WIJEWARDENA AND ANOTHER vs. ELLAWALA

003-SLLR-SLLR-1991-V2-WIJEWARDENA-AND-ANOTHER-vs.-ELLAWALA.pdf

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WIJEWARDENAAND ANOTHERVS.
ELLAWALA
COURT OF APPEAL.
WUETUNOA, J., ANANDACOOMARASWAMY, J.
AND WEERASEKARA, J.
C. A. No. 323/89 (F)
A. Application No. 1031/89.
C. Colombo No. 29901/Teaty.
17, 18, 19, 20. 21, 25, 26, 28 September, 1990 and 01, 04, 05, 10, 11 and 12October, 1990.
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Wijewnrdena and Another vs. Ellawala
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Last Will – Limited Probate – Probate of Will – Legal requirements for mak-ing a valid Will – Wills Ordinance section 2 – Prevention of Frauds Ordi-nance sections 4, 10, 11, 12, 13-Notaries Ordinance sections 31, 33, 41 (2),(3) — Attesting witnesses — Civil Procedure Code sections 524, 526, 533,534, 539 – Evidence Ordinance, section 68.
No will, testament or codicil containing any devise of land or other immov-able property or any bequest of movable property or for any other purposewhatsoever will be valid unless it is in writing and executed as follows:
It must be signed at the foot or end thereof by the testator, or by some otherperson in his presence and by his direction and such signature shall be madeor acknowledged by the testator in the presence of a licensed notary publicand two or more witnesses who shall be present at the same time and dulyattest such execution.
Where one partner of a firm of Attorneys-at-law practising in partnershiptake the instructions of the deceased testator and later signs as a witness, thevalidity of the Will will remain unaffected. There is no impropriety whenpartners of a partnership of Attorneys-at-law attest the Will as witnessesand a 3rd partner attests the execution of the Will itself.
Where a Will is prepared under circumtances which raise a well groundedsuspicion that it does not express the mind of the testator, the Court oughtnot to pronounce in favour of it until that suspicion is removed.
Where a will is shown to be rational and duly executed there is a presump-tion that the testator had testamentary capacity. The failure of the notary toseek medical opinion in regard to the competence of the testator at the timeof the taking of instructions for the preparation of the Will or at the stage ofexecution, will not affect the validity of the will, especially where the testa-mentary capacity of the testator was never in issue. Non-medical evidence toprove that the testator had a sound disposing mind can be relied on. Theonus probandi lies in every case upon the party propounding a will and hemust satisfy the conscience of the Court that the instrument so propoundedis the last will of a free and capable testator. Where undue influence isalleged it must be proved by the party alleging it.
Where the trial Judge is in gross error in regard to findings of fact theAppeal Court will interfere especially as here, the judgement was deliveredlong after the conclusion of the evidence. When a deed has’been admitted inevidence without objection or protest and no issue was raised at the com-mencement of the trial or later raising the question of due execution of thedeed, section 68 of the Evidence Ordinance does not require an attestingwitness to be called. The failure to object to the deed being received in evi-dence would amount to a waiver of the objection.
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Cases referred to:
Peiris v. Peiris (1904) 8 NLR 179
Meeoadchipillai v Kathigcsu (1957) 61 NLR 320
Sitbamparaoathan v Matburaoayagam (1970) 73 NLR 53
Gunasekara v Guaasekera (1939) 41 NLR 351
Peiris v Perera (1947) 48 NLR 560, 569
Abeysekara v De Livera (1968) 71 NLR 465, 467
Wijegoonetilleke v Wijegooaetilleke (1956) 60 NLR 560
Hcmapaln v Abeyratne (1978-79) 2 Sri LR 222
Gunasekara v Rcsanona SC No. 22 of 1987 CA Maho No. 140/80 (F)DC Maho No. 201/1 – SC minutes of 23.7.1990
Karthelis Appuhamy v Siriwardcna (1945) 31 CLW 86
Barry v Butlia (1838) 2 Moore’s Privy Council Appeals 480
Tyrell v Paintoa (1894) Probate 151
Davis v Mayhew (921) Probate 264, 286
Fernando v Peiris 47 NLR 169
Aadrado r Silva (1920) 22 NLR 1, 11
Perera v Perera (1901) 70;LJR46
Peiris v Peiris (1906) 9 NLR 14
Gray v Jtretser (1916) 2 CWR 190
Brampyaona v Vithaaage (1942) 23 CLW 110
De Silva v Seaeviratae [1981] 2 Sri LR 7
Lily v Chandaai Perera & Others [1990] 1 Sri LR 246
APPEAL from the judgment of the District Judge of Colombo.
P.A.D. Samarasekara P.C. with Romesh de Silva P.C., Gamini Jayasinghe,S. Maheathiran and A. R. Surendraa for petitioner – appellants.
Miss M. Seaeviratae P.C. with Miss l.R. Rajepakse, Wasantha Wijesekaraand Miss S. Jayatilleke for internment-respondent.
Cur.adv.vult.
30 April, 1991.
WIJETUNGA, J.
Donald Joseph Wijewardena (hereinafter sometimesreferred to as ‘the deceased’) died on 14.1.85 at the IntensiveCare Unit of the General Hospital, Colombo.
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The intestate heirs of the deceased are —
his widow Mrs. Beryl Helene Iranganie Wije war dene(hereinafter sometimes referred to as ‘the widow’), and
his two daughters, the 1st petitioner-appellant and theintervenient-petitioner-respondent (hereinafter sometimereferred to as ‘the 1st petitioner’ and ‘the intervenient,’respectively).
The petitioners claim that the deceased left a last will andtestament bearing No. 2137 dated 7.1.83 attested by V.Murugesu, Notary Public of Colombo and that he appointedthe petitioners as the executors of the said last will. The 2ndpetitioner is said to be a close family friend of the deceased.
By the said last will, the deceased devised and bequeathedhis assets to his wife, his younger daughter (the 1st petitioner)and the younger daughter’s children. He did not leave anybequest to his elder daughter (the intervenient).
