028-SLLR-SLLR-1987-2-RATNAYAKE-v.-CHANDRATILLAKE-AND-OTHERS.pdf
CA
Ratnayake v. Chandratillake
299
RATNAYAKE
v.CHANDRATILLAKE AND OTHERS
COURT OF APPEAL.
. M. JAMEEL J. AND T. N. ABEYWIRA J.
A. 162/77.
C. MATARA 15 MISC.
17 G 20 ABD 23. MARCH 1987.
Last Will-Probate-Instigation and undue influence-Coercion- Fraud- Appointmentof married woman as guardian-ad-litem- S. 495 C.P.C.-Letters ofAdministration-Onus of proof.
Appointment of a married woman as a guardian-ad-litem is irregular and contravenesthe provisions of s. 495 of the Civil Procedure-Code.
Where probate is being sought of a last will two rules are applicable:
The onus probandi lies in every case upon the party propounding the will and he mustsatisfy the conscience of the Court that the instrument so propounded is the last will ofa free and capable Testator.
If a party writes or prepares a Will, under which he takes a benefit, that is acircumstance which ought generally to excite the suspicion of the Court, and calls uponit to be vigilant and jealous in examining the evidence in support of the instrument, infavour of which, it ought not to pronounce unless the suspicion is removed, and it isjudicially satisfied that the paper propounded does represent the true will of thedeceased.
This rule extends to all circumstances exciting suspicion whenever such circumstancesexist and whatever their nature may be it is for those who propound the will to removesuch suspicions and prove affirmatively that the testator knew and approved of thecontents of the win.
It is only when this is done that the burden falls on those who oppose the will to provefraud and undue influence or whatever they rely on to displace the case made out forproving the Will.
Hence although fraud, undue influence or coercion was not proved the failure of thepropounder to discharge the burden that lay upon him to remove the suspiciouscircumstances when there was material to trouble the conscience of the Court, entitlesthe Judge to hold that the will has not been proved.
300
Sri Lanka Law Reports
[1987] 2SnL.R. .
The fact that one evening the deceased left the hospital where he was under treatmentfor alcoholism without informing the hospital authorities and had gone the sameevening to meet the petitioner's lawyer and on the following day (3.8 71) executed sixdeeds five of them transfers (for a total consideration of Rs. 31,000 previouslyreceived) in addition to the impugned will, the fact that there is a contradiction betweenthe evidence of the Notary and that of the petitioner as to where the deeds and the Willwere executed, the fact that an available witness to the Will was not called and the factthat the petitioner himself or his children are grantees on the deeds, and in the Last Willthe petitioner himself is a beneficiary along with his children were suspiciouscircumstances
On a point of pure fact the Court of Appeal will only rarely overrule the original courtbut the Appeal Court can rescrutinize the evidence to see if the inference drawn fromthe facts are correct and the burden of proof appropriately placed.
Cases referred to:
Fernando v. Fernando [1966] 68 NLR 503.
Pererav. Perera [1901] AC 354.
Parker v. Felgate (1883) 8 PD 171.
Battan Singh v. Amirchand [1948] 1 AH ER 152.
Sithamparanthan v. Mathuranayagam (1970) 73 NLR 53 PC.
Banks v. Goodfellow (1870) LR 5 QB 549.••
Graig v. Lamoureux [ 1920] AC 349.
Barry v. Butlin (1838) 2 Moore PC 480
Tyrrell v. PaintonJ 1894] Probate 151, 159.
Pieris v. Wilbert• (1956) 59 NLR 245.
Robins v. National Trust Co. [1927] AC 515.
Walt (or Thomas) v. Thomas [1947] 1 AH ER 582.
Harmes and another v. Hinkson (1946) 62 TLR 445, 446.
Sangarakkita Them v. Buddarakkita Them (1957) 53 NLR 57.
Samarakone v. The Public Trustee (1960) 65 NLR 100.
The Alim Will Case (1919) 20 NLR 481.
Pieris v. Pieris (1906) 9 NLR 14.
Pieris v. Pieris (1904) 8 NLR 779,
(T9) Davies v. Mayhew (In the Estate-of Lavinia Musgrove) [1927] Probate Div. 264.
