014-NLR-NLR-V-73-N.-SITHAMPARANATHAN-Appellant-and-R.-MATHURA-NAYAGAM-Respondent.pdf
LORD HODSOX—.Si! hamparnHaitian r. Jluthuranayagam
53
[Privy Council]
1970 Present: Lord Hodson, Viscount Dilhorne, Lord Wilberforce,Lord Pearson and Lord DiplockX. S IT 11 AM PA R A X ATH A X, Appellant, and R. MATIIURA-XAYAGAM, RespondentPrivy Council Appeal Xo. 2 or 19CS.S'. C. 6,63 (F)—D. C. Colombo, J9SJ2/T
Will—Probate—Question whether the Will was the act and deed of the deceased—Absenceof a plea of undue influence or fraud—Burden of proof—Proctor's evidenceas to mental capacity of the deceasd—Whether it is conclusive—Privy Council—Rule as to concurrent findings of feet.
Where, in an application for probote of a Will, the testamentary capacityor disposing mind of tho testator at the timo of the execution of tho Will iscalled in question, the onus lies on those propounding tho Will toallirm positivelytho testamentary capacity, even in tho absence of a plea of undue influence orfraud. Whether or not the cvidcnco is such os to satisfy tho conscience of theCourt that tho Will was the act and deed ot the deceased, in the sense that hewas competent to make the Will, is a pure question of fact. Accordingly, iftho trial Judge’s findings of fact nro supported by admissible evidence andconfirmed on appeal, there being no error in law, tho Privy Council will notinterfere with tho concurrent findings of fact savo in a very exceptional case.
If a party writes or prepares a Will under which he takes a benefit, or wherevera Will is prepared under circumstances which raise a well-grounded suspicionthat it docs not express tho mind of tho testator, the Court- ought not topronounce in favour of it unless that suspicion is removed.
Tho Judge, when ho considers the mental condition of the testator at thotime when he signed the Will, must put himself tho question “whether thomental faculties of the testator retained sufficient strength fully to comprehendthe testamentary act about to be done ”. The evidence of tho Proctor whoprepared 1 he AVill is not ronelu-ive ns to the mental capacity of the testator.
AiLPPEAL from a judgment of the Supreme Court.
L. Kadirgawtir, with E. Cotran, for the pet it inner-appellant.
Satyendra, for the objector-respondent.
Cur. atle. cult.
January 14, 1970. [Delivered by Lord Hodson]—
On the oth March 19G1 Velautham Xatarajan, a Colombo pawnbroker,died of cancer of the liver at his home, 292 Deans Road, Maradana. Hohad been ailing for about a year before bis death having been an inmatoIX X—J I3S00 (5/70)
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LORD HODSOX—Zithamjnranalhan r. Mothuraunyo'jun)
of hospitals for more than one period between October 1960 and the (lateof his death. He had amassed a considerable fdrtunc, the net value, of ■his estate being given as Rs. 323,lS3ol. He left behind him threechildren namely Dr. N. Sithamparanatiian the appellant and twodaughters! namely Mrs. Manonniani Ponnusamy and Mrs. RajeswariShanmiigarajah.; .
His last will, in order of date, was made.on 3rd March 1901 that is tosay only two days before he died. Bv this will he appointed theappellant his executor and gave his property to liis three children in equalshares. •. .•. __ ,y ■/.. – ,,V.
. After, his- death the appellant applied for probate of the will and anorder was made declaring that he was entitled to probate as executor butthe respondent subsequently applied to have this Order set aside on theground that, the will of 3rd March 1961 • was not the act aiid deed of the -deceased. He.moved for an order declaring that/tlie last will'dated.2nd :February 1961 by winch the appellant and respondent .‘were"appointedexecutors be admitted to probate. .•-y. .
Objections were-lodged to this application in the District Court ofColombo and on 26th October 1962 the Additional-Distnet' Judgotin thepresence of the advocates representing the parties settled ’the.issu.es to betried as follows-:—•’ ' ' y.y-yy-
“ Was the Last Will No. 1285 dated 3.3.61 the. act and deed of
. the deceased V. Natarajan ?”. >,.- .ylv-
. “ Was the deceased competent to execute, the Lasjfc Willi?
