. He saidthat Hilary Fernando was not:there. B&ndara stated that after hesigned the Last Will as a witness, he remained in the house forabout 1 /4 an hour to 1 /2 an hour and he left about 6.30 or 7p.m. Bandara stated that Harold Herat asked him to sign anaffidavit to the effect that all five of them signed the Last Willtogether and he replied saying that he would sign <an affadivit to'say that he signed it but he does not know about others signingit. Then Harold Herat rejoined saying trouble has arisen becauserespectable people had not been asked to sign the Will by hisuncle.
Bandara stated he was a,journalist from the beginning and.from young-days he wrote radio broadcasting matters and hadbeen broadcasting iessons over Radio Ceylon.
i•‘’''
Bandara stated that when this game' of signing PI. P2 and P3was going on Walier Fernando was there. In this early part of hiscross-examination he stated. that Shirley Corea signed thedocument before Bandara signed it. But later on he stated afterhe {Bandara signed it) Shirley Corea signed it and that at the timehe. signed as a witness Shirley Coreas signature was not there.Bandara said that after signing, they all left that day together togo on a journey to Madampe that day. There were about tenpeople apart from Walter Fernando and Bar Appuhamy.
Bandara stated that the evidence he gave in Court hementioned .-it to his lawyer Mr. Samarakoon in Colombo and itwas Earle Corea the younger brother of Shirley Corea andattorney-aMaw for respondent who asked him to go and meetMr. Samarakoon in Colombo.:
Bandara stated that after Shirley Corea's death Hilary Fernandoand Gamini Corea were applicants for the post of organizer ofthe U'.N.P. He said he was not happy about Gamini Corea but hedid hot express dissatisfaction.
. Bandara stated that Harold Herat tried to insult him by sayingthat.Shirley Corea should have got some more worthy witnessesto sign his Last Will. He mentioned this to Earle Corea and Mr.Srharakoon. It should be noted that not a single question was putto Harold Herat in cross examination about this. Earlier WalterFernando was not questioned about Bandara signing the Last•Will alone when Walter Fernando was present.
Bandara's position is that he was asked to.sign the List Willwhen he went there casually and that he was not asked to comethere. Bandara stated that he knew Gamini Corea and that bothof them were df the same age. He. had known Gamini Corea fromchildhood and both went to the same school and Gamini Coreawas going to school from Shirley Corea’s house. Bandara statedabout 25 years ago he realised that Gamini Corea was ShirleyCorea's adopted son and that they all treated him as such.Bandara further stated when Shirley Corea was Speaker of theHouse of Representative Gamini Corea was his private secretary!Bandara stated that up to now he does not know the contents ofthe Will. He said that Earle Corea the lawyer came, to his houseone day about a year after the Will .was written, that is beforeSeptember 1974. By the time Earle Corea came and spoke to. him about the Last Will, Gamini Corea had sent in his applicationfor nomination as organizer of U.N.P. and it was at that timeBandara felt that the party was in a mess arid he stepped out.Bandara stated that at the time Earle Corea came to see himregarding the Will the contesting candidates were HilaryFernando and Gamini Corea . The respondents relied on theevidence of Bandara to show that there was rid due execution.
Counsel for petitioner also led the evidence of the 11threspondent appeallant Gamini Ranasagatla Corea. Gamini Coreastated that he was the eldest of the four children of HendrickRanasagalla and Caroline. He said from the time he canremember he was brought up by Shirley Corea. First he.was sentto-school in Chilaw and thereafter .to St.. Thomas College,.Mt. Laviriia. He stated his name was altered to Gemini Corea byan order of Court sponsored by Shirley Cqrea. He said he wasworking at the Petroleum Corporation and-when Shirley Coreabecame Speaker, he became his private secretary: He was
seconded for service from the Petroleum Corporation. He wasalways living in Shirley Corea's house No. 15/J. Gower Street.Colombo 5 and he was staying there till Shirley Corea, died.Gamini Corea stated that he was introduced to friends ■ andrelations by Shirley Corea as adopted son. He said Shirley Coreadied on 4:3.74 at the Sulaiman Nursing Home Colombo and helooked after him right throughout. After the funeral a Search wasmade for .the Will in the Maha Gedera but nothing was found.Gamini Corea stated that the family had deputised Henry Corea.Raju and. Gamini Corea to look'for the Will at the Gower Streetresidence in Colombo. He stated that they found a brief casecontaining some documents and from there they went to T. B.Panabokku's house with the brief case. Gamini’ Corea detachedthe key from the brief case and gave it to Raju. Eventually thebrief case was brought to Maha Gedera and the brief case wasopened and the Will was read by Harold Herat. Gamini Coreastated Hilary Fernando was present at the reading of the Will andHilary Fernando was looking after Gamini Corea's interests.Gamini Corea said after the Will was read everybody was happy.Gamini Corea stated that Earle Corea the attorney at law forrespondents said that it was a fair Will.
