084-NLR-NLR-V-73-S.-W.-GOONEWARDENE-Appellantand-A.-BEDDAWELA-Respondent.pdf
Goontwordene v. Bed da tie la
if. 3
1970 Present : H. N. G. Fernando, C.J. and Thamotheram, J.
S. V. GOOXEYARDEXE, Appellant, andA. BEDDAWELA, Respondent
S. C. 252}6S {Inly.)—D. C. Colombo, 23212jT
H i//—lievocation by destruction—Quantum oj evidence.
A Will cannot be said to have been revoked by destruction merely bccausocertain strokes in ink and other notes wore made on it by the testatorafter the Will was executed, indicating an intention to revoko. Revocationof a Will by destruction must bo proved not only by evidence of anintention to revoko but also by an actual destruction in an appropriatemanner.
Appeal from an order of the District Court, Colombo.
II. Iiotlrigo, with Asoka Abcynsinghe, for the pet it ioncr-appc-llant.
II. Il Jaycuardene, Q.C., with D. S. Wije tear dune and G. 31. S.Sumaraweera, for tho 5th respondent respondent.
464H. N. G. PERXANDO, C.J.—Gooncuardcne r. Bcddawcla
June 24, 1970. H. N. G. Febxaxdo, C.J.—
This is an appeal against an order of the learned District Judge refusingto enter probate of a last Will. The first issue framed at the inquiry waswhether the Will was the act and deed of the testator; this issue wasanswered in the affirmative. Another issue was whether the documentwas a draft of a last Will. This was answered in the negative. Theonly issue answered by the learned Judge against the propounder wasthat the Will had been revoked.
The grounds upon which it was held that the Will had been revokedmay be explained as follows :—
The document itself is a typed document purporting to have beensigned and attested on 32th January, 1963.
Many of the clauses of the document have ink strokes across them;and in a few instances there are names or initials written against someclauses indicative of an intention that the properties referred to inthis clause should go to the persons whose names or initial or initialshave been entered.
The finding of the learned District Judge on issue No. 3 makes it quiteclear that in his opinion these strokes in ink and other notes were madeafter the Will was executed. In fact his further finding that the Will wasrevoked is also reached on the basis that the testator had placed thesemarks and writings on the Will after it was executed. AVe are unabletherefore to accept at this stage the submission for the respondent thatthese marks and writings should raise any suspicion about the dueexecution of the Will.
So far as the finding of revocation is concerned it is clear from theauthorities cited by counsel for the appellant that there must both be anintention to revoke, and an actual destruction in an appropria te manner.In the present case there was no doubt an intention to revoke because themarks and writings made by the testator make it apparent that he desiredto change some of the bequests which were contained in his Will. Buthis desire remained an intention to change his AVill, and he wasapparently unable to carry out his purpose of executing a new AVill inaccordance with his changed intentions. In the result there was noteven an attempt to destroy the AVill and the finding that it was revokedby destruction has to be set aside.
The appeal is allowed and the record is returned to the District Courtfor probate of this AVill to be granted. The appellant will be entitled tothe costs of the appeal.
Thamotheram, J.—I agree.
Appeal allowed.