Fraddv. Brown & Co. Ltd. (1918)20NLR282 (PC.).
Abdul Sathar v Bogtsira (1952) 54 NLR 102.
APPEAL from the judgment of the District Court of Matara.
Dr. H. W. Jayewardene Q.C. with J. E. P. Deramyagala, L. de Alwis and MissKeenawina for petitioner-appellant.
A. A de Silva with Miss Kanapathypillai for intervenient-respondent.
Cur. adv. vult.
301
CARatnayake v. Chandratillake
May 5. 1987JAMEEL, J.
The deceased Wimalasena Ratnayake who died on 6.1.1974 was thebrother of both the Petitioner-Appellant as well as theIntervenient-Respondent. The 1st Respondent-Respondent is theminor son of the Petitioner-Appellant by his wife the 2ndRespondent-Respondent.
The Petitioner came into court in this case to prove the last will ofthe Deceased and to obtain Probate thereon. The last will marked 'A'is numbered 15807 and is dated 26.6.1971. It was attested byDannister Serasinghe N.P. and by it all the remaining property of thedeceased was bequeathed to the 1st Respondent-Respondent.
The challenge to the will comes from the elder brother of thedeceased and that too on two (2) grounds* namely,
That the deceased was an alchoholic and as such could beeasily influenced by anyone who offered him drinks or actually gavehim drinks—Instigation and undue influence.
Fraud.
In the light of the circumstances surrounding the execution of thelast will, the Intervenient-Respondent contended that the suspicions ofthe court were correctly roused and that the propounder of the last willcould not and had not dispelled those doubts. He had urged that thelast will should not be admitted to Probate. The Learned DistrictJudge, after a full inquiry did not grant Probate on that last will. It isfrom that order that the propounder has filed this appeal.
There appears to be a defect in the procedure adopted inthis case. The Petitioner-Appellant is the father of the 1stRespondent-Respondent,a minor, whilethe2nd
Respondent-Respondent is his wife and the mother of the minor. Inthe circumstances, the appointment ofthe2nd
Respondent-Respondent a married woman, as guardian-ad-litem overthe minor seems to be irregular and contrary to the express provisionsof Section 495 of the Code of Civil Procedure. Vide -Fernando vFernando (1).
302Sri Lanka Law Reports[1987] 2 Sri L.R.
This application, to have the last will proved, was made to theProbate Officer of the High Court of Matara under the Administrationof Justice Law and that officer at the request of the parties, hadforwarded to the Learned District Judge the following Issues fordecision by the court
Is the last will bearing No.: 15807 dated 3.8.1971 executedby D. Serasinghe N.P. the 'Act & Deed' of WimalasenaRatnayake the deceased?
Or else, is it one got executed by undue influence by coercion orfraudulently?
Is the applicant entitled to get Probate issued to himself?
Is the applicant bound to include in the inventory properties thatwere not owned by the deceased at the time of his death?
If issue one (1) is answered in the negative, should theseproperties be considered as at intestacy and administeredaccordingly?
If so, is it the Petitioner or the Intervenient who has more claimsto get Letters of Administration issued to him?
The will in question is a notarially executed document. Itspropounder, the Petitioner-Appellant initially led the evidence <?f theNotary, Mr. Serasinghe, and rested his case. It is alleged that- bothattesting witnesses are since dead though one of them is said to havebeen alive at the time of the trial. Yet, that witness was not called totestify.
Besides giving evidence himself, the Intervenient called witnessPremadasa Witharanage Gunapala Hettiaracni, and SomapalaMirusuge.
Mr. Withanage was from the Land Registry and produced six (6)deeds attested by Mr. Serasinghe, all on 3.8.1971 and numbered15801 to 15806 respectively.
CARatnayake v. Chandratillake (Jameel, J.)303
Marking Nature Number Lands ValueRecipient
V15Transfer158012012,500Ananda Gamini Ratnayake
V16Transfer1580255,000Wimal Ashok Ratnayake
V17Transfer15803710,000Pushpakumar Chandratillake
Ratnayake
V18Transfer1580422.500Hemachandra Ratnayake
V19Transfer1580511,000Mahindapala Ratnayake
31,000
V20Gift15806110,000Sriyani Mangalika Ratnayake
The last will which bears No; 15807 was attested at the same timeand place, as the above mentioned five (5) transfers and the abovementioned gift V20. 3.8.1971 was a Tuesday and not a publicholiday.