Gamini Corea stated about 5 or 6 months after Shirley Corea'sdeath he became interested in politics.
■ Issue No. 1 was yvhether the last will produced in theseproceedings was the act and deed of the deceased.
•In view of this issue the petitioner Harold Herat produced theearlier wills of Shirley Corea in Order tp show the consistency ofthe disposition made by the deceased Shirley Corea,"In all thewills it was sought to be shown that Shirley Corea, wasconcerned about Gamini Corea the main beneficiary under thewill.
Counsel for respondent led the evidence of Dr. RajaratnamJeyaratnam who was a witness to an earlier Will P7, P8 and P9 inattempt to show that the Will was signed by witnesses not at thesame time. Counsel for petitioner objected to these wills beingused for that purpose, and during the course of the argument.
Counsel for respondent conceded issue 1 and admitted that thewill P1, P2 and P%was the act and deed of the deceased ShirleyCorea. In view of this admission the learned District Judge ruledthat the earlier Wills were not relevant, and ruled out all theearlier wills produced in the case.
The earliest discussion with regard to the proof of wills has'been by Baron Parke in 1838 in the case of Barry v, Butlin(1),where his Lordship stated.
The rules of law according to which cases of thismatureare to be decided do not admit of any dispute as far as theyare necessary to'the determination of the present appealand they have been acquiesced in on both sides. Theserules are two. The.first that the onus probandi lies in everycase upon the party propounding a will and that he mustsatisfy the conscience of the Court that the instrument sopropounded in the Last Will of a true and capable testator.The second is that if a party writes or prepares a will underwhich he takes the benefit.that is a circumstance that oughtgenerally to excite the suspicion of the Court and call uponit to be vigilant and jealous in examining the evidence insupport of the instrument, in favour of which it ought not topronounce’unless the suspicion is removed and it isjudicially satisfied that the paper propounded does expressthe true will of thedeceased".
This principle was discussed in 1895 in the case of Tyrell v.Painton(2) where Lindley L. J. stated in respect of the two ruleslaid down by Parke B that it is not "confined to the single case inwhich a. Will is prepared by or on the instructions of the persontaking large benefits under it but extends to all cases in whichcircumstance’s exist which excite the suspicion of the Court".
This principle as set out in Barry v. ButJin and TyrolI v. Paintonwas discussed by the Supreme Court in 1919 in the Alim Willcase(3) where Bertram C.J. at page 494, stated,
"The principle does not mean that in cases where a
suspicion attaches to a Will a special measure of proof or a
particular species of proof is required. It.means that in suchcases the Court must be vigilant and jealous in examiningthe evidence in support of the instrument, in’ favour, ofwhich it ought not to pronounce unless the suspicion isremoved, and it is judicially satisfied that the paper
propounded does express the true will of .the deceased’
. |but the. principle is that whereever a will is preparedunder circumstances which raise a well grounded suspicionthat it does 'not express the mind of the testator, the Courtotight not to pronounce in favour of it unless that suspicion -is removed".
On a consideration of the above principles it is clean thatHarold Herat must prove that the document in question namelyP1, P2 and P3 is the act and deed of a free and capable testator.There is overwhelming evidence in thispase that the Last Will P1.is the act and deed of Shirley Corea. Iniact the handwritten draftof the will in the hand of Shirley Corea has been producedmarked P4! In view of the overwhelming evidence issue No, 1was conceded by the Counsel for respondents..