The deceased was the Chairman and Managing Director ofSedawatta Mills Ltd., Sedawatta Drugs Ltd. and SedawattaExports Ltd. The petitioners claim that the 1st petitioner hadbeen assisting her deceased father in the management of thesaid companies and after the father’s death, she is managingthe affairs of the companies. The deceased had shares in sevenother companies too. The petitioners claimed before the Dis-trict Court that it was necessary and expedient in the interestsof the estate that limited probate under Section 539 of theCivil Procedure Code be granted empowering and authorisingthem to have themselves registered as the executors withlimited probate and as legal representatives of the saiddeceased in the registers of members of all the companies inwhich the deceased was a member and to exercise all powersand rights as such members of the said companies (but withoutany right to collect or receive any dividends or income fromthose companies in their capacity as members) until the fullgrant of probate is made or until the petitioners received
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The Court, by its order dated 8.2.85, granted the saidlimited probate. On or about 22.2.85 the Court entered ordernisi in respect of the main application for probate returnableon 14.3.85. The intervenient entered appearance on or about
and filed her statement of objections and affidavit andmoved that the petitioners’ application for probate be dis-missed and that letters of administration be granted to thePublic Trustee of Sri Lanka.
On or about 17.3.85 the intervenient filed a petition repeat-ing the prayers in her statement of objections and in additionthereto asked for an order declaring the grant of limited pro-bate void or in the alternative to recall the grant of limitedprobate to the petitioners.
Inquiry commenced before the then Additional DistrictJudge of Colombo on 29.3.85 and an admission was recordedthat the only intestate heirs of the deceased Donald Wijewar-dene are the widow Beryl Wijewardene, the 1st petitionerAmari Wijewardene and the intervenient Nelum Kumari Ella-wala.
The following issues were raised on behalf of the petition-ers:
Is the Last Will bearing No. 2137 dated 7.1.85 andattested by V. Murugesu, Notary Public, the lawful andvalid Last Will of Donald J. Wijewgrdene?
If so, are the petitioners entitled to prove the said LastWill?
If the above issues (i) and (ii) are answered in the affirma-tive, are they entitled to obtain probate of the said LastWill?
The intervenient raised the following issues
Is the aforesaid Last Will bearing No. 2137 attested by V.Murugesu, Notary Public, a Last Will signed under undueinfluence, intimidation and illegal compulsion?
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Should the limited probate issued in this case be recalledfor the following reasons
since the intestate heirs have not been maderespondents.
since a false averment has been made that no opposi-tion is apprehended to the issue of probate?
Thereafter, the evidence commenced with that of Dr. Wick-rema Wijenayake and while Dr. Wijenayake was under cross-examination, further hearing was adjourned for 24.4.8S and9.5.85. However, it appears that on 19.4.85 the Attorneys-at-Law for the parties had informed Court that those dates werenot suitable to them and had moved that the case be taken offthe inquiry roll and be called on 30.5.85, to fix a date forfurther inquiry. On that date, the inquiry had been fixed for
but had once again been postpone^ for 10.1.86. Bythen, there had been a change of District Judge under whomtoo there had been several postponements of the inquiry.When the inquiry ultimately commenced before the successorthe following additional issues were raised by the interve-nient:-
Was the Last Will No. 2137 dated 7.1.85 not executedaccording to law?
If so, can the petitioners have and maintain this applica-tion?
The record does not indicate that the evidence alreadyrecorded before the previous District Judge was adopted byhis successor. The petitioner had then called the following wit-nesses:
Dr. A.T.S. Paul, retired Chief Surgeon of theGeneral Hospital, Colombo, said to be a close per-sonal friend of the deceased.
Mr. V. Murugesu, Attorney-at-Law and Notary Pub-lic who attested the Last Will as Notary, and
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Mr. K. Neelakandan, Attomey-at-Law and NotaryPublic who was one of the witnesses to the said LastWill.
The intervenient called her husband William Tissa Ellawalaand Dr. T.G. Haththotuwa, Professor of Psychiatry, ColomboNorth Medical College, as her witnesses.
The intervenient’s case was closed on 29.7.87 and the writ-ten submissions and documents of the intervenient were filedon 19.10.87 and those of the petitioners on 1.12.87. Thelearned District Judge delivered the order on 28.11.89 (a)declaring that the Last Will bearing No. 2137 dated 7.1.85attested by V. Murugesu had not been duly proved and thesame cannot be admitted to probate, (b) holding that thedeceased died intestate, (c) dismissing the petitioners* applica-tion for probate, and (d) declaring the limited grant of probatenull and void and recalling the same.
It is from this order that the present appeal and the appli-cation in revision have been filed.
The first issue viz: “Is the Last Will bearing No. 2137 dated
and attested by V. Murugesu, Notary Public, the lawfuland valid Last Will of Donald J. Wijewardene?” has beenanswered by the learned District Judge in the negative.
Much has been submitted before us regarding the executionof the said Last Will. I shall begin by referring to the basiclegal provisions applicable to the making of a Will. The rightof every testator to make such testamentary disposition as heshall feel disposed, even to the exclusion of natural heirs,without assigning any reasons is well recognized by Section 2of the Wills Ordinance (Cap. 75).
The legal requirements in regard to the making of a willare contained in the Prevention of Frauds Ordinance. Section4 thereof states inter alia that “no will, testament or codicilcontaining any devise of land or other immovable property or
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any bequest of movable property or for any other purposewhatsoever, shall be valid unless it shall be in writing and exe-cuted in manner hereinafter mentioned (that is to say) it shallbe signed at the foot or end thereof by the testator, or by someother person in his presence and by his direction, and suchsignature shall be made or acknowledged by the testator in thepresence of a licenced notary public and two or more witnesseswho shall be present at the same time and duly attest suchexecution…”
Section 10 further provides that any will etc. shall not bevoid on account of the incompetency of any attesting witnessto be admitted a witness to prove the execution thereof. Sec-tion 11, though it makes gifts to an attesting witness void, stillprovides for such person so attesting the will to be admitted asa witness to prove the execution or to prove tne validity orinvalidity thereof. Sections 12 and 13 make similar provisionregarding creditors and executors respectively, attesting theexecution of a will.
Section 31 of the Notaries Ordinance (Cap. 107) lays downthe rules to be observed by notaries but provides in Section 33that no instrument shall be deemed to be invalid by reasononly of the failure of a notary to observe any provision of anyrule set out in Section 31 in respect of any matter of form.
