083-NLR-NLR-V-74-I.-B.-WIMALAWATHIE-Appellant-and-D.-J.-OPANAYAKE-et-al.-Respondents.pdf
303
Wimalawathie t>. Opanayake
1971Present: Samerawickrame, J., and Wijayatilake, J.
B. WIMALAWATHIE, Appellant, and
J. OPANAYAKE et al., Respondents
S. C. 364167 (F)—D. C. Colombo, 22420{Testy.
Will—Execution before five witnesses—Draft made by Proctor's clerk—Properlydevised to the illegitimate children of the testator—Absence of suspiciouscircumstances—Validity of the Will.
The petit ionor-appellant ns executrix applied for probate of a Will which wasexecuted at tho General Hospital, Colombo, beloro live witnesses, one of whomwas a Proetoi’s clerk who had drafted tho Will. Tho devisees under tho Willwero tho threo illegitimate children of the deceased. Tho objectors wore someof the next of kin of tho deceased. Tho trial Judgo refused probate on theground that only two witnesses had signed in the presenco of tho testatorand that the other three witnesses had affixed their signatures in tho absoncaof the deceased at his residonco. Tho evidenco however showed that all fivewitnesses had signed in tho presence of the testator and that no reliance couldbo placed on tho evidence of ono of tho witnesses who stated that ho and twoothci witnesses signed the Will in tho abscnco of tho testator.
Held, that, in tho absence of evidenco of suspicious circumstances surroundingthe execution of tho Will, tho executrix, who was tho mistress of tho deceasedand the mother of tho devisees, was entitled to grant of probato.
j^PPEAL from a judgment of the District Court, Colombo.
J.17. Suba-nnghe, for the petitioner-appellant-.<S. 17. Wafpita, for the objectors-respondents.
Cur. adv. trull.
WIJAYATILAKE, J.—W imalaiuathie v. Opanayaht
309
March 29, 1971. Wijayatilake, J.—
The petitioner as executrix is seeking probate of the Last Will dated9.2.65 of Opanajakage Brampy Appuhamy who died at the GeneralHospital, Colombo on 23.2.65. Brampy Appuhamy at the time ofhis death was about 65 years of age. The petitioner who is about 30years younger was his mistress from his fiftieth year. Admittedly,they were living as husband and wife and three children were bora tothem, Sunil Karunawathic in October 1956, Indrapala in May 1957and Seetha in May 1963. The deceased had four sisters two of whomarc living, and two jroungcr brothers one of them being the objectorJohn Opanayake. Two sons of the sisters of the decased are Don Mendrisand Weerakkody. Of these intestate heirs John Opanayake, the twosisters who are living and the two nephews aforementioned object tothe proof of the Will, by which the deceased lias devised and bequeathedall his property to his three children.
They allege that the Last Will sought to be proved was not executedby nor was it the act and deed of the said deceased. They also statethat even if the deceased executed this Last Will (a) it was not dulyexecuted according to Law ; (b) the deceased did not understand thenature and the contents; (c) the said Last Will was executed as aresult of the fraud and undue influence exercised on the deceasedby the petitioner.
When this case came up for inquiry learned Counsel for the objectorshad stated that he was not denj'ing the signature of the deceased on thedocument produced as the Last Will. The case accordingly proceededto inquiry on two issues: (1) Is the Will filed of record marked “A”duly executed according to Law, (2) Was the said Will the act and deedof the deceased. After inquiry the learned District Judge held thatthe "Will has not been duly executed according to Law as it has notbeen duly attested. The Will in question has been attested by fivewitnesses and the learned District Judge holds that only two witnesses—namely IC. S. Perera and Dolis Appuhamy had signed in the presence ofthe deceased while the other three witnesses Gabo Singho, Baby Singho• and Mathias Perera had affixed their signatures in the absence of thedeceased at his residence at Pokunuwita.
With regard to the mental capacity of the testator, Dr. Rustomjeo,Ear, Nose and Throat Surgeon of the General Hospital, Colombo, hasstated that according to his observations Brampy was of sound mentalcondition on 10.2.65 when he operated on him for the first time andeven after the operation his condition was fairly satisfactory for aboutone week. On this evidence it is quite clear that when the deceasedsigned this document in hospital he was in a position to understand itscontents.
The objectors have conspicuously failed to prove the charge of fraudand undue influence.'
310
WTJAYATILAKE, J.—WimaJawcithie v. Opanayakc
T]ic only question which arises is in regard to the formality of thoattestation. The first witness Iv. S. Perera who had drafted the Will isa proctor’s clerk. It would appear that he lives in the village of thodeceased and his assistance had been sought in respect of deeds andmortgage bonds by the deceased from time to time. Apart from Pereratwo other witnesses to the Will, Dolis Appuhamy and Gabo Singho havegiven evidence in support of the petitioner that the said Will was executedby the deceased and all the five witnesses signed the same in one another’spresence at the same time at the General Hospital, Colombo. It issignificant that all these five witnesses have sworn to an affidavit fivemonths later on 15.7.Go testifying to this fact.
Of these witnesses Don Mathias who has given evidence on behalfof the objectors has sought to go back on this affidavit and he lias statedthat his signature was not obtained in Colombo. At the instance ofJohn Opanayake he has subscribed to a further affidavit on 14.12.Gowherein he states that on 10.2.65 lie was requested to come to the residenceof Brampy Appuhamy and when he went there the proctor’s clerk,'
K.S. Perera, had told him that Brampy Appuhamy desired that heshould sign a document. He was not aware of the contents of thedocument. He knew Brampy very well and he signed the document.Two others Baby Singho and Gabo ha my had affixed their signaturesthereafter. He proceeds to say that only very recently he came to under-stand that this document was the Last Will of Brampy. He had swornto this affidavit before Mr. J. Malnlgoda J.P.U.M., Solicitor and Hotary,Colombo, at his office. When this witness was cross-examined as to thecontents of this particular affidavit his evidence was that it was not readand explained to him. It would appear that John Ojjanayake hadgiven instructions and when the affidavit was presented to him lie hadsigned it without reading the contents ! On a perusal of the evidenceof this witness it is apparent that no reliance whatever can be placedon him.