The learned District Judge in the course of his judgment hasstated as follows:— .
"On.j15 3.74 no suspicious circumstances surrounding theexecution of the will existed. It is not even doubted that P1is the act and deed of the deceased in. his own handwritingoh 20.9.73 when he was in full possession of all hisfaculties"
~ The only dispute in this case is whether the last Will P1 wasduly executed according to law.
Under section 4 of the Prevention of Frauds Ordinance (Cap.70) no will is valid unless it shall be in writing and executed inmanner hereinafter mentioned that is to say "it shall be signed at.the foot or jend thereof by the.testator or by some other person inhis presence and by his direction and such signature shall bemade or acknowledged by the.testator in the presence of five ormore witnesses present at the same time and such witnessesshall subscribe the will in the presence of the testator but noform of attestation shall be necessary". ‘
This section is identical with section 9 of the English Wills Act1837. except that the minimum number of witnesses requiredunder this section is two.
The three-witnesses to the Will, viz, Anthony Fernando, JohnFernando and Godfrey Fernando have testified that they and theother two witnesses, viz, .Hilary Fernando and Bandara werepersonalty present at Maha Gedera Chilaw and .that.they saw thedeceased subscribe his signature to the Will shown to them,and that the same.time and place and in the presence of thedeceased and in the presence of each other the five personsnamed subscribed their signature thereto as witnesses.According to the evidence of these three.witnesses the Will hasbeen duly executed according to law.
As against this evidence’ Bandara testified that when hesigned the other witnesses were not present and that ShirleyCorea sighed in his presence after he signed.
Hilary Fernando although he was on the respondents' list ofwitnesses did not give evidence. Hilary Fernando a lawyer waspresent when the .Wilt was read on 15.3.74. in the presence ofthe heirs and the executor Harold Herat. In fact he was presentlooking after the interests of Gamini Corea who was the maindevisee under the Will. He did not utter a word of protest tha.tthe Will was not duly executed although the others present werehappy about the Will and a comment was made that it was a fairwill. Hilary Fernando is not a person not acquainted with the tawor the formalities necessary for the due execution of a Wilt. Hewas the first witness to the Will.
The evidence, of Bandara essentially is that when he wentcasually to. Shirley Corea's house one evening Shirley Coreaoffered three documents to sign and he signed it and thereafterthey went on a journey to Madampe.
.*‘rr.
According to the Judge "kept in separate compartments bothversions could be true. Taken together one has to annihilate the
other".' Thus the Judge has not rejected the evidence of the threewitnesses considering demeanour or credibility. The Judge posesthe question as "which of them (that is two versions) survives".
Then!the Judge begins to find out which survives.
He begins by saying as follows:—
"But why did this anxiety not prompt him to include in. P1that particular about the simultaneous presence of the five-witnesses and himself notwithstanding the fact that in law itwas superfluous".
It would appear from this passage that the Judge hasoverlooked the following witness clause in the last paragraph inthe Will P1.:~
"In witness whereof j Sri Kumaradasa Charles Shirley Coreahave hereunto and to another of the same tenor and date asThese Presents set my hand at Chilaw in the presence offive witnesses on this 20th day of September One ThousandNine Hundred Seventy Three".
This is a statement of the deceased Shirley Corea that hesigned in the presence of five witnesses.
Below the witness clause is the signature of the witnessesnumbered 1 to 5. The numbers 1 to 5 are typed one. under theother and each witness has signed against each number.
This witness clause indicates that Shirley Corea and:the fivewitnesses were simultaneously present when Shirley Coreasigned the Last Will.
■ The Judge in his judgment states that Shirley Corea had an"abiding desire to benefit and advance the 1.1 th respondent".Then the Judge poses the question as follows:‘
"But if that be so could the Will executed for that purposebe as casually executed as Bandara says.it was on theeve of
• a trip to Madampe amidst discussions of party politics in a
■ , crowd .gathered in the dining room and even seated on thedining table 'with .them, without the presence of aJI five
witnesses to sign it.'was the execution not a solemn
act and banter at that time unbecoming? Hence couldBandaras version be true?"