V18 is in favour of the propounder Appellant himself, while all theother deeds are in favour of his children. So also the last will 'A'. BothV17 and the last will are in favour of the minor 1st respondent. Thedeceased has appointed the appellant as the executor of the last will.According to Mr. Serasinghe, all 7 documents were executed andattested by him at his residence. On this however, he is contradictedby the appellant who says that they were done at the office of theNotary. This discrepancy assumes some considerable proportion whenco-related with the fact that the two (2) attesting witnesses to allthese documents are the same and were the two clerks of the Notary,Mr. Serasinghe. As Mr. Serasihghe was himself quite unable toremember the exact.time and date at which he received instructions toprepare -these documents,' including the will, and as his instructionsbook has not been produced in evidence the absence of supportingtestimony from one or other of these two (2) attesting witnessesassumes added significance. This is particularly so because the. preparation of these deeds and the last will would have takenconsiderable time, for they had to include in the various schedulesdescriptions of thirty-six (36) lands. According to the appellant theseinstructions had been given by the deceased personally, on thesecond (2nd) itself. Accordingly, the state of health of the deceasedand more particularly his state of mind on that day would be verysignificant. (Perera v. Perera (2). Also, Parker v. Felgate (3) and BattanSingh v. Amirchand (4)).
304
Sri Lanka Law Reports
[1987] 2 Sri L.R.
In the second (2nd) of these cases, the Privy Council made referenceto its decision in the earlier case of Perera v. Perera (supra) and held:
"Even if persuaded that the testator was unable to follow all theprovisions of the will at the time of signing, yet they (The PrivyCouncil) could not hold that the last will was invalid in view of thelaw as stated in Parker v. Felgate (supra)."
■ Learned Queen's Counsel for the appellant contended that as on the .second (2nd) of August the deceased was in good health and in asound mental state. He stressed that Mr. Serasinghe had testified tothe state of mind of the deceased as at the time of the execution of allthose documents,, and that.there was not suffcient or justifiablereason to reject his evidence on this point. While, no doubt, this is animportant factor to reckon with, it is pertinent to bear in mind that theevidence of the Proctor who prepared the last will is not to be taken asconclusive as to the mental capacity of the testator.Sithamparanathan v. Mathurainayagam (5).
Besides the evidence of the appellant and that of the Notary there isalso the evidence of Dr. Buultjens. On the evidence led, the LearnedDistrict Judge has come to the finding that the deceased was analcoholic. It is common ground that the deceased had been the worsefor liquor on the 31st of July 1971. He had to be admitted to theTangalle Hospital that day by one of the sons of the appellant. Therelevant Bed-Head Ticket (D1) shovys that the patient WimalasenaRatnayake was a married man though it is common ground that hedied, unmarried and issueless. His guardian or relation named in thisBed-Head Ticket is A. G. Ratnayake. the transferee on deed V15. Forthe 'Alcoholism' diagnosed he had been given Vitamin B and allowedto sleep it out. He died 2 1/2 years later on 6.1.1974. This Bed-HeadTicket reveals that he was found missing from the ward at about 10a.m. None can say as to the exact time at which he left the ward norwhether he left it of his own free will or was removed or induced .to;leave. Dr. Buultjens says that after the morning of the 1st thedeceased's temperature returned to normal and that in all respects hewas back to normal except for a slight swelling of the feet which thedoctor attributed to the possible beginnings ot 'cirrhosis' of the liver..The doctor had ordered the necessary tests and it was for that reason 'alone that the deceased was being detained at the hospital. The^aocoH loft A/ithni it a word to the authorities
305
CARatnayake v. Chandratillake (Jameel, J.)