At the conclusion -of the hearing the Additional District Judge held theEvidence in the case was such as would not sa tisfy “ the conscience of theI!ourt ” that the will of 3rd March 1961 was the act. and deed off heestator in the. sense that lie was competent to make a will and. directed:hat the will dated 2nd February 1961 be admitted to probate, v
From , this judgment the appellant appealed to the Supreme Courtrhich on Sth May 1966 upheld the judge’s finding and dismissed the-ppeal. … – ''7 i ' •'
As was pointed out in the judgment delivered by Viscount Dunedin inlobins v. National Trust Company1:…c ’, ' y • ■'
-“ …… Those who propound a. will must show that the will of
which probate is sought is the will of the testator, and that the testatorwas a person of testamentary capacity. In ordinary cases if there is ••no suggestion to the contrary any man who is shown to have executeda Mali in ordinary form will be presumed to have testamentary capacity,but the moment the capacity is called in question t hen at once the onuslies on those propounding the will to affirm positively the testamentarycapacity. Moreover, if a will is only proved in common and not insolemn form, the same rule applies, …”
-. :1 (1927) A. 0.515 at 519.':
LORD HODSON*—Sithamparanathan v. Mathuranayagam
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Earlier in the sime judgment at p. 517 the following passage is found :—
Whether a man at the time of making his will had testa-mentary capacity, whether a will was the result of his own wish andact or was procured from him by means of fraud or circumvention orundue influence, are puro questions of fact. The rule as to concurrentfindings is not a rule based on any statutory provision. It is rather arule of conduct which the Hoard has laid down for itself. As such ithas gradually developed. The judicature which has given greatestoccasion for its development has undoubtedly been the jiulicaturo^ofIndia, but the principle is not in any way limited in its application toIndian legislation or Indian law, be it Hindu or Moslem, as such. Indeedit is obvious that if such a rule is a good rule to be ajiplicd io the findingsof the Courts in India, there could be no reason for suggesting that thefindings of the Courts of our great self-governing Dominions should beentitled to less consideration. Their Lordships wish it- to be clearlyunderstood that the rule of conduct is a rule of conduct for the Empire,and will be applied to all the various judicatures whose final tribunal isthis Board.
■j Being, as has been said, a rule of conduct, and not a statutoryprovision, the rule is not cast iron ; but it would avail little to try togive a definition which should at once be exhaustive and accurate, ofthe exceptions which may arise"
In their Lordships' opinion no question of law arises on this appeal tothe Queen in Council, the law in Ceylon in probate matters being thesame as the Jaw in England and the relevant considerations are to befotmd in the leading eases of Barry v. Bullin'1 and Tyrell v. Painton* toboth of which eases the trial judge referred in his judgment. In theformer case Mr. Baron Parke stated the relevant rules of law :
"… These rules arc. two ; the first that the onus probuudi lies inevery ease upon the party propounding a Will; and he must satisfy theconscience of the Court that the instrument so propounded is the lastWill of a free and capable Testator. The second is. that if a partywrites or prepares a Will, under which he takes a benefit, that is acircumstance that ought generally to excite the suspicion of the Court,and calls upon it to be vigilant and jealous in examining the evidence insupport of the instrument, in favour of which-it- ought not to pronounceunless the suspicion is removed, and it is judicially satisfied that thepaper propounded does express the true Will of the deceased.”
In the latter case Davey l,.J. supplemented what .Mr. Baron Parke hadsaid at p. 159 :
7“It must not be supposed that the principle in Barry r. Bullin
2 Moo. P. C. 4S0 is confined to eases where the person who prepares thewill is the person who takes the benefit under it—that is one state ofthings which raises a suspicion ; but the principle is, that wherever a* (1838) 2 Moo. P. C. 4S0. .* (ISOL) Probate J5I.
■ 56
LORD HODSON—Siihamparar.aifian v. Mathuranoyagam
will is prepared under circumstances which raise a well-groundedsuspicion that it docs not express the mind of the testator, the Court. ought not to pronounce in favour of it unless that suspicion is removed.Here the circumstances were most suspicious, and the question a judge.. has to ask himself is whether the defendants have discharged theni-selves of the onus of shewing the righteousness of the transaction, , .
