( 126 )
1896. In the.Matter of the Last Will and Testament of the late
tegond3. V E N A S I E L L T J P A L A Y A R , deceased, ‘
D. C, Jaffna, 746.
Order nisi for probate—•Showing cause against it—How will must be impeached—Burden of proof.
Where an order nisi for probate of a will is made,” ;t ;s open to the
respondent on the petition for probate to show that the order should
not have been made on the material placed before the Court; and
if he suaceedJ in do’ng so, the Court might discharge such order.
Except in oases in which a paper propounded as a will discloses on
the face of it indications exciting serious auspision as to its
authenticity, an objection to the genuineness of a will should besupported by affidavit or oral evidence on oath.
Where in a proceeding to obtain probate of a will the Judge, on
objection raised by the respondent on the petition for probate,
frames the issue, ” Did the deceased execute the will or not ? “—
the burden of proving the affirmative of such issue lies on the
petitioner, and he should begin.
THE executor of the last will and testament of the abovenamed deceased obtained, on petition, an order nisi under.
sections 526 and 527 of the Civil Procedure Code, declaring the
will to be proved and directing the issue of probate to him as
executor. The respondents on the petition contested the authenticity of the will, but did not support their objection by affidavit
or oral evidence. The District Judge thereupon framed the
issue, ” Did the deceased execute the will ?” The respondents
assumed the onus of proving the negative, but failed to satisfy the
District Judge that the will was not the will of the deceased. He
accordingly made absolute the order nisi. The respondents
Wendt, for third and fourth appellants.
Dornhorst, for petitioner, respondent.
3rd July, 1896. W I T H E R S , J.—
The order which makes the order nisi absolute for probate
should, I think, be affirmed.
I repeat the observations which I made in a similar case which
came up from the District Court of Colombo, for I think they are
The Judge before making an order nisi for probate naturally
satisfies himself that a. prima facie case has been made out of the’
due execution of the will propounded. . A material fact may
inadvertently escape him, and tbsn it is of course open to a respondent to a petition for probate to show that the order should
never have been made. If this is shown, the Judge will discharge( 127 )
the order. But in this case the respondent objected .to the order 1896.
nisi’being made absolute on the ground that the will was not July 2 and 3.
made by the person who is alleged to have made it. Now, in rare ^ r r t H H I g j j .
exceptions—for instance, where the paper which it is proposed to
propound discloses on the face of it indications which excite serious
suspicion as to its authenticity—an objection like the present
one, before it “is entertained, should be supported by affidavit
or oral evidence on oath. The only mistake which I think
the Judge made was to frame an issue at all on the material before
him. However, he did frame this issue, ” Did the deceased
execute the will herewith filed or not ? ” Now, the onus of
proving the affirmative lay on the petitioner, and properly
speaking he should have begun. Respondent, however, voluntarily
assumed that onus, and in the opinion of the Judge” they failed to
prove that the deceased Edu Padian did not make the will.
I think the District Judge arrived at a right conclusion. I
think this case may be treated as if the respondents has failed
to support their objection against the grant of probate.
The appeal fails, with costs.
L A W E I E , J., agreed.