There is no compulsion in the law that a patient such as thedeceased should remain in the hospital until he is discharged by thedoctors. He is free to leave whenever he wishes to do so and cannotbe kept against his will. But it is rather irresponsible for an adult to doso without informing the authorities. Irresponsible actions alone willnot warrant a declaration against the will on the ground of insanity.The courts have not treated 'slowness, feebleness and eccentricities'as sufficient to prove insanity in the context of the law relating to theproof of wills. Banks v. Goodfellow (6).
Dr. Buultjens went on to state that although the deceased hadreturned to normal by the 1 st and was normal on the 2nd, although hecould have attended to the execution of the deeds and the Last Will onthe 3rd with full knowledge and understanding, yet there was thepossibility that he could have been made to act on the suggestions ofor to the dictates of another if that other tempted him with a drink orgave him access to alcohol. It is the suggestion of the Intervenient thatthis kind of influence was wielded and brought to bear on thedeceased not only to induce him to leave the hospital but to do sowithout going through the normal formalities of a discharge.
In this context, it is useful to bear in mind that in the case of wills,the presumption is against forgery and in favour of sanity. (WalterPereira-Laws of Ceylon pg: 421). It has been held in Craig v.Lamoureux (7) that the onus is on the person who attacks the will onthe ground of fraud or undue influence to prove their existence.However, Walter Pereira goes on to state,
"but when on opposition, an issue is raised as to the
unsoundness of mind of the testator, the burden of proof is on the
propounder."
This is the classical view of the law and is laid down in the leadingcases of:
Barry v. Butlin (8) and
Tyrrel v. Pamton (9), and
306
Sri Lanka Law Reports
■ [1987] 2 Sri L.R
on the basis of which the Privy Council extracted and restated it in thefollowing manner in Sithamparanathan v. Mathurana yagam (supra):
“These rules are two. The first that the onus probandi lies in everycase upon the party propounding a Will; and he must satisfy theconscience of the Court that the instrument so propounded is thelast Will 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 which ought generally to excite the suspicion of the■ court, and calls upon it to be vigilant and jealous in examining theevidence in support of the instrument, in favour of which it ought notto pronounce unless the suspicion is removed, and it is judiciallysatisfied that the paper propounded does express the true Will ofthe deceased."t
A similar expression of the law is to be found in Pieris v. Wilbert (10)Lindley, J. in Tyrret v. Painton (supra) extending the second rule to allcircumstances exciting suspicion said at p. 159.
"Whenever such circumstances exist and whatever their naturemay be it is for those who propound the will to remove suchsuspicions and prove affirmatively that the testator knew andapproved of the contents of the document and it is only when this isdone that the burden is on those who oppose the will to prove fraudand undue influence or whatever they rely on to displace the casemade out as proving the will."
The question of the burden of proof .was very succinctly propoundedby Lord Dunedin in Robins v. National Trust Co. (II).
"But, onus as a determining factor can only arise if the tribunalfinds the evidence pro and con so evenly balanced, that it can cometo no such conclusion. Then the onus will determine the matter. Butif the tribunal, after hearing and weighing evidence comes to adeterminate conclusion, the onus has nothing to do with it, andneed not be further considered."
Thus, we have the dictum of the House of Lords, in Watt v. Thomas(12).
When the trial court judge (without a Jury) finds on facts, theAppeal Court will not interfere if there has been no misdirection onthe question of fact."
307
CARatnayake v. Chandratillake (Jameel. J.)
Learned Queen's Counsel contended that the District Judge hasmisdirected himself because he failed to appreciate that suchsuspicions as are said to have existed were only flimsy and ethereal innature and not well grounded.
Vide: Mathuranayagam's Case (supra)
'If a will is propounded under such circumstances which raise awell founded suspicion that it does not express the mind of thetestator the court ought not to pronounce in favour of it unlessthose suspicions are removed."
Dr. Jayewardene's contention is that such circumstances as are• .disclosed in the evidence do not afford a firm grounding for areasonable suspicion. It is quite within the jurisdiction of this courtas the first Court of Appeal to rescrutinize the evidence with a viewto determining whether the inferences drawn by the Learned DistrictJudge from the established facts are so available, and also as towhether the burden of proof has been appropriately placed.