.>i Lindley'I/.J. in the same case at p. 157 had said in relation to easeswhere circumstances existed which excite the suspicion of t he Court (
. '$■ " • v,Wherever sucli- circumstances exist, and whatever their nature may’ . be, it is for those whopropound the will to remove such suspiciontand’-to prove affirmatively that the testator knew and approved of;thecontents of the document-, and it is only where this is done [t ha tth e-onus“ 2 is thrown On those who oppose the will to prove; fraud, or undueinfluence, or whatever else they rely on to dispin cc t he. case made For;• proving the Will . . . . ”…. ?,-VW
-ViV .>*
If the judge’s findings of fact are supported by admissible evidcnce and iconfirmed on appeal, there being no error in law, there must be,a; veryexceptional case made in order to justify a- departure from -the rule of-,'conduct. •;
Before examining the facts of this case which are said to be such as tojustify a departure from the rule it is convenient to state that-the twoissues settled by the trial judge interlocked and were dealt with togetherat the t-imeof his judgment thus :^-
“ In conclusion I would say that there are serious suspicions—towhich I have adverted in this judgment—attaching to the execution ofthe Will A* which the-petitioner has not dispelled. Arid the evidencef ..in the case is such as would not satisfy the ‘conscience of-the.Court’that the Will in question is the act and deed of the testator'ih thesense that he was competent to execute the Will.•'
I answer the Issues
No.
No.”
• The conclusions of the .trial judge to which the Supreme Court adhered'were summarised in the judgment of the Chief Justice :2- v •
* 'A .,v-V
“ (a) The physical weakness of the testator was apparent from his>.. shaky and illegible signature (the Proctor asked him to signa second time because the first signature * did not seem'good ’).- -'
;(6) The Judge accepted the evidence of one Wilbert that the
v testator had been given a blood transfusion before the Willwas signed.
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LORD HODSOX—Sithamparanothan v. Sylathuranayayam
(c) Two doctors, one the testator’s son, who is the appellant inthis case, and the other an attesting witness to the Will, werepresent when the Will was signed. The trial Judge viewedwith suspicion the failure to lead the evidence of either ofthese doctors as to the actual condition of the testator.
The evidence shows that the Will was prepared and signed Inhaste on 3rd March 19G1, and that it was the appellant whosummoned the Proctor early that morning to receive instructions.The trial Judge viewed with reasonable suspicion the claim thatthe testator on his death-bed abandoned completely his earlierfixed intention to institute a trust for religious purposes anddecided instead to leave all liis property to his children.
In fact the two earlier Wills expressly stated that the twodaughters had been provided for by dowry ; the testator hadpresumably borne the cost of educating his son, and the earlierWills left a sum of money for his further medical studies. Theevidence led for the appellant did not suffice to satisfy theconscience of the Judge that the testator did indeed decide uponso complete a change in his disposition. Sitting in appeal, wedid not feel justified in holding that the trial Judge shouldhave reached a different conclusion.”
The first attack made upon the findings of the trial judge was based oiltho argument that there were no suspicious circumstances to bring intooperation the Rule of law applicable when such exist so that the ordinaryinference adverted to in the judgment delivered by Lord Wilbcrforce inLucky v. Tewari and Another 1 can be drawn :
“ .. .’wherethe will lias been read over to a capable testator on theoccasion of its execution, that is sufficient proof that he approved of.as well as knew, the contents of the will (see Guardhouse v. Bluet burn(1SC6) L. R. 1 P, & D. 109).”
The two earlier wilis were made on 2$th December 11KJ0 and o:i 2ndFebruary 1901 respectively. Both of these wills were substantiallyto the same effect. They were both attested by Mr. Caderamanpullc,Proctor and Notary, who was instructed to prepare the last will which isnow in dispute. He had been the deceased’s lawyer for 30 years. Hisevidence was vital and if. accepted in its entirety would have beenvirtually conclusive of the appellant’s case. . His evidence was howevernot accepted. The judge regarded him as au honest witness whoseevidence was entitled to respect, due weight being given to it. At thosame time he held that he was an over confident witness who was perhapsquick to come to conclusions and wrongly inferred that the charitablebequests should be abandoned anil the property left to the children. .Inview of the fact that no attack was made on the honesty of this witness thejudge’s conclusion must have been that through carelessness or inattention
1 (IOCS) S W. L. It. 363.