The Judge posed the correct question but he answered it notwith reference to the evidence in the case after evaluating them. but as follows:—
"It seems to me that today the Court must take judicialnotice of the rush and speed of life and the permissiveprofanity of the age nothing is sacrosanct. Concept ^of aformer age used now could lead to misleading inferences".
The Judge's complaint is that the evidence of the threewitnesses viz John Fernando, Godfrey Fernando and AnthonyFernando is "remarkably void of detail" and he stated that the"cross examination did not co-operate to fill up anything In thatportion of the evidence".
The three witnesses have spoken to the essential factsnecessary to prove due execution of the Will. They were notaware as to what evidence the respondents' were going to lead. Itwas for the cross examining Counsel to,go into details in order to>test the veracity of the witnesses. In fact that is the object ofcross examination. Eminent Counsel appeared for therespondent and if witnesses were not cross examined in detail;the Judge cannot hold that against the three witnesses that theirevidence is void of detail.■;
Section 151 of the Civil Procedure provides that the partybeginning shall produce his evidence calling his witnesses andby questions eliciting from each- of them’ the relevant andmaterial facts to which such, witness can speak of his ownobservation. In the explanation to this section it is stated that thequestions should be. simple and so framed as to obtain from thewitnesses- as nearly as may be in a chronological order anarrative of all facts relevant to the matter in issue between theparties which he has witnessed.
. The three witnesses to the Will have spoken as to how theycame to meet at Mahagedera, the vehicle in which they came thename of the driver and the persons who came in the vehicle andpersons who were in the Mahagedera when they came and as tohow they came to sign the Last Will. They have also given thetime. If any further details were necessary it should have beenObtained by cross examination in order to test their veracity.
1 ■ – '
Bandara's evidence is not corroborated by any other evidence.According to him when he signed the Last Will there were anumber of persons present but none of them were called to giveevidence. According to Bandara there vyere about ten personspresent. If Bandara .$ evidence is true. Shirley Corea could havegot 4 Others who were present there to sign the Last Wjll. Thereis no need to postpone it for another occasion. Shirley Corea ishimself a lawyer and. a notary. He knew the requirementsnecessary to execute a five witness will. In fact he had executedwills earlier. Is it probable that Shirley Corea would have acted inthe way Bandara states?
It was Stated by Bandara that Shirley Corea signed the Last Willafter he signed the Will and it was suggested that on a perusal of'the Will it is found that Shirley Corea had signed at the bottomoh the right hand side below the last signature of Bandara on theleft hand side: It was submitted that this corroborated Bandara’sevidence. I have perused the Will. On the left hand side thefigures 1—5 are typed one.under the other for the witnesses tosign against each number. Shirley Corea has signed on the righthand side little below the numbers because if the witness’ssignature is long the space would not be sufficient. Allowingenough space fpr the Witness's signature Shirley Corea’.hadsigned at the end. I do not think any adverse inference can bedrawn from this.
In Ha/sbury Laws' of England 4th Edition Vol. 50 page 133para 259 it is stated as follows:
"In the absence of proof that the witnesses djd not see orcould not have seen the signature of the testator and in theabsence of fraud the courts presume when therfe is a proper■attestation clause or when the evidence shows that the
testator knew the law that the attesting witnesses saw theacknowledged signature. Even when the attestation clause isinformal, the presumption of due execution is applied if theattesting witnesses identify their signatures and that of thetestator even though they have no recollection of thecircumstances in which the Will was executed"
In the case of Re Vere Wardale v. Johnson (4) the two attestingwitnesses gave evidence that they had subscribed their names tothe Wili before the testator appended her signature, in whichcase the Will would not be validly attested. The propounded ofthe Will tendered evidence to show that the evidence given bythe attesting witnesses was erroneous but.the plaintiff contendedthat the evidence of . the attesting witnesses was conclusive. Itwas held that the object of the legislature in imposing Strictformalities required by the Wills Act 1837, S9 was the' prevention of fraud and the duty of Court was to see that nofraud was perpetrated, the exclusion of further evidence couldonly increase the possibility of the perpetration of fraud andtherefore it was competent for the propounders of the Will to callfurther evidence.