It is well settled law that should the Court of Appeal find that theconclusions arrived at by the trial judge are fair and sustainable onthe evidence, then the Court of Appeal will not substitute its ownview on those facts for that of the judge of first instance. In thiscase, the Learned Trial Judge found that the evidence did notwarrant a conclusion that the deceased was insane on03.08.1971, although his brother Amparapala who lived with himhad at one time been certified and successfully treated at Angoda.
The deceased was a shareholder in a large number of lands whichhe had inherited from his father. The Intervenient-Respondent toohad shared in that inheritance. However, quite a large part of thatinheritance had been sold under decrees entered against him andthe Appellant had bought up those lands so as to keep the propertywithin the family. On the evidence, the Learned District Judgeconcluded that even if the will be declared not proved, still, theIntervenient-Respondent is not a fit and proper person to whom thecourt would entrust the administration of the deceased's estate.This finding, is certainly compatible with the evidence on record.
Dr. Buultjens giving evidence has stated, 'My inference is thatthis patient is suffering from heavy alcohol consumption. If alcohol isnot given to such a person his desire for alcohol will be very great.
308
Sri Lanka Law Reports
[1987] 2 Sri L.R.
Due to that desire, such a patient might go to any length to obtainliquor. He would do anything for it. Such a patient might lose controlof his mental faculties in respect of certain matters. A patientsuffering from a desire for liquor, will do whatever thing he is askedto do by a person who gives him liquor. Such a person whodevelops such a desire to drink liquor, might start shivering etc., buthis mental strength will not decrease.'
That is to say, he would be pliable in the hands of a person whocould control his access to liquor or its quantity, but otherwise hismental capacity will not be diminished.
The evidence is that the deceased was found missing from thehospital on the second (2nd). There is no evidence that he wasremoved or induced to leave. As stated by the doctor, it may be thathe wanted a drink and so left the hospital. Even so, there is noevidence that he was tempted with liquor or given liquor. There is noevidence that he had taken liquor at any time in the first three daysof August. The deceased was on the evidence a man of means, andas such, could have bought his own liquor. He need not have beenin the clutches of anyone including his brother, the petitioner. Thereis hardly any reason to believe that he was unduly influenced by thepetitioner to make this will either by being offered or by being deniedor by being tempted with liquor.
But there is sufficient material on record which could have and didtrouble the conscience of the court-material such as:-
(a) The way in which the deceased left hospital,
(£>) The fact that he went (according to the petitioner) that verysame evening to meet the petitioner's lawyer.
The fact that he did not appear to have nor is shown to havehad, at the time, any serious illness,
The inordinate hurry in which this transaction appears to havetaken place,
The fact that on this day six deeds were executed in addition tothe last will,
(/) That of these six deeds, only one was a gift, and thatjtoo, to thedaughter of the petitioner, with no plausible explanation for it.
309
CARatnayake v. Chandratitteke (Jameel. J.)
{g) That the other five deeds were all Transfers, for consideration,totalling Rs. 31,000, the whole of which was acknowledged tohave been previously received, with no details as to when,where, how, or why-,
(h) The discrepancy between the evidence of the Notary and thepetitioner as to the place of execution,
(/) That all the beneficiaries on the deeds and so also on the last will •are either the petitioner himself or his children,
(j)That the only surviving witness (at the time of the trial) was notcalled to give evidence.
(k)That Mr. Serasinghe was not sure as to who had given hirfiinstructions to write all these .deeds and the Last Will nor when.
All thes’e factors do afford ground for reasonable suspicion and thecourt, very rightly, looked to the propounder to remove thosesuspicions and when he failed to do so refused to grant probate on thedocument 'A'. In the case reported in Harmes and another v.Parkinson (13) Lord du Parcq has stated:
"Whether or not the evidence is such as to satisfy the conscienceof the court must always be a question of fact."