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LORD JIODSOX—SUhautparouathan r. Jlathuranayagam
ho misunderstood the nature of the instructions given to him completelyso that instead of simply substituting the children’s names for that of therespondent as trustees in his stead he drew the will dividing the estateamongst the children beneficially, abandoning altogether the charitablepurpose Connected with the Hindoo religion which had been carried out in. the two wills executed but a short while beforehand.
The matter originated in this way. On the invitation of the appellant■and his two sisters the eldest brother of the deceased Vclauthan•ShanmUgam Pillai who lived in India came to Colombo on –1th February1961 and went to sec his brother. Two'days later he learned of the exis-tence of the Mill of 2nd February 1961 from the respondent and oh thenext day spoke to the deceased about it. He told t he deceased he was sorryto hear ho had left everything to a trustee aiid made the respondenta trustee. He. explained to him that charity should be done by thechildren on behalf of the parents. The deceased, listened patiently andsaid nothing. . This statement of the brother may have been ambiguousas it stood but hi.cross-examination he said clearly :: what I said was to
give the property to the children and they may do charity " and “
■ according to the income they7 get they can spend cn charity.” Thejudge appears to have understood this as advice given by the brother tosubstitute the children as trustees in place of the respondent-.
On 1st march, according to the brother the deceased called the appellantand told him something about the will and asked him to bring the Proctorwho made the previous wills. The judge doubted this evidence of thebrother about summoning the Proctor and inferred that the Proctor wassummoned by the appellant himself after two days delay when thedeceased was in a weak state both physically and mentally. Theappellant who was present not o:ily when the instructions were given fortiie will but also at the time of its execution did not give evidence. His• absence from the witness box was a remarkable circumstance, theimportance of which is heightened by the fact that he was a doctor ofmedicine and had bcc-n attending the testator. Moreover, according tothe evidence of a witness who was present on the day of the execution ofthe will, the deceased was given a blood transfusion by the appellanthimself. The witness’ evidence as.to the giving of the blood transfusion, although not necessarily as to the identity of the giver of this transfusionwas accepted by the judge.
Mr. Cadcramanpulle’s evidence is clear in its terms. He said* that heasked the deceased what his instructions were and that the deceased toldhim he wanted to give all his properties to his three children. Whenasked “ in what proportion ’’ he said “ equalty ”. When asked who wasto be the executor he said “Dr. Sithamparanathan ” (theappellant). “Ido not want that Mathuranayagam again ” using an emphatic expressionin Tamil to the same effect. The will was drawn up on these instructionsby the Notary at his office and was executed at the house of the deceasedin the presence of two witnesses, one, another medical man
LORD IlODSOX—Sithamparanalhan r. Hath ura nay again
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Dr. Kctharanatlian who was not called as a witness and the other anaccountant named Koruthu whose evidence the judge did not accept.At the time of execution the brother of the deceased, the appellantand the two daughters were present. The deceased before or afterexecution read the will himself. At his request the will was thenread aloud.
It is unquestionable that the deceased was weak and it will be necessaryto refer to the medical evidence which was given nt the trial as to hisgeneral mental condition.
The absence of the two medical men present at the time of the executionof the will has been referred to already. The judge also mentioned thatthe deceased had staved at two hospitals about two months before hedied but that there was no evidence of any medical man who hadattended him during his stay at either of tbem..
In these circumstances the judge did not find t Sic medical evidencesatisfactory. There was a conflict between Dr. Austin who saw thedeceased on the flay before the execution of the will ar.d Dr. Thanabala-sunderan who last saw him about 15 days before the crucial date. Thelatter gave the opinion that cholacmia/of which drowsiness is the firstsign, was setting, in following cirrhosis of the liver. Dr. Austin was ofopinion on the other hand that the deceased was suffering from cancer ofthe liver of which cholacmia was not a sequel- He did not accept thethcor3' that cholacmia had set in and the judge did not doubt that on2nd March 19G1 the deceased was in control of his mental faculties. Hethought however that the object of Dr. Austin’s visit was for the purposeof examining a swelling on the check of the deceased and that althoughho did undertake a general examination it was of a cursory nature. Hecame to the conclusion that the next day the condition of the deceasedhad considerably deteriorated. He may not have been, as the judgethought, confined to his bed but he was seated on the bed and less steadythan he had been when lie signed the previous will.-.