In this case Philmore J cites the following passage from Mortimeron Law and Practice 2nd Ed. p 127
"Even if the witnesses profess to remember the transactionand state that the Will was not duly executed, this negativeevidence may not only be rebutted by the evidence of other. witnesses but the Court may in this case also, from aconsideration of all the circumstances of the case and ofthe facts and circumstances which the attesting witnessesthemselves state come to the conclusion either they are notto be credited or that their recollection fails them and so theWill may be admitted to probate in spite of their testimony".
Philmore J also referred to the Judgment of Lord Penzance(L; R. I P & D 682) irr Wright v Rogers (5) where he seemed to.make it clear first that the presumption of law in favour of dueexecution exists, notwithstanding the wording of the. attestationclause..
Philmore J then states as follows:—
"Lord Penzance then' said -that the presumption wasenormously strengthened if there was a perfect attestationclause and he continued
where both the witnesses, however swear that the Willwas not duly executed and there is no evidence.the othermay,- there is no footing for; the Court to affirm that thewill was duly executed".
It would appear from, this judgment even if the attestingwitnesses swore that the will was not duly executed if there wasother evidence the other way probate should be granted.
In1 the' case of He Denning (6) a holograph will, which was theonly testamentary document found after the deceased's, deathconsisted of a small single sheet of writing paper. On one sideappeared the date and the words "I give all I possess to my
cousin Mary Jane and John Harnett" followed by the
signature of the deceased. On the other side and upside downtwo names were written in different hands "Edith Freeman" and, "Dorothy Edwards" one below the Other.
There was no attestation clause and no indication why EdithFreeman's and Dorothy Edward's names were on the back of thedocuments. The sole surviving cousin now sought to propoundthe will. There was no . evidence as to the identity of EdithFreeman or Dorothy Edwards. *
The Judge Sachs J states as follows:—
"In these circumstances the real issue for the court is whetherthe maxim Omnia praesumuntur rite esse acta can be applied.The Judge cites the case of In the goods of Peverett (7) where SirFfancis Jeune P. dealing with a case in .which the signature oftwo ladies appeared oh the face of the documents with certainwords states as follows:—
'Two things may be .laid down as general principles. Thefirst is that the Court is always extremely anxious to giveeffect to the wishes of persons if satisfied that they really are
their testamentary wishes and secondly the Court will notallow a matter of form to stand in. the way if the essentialelements of execution have been fulfilled. Those areprinciples which I can act upon, although I am consciousthat in this case where there is no attestation clause at all Iam going to the furthest limit".
After citing this case the Judge granted probate applying theprinciple maxim omnia praesumuntur rite esse acta.
The case of Re Colling deceased (8) is an action to have the1971 Will of the testator George Colling or alternatively his1969 Will proved in solemn form. The testator died on 28thMarch 1971.
With regard to the 1971 will the difficulty had arisen becausethe testator started to write his signature in the presence of boththe witnesses to the Will. He was a sick man in hospital at thetime. One of the witnesses was the patient who, was in the nextbed to his, a Mr. Jackson and the other was a Sister Newman.Unfortunately after the testator had started writing his signaturein the presence of both witnesses Sister Newman had to leave toattend another patient. She left before he had completed hissignature and he completed it in her absence. Jackson thenwitnessed the Will in the absence of Sister Newman but in thepresence of the testator Sister Newman returned and the testatorand Jackson acknowledged their signatures. to her and shesigned as a witness.-.
The Judge states as follows:— .
* '
'The requirements of the Section however,are establishedas strict and technical. Both the technicality and the effectof defeating a testator's intention are brought out -veryclearly if I may respectfully say so, by the observations ofMorris J in estate of Davis, Russel and Delaney. In thatcase it was held that it was essential that the testatrix shouldhave signed the Will or acknowledged the signature in thepresence of both the witnesses before either of them hadattested and subscribed to the document".
Morris;J observed,
"l am compelled to decide the case in accordance with law.even though my decision has the effect of defeating thepurpose and intention of the testatrix".
The Judge in the Re Colling case stated "I feel with greatrespect driven to the same course in this case". The Judge held,that the requirements of .Section' 9 of the Wills Act 1837 havenot been complied with because it was essential that the testatorshould have signed the Will or acknowledige his signature in thepresence of both witnesses before either of them .had attestedand subscribed the document.