Tho learned District Judge has also observed that one cannot fail tonotice that the signatures of Gabo Singho, Bab}- Singho and Mathiasappear to have been signed with a pen different from the one used by thoother two witnesses. However, on a scrutiny of these signatures onecannot bo too definite about this. If K. S. Perera, being a proctor’sclerk, was seeking to perfect the Last Will is it likely that ho wouldhave slipped on a matter like this ? Furthermore, being a proctor’sclerk knowing very well the legal requirements is it likely that he wouldhave got this Will attested in part in Colombo when he could have gotfive witnesses together without much difficult}' in Colombo as this was onthe evo of the operation when there would have been quite a crowd ofvisitors at the hospital. It is also significant that although the objectorshad listed the other witness to tho Last Will, Baby Singho, ho has notbeen called.
VJ JAYATI LAKE, J.—lYimalcnralhic v. Opanayake
311
The learned District Judge observes that he cannot overlook theevidence of John Opanayake—that the deceased had intimated to himthat he had provided well for his children and his mistress and wantedtho rest of tho property to be shared by his brothers and sisters. Thiswitness in cross-examination admitted that ho did not associate withthe deceased on account of his nefarious activities ! It would appearthat ho was running a club of a shady character. .John Opanayake hasfurther stated that they wero not on good terms with the mistress of thodeceased as he had cast a slur on the family by living with her. In thelight of this evidence I do not see how tho objections can be upheld.
Mr. Walpita, learned Counsel for the objectors, has submitted thatwherever a Will is prepared and executed under circumstances whicharouse tho suspicion of tho Court it ought not- to pronounce in favourof it unless the party propounding it adduces evidence which wouldremove such suspicion and satisfy the Court that the testator knew andapproved of the contents of the instrument. He relics on The AlimWill Case1. He submits there are certain suspicious features in thiscase : firstly that the Last Will is written on two sides of the paper andtho list of witnesses appears only on the third page. In my opinionthis is of little consequence. Secondly that the petitioner has deliberate!}'got tho order nisi published in the Sinhala JJaudhaya which is not apopular newspaper but, as we know, the list of newspapers is approvedby Court and there is nothing to show that this jiarticular paper hasnot been so approved. Furthermore, unlike a daily newspaper a weeklypaper like the Sinhala Baudhaya is not generally discarded after reading.Thirdly as to the pens used, but as I have already observed on a carefulscrutiny of the original this suspicion appears to be rather flimsy.Fourthly that Mr. Gunawardene, Justice of the Peace, before whom thefive witnesses swore to the affidavit of May 1965 has not been called.No doubt he would have been a useful witness to the petitioner but onthe face of the jurat clause his evidenco would have been redundant.
Mr. Subasinglie, learned Counsel for the petitioner, has submitted thatthe position of the objectors has been inconsistent from the very inceptionof these proceedings. In the present case there are no suspiciouscircumstances at all as the property has been bequeathed to the threechildren whom the deceased dearly loved as is evident from the othergifts he has made in their favour. It is in evidence that the brothersand sisters of the deceased had very little to do with him, so that is.itlikely that on Iris death bed if he was desirous of executing a will he wouldhave bequeathed all his property to them as mentioned by JohnOpanayake.
The onus of proving the Will is on the propounder and in the absenceof suspicious circumstances, surrounding the execution of the Will,proof of testamentary capacity and the signature of the testator osrequired by Law is sufficient to discharge the onus. It is incumbent
1 11919) 20 N, L. B. 481.,at 493.
312WIJAYATIX.AKJE, J.—Vrimolawctfhie v. Opanayaka
Upon the propounder to adduce adequate and trustworthy evidence toshow that there has been full compliance with the requirements of theLaw. The conscience of the Court has to be satisfied as to the genuinenessof the Will which is being set up, and that it is the last testament of afree and capable testator. If the propounder makes out a prima faciecase, the opposing party has then the burden of producing evidence insupport of his objections to o%rercome the effect of the propounder’sevidence (Law of Wills—Gopalakrishnan (1965) at page 105). In myopinion the evidence in support of the petitioner is of an overwhelmingcharacter. Mr. Walpita has further submitted that the architect ofthis Will is a Proctor’s clerk and it therefore evokes strong suspicion.Proctor’s clerks are a much maligned tribe but the contents of this Willand all the other circumstances point to the fact that this allegation i3without foundation. I am not unmindful of the fact that in a City likeColombo it would have been quite easy to obtain the services of a Notaryparticularly through a Proctor’s clerk. However, this fact alone is notsufficient to prove the allegations made by the objectors. WalterPereira in his “Laws of Ceylon” at page 421 observes that " the mere ‘presence of a notary when a Will is executed before five witnesses doesnot render it invalid.” See also Abraham Perera Will Case *•
On the other hand the conduct of John Opanayake shows that he hadvery little love or respect for his brother Brampy and several monthsafter the execution of the Will he had set up the other objectors advancingnumerous objections which crumbled as the case proceeded. I
I would accordingly set aside the Order of the learned District Judgeand enter Order absolute declaring the said Last Will dated 9.2.65 ‘(marked A) proved. The petitioner shall be entitled to her costs inboth Courts, as against the objector-respondents.
Samerawickrabie, J.—I agree.
* (ISOS) 3 N. L. R. 300.
Appeal allowed.