Bearing these provisions in mind the first matter tc beexamined is the propriety of otherwise of Mr. and Mrs. Neela-kandan, who were a partner and an assistant respectively ofthe firm of Messrs. Murugesu & Neelakandan, signing the saidLast Will as attesting witnesses. Jhey are both Attomeys-at-Law and Notaries Public. Mr. Neelakandan is the son-in-lawof Mr. Murugesu, the senior partner of the firm and Mrs.Neelakandan is the daughter of Mr. Murugesu and the wife ofMr. Neelakandan. The intervenient, in her statement of objec-tions filed in the District Court, has. stated that the said LastWill has not been executed in accordance with the law interalia on account of the fact that the attesting notary had as
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witnesses to the said Last Will and Testament his daughterand son-in-law who with him are the registered Attomeys-at-Law for the petitioners.
As the statutory provisions cannot provide the answer tothe matter raised by the internment, one must necessarilylook elsewhere for guidance. In Hayes & Jarman’s ’’ConciseForms of Wills” ISth Edition at page 120 it is stated that-’Witnesses of intelligence and respectability should be selectedand preference is to be given to professional men, whose sub-scription of the memorandum of attestation raises a presump-tion that the formalities of execution have been strictlyattended to. Moreover, there is greater facility in finding suchwitnesses, if living, and in proving their handwriting, if dead”.
Halsbury’s ’Laws of England’, Vol. 50, 4th Edition dealingwith the capacity of witnesses under the head of ‘testamentarydisposition’ states at paragraph 269 that there is no statutoryprovision which forbids any person from witnessing a will.
The case of Pieris v. Pieris, (1) is an illustration of a willattested by a Proctor as Notary Public where one of the twoattesting witnesses was his partner, who was himself a Proctorand Notary Public. Though the question of due execution andattestation according to law was very much in the forefront ofthat case, the Court found no impropriety as regards attesta-tion.
In the instant case, learned counsel for the intervenientmade the further submission that Mr. Neelakandan shouldnot, in any event, have been an attesting witness as it was hewho had taken down the instructions given by the deceasedtestator to Mr. Murugesu regarding the making of the will. Itwas her contention that the Notaries Ordinance does not takecognisance of any partnership of notaries and that thefunctions are personal to the notary.
But, as was pointed out by learned counsel for the petition-ers, Section 41(2) of the Notaries Ordinance makes specificreference to instances ‘where two or more notaries carry on a
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notarial business in partnership’. So also, sub section (3) ofthat Section refers to ‘a notary who is an attorney-at-law ofthe Supreme Court (who) has engaged for the purposes of hisbusiness an assistant who is also a notary and such assistantpractises as a notary under such an engagement for the pur-poses of the business of the said notary who is an attorney-at-law.*
Thus, the Ordinance itself recognises not only partnershipsof notaries but also one notary assisting another in a notarialbusiness.
Admittedly, it was Mr. Neelakandan who had taken downthe instructions given by the deceased testator. His notes havebeen produced in evidence marked P.7. As mentioned earlier,he was a partner of the firm of Messrs. Murugesu & Neela-kandan, Attorneys-at-Law and Notaries Public. He has statedin evidence that the deceased was talking to both Mr.Murugesu and himself when he gave instructions and thatthough the Last Will was* attested by one partner (Mr.Murugesu), it was the Firm that was dealing with the client.He, as the junior partner, took down the notes, as is the prac-tice.
As E.R.S.R. Coomaraswamy in his ’Conveyancer andProperty Lawyer’ states at page 25, “Where the will is before anotary and two witnesses, the witnesses must not only sub-scribe the will, but must also attest it. To ‘attest’ a will meansto put one’s name to it as bearing witness to the fact of itshaving been signed by the testator.’’
I cannot, therefore, see why Mr. Neelakandan should nothave been an attesting witness, by reason of his having takendown the instructions. For the reasons stated above, I am alsoof the view that there was no impropriety in Mr. and Mrs.Neelakandan being attesting witnesses to the said Last Will.
I shall now turn to the grounds upon which the learnedtrial judge has held that the Will has not been duly provedand, therefore, cannot be admitted to probate. She has held
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that the petitioners have failed to satisfy the Court that thetestator had sufficient testamentary capacity and disposingmind at the time of execution of the Will. She states that thereis hardly any medical evidence as regards the testamentarycapacity of the testator at the time of signing the will as wellas at the time of giving instructions for the preparation of thewill. She considers the Notary’s failure to consult a doctor, ateither of these stages, regarding the competency of the testatoias a suspicious circumstance.
Admittedly, the Notary had not sought such medical opin-ion, though the testator was then an inmate of the JosephFrazer Nursing Home. His position has been that he was fullysatisfied on his observations that the testator was competentand had he the slightest doubt in his mind, he would haveconsulted medical opinion.
But, the Court has placed much reliance on the case ofMeenadchipillai v. Kathigesu (2) where it has been held thatwhere an application for probate of a will is resisted and cir-cumstances exist which excite the suspicion of the Court, ’wha-tever their nature may be, it is for those who propound thewill to remove such suspicion, and to prove affirmatively thatthe testator knew and approved of the contents of the docu-ment, and it is only where this is done that the onus is thrownon those who oppose the will to prove fraud or undue influ-ence, or whatever else they rely on to displace the case madefor proving the will.’
The other case relied upon by the trial judge is Sithampa-ranatban v. Mathuranayagam, (3) where the Privy Councilheld that in an application for probate of a Will where thetestamentary capacity or disposing mind of the testator at thetime of the Execution of the Will is called in question, the onuslies on those propounding the Will to affirm positively the tes-tamentary capacity, even in the absence of a plea of undueinfluence or fraud and that the evidence of the Proctor whoprepared the Will is not conclusive as to the mental capacityof the testator.
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Learned counsel for the petitioners, however, submittedthat the facts and circumstances of those cases are totally dif-ferent from those of the instant case where the question of thetestamentary capacity of the deceased was neither pleaded norput in issue. He cited a number of authorities to demonstratethat where a will is rational and has been duly executed, thereis a presumption that the testator had testamentary capacityand no burden lies on the propounder to lead evidence inproof of that fact and the obligation to place such evidencearises only where the testamentary capacity is challenged inevidence.
Cross on Evidence, 2nd Edition at page 104 states that if arational will is produced, and shown to have been duly exe-cuted, the Jury ought to be told to find in favour of the testa-tor’s competence. The legal burden rests on the party whopropounds the will, but the rule that he does not have toadduce evidence of capacity in the first instance is sometimessaid to raise a presumption of sanity in testamentary cases.”