The case of Dayman v Dayman (9) is a suit for revocation ofprobate on the ground of undue execution; both the attestingwitnesses swore that the will was not duly signed by them in thetestator's presence but their evidence did not coincide uponother matters. ■
Held that the presumption of law omnia praesumuntur riteesse acta must prevail.
Barnes J in this case states as follows:—
‘The point made is that they did not attest and subscribe inthe presence of'the testator but that, the Will having beenexecuted in the bed room in which the testator was. theattestation and subscription of the witnesses was down inthe parlour of the same house but not in the presence of thetestator. That raises a question which has very often beenbefore the Courts as to whether or not where a will itself isregular on its face or as in this case is fairly regular, thememory of the witnesses who have spoken to the attestationis to be trusted so as to show that the will was not properlyexecuted in accordance with the requirements of the Statute.'Several things in-this, case are perfectly clear; There is nodoubt whatever that the Will was signed by the testator andthere is no doubt that this was done in the presence of thetwo witnesses. There is also no doubt that the witnessessigned it. There is no doubt that the testator was perfectly
' sound in mind at the time he executed it, and although theattestation clause is. on the back and is not placed where ifthis-document was perfectly regular, it would be, yet theclause itself is regular and the attestations'are put ‘,in the- place where on the face of this document you wouldexpectto. find them. So that everything is all right as regards'Compliance with the Act,' except the point suggested thatthe Will was hot subscribed by the tvyo. witnesses in theactual presence of the testator. There is more over no doubtthat this was the will of the testator that it was the documentwhich he wished to be his will .and however one .may look atit as a'matter.of commonsense it is his will, Still (f it has notcomplied with the requirements of the Act it will not be.valid". •'.
Jhe Judge held that the Will -must be upheld:
The plaintiff appealed- from this judgment to the Court ofAppeal (Herschell L.C. and Lindley and Davey L J. J.) afterhearing the argument of Counsel dismissed the appeal withcosts.-.
In the case of Wyatt and Another v Berry and others 00) theCourt held that the evidence of the two attesting.witnesses wastoo clear for the presumption of law o/n/wa praesumuntur riteesse acta to prevail and that the will must be pronounced againston the ground that itwas riot executed in accordance with theprovisions of the Wills Act.
Barnes J {who wrote the judgment in the earlier case ofDayman v Daymen) stated in the course of the judgment (at page417) referring to two cases Wright v Sanderson {11) and UoydyRoberts (12) Moore PC. as follows:—
'Those cases show clearly that where it is obvious that thetestator wanted the document in question to be his will andthat he was complying with the terms of the Act, the Courtwould presume that everything: has been .rightly done andwould not tie itself down to accept the evidence of theattesting witnesses against that state of things. That seemsto me quite clear and those decisions really go to this that-where there is any doubt about the recollection of
witnesses, where there is anything from which the Courtcould fairly see that the Will ought to be held to be good andthe recollection of the witnesses against the forrn of the Willitself is not to be perfectly relied on then the Court may saythat the Will was, duly executed".
Having said iso Barnes J- dealing with the case he;had todecide stated "but the difficulty that I have felt in the present caseis the witnesses seemed both to be remarkably intelligent menand to have no doubt whatsoever in their recollection as to whatoccurred upon the occasion in question and the Judge heldagainst the Will as it was not duly executed."
In the case of Wimalawathie v. Opanayake (13) the petitioner-appellant as executrix applied for probate of Will which wasexecuted at the General Hospital Colombo before five witnessesone of whom was a Proctor's clerk who had drafted the Will. Thedevisees under the Will were the three illegitimate children of thedeceased. The objectors were some of the next of kin. The trialJudge refused- probate on the ground that only two witnesseshad signed in the presence of the testator and that the otherthree witnesses had affixed their signatures in the absence of the.. deceased at his residence. The evidence however showed that allfive witnesses had signed in.the presence, of the testator and thatno reliance could be placed on the evidence of one of thewitnesses who stated that he and two other witnesses signed theWill in the absence of the testator.