The judge no doubt found himself in difficulty in considering themental condition of the deceased in this somewhat remarkable state ofthe evidence. He did however direct himself with care in accordancewith the judgment of Cockburn, C.J. in Baitks r. GoodftUow 1 and putthe question posed by Sir Edward Williams in his work on Executors■‘‘whether the mental faculties retain sufficient strength fully tocomprehend the testamentary act about to be done."
In the end, notwitlistanding the evidence of the Proctor who preparedthe will, the judge felt compelled to the .conclusion that the Proctor,although honest, had been grossly deceived when he assumed that thedeceased had a disposing mind on the morning of 3rd March 1901.
It is said that the judge was wrong in regarding the circumstancessurrounding the last will as suspicious and that in truth there was no
1 UST.O) L. It. 5 (>.510.
CO
LORD JIODSOX—Sithamparanatkau r. Malhuranuyagam
evidence to support the conclusion that the will was not the act and deed'of the deceased and that the finding of iucntal incapacity is vitiated bythe previous error.
It is argued accordingly that this is not a case where there are validconcurrent findings of fact, there being no evidence to support, theconclusions.
' It must be recognised that the judge’s conclusion that a suspicionof a. family plot to get the deceased to make the disputed will at as notdisplaced is difficult to reconcile with his acceptance of the Proctor asan honest Avitncss.■’
The plot could not, one supposes, have succeeded without thecomplicity of the Proctor AA-ho regarded his.client as of sound mind butthe judge having heard his evidence held that he, the Proctor, was himselfdeceived as to the mental condition of the deceased and jumped to awrong conclusion as to the nature of the instructions Avhick has beengiven to him. It is also to be observed that it was never suggested to theProctor that he was a party to a conspiracy or that he had misunderstoodhis instructions. There is 'however a fundamental difficulty in acceptingthe evidence of this important Avitness in the face of the judge’s rejectionof it. It cannot be said that there was nothing to arouse the suspicion ofthe Court in the change of a Avill when the deceased Avas nearing his endfrom one substantially in favour of charity to one in favour of hischildren.
This is not readily described as an unnatural Avill but it is a av|11 whichmakes a radical departure from recent considered testamentary intentions.The timing of the sending for the Proctor to make the Avill, delayed as itwas for two days after the request was made, gives some ground forsuspicion.
The presence of the family at the making of the Avill, they not havingbeen present at any previous Avill making so far as is knoAvn, is at least' noticeable.
The reading of the Avill aloud was regarded by the judge as imusual.He commented-that he could not undertsand the testator wanting tohave the Avill read aloud especially after he had read it himself. – HeAvould not, the judge thought, have been in his proper senses if he madethat request. .
The unexplained absence of the doctor called in for the purpose ofwitnessing the will and above all the absence of the appellant himself, aninterested party, who was actually concerned in the making of the Avill.under Avhich he was to receive substantial benefit are of the highest -significance. The judge’s much criticised conclusion that advantage Avaataken of the testator’s condition to make him sign a will creating in theweak mind of the testator the impression that by the Avill he was only >
Damayanu v. The Queen
Cl
cutting out the objector as trustee cannot be dismissed as fanciful. Evenin the absence of a pica of undue influence or fraud the burden ofsatisfying the Court remains on those who propound a will. The law aslaid down in the older cases to which a reference has been made wasreiterated in the judgment delivered by Lord Du Parcq in the PrivyCouncil in Ilarmes and Another v. IJinkson1 in these words “ Whether ornot the evidence is such as to satisfy the conscience of the tribunal mustalways be, in the end, a question of fact.”
Even if the reasoning of the trial judge and of the Supreme Court is notprecisely the same their Lordships arc of opinion that on both the issuesraised in this action there arc concurrent Endings of fact and that thereis no ground upon which it formed an exception to the rule of conductwhich makes such findings final and conclusive.
Accordingly their Lordships will humbl3' advise Her Majesty thatthe appeal be dismissed. The appellant must pay the cost of theappeal.
Appeal dismissed.