Jarman on Wills (1951) 8th Edition, Volume I states atpage 50 that if a will is rational on the face of it, and appearsto be duly executed, it is presumed, in the absence of evidenceto the contrary, to be valid.
So also, Williams on ‘Law of Wills’ (1952 Edition) states atpages 16 and 17 that “it is presumed that the testator was saneat the time when he made his will but, if the question of hissanity is contested, the onus is on the person propounding thewill to prove that the testator was of sound disposing mind atthe time when he made his will. A will not irrational on itsface, duly executed, is admitted to probate without proof ofcompetence unless such competence is contested.”
Lee : South African Law of Property, Family Relations andSuccession (1954 Edition) states at pages 180 and 187 that if awill appears to be formally valid, the burden of proving that itis invalid lies on the party who challenges it; and that a will is
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invalid if the testator when he made it was mentally incapableof appreciating the nature and effect of his act but the burdenof proving this rests on the person alleging it.
Further, Corbett & Hahte : Law of Succession in SouthAfrica states at page 67 that ‘the onus of proving that thetestator did not have the necessary testamentary capacity ison the person alleging that this is so and it has been said thatthis onus must be discharged in the clearest manner.”
Woodroff & Ameerali : Law of Evidence (1941 Edition)also states at page 762 that under ordinary circumstances, thecompetency of a testator will be presumed if nothing appearsto rebut the ordinary presumption ; ordinarily, therefore,proof of execution of the will is enough. But where the mentalcapacity of the testator is challenged by evidence which showsthat it is (to say the least) very doubtful whether his state ofmind was such that he could have ‘duly executed’ the will, ashe is alleged to have done, the Court ought to find whetherupon the evidence the testator was of sound disposing mindand did know and approve of the contents of the will.
Our Courts too have followed these principles over theyears.
It has been held in 1 Gunasckere v. Gunasekcra (4)„ thatwhere the propounder of a last will proves the due executionof the document, a presumption would arise that the testatorknew and approved of its contents, unless suspicion a prioriattaches to the document by its very nature.
If, after proof of due execution, there is nothing intrinsi-cally unnatural in the document, the burden is shifted to theobjector to show that there was undue influence or fraud orthat the deceased Was not of a sound disposing mind when hemade the will.
It has been stated in Peries v. Perera, (5) that in the factsand cirumstances of that case “had the will been found in the
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possession of the testator at his death, it can hardly be dis-puted that on proof of the signature of the testator and of theattesting witnesses and of the notary, the presumption omniarite esse acta would have applied, and the will would havebeen admitted to probate without any further evidence”.
In Abeysekera v. de Livera (6), where issue No. 3 raised bythe objector was : ‘Did the deceased have at the time of theexecution of the said will, testamentary capacity and a sounddisposing mind?’ the Court has stated at page 467 that “theburden of proving this fact is on the propounder of the willand the notary who executed the last will has filed an affi-davit… that to all appearances he verily believed the deceasedto be ‘of sound mind, memory and understanding’ at the timeof the execution of the will. It would be the task of the objec-tor to rebut this fact by leading satisfactory evidence that itwas otherwise”
Furthermore, the provisions of Sections 526, 533 and 534of the Civil Procedure Code indicate that where there is prim afacie proof of the due making of the will and order nisi isentered declaring the will proved, the burden is on the objectorto rebut the prima facie proof of the material allegations ofthe petition.
In the instant case, however, the testamentary capacity ofthe testator was never in question. It has neither been pleadednor put in issue. The statement of objections filed by the inter-venient makes it clear that the Last ‘Will was being challengedon the basis that it was obtained by duress and/or undueinfluence exercised on the deceased by his widow and/or the 1stpetitioner. That position is further clarified by the evidence ofEllawala, the husband of the intervenient, who has stated inanswer to questions as follows:
“Q: Your grounds for attacking this will is that it is not anatural will because one daughter, i.e. your wife hasnot been provided for in the will because your wifehas bfeen cut out off from inheriting anything?
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A: Yes, there was an on going attempt to make me and mywife look as outsiders who had to be kept alone.
Q: Therefore, you are asking the Court to reject the LastWill because it is not natural and there wereattempts to say that your wife was disinherited?
A: Unduly keep off. That there was undue influence on himover the years to keep her out.”
Regarding the execution of the will itself, the only groundof attack specified in the objections is that it has not been exe-cuted in accordance with the law on account of the fact thatthe attesting notary had as witness to the said Last Will andtestament, his daughter and son-in-law who with him are theregistered Attorneys-at-Law for the petitioners. I have alreadydealt with that aspefct of the matter.
The learned trial .judge, however, has been of the view thatas hardly any medical evidence had been placed before Court,the petitioners have failed to satisfy the Court that the testatorhas sufficient testamentary capacity at the time of making thewill. The case of Sithamparanathan v. Mathuranayagam(supra) on which she relies in this connection, however, would,apply only where the testamentary capacity or disposingmind of the testator at the time of execution of the will iscalled in question. That was certainly not the position in thiscase. Further, the facts and circumstances of Sithamparana-than’s case are wholly different from the facts and circumstan-ces of the instant case. In that case, unlike in the instant case,the competency of the deceased to execute the Last Will wasspecifically put in issue. The conclusions of the trial judge inthat case have been summarised as follows
“(a) the physical weakness of the testator was apparent fromhis-shaky and illegible signature (the Proctor asked himto sign a second time because the first signature ‘did notseem good*),
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the Judge accepted the evidence of one Wilbert that thetestator had been given a blood transfusion before thewill was signed,
Two doctors, one the testator’s son, who was the appel-lant in that case and the other an attesting witness to thewill, were present when the will was signed. The trialjudge viewed with suspicion the failure to lead the evi-dence of either of those doctors as to the actual conditionof the testator.
There was the further circumstance that the trial Judgeviewed with reasonable suspicion the claim that the testator onhis death- bed had abandoned completely his earlier fixedintention to institute a trust for religious purposes (as manif-ested in his two earlier wills) and had decided instead to leaveall his property to his children. The evidence led apparentlydid not suffice to satisfy the conscience of the Judge that thetestator did indeed decide upon so complete a change in hisdisposition. The Privy Council there observed that “this is notreadily described as an unnatural will but it is a will whichmakes a radical departure from recent considered testamentaryintentions.”
