v.SOMALIN AND OTHERS
COURT OF APPEAL.WEERASURIYA. J.UDALAGAMA, J.
CA NO. 284/90.
DC BALAPITIYA 614/T.19™ JULY, 1999.
27™ SEPTEMBER, 1999.
Testamentary proceediiigs – Last will ■ Due execution – Presumption – Onusprobandi – AJJirmative evidence – Omnia praesumtur rite esse acta.
The Petitioner Appellant filed an Application praying that Last Will No.357 dated 02. 05. 82 be declared duly proved and that he be accepted asits Executor and entitled to Probate thereof. The 2nd and 3rd RespondentsRespondents objected to the Application. The matters in issue werewhether the aforesaid Last will was signed by L and whether the samewas duly executed, if so, should the claims of the 2nd and 3rd Respondentbe rejected. The District Court refused probate holding that the aforesaidLast will was not duly executed by the deceased Testator.
On appeal, it was contended that:
the Last will was on the face of the document regular andreasonable drawing a presumption of due execution.
the format of the Last will complied with the provisions of theNotaries Ordinance.
Court having satisfied itself on the prima facie proof of the duemaking of the will entered Order Nisi.
When evaluating the evidence of the Notary and witness P in relationto due execution it must be emphasised that Court is obliged to view thetestimony – on a balance of probability.
Court would always be anxious to give effect to the wishes of theTestator. Court could not allow a matter of form to stand in its way.
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subject however to the condition that essential elements of execution hadbeen fulfilled. However if there is affirmative evidence to show that therewas no due execution Court would no doubt hold against the will eventhough the will was the act and deed of a free and capable Testator.
Contradictions in P's evidence as to how the witnesses were gatheredwould not be material, in view of the lapse of time from the date ofexecution to the date of testimony, even the Notary's admission that theattestation was in error and the fact that she was unable to produce theInstruction Book would not cast a doubt on the capacity of the Testatoror that there was undue influence or that the execution was fraudulent.The most the affirmations would point to is a lapse in the formalities tobe observed in the execution of a Last Will.
APPEAL from the Judgment of the District Court of Balapitiya.
Cases referred to :
Corea vs Corea [19881 2 Sri.L.R. 200
Barry us Butlin
TyreU. os Painton
Vere Wardale vs Johnson (1949) 2 All ER 250
Kanagaretnam vs Ananthethurai 30 CLW 10
Emali Fernando vs Caroline Fernando 59 NLR 341
De Silva vs Seneviralne  2 Sri.L.R. 7
Wijewardena vs Ellawala  2 Sri.L.R. 14
Peiris os Perera 48 NLR 560
P.A.D. Samarasekera. P.C.. with C.J. Ladiuuaheity for Petitioner-Appel-lant.
L.C. Seneviralne P.C.. with Anil Silva .
U.H.L Wickremaratna and Hemantha Situge for 2nd & 3rd Respondents.
Car. adv. vutt.
October 8, 1999.
UDALAGAMA, J.On 28. 01. 1988 Iddamalgoda Dissanayakelage VincentRanasinghe (hereinafter called the Petitioner) filed anapplication in the District Court of Balapitiya praying inter aliathat last will No. 357 dated 02. 05. 1982 be declared duly
Rcmasinghe v. Somalin and Others (Udalagama, J.)
proved and that the petitioner be accepted as its executor andthat he be entitled to probate thereof.
The 2nd and 3rd Respondents filed objections to theapplication of the Petitioner and at the subsequent inquiry thePetitioner raised the following issues:
Whether the aforesaid last will No. 357 was signed byLeesin and whether same was the duty executed last willof the deceased.
If so whether the claim of the 2nd and 3rd Respondentsought to be rejected and
Whether the Petitioner was entitled to probate. No issueswere raised by the respondents.
At the conclusion of the inquiry, the learned District Judgeanswered the three issues in the negative and made orderrefusing probate on the basis that the above mentioned lastwill was not duly executed by the deceased testator. Thisappeal is from that order dated 10. 08. 1990 and delivered on20. 08. 90.
The learned President’s Counsel on behalf of thePetitioner – Appellant submitted that the District Judge hadmisdirected himself in holding that the will was not dulyexecuted. He based his contention of the following grounds:
that the last will was on the face of the document aregular one and a reasonable one and thereby drawing apresumption of due execution.
that the document contained the signatures of the notary,the two attesting witnesses and the signature of thetestator.
that the format of the Last will marked ‘PI’ complied withthe provisions of the Notaries Ordinance and
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that the learned District Judge having satisfied himself on
the primafacie proof of the due making of the will entered
Learned President’s Counsel for the petitioner referred tothe case of Corea us Corea!11 and drew the attention of Courtto the presumption of due execution and the maxim- “Chiminpraesumtur rite esse acta".