It was held that in the absence of suspicious circumstancessurrounding the execution of the Will the executrix who was themistress of the deceased and the mother of the devisee wasentitled to grant of probate.
In the course of the judgment Wijayatilleke J. had stated beinga Proctor's clerk who drafted the Will knowing very well the legalrequirements is it likely that he would have got this Will attestedpart in Colombo when he could have got five witnesses togetherwithout, much difficulty in Colombo as this was on the eve of theoperation when there would have been quite, a crowd ofwitnesses at the hospital ?
it would appear from the foregoing cases that the burden ofproving due execution is on the propounder of the Will. If there isaffirmative evidence that there has been no due execution thenthe Court will be compelled to hold against the Will even thoughthe document is the act and deed of a free and capable testator.
But if the Court is satisfied that the Will sought to bepropounded is the act and deed of a free and capable testatorand there are no suspicious circumstances and there issatisfactory evidence that the Will has been duly executed andwhere the Will is in regular form the Court should pronounce infavour of the Will with the aid of the maxim omnia praesumuntur.rite esse acta even though there is conflicting evidence that theWill has not been duly executed.
Learned Counsel for respondent submitted that this being apure question of fact th$t the Court of Appeal should notinterfere with the findings of fact reached by a trial Judge unlessthere is clear misdirection on the facts.
in the Court of Appeal case of De Silva and others v.Seneviratne and another (14) Ranasinghe J. had exhaustivelydealt with this question as to where an Appellate Court is invitedto review the findings Of a trial Judge bn questions of fact theprinciples that should guide are as follows:-'
(a) when the findings on questions of fact are based uponthe credibility of witnesses on the footing of the trialJudge's perception of such evidence then such findingsare entitled to great weight and the utmost considerationand will be reversed only if it appears to the AppellateCourt that the trial Judge had failed to make full use ofhis advantage of seeing and listening to the witnessesand the Appellate Court is convinced by the plainestconsideration that it would be justified in doing so.
<b) That however where the findings of fact are based uponthe trial Judge s evaluation of facts, the Appellate Court isthen in as good a position as the trial Judge to evaluatesuch facts and no sanctity attaches to such findings offact of a trial Judge.
where it appears to an Appellate Court that on either ofthese grounds the findings of fact by a trial judge shouldbe reversed then the Appellate Court "ought not to shrinkfrom that task".
This judgment was affirmed by the Supreme Court in S. C.21/81 of 9.6.82.
In the instant, case the learned District Judge has not rejectedthe evidence , of the three witnesses Anthony Fernando, JohnFernando and Godfrey Fernando on the ground of demeanour orcredibility but on a wrong evaluation of the evidence of thesewitnesses. The Judge’s complaint is that the evidence is void ofdetail and therefore he rejects their evidence which is an error oflaw. The Judge had failed to. evaluate the evidence of HaroldHerat the executor. His evidence relates to the finding of the Will,the reaction of the persons present on 15.3.74 at theMahagedera when the Will was read, the conduct of HilaryFernando who was watching the interests of Gamini Corea whenthe Will was read. Hilary Fernando being a lawyer and a witnessto the Will did not utter a word of disapproval when the Will wasread. Harold Herat's evidence on these matters is uncontradicted.Furthermore Hilary Fernando did not give evidence. There is nodoubt that document P1 was prepared by Shirley Corea and thatit was the document which he wished to be his Will. There is theevidence of Anthony Fernando. John Fernando and GodfreyFernando that the Will was duty executed. The Will P1 is regular inform. Shirley Corea was a person who knew the law and it isimprobable that he would have prepared the Will in the casualway Bandara had spoken of. Bandara's evidence isuncorroborated. There are no suspicious circumstancessurrounding the execution of the Will.
Shirley Corea had in the Last Will P1 in the last paragraphstated that he set his hand to the Will in the presence of fivewitnesses.
I set aside the order of the learned District Judge dated
3.5.1978.
I hold that the Will PI dated 20.9.73 proved and I hold thatpetitioner executor is entitled to Probate of the said Will. I orderthat Probate be issued accordingly. I allow the appeal with costs.
BANDARANAYAKE, J. – I agree.
Appeal allowed.