There was also a conflict between the two medical wit-
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nesses who gave evidence and the Judge did not find the medi-cal evidence satisfactory.
It is in these circumstances that it was held in that case thatthe evidence of the Proctor who prepared the will is not con-clusive as to the mental capacity of the testator.
The other case relied on by the learned trial Judge, viz.Meenadchipillai v. Karthigesu (supra) is even more remotefrom the facts and circumstances of the instant case. The testa-tor in that case was so ill at the time of execution of the willthat he was unable to speak or to hold a pen to write his sig-nature. He died within seven hours of the execution of the
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will. It was in that context that the Court made the observa-tion that the Notary did not take the obvious precaution ofconsulting a doctor at the time he took instructions from thetestator or at the time of executing the will.
But what is the position in the instant case? Admittedly thetestator was an inmate of the Joseph Frazer Nursing Home atthe time he gave instructions for the preparation of the will, aswell as when the Will was executed. The learned trial judgeadverts to his having been treated by Dr. Wijenaike and Dr.Attygalle for cirrhosis of the liver, chronic diarrhoea coupledwith enlargement of the liver and the spleen and a heart condi-tion due to a leak in the microvalve of the heart. She says that“no medical evidence had been placed before Court by thepetitioners that the testator who has been suffering from allthese complicated illnesses had the testamentary capacity atthe time of signing the will.”
She has, however, mentioned the fact that Dr. Wijenaikewho had treated the testator had given evidence (before herpredecessor) and stated that till 12.1.85 the testator was ableto discuss things with him, his mental condition was quitenormal and he had a clear mind; but there was nothing onrecord to show that, though his cross-examination had com-menced, his evidence had been concluded. The Court has,quite rightly, I think, disregarded that evidence.
The next witness was Dr. Paul who again did not give evi-dence as a medical witness but as a layman and a friend of thetestator, having known each other from the age of about 5years when they were students at school. He had visited thetestator practically every other day at the Nursing Home fromabout the middle of December, 1984 to about 10th of January,1985. He was to have accompanied the testator to London forfurther treatment. He has categorically stated that he had seenand talked to the testator during this period and found himmentally quite alert. He was able to discuss various mattersincluding various problems. Though Dr. Paul had been a sur-geon attached to the General Hospital, Colombo for about 25years and had retired as Chief Surgeon, he declined to give
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medical evidence for the reason that he had not treated thetestator. His opinion as a layman, however, in regard to themental capacity of the testator was entitled to due considera-tion by the Court.
Then there was Mr. Murugesu, Attomey-at-Law, Solicitorand Notary Public who, when he gave evidence in 1987, wasalready 38 years in practice. He is the senior partner of a firmof lawyers and knew the testator for about 10 years. The testa-tor was not only his professional client but also a friend. Hehad not only done notarial work for him but had also beenconsulted by the testator in regard to his business and othermatters, in his capacity as a Lawyer. He has stated in evidencethat when he went to execute the last will he found the mentalcapacity of the testator to be quite normal. He did not con-sider it necessary to consult medical opinion in regard to thecompetency of the testator as he was satisfied that though hewas suffering from some illness, he appeared normal and cap-able of making a decision and had the capacity to know whathe was doing and he did not have the slightest doubt in hismind as regards his competency.
Further, the testator has signed the will with a firm andsteady hand, (which has a bearing on his physical condition atthe time), as on previous occasions when he had placed hissignature on other notarially executed documents such as Deedof Gift No. 1123 dated 22.8.75 (PI), Deed of Trust No. 1148dated 4.11.75 (P2), Last Will No. 1147 dated 3.11.75 (P3)Codicil No. 1620 dated 12.5.80 (P4), all attested by V.Murugesu, Notary Public, to some of which I will advert later.
Thus, those two cases are clearly distinguishable from thefacts and circumstances of the instant case.
The next matter that needs consideration is whether this isa rational or natural will. But, before I get to this question, itbecomes necessary to deal with the circumstances in which thewill came to be executed and also dispose of other contentiousmatters relating to the previous Last Will (P3) and the Codicil(P4).
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On receipt of a telephone message from the deceasedrequesting him to come to the Joseph Frazer Nursing Home,Mr. Neelakandan had gone there on 2.1.85. The deceased hadtold him that he wanted a Power of Attorney executed as heintended going to the United Kingdom for treatment. He hadwanted it to be signed on 4.1.85. The deceased had furthertold him that Mr. Murugesu had attested a last will for himand had requested Mr. Neelakandan to bring Mr. Murugesualso on 4.1.85 with a copy of that last will as he wanted toexecute a new last will. Accordingly, Mr. Murugesu and Mr.Neelakandan had gone to the said Nursing Home on 4.1.85and Mr. Neelakandan had executed the Power of Attorney No.475 dated 4.1.85 (P6). Mr. Murugesu had taken the previousLast Will No. 1147 dated 3.11.75 (P3) and Codicil No. 1620dated 12.5.80 (P4). The deceased had perused the last will andthe codicil and had then given instructions regarding the prep-aration of a fresh last will. Mr. Neelakandan had taken downthose instructions which have been produced marked (P7). Adate had then been fixed for the signing of the last will, viz,the 7th of January. On that day Mr. Murugesu, Mr. Neela-karidan and Mrs. Neelakandan had gone to the Nursing Homeat about 6 or 6.30 p.m. Mr. Murugesu had handed over thenew last will to the deceased who had been seated on his bed.He had taken it in his hand and had read it and had been sat-isfied with it. The deceased had wanted clarification on certainmatters which had been explained to him by Mr. Murugesuand the deceased had signed the last will in the presence ofMr. N’eelakandan and his wife who too had signed same asattesting witnesses and it had been attested by Mr. Murugesuas Notary.
It would be convenient at this stage to examine whether theprevious last will (P3) and the codicil (P4) were properly inevidence before the Court. The record indicates that they weremarked in evidence subject to proof but at the end of the peti-tioners’ case the documents (PI) to (P7) (including the said lastwill and the codicil) had been read in evidence without objec-
CA
Wijewardena and Another vs. Ellawala (Wijetunga, J.)