In Banks v. Goodfellow (supra) the court went on to hold:
"The mere fact of the testator being able to recollect things or tomanage some business would not be sufficient to show that he wassane"
Another feature of this case which strikes one as rather unusual isthat in his attestation the Notary states that the last .will was read overand explained by him to the deceased in the presence bf the twoattesting witnesses all being present at the same time. The Notary'sevidence is that the deceased had been accompanied by the petitionerand all the members of his family in order to have all these deeds anddocuments including the last will executed. It is most likely that all thedocuments were read out and explained and that the signatures were
310
Sri Lanka Law Reports[1987] 2 Sri L.R.
obtained thereafter. If this was done in respect of the last will also thenit would be other than the usual practice. Lord Hodson has said in
Sithamparanathan's case (supra) at page 60:
"The reading of the will aloud was regarded by the Judge asunusual. He commented that he could not understand the testatorwanting the last will read aloud, especially after he had read ithimself. He would not, the judge thought, have been in his propersenses if he made that request."
There is no doubt that the signature on the document 'A' is that ofthe deceased. That is not in dispute, not was it challenged at all. In thiscontext, we were invited to consider the decision in SangarakkitaThero v. Buddarakkita Thero (14) where it has been held that in thecase of a deed which on the face of it appears to have been dulyexecuted, the mere framing of an issue as to due execution followed indue course by a perfunctory question or two on the general matter ofthe execution of the deed without specifying in detail the omissionsand illegalities which are. relied upon, is insufficient to rebut thepresumption of due execution. However, I do not think that thispresumption can be^ unreservedly applied to or extended to the caseof a last will although it be notarially executed, for,, on a challengebeing made, strong counter presumptions come into play and thepropounder is called upon to erase those suspicions before he canexpect probate to issue on the document he propounds.Vide-Samarakone v. Public Trustee (15); also The Alim Will Case(16). This is true even in the case of Undue Influence being thechallenge thrown out. Vide-Pieris v. Pieris (17) and also the earliercase 'of Pieris v. Pieris (18).
It is quite normal and natural that the deceased should havepossessed, until his death, all the lands and properties bequeathed onthe last will. Had it been otherwise then that may have arousedsuspicion. But the fact that he also continued to possess, till his death,all the lands dealt with by him in those deeds V15 to V20 is a matterof surprise, particularly, as it is alleged that he had already received theconsideration thereon. Yet, this is a matter which arose after theexecution of the last will and should not be treated as a suspiciouscircumstance pertaining to the execution of the last will-Dawes wMayhew (In the Estate of Lavinia Musgrove) (19)-except, may be, tothe extent that when combined with the fact of the great haste shown
CA
Ratnayake v. ChandratiHeke (Jameel. J)
311
in the execution of these deeds and, should there be other cogentevidence to that effect, then one may pay attention to the possibilityarising from the suggestion made that these transactions were neverintended to be acted upon at least not until his death.
The Learned District Judge did not accept the evidence of thePetitioner. He was disbelieved when he attempted to claim ignoranceof the fact that the deceased, his brother, was addicted to liquor. Hisdemeanour has been taken into account. So also the fact that he wascontradicted by the Notary on the.question as to the place wherethese documents were executed. The lack of detail with regard to theconsideration on these deeds and the absence of any cogent reasonfor the execution of five (5) deeds of transfer and one (1) deed of gifthave all contributed to the rejection of his testimony.
"Whenthe question is about the veracity of witnesses, immenseimportance attaches not only to his demeanour but also to thecourse of the trial and the general impression on the mind of thejudge of first instance who saw and noted everything that took placein regard to what was said."
"It is rarely that the decision of a judge of first instance is overruledon a point of pure fact only by a Court of Appeal." Vide-Fradd v.Brown and Co. Ltd. (20) and also Abdul Sathar v. Bogtstra (21).
The learned District Judge was also not impressed by the evidenceof the Notary Mr. Serasinghe. In the circumstances, one cannot faulthis finding that the petitioner had failed to remove those suspicions.Thus, even though the Intervenient-Respondent failed to prove fraud,undue influence or coercion, still the court was justified in holding thatthe last will was not duly proved.
In the light of his findings, the question of appointing anAdministrator came up for determination. The learned District Judgehas found that neither the Intervenient-Respondent nor the petitioneris suitable for this task. The Intervenient-Respondent has not appealedfrom that order. We are not inclined to interfere with the findings ofthe Learned District Judge on this point either. Accordingly, the appealis dismissed with costs.
ABEYWIRA, J.-1 agree.
Appeal dismissed