This case was also cited by learned President’s counsel forthe Respondent-Respondent to support his contention thatthe will was not duly executed. Hence it would be appropriateto dwell to some extent on the facts of same.
In that case Shirley Corea Attomey-at-Law. Member ofParliament and Speaker of the House of Representativesexecuted a last will which was attested by five witnesses.Harold Herath Attomey-at-law was named the executor. Thesole devisee was according to the last will one Gamini Coreasaid to be an adopted son of the testator. On the death ofShirley Corea, Harold Herath applied for probate, subsequentto which the will stood challenged on the basis that samewas not duly executed. At the inquiry in Corea’s case fourwitnesses to the last will and Harold Herath testified. OneBandara who was one of the five witnesses gave evidencestating inter alia that he did not sign the Last will in thepresence of the other witnesses. The learned District Judgewas inclined to accept the evidence of Bandara and held thatthere was no due execution and refused probate.
In appeal the Court of Appeal which took a contrary view,held,
firstly that the party propounding the last will mustsatisfy Court that the will was that of a true and capabletestator.
secondly that in case of suspicion Court should notpronounce in favour of it until the suspicion was removed. As
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an instance of suspicion the court of appeal stated that wherethe party writing the will accrued some benefit that in such aninstance the Court should be vigilant. But that was not tomean that a special measure of proof was necessary exceptthat the suspicions should only be well grounded.
Thirdly that the Last will must be executed according toSection 4 of the Prevention of Frauds Ordinance.
Two questions for decision in Corea’s case was –
whether all five witnesses signed the document at thesame time in the presence of each other and in thepresence of the testator.
whether it was correct to refuse probate on theuncorroborated evidence of Bandara who testified to thefact that all witnesses did not sign the Last will in thepresence of each other and before the testator.
In that case the Court of Appeal held that the will whichwas in a regular format and signed by the testator was the actand deed of a free and capable testator with no evidence ofsuspicious circumstances and that the will was duly executedand that the maxim “Omnia Praesumtur rite esse acta” wouldhold.
In the instant case however the learned President’sCounsel for the Respondents did not allege suspiciouscircumstances, undue influence or the lack of capacity of thetestator or that the last will marked ‘PI’ was not the act anddeed of a free and capable testator but only that same was notduly and properly executed. Therefore the only matter raisedby the Respondents was the absence of due execution.
Lord Baron Parker in Barry vs Bullin121 laid down two ruleswhile discussing the proof of the wills namely, that,
the ‘Onus propandC in eveiy case is upon the partypropounding a will and dwelt on the necessity of satisfyingCourt that the will was that of a capable testator and
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that if the will was prepared by a person benefitingtherefrom that that should excite the suspicions of Courtand in such instance the Court should be vigilant andprobate should not be granted unless the suspicions wereremoved.
The above position was modified in Tyrell us Painton131where Lindsay, J. held that the suspicious circumstanceswould not be confined to only a beneficiary receiving a benefitbut to all instance which would arouse the suspicious ofCourt.
Learned President’s Counsel for the Petitioner – Appellantreferred to the case of Viere Wardale us Jhonsan141 where itwas held-that ‘the object of the Legislature imposing strictformalities as required by the English Wills Act of 1839 was theprevention of frauds and the duty of Court was to see that nofraud was perpetuated. It must be noted that provisions inSection 9 of the English Wills Act is identical to section 4 of thePrevention of Frauds Ordinance.
Thus what is in issue is whether the petitioner has placedaffirmative evidence to establish due execution.
In examining this question the following matters arerelevant.
The fact that the last will No. 35 marked ‘P1 ’ is in a regularformat and in accordance with Section 31 of the NotariesOrdinance.
That both witnesses who testified at the inquiry alsotendered to the District Court two affidavits affirming thatLeesin signed the last will marked ‘PI’ and that same wassigned by the two witnesses in each others presence andthat Leesin was mentally sound and also capable ofunderstanding the contents therein.
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That the contents of the third affidavit also asserted to theabove although the deponent failed to testify at the inquiry.
That the Notary aforesaid testified to the fact that on
05. 1982. Leesin come to her office and instructed herto prepare his Last will and that she did so in accordancewith the said instructions and that Leesin signed the Lastwill marked ‘PI’ before the two witnesses.
That Pemawathi’s brother also signed as a witness.
Learned President’s Counsel for the Respondents drewthe attention of Court to contradictions in the evidence of theNotary and Pemawathi. It was also the contention of learnedcounsel that the propounder of a will must prove the following:
The absence of suspicious circumstances.