33
tion and the petitioners’ case closed. The last will (P3) hadbeen produced in evidence through Mr. Murugesu who was theattesting notary. The codicil (P4) too had similarly been pro-duced in evidence through Mr. Murugesu, who had alsoattested the same. One of the attesting witnesses to the saidcodicil had been Mr, Neelakandan who has identified his sig-nature as well as that of the other attesting witness, K.Murugesu. Thus, in regard to the codicil, the attesting notaryand one other attesting witness had given evidence. Evenlearned counsel for the intervenient, therefore, accepted beforeus that though the codicil had been produced subject to proof,it had been proved in evidence later.
The codicil refers to the previous last will (P3). Thedeceased had, by the last will (P3), appointed his wife to bethe executrix and if she should be unwilling or unable to act,his son-in-law Wadugodapitiya to be the executor. By thiscodicil (P3) he had once again appointed his wife to be and ifshe should be unwilling or unable to act, then he hadappointed his daughter, the 1st petitioner to be the executrix,followed by two other persons. Paragraph 3 of the said codicilstates that “in all other respects I hereby confirm the said LastWill and Testament No. 1147 which shall be in force and shallbe read and construed with this Codicil.”
The codicil having been admittedly proved in evidence, theexistence of the previous last will (P3), which had thereby beenconfirmed, was never in doubt. It was the contention oflearned counsel for the intervenient that Section 68 of the Evi-dence Ordinance had not been complied with in regard to theprevious last will under which section if a document isrequired by law to be attested, it shall not be used as evidenceuntil one attesting witness at least has been called for the pur-pose of proving its execution.
She further submitted that the petitioners should haveproved the previous last will in terms of the provisions of Sec-tion 524 of the Civil Procedure Code. That section deals with
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the mode of application and proof of a will for the grant ofprobate thereon. But, the petitioners in this case were notseeking to obtain probate as executors of the previous last will,but only to use that last will as an item of evidence for thepurposes of the present case. To so use it in evidence, Section68 of the Evidence Ordinance requires an attesting witness atleast to be called for the purpose of proving its execution.While learned counsel for the petitioners argued that by reasonof it being produced in evidence through Mr. Murugesu whowas the Notary who had attested the said last will, there wassufficient compliance with Section 68 of the Evidence Ordi-nance, learned counsel for the intervenient submitted that itwas not properly in evidence before the Court.
It has been held in Wijegoonetilleke v. Wijegoonetillake (7)that a Notary who attests a deed is an attesting witness withinthe meaning of that expression in Sections 68 and 69 of theEvidence Ordinance. The contention in that case too was thata Notary was not an attesting witness for the purpose of Sec-tion 68 of the Evidence Ordinance, but the Supreme Courtheld otherwise.
Learned Counsel for the intervenient, however, submittedthat, that authority refers to the attestation of a deed but notto that of a last will and sought to distinguish that case. But itis relevant to note that Section 4 of the Prevention of FraudsOrdinance too uses the words “in the presence of a licensednotary public and two or more witnesses who shall be presentat the same time” in regard to wills, as Section 2 does inregard to deeds. The decision in Wijegoonetilleke v. Wije-goonetilleke (supra) is as to ‘who is an attesting witness?’ I seeno difference in the manner of proof of execution of eitherclass of documents and I am of opinion that the aforesaiddecision applies with equal force to a will that is produced asan item of evidence.
CA
Wijewardena and Another vs. Ellawala (Wijewnga, J.)
35
When the petitioners’ case was closed reading in evidence(PI) to (P7) (which includes (P3) the previous last will) noobjection was taken by the intervenient. It has been held inHemapala v, Abeyratne, (8) where a deed was marked in evi-dence and when the case for the plaintiff was closed his coun-sel read the deed in evidence along with other documents, itwas too late to raise the plea in appeal that no evidence hasbeen called to prove due execution of the deed in terms of Sec-tion 68 of the Evidence Ordinance.
So also, in Gunasekara v. Resanona where a lease bond wasproduced by the plaintiff without any objection or protest andno issue was suggested either at the commencement of the trialor later, raising the question of the due execution of the saidlease bond, it has been held that in these circumstances Section68 of the Evidence Ordinance would not require the notary oran attesting witness to be called; being a document which is not’forbidden by law to be received in evidence’, the failure toobject to it being received in evidence would amount to awaiver of the objection.
I am, therefore, of the view that the previous last will (P3)was also properly in evidence before the Court and could beconsidered for all purposes relevant to the matter in issue.
The previous last will (P3) is indeed very relevant for thepurposes of this case as it provides an insight into the mind ofthe testator. The most significant factor is that both under theprevious last will (P3) as well as under the present last will(P5), the intervenient was excluded and thereby disinherited.
In regard to the period when the previous last will (P3)came to be made in 1975, Mr. Murugesu has stated in evidenceinter alia as follows: “Mr.Wijewardena consulted me regardingthe first last will and he wanted me to specifically exclude theother daughter. I dissuaded him. That is because after hisdeath there was a chance that family relationships will becomeharmonious… He mentioned to me that the other daughter
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was a difficult character and there were many other reasonswhich I do not like to mention in Court. He did not have any-thing to do with her. It was a paternal break. He told me thatshe was not worthy of being his daughter.”
Mr. Ellawala himself has stated in evidence that he and hiswife (the intervenient) had ceased to visit the deceased from1974, that from about 1974 to 1979 their feelings were verystrained and that they were not on talking terms. This evi-dence clearly supports Mr. Murugesu’s evidence that there hadbeen a paternal break and that the deceased had nothing to dowith the intervenient.
What the intervenient was seeking to establish is thatthough there was this state of strained feelings at that stage,there was a change in their relationship from about 1980 andif not for the undue influence exercised on the deceased overthe years, the intervenient would not have been left out by thedeceased under the last will in question.
One must not, in that context, lose sight of the fact that thedeceased had, by the codicil dated 12.5.80 (P4), confirmed theprevious last will dated 3.11.75 (P3) in all respects other thanin regard to the matter of executorship. So that, even in mid-1980, the intervenient continued to remain disinherited.
The only evidence of the alleged change in the relationshipbetween the deceased and the Ellawala family comes from wit-ness Ellawala, the husband of the intervenient. Even he makesreference only to three or four telephone conversationsbetween him and the deceased over a period of about S years.His wife, the intervenient, and the deceased had not spoken toeach other right up to the time of his death. The fact that theyhad not visited each other needs no emphasis. Ellawala, how-ever, attributes their inability to have had a closer relationshipwith the deceased to the attitude of his mother-in-law, the wifeof the deceased.
CA
Wijewardena and Another vs. Ellawala (Wijetunga, J.)
37
He has given a detailed account of the telephone conversa-tions. Towards the end of 1980, the deceased had telephonedhim in his office and had told him that he had heard thatEllawala and his wife had been away in England and the child-ren had been all alone and had inquired as to why he was notinformed and why the children were left alone. The deceasedhad further told Ellawala that Wadugodapitiya (the formerhusband of the 1st petitioner) had been giving trouble and wasout of the company and that the 1st petitioner and the child-ren were back at home and that he had been misled.
The next telephone call from the deceased had been in 1981when he had told Ellawala that all attempts to reconcile hadfailed and that the 1st petitioner had filed a divorce action.
Ellawala then refers to two occasions in 1984 when thedeceased contacted him, on the first of which he discussed thequestion of discharging a mortgage bond (RS) in respect oftheir house and then again in September, 1984 when thedeceased mentioned about the 1st petitioner planning to getmarried in Church but seemed very unhappy about it.
Ellawala has virtually summed up his view of the attitudeof the deceased at or about the time when the last will in ques-tion was executed in these words: “I think he had at that timerealised that some harm had been done to us by believing sto-ries. In my view, the testator had come to a stage where hewanted to reconcile but he was frightened to take the initiativebecause he would have opposition from his wife”.
From these items of evidence the learned trial judge comesto the following conclusions:—
“It is quite clear from his evidence that the relationship hehad with the father-in-law (the deceased) was a cordial oneand the father-in-law’s attitude towards his wife too was akind one… Further, it is quite evident from this witness’ evi-dence that the relationship he had with the deceased was notonly a cordial one, but quite a close and friendly one.”
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She then proceeds to state that any Court should believethis witness’ evidence in its entirety without any hesitation.The only reason adduced by the learned trial judge is that“though this witness was subjected to lengthy cross-examination, the position taken up by him in examination-in-chief was quite satisfactorily maintained by him in cross-ex-amination.”
But, unfortunately the trial judge has made no attempt toanalyse or evaluate the evidence of this witness against thebackdrop of the other evidence in the case, both oral and doc-umentary. The ’lengthy cross-examination’ which she refers toruns into barely 6 pages, whereas the evidence-in-chief coversabout 20 pages.
Even taking Ellawala’s evidence at its very highest, it doesnot in any way establish that the relations between the inter-venient and the deceased were cordial during the period inquestion. He himself does not claim that apart from the tele-phone conversations eferred to above, there was any personalcontact between him and the deceased. In this state of the evi-dence, one sees no basis for the trial judge’s conclusion thatthe relationship between Ellawala and deceased was not only acordial one but quite a close and friendly one. There is also noevidence to show that the deceased’s attitude towards theintervenient was a kind one.
In regard to the discharge of the mortgage bond (R5) inrespect of the residential premises of the intervenient, there isonly Ellawala’s word that the deceased treated it as a gift fromhim. But, the instrument of discharge No. 750 dated 4.6.84attested by J. Eardley Seneviratne, Notary Public (R9) specifi-cally states that all sums due on the said mortgage bond,whether on account of principal, interest or otherwise hadbeen paid by the intervenient to the deceased on 30.3.84.
Thus, in the absence of satisfactory evidence of a radicalchange in the attitude of the deceased towards the intervenientat or about the time that the last will was executed in January,1985, one sees nothing unnatural or irrational in that will.
CA
Wijewardena and Another vj. Ellawala (Wijetvnga, J.)
39
In’ Karthetos Appuhawy v. Siriwardene( 10), where the testa-tor excluded certain blood relations from specific devises of hisacquired property, it has been held that the will was notunreasonable or unnatural and that the actual feelings of thetestator towards his relatives should be considered in decidingwhether a will is reasonable and natural or not.
In my opinion, therefore, the last will (P5) is a rational ornatural will.
As discussed above, where a will is shown to be rationaland duly executed, there is a presumption that the testator hadtestamentary capacity. Ordinarily, therefore, such a will wouldbe admitted to probate unless the competence of the testator iscalled in question. But as was laid down in the leading case ofBarry v. Button. (11), the onus probandi lies in every case uponthe party propounding a will and he must satisfy the con-science of the Court that the instrument so propounded is thelast will of a free and capable testator.
The principle laid down in Barry v. Button (supra) was sup-plemented in Tyrell v. Painton, (12) (1894) Probate 151 whereit was stated that wherever a will is prepared under circum-stances which raise a well-grounded suspicion that it does notexpress the mind of the testator, the Court ought not to pro-nounce in favour of it unless that suspicion is removed.
In the instant case, I have already demonstrated that thewill was both rational and duly executed. What remains to beexamined is whether the material placed before the Court bythe propounders was sufficient to satisfy the conscience’of theCourt and if well-grounded suspicions did exist, whether theyhad been removed.
Learned counsel for the intervenient submitted that suspi-cious circumstances did exist. She sought to categorise them asfollows:—
the condition of the testator’s mind was feeble
the dispositions were unfair
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the testator was overawed by powerful minds
the propounder had taken a prominent part in the exe-cution of the will.
It should be remembered that such suspicious circumstan-ces should have been existing at the time of and surroundingthe preparation and execution of the will, (vide Davis v. May-hew (13)).
The learned trial judge has, in the course of the judgement,made the following observations:—
“The deceased being a person who almost had no degreeof inde’pendence and who has had no freedom to actaccording to his own free will (as evidenced by how thedeceased had given the house and property to theintervenient making it look as a mortgage), when givinginstructions as to the preparation of the will too, it isdifficult to believe that he had no influence by his wifewho had been present there”.
The house and property transaction referred to by thejudge relates to the purported sale of the residential house tothe intervenient by the deceased by deed No. 1222 dated12.1.74 (R4) and the mortgage of the same to the deceased bydeed No. 1223 of the same date (RS), the latter transactionapparently been kept a secret from the wife of the deceased.Does this not indicate that whatever the pressures may havebeen from his wife, the deceased had the capacity to find waysand means of achieving his objectives and giving effect to hisintentions?
As regards the propounder, the judge states asfollows:—
“According to Mr. Neelakandan’s evidence, the 1stpetitioner had been near the door of the room at thetime of execution. In Fernando v. Peiris (14) theobservation was made that the mere presence of thepetitioner (a devisee under the will) at the time of exe-
CA
Wijewarxkna and Another vs. Ellawala (Wijetunga, J.)