He also cited the following cases in support of hiscontention.
Kanagaratnam v. Ananthathurai!51
Email Franando v. Caroline Femandd6’
De Silva v. Seneviratnet7>
He further submitted that there was no acceptablematerial to show that all witness signed ‘PI’ in the presence ofeach other. Learned Counsel’s submission was that the notarywhen asked if all signed in each others presence that theanswer was ‘Cannot remember’. He also drew the attention ofcourt to the unsatisfactory nature of the notary’s evidence andhighlighted the failure on the part of the notary to produce theinstruction book which was referred to, in her evidence.
In reference to the decisions of the three cases brought tothe notice of court. Kanagaratnam’s case dealt with suspicious
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circumstances attending the execution of a will and the needfor the propounder to remove them while in Emali Fernando'scase the subject matter was a deed of gift with reference tosection 2 of the Prevention of Frauds Ordinance. In De Silva usSeneviratne(supra) the review by the Appellate Courts ofthe findings of fact by the trial Judge and the burden on thepropounder of a will and the duty of Court when suspiciouscircumstances exist was dealt with.
In the instant" case when evaluating the evidence of thenotary and witness Pemawathi in relation to due execution itmust be emphasized that Court is obliged to view thetestimony mindful of the fact that any finding must be on abalance of probability. It is also relevant to note that the notarygave evidence approximately eight years after the attestation.Thus when a witness says she can not remember, the answershould be considered keeping in mind the lapse of time. Thesame consideration is applicable to witness Pemawathie,sometimes more so, considering the level of intelligence ascompared to the notary. Then again Court should not losesight of the fact that a professional notary would have inthat eight years attested numerous notarial documentsnecessitating attestation before two witnesses as in the presentcontext. The affidavits filed of record in the original court andreferred to above and affirmed to by the notary and Pemawathiwas much earlier in time; It must also be emphasized thatthe notary had not testified affirmatively that Leesin or thewitnesses did not sign ‘PI’, in each others presence althoughadmittedly Pemawathi in cross examination howevercontradicted that position. Thus considering inter alia
the lapse of time from the date of execution of ‘P T and thedate the witnesses gave evidence,
the affirmative evidence of the notary in her evidence inchief which corroborated her attestation in ‘PI’ and thecontents of the affidavit filed as far back as 18. 01. 1988and
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the necessity to view the evidence on a balance ofprobability, I am inclined to take the view thatnotwithstanding Pemawathi’s contradictory stance thaton a balance of probability, the Learned District Judge’sfinding that there was no due execution could not stand.Even the contradictions in Pemawathi’s evidence as to howthe witnesses were gathered would not be material, in viewof the lapse of time from the date of execution to the dateof testimony. Even the notary’s admission that theattestation was in error and the fact that she was unable.to produce the relevant Instruction book would not casta doubt on the capacity of the testator or that therewas undue influence or that the execution of ‘PI’ wasfraudulent. The most the said infirmities would point to isa lapse in the formalities to be observed in the executionof a last will. As stated in the course of the judgment inCorea’s case(supra) court would always be anxious to giveeffect to the wishes of the testator, Court could not allowa matter of form to stand in its way, subject however to thecondition that essential elements of execution had beenfulfilled. However if there is affirmative evidence to showthat there was no due execution Court would no doubthold against the will even though the will was the act anddeed of a free and capable testator.
Apart from the allegation of the lack of due execution nospecific allegation of undue influence was taken up at thelower Court. However even in such instance where undueinfluence is alleged same must be proved by the party allegingit. (Vide Wijewardena us Ellawala181) I am also inclined to agreewith the observations of Canakeratne, J. in Petris vs Perera!91that it was not the duty of Court to ensure that a testator madea just distribution of his property, so long as the testatorexecuted the last will intending same to be his Last Will.
It is also of relevance when considering the evidence ofSomalin the mistress of the testator and the beneficiary under‘P1' that after the execution of the last will the testator lived till
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14. 11. 1987, which was approximately five and a half yearsafter the execution of‘PI' without revoking or amending samewhich goes to show that the testator who had all the power andopportunity to reconsider his last will in fact did not do so,thereby confirming his intention that the property so devisedon ‘P1‘ should in fact devolve on his mistress therebydisinheriting the objectors to the said last will. In the aforesaidcircumstances I set aside the order of the Learned DistrictJudge dated 10. 08. 1990 and delivered on 20. 08. 1990 andhold that the Last will No. 357 dated 03. 05. 82 is proved andthat the petitioner executor is entitled to probate.
I further order that probate be issued accordingly.
The appeal is allowed with costs.
WEERASURIYA, J. I agree.