41
cution is insufficient. The 1st petitioner’s presence atthe time of execution has to be treated as a naturalfact”
So, even the learned trial judge herself does not say thatthe propounder had taken a prominent part in the executionof the will.
There is also no evidence to indicate that the condition ofthe testator’s mind was feeble at the time of execution of thewill. The Nurses’ Reports of the Joseph Frazer Nursing Home(R11A) to (R11R) and (R12) are not of any assistance indetermining the condition of the testator’s mind.
I have already referred to the absence of evidence pointingto a change in the attitude of the testator towards intervenientin or about January, 1985. Consequently, the dispositions can-not be termed ‘unfair’ from the point of view of the testator.As was said in Andrado v. Silva (15) it is not part of the dutyof the Court to see that a testator makes a just distribution ofhis property so long as he properly appreciates what he isdoing.
I am, therefore, unable to persuade myself that any of thesuspicious circumstances mentioned by learned counsel for theintervenient did exist at the time of making the will.
But, what the trial judge considered to be a suspicious cir-cumstance is the failure of the Notary to seek medical opinionas regards the competency of the testator at the time of takinginstructions for the preparation of the will or at the stage ofexecuting it.
In the instant case, the testamentary capacity of the testa-tor was never in issue. I have, at a previous stage, referred tothe non-medical evidence that has been given in regard to thecompetency of the testator. Instances when the Courts haverelied on the testimony of non-medical witnesses to decidewhether a testator had a sound disposing mind are seen in
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Perera v. Perera, (16) Andrado v. Silva (15) and Gunasekerav. Gunasekera (4), I do not think it is the law that medical evi-dence is a sine qa non. for proving the mental capacity of atestator in each and every case. The Nurses’ Reports (RUA) to(R11R) and (R12), also do not lead one to the conclusion thatthe testator lacked mental capacity. Therefore, to my mind,the failure of the Notary to consult medical opinion in thisregard per se is not a well grounded suspicious circumstance.
I shall now turn to the learned trial judge’s finding, on thebasis of the affirmative answer to issue No. 4, that the said lastwill was signed under undue influence, intimidation and illegalcompulsion. This was not even Ellawala’s position. He onlystated that there was undue influence on the deceased over theyears to keep the intervenient out. He has not even claimedthat any undue influence had been exercised over the deceasedat the time of making the will.
It has been held in Peiris v. Peiris,, (17) that undue influ-ence is not to be presumed but must be proved by the partyalleging it and in order to be undue, the influence mustamount to coercion or fraud.
It has again been held in Gray v. Kretser, (18) that in orderto establish undue influence, there must be something in thenature of coercion or fraud.. It must in fact be shown that thedocument impeached is not really that of the maker, in thesense that he had not a consenting mind to its terms.
So also, in Andrado v. Silva,(15) it has been held that theburden of proof of undue influence is on those who allege itand that it cannot be presumed.
In Brampynona v. Vithanage, (19) it has been held thatthere must be evidence that there was the exercise upon themind of the testator of coercion or mental ascendency which isthe equivalent of coercion.
CA
Wijcwardeaa and Another vs. El laws I a (Wtjetunga, J.)
43
Suffice it to say that in the instant case such evidence iswoefully lacking. One fails to comprehend how the learnedtrial judge could have answered that issue in the affirmative.Intimidation and illegal compulsion apart, there is not even asemblance of evidence of undue influence exercised on thetestator at the time of signing the will.
Learned counsel for the intervenient addressed us at lengthon the functions of an Appellate Court regarding questions offact and submitted that testamentary capacity being such aquestion of fact, it was a matter within the purview of theoriginal court. She urged that it was not for this Court todecide whether the deceased had testamentary capacity butwhether the trial judge was plainly wrong in holding that thepetitioners had not discharged that burden.
In De Silva v Seneviratne, (20) Ranasinghe, J. (as His Lord-ship the Chief Justice then was) dealt comprehensively withthis question and summarised the principles applicable to thereview of findings of fact by an Appellate Court as follows:—
Where the findings on the questions of fact are basedupon the credibility of witnesses on the footing of thetrial judge’s perception of such evidence, then suchfindings are entitled to great weight and the utmostconsideration and will be reversed only if it appears tothe Appellate Court that the trial judge has failed tomake full use of his advantage of seeing and listeningto the witnesses and the Appellate Court is convincedby the plainest considerations that it would be justifiedin doing so;
That however where the findings of fact are based uponthe trial judge’s evaluation of facts, the AppellateCourt is then in as good a position as the trial judge toevaluate such facts and no sanctity attaches to suchfindings of fact of a trial judge;
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Where it appears to an Appellate Court that on eitherof these grounds the findings of fact by a trial judgeshould be reversed then the Appellate Court “oughtnot to shrink from that task.”
This judgement has been cited with approval in Lily v.Chandani Perera and Others (21).
As stated above, the learned trial judge was in gross errorin regard to the findings of fact. As the judgement came to bewritten over two years after the conclusion of the evidence,whatever advantage the trial judge may have had by reason ofseeing and listening to the witnesses would also have beengreatly diminished on account of the long delay. I havealready made my observations with regard to the non-evaluation of the evidence by the trial judge. Applying theprinciples laid down in de Silva v. Seneviratne, this case callsfor a reversal of the findings of fact by the learned trial judge,as the basis of such findings is clearly and demonstrablyerroneous.
I would accordingly set aside the order of the learned Dis-trict Judge dated 28.11.89 and direct that the order nisi madeon 22.2.85 be made absolute. I would further make order thatthe Last Will No. 2137 dated 7.1.85 attested by V. Murugesu,Notary Public, be declared proved and that the same be admit-ted to probate and that probate be accordingly granted to thepetitioners.
The appeal is allowed with costs.
In view of this order, no further order is necessary in Revi-sion Application No. 1031/89. As the appeal and that applica-tion were taken up for argument together, I make no order asregards costs in respect of that application.
ANANDACOOMARASWAMY, J.— I agree-
WEERASEKERA, J. — I agree.
Appeal allowed.
sc
Ellawala y. Wijcwardena and Another
45
(Note by Editor: Leave to appeal to the Supreme Court wasrefused by the Court of Appeal on02,08.1991. Application No. 118/91 to theSupreme Court for Special Leave to appealwas also refused on 19.12.1991. This order isbeing reported.)