GUNEWARDENE v. CABRAL AND OTHERS

035-SLLR-SLLR-1980-V-2-GUNEWARDENE-v.-CABRAL-AND-OTHERS.pdf


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GUNEWARDENE v. CABRAL AND OTHERSCOURT OF APPEAL
RANASINGHE, J. & RODRIGO, J.
C.A. (S.C.) 127/73 F. D.C. COLOMBO 25636/7
AUGUST 7, SEPTEMBER 24, 25, 26, OCTOBER 21, 22, 24 1980
Last Will – Civil Procedure Code, sections 529, 536 and 537 – Prevention of FraudsOrdinance, section 4 – Notaries Ordinance, sections 31(8) (9), (11) and (12).
Decree absolute was entered by the District Court in the first instance, declaringthe will proved and the husband of the executrix entitled to have the probate ofthe will. Petitioners wanted the probate recalled on the grounds that the will was aforgery: the executrix did not understand or approve the contents thereof: thesignature of the executrix was obtained by exercise of fraud or undue influence:and that the will was cancelled and revoked by the executrix. The contestingpetitioners merely put the propounder to the strict proof of due execution of thewill, that is to say, apart from compliance with the legal formalities required for theexecution of the will, they wanted proof that the testatrix had in fact signed thelast will and if so, it was with a proper appreciation and approval of its contentsand with the required quality of understanding necessary for its due execution.
Held:
The onus of proving the will lies on the party propounding the will.
He must satisfy the conscience of the court that the instrument sopropounded is the last will of a free and capable testator in that he must show thetestator knew or approved of the instrument and intended to be such.
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The onus imposed on the party propounding the wills is in generaldischarged by proof of capacity and the fact of execution, from which aknowledge of and an assent to.the contents of the instrument are assumed.
The circumstances attending the executed of the document may be such asto show that there is suspicion attaching to the will, in which case it is the duty ofthe person propounding the will to remove that suspicion and this is done byshowing that the testator knew the effect of the document he was signing.
The burden of proving that the will was executed under undue influencerests on the party who alleges it (not considering any suspicions of undueinfluence, if any, that may arise on evidence).
The appellate court will set aside inferences drawn by the trial judge only ifthey amount to findings of fact based on:-
inadmissible evidence; or
after rejecting admissible and relevant evidence; or
if the inferences are unsupported by evidence; or
if the inferences or conclusions are not rationally possible or perverse.
Cases referred to:
Barry v. Butlin (1838) 2 Moo PC 480.
Tyrellv. Painton (1984) Probate 151.
Sithamparanathan v. Mathuranayagam 73 NLR 53 at 55.
After v. Atkinson (1986) Law Reports 1 P&D 670.
Parfittv. Lawless 1 Reports (2) P&D 462.
Boyse v. Rossborough (1856) 6 RLC 2; 49.
Craig v. Lamoureux 1920 AC 349.
Naidu & Co. v. Commissioner of Income Tax (1959) AIR 359 SC.
Mahavithana v. Commissioner of Inland Revenue 64 NLR 217.
Andrado v. Silva 22 NLR 4.
Alim Will Case 20 NLR 481; 494.
APPEAL from the judgment of the District Court of Colombo.
C. Ranganathan, Q.C. with M. S. M. Nazeem, M. S. Sivanandan and C.Selvaratnam for intervenient – petitioner-appellant.
H. W. Jayewardene, Q.C. with D. R. P. Gunetileke, Miss P. Seneviratne andLakshman Perera for petitioner-respondent.
Curadvvult.
20th November, 1980.
RODRIGO, J.
This appeal originates from a disputed last will dated 16thFebruary, 1955. Its propounder alleges it to have been executedjointly by its two executants who are husband and wife. The wife diedon 28th May 1970, 15 years after its alleged execution with the
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husband surviving her, there being no issue of the marriage. On 20thSeptember, the husband who is designated in the will as the executorin the event of the wife predeceasing him and the sole beneficiarysought probate of the will by presenting a petition in the District Courtof Colombo. Decree absolute was entered on the same day in the firstinstance declaring the will proved and, the husband the executorthereof and entitled to have probate of the will. See Section 529 of theCivil Procedure Code. The Court at the same time ordered itspublication and fixed 23rd January 1971 for the case to be called.
When the case was called on 23rd January 1971, the only fullsister of the deceased Diana Evelyn Wickremasinghe Gunawardenapresented a petition for the revocation of the grant of probate. Thereis provision for such a petition in Section 536 of the Civil ProcedureCode. She also sought to have the order absolute entered in the firstinstance set aside. The Court fixed inquiry into this application for23rd March 1971.
On that day the inquiry was adjourned for the 20th June 1971. Butbefore the inquiry was resumed six other parties intervened withpetitions themselves asking for the revocation of the grant of probate.Then inquiry was fixed for 1st August 1971 into both sets of petitions.
Issues were suggested and adopted by Court at the combinedinquiry into the two sets of petitions, it being remembered that decreeabsolute has already been entered on the original petition by thepropounder granting probate. The issues centred on four categoriesof objections, namely, in the words of the learned trial Judge,
“(a) that the will P2 was not executed by the deceased: that is,that it was a forgery,
that even if it was executed by her she did not know orunderstand or approve of the contents thereof,
that the signature of the deceased to P2 was obtained by
exercise of fraud and/or
undue influence and:
the said will was cancelled and revoked by the deceased.
I shall set out the issues themselves as raised as follows.
(1) Is the last will No. 1195 dated 16.3.1955 filed of record marked'A' the duly executed joint last will of the petitioner and his wifeDona Agnes Venesia Cabraal nee Gunawardena? – This is thelast will marked ‘P2’.
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(2) If issue (1) is answered in the affirmative, is the petitionerentitled to probate?
For the contesting first petitioner –
(3a) Is the last will filed of record the result of undue influence and/orfraud, and/or importunity?
(3b) Was the last will prepared on the instructions of the petitioner?
(4a) Was the last will revoked and/or cancelled by the deceasedduring her lifetime ?
(4b) Has the deceased by her conduct and her action revokedand/or cancelled the last will ?
Did the deceased assert in her lifetime that the deceased hadnot disposed of her property and had not made the last will?
Did the deceased not have knowledge of the contents of thelast will for the approval of the contents thereof?
If issues 3 – 6 are answered in favour of the respondent (sic) didthe deceased die intestate – the ‘respondent’ here meaning theobjecting first petitioner. That is the full sister who filed thepetition first.
For the contesting intervenient petitioners –
Are the intervenient petitioners heirs of the deceased?
Is the document marked ‘A’ sought to be produced as the lastwill
not executed by the deceased?
not the act and deed of the deceased and that she did notknow what she was doing ?
Not relevant as the suggested issue had been ruled out.
Did the deceased express a wish to give her properties to herown relations ?
(12a) Did the deceased sign the document sought to be proved asher last will?
(12b) If so, was the signature obtained,
(i) by exercise of fraud
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by undue influence
by substitution of the document in the form of a last will inthe belief that it was a deed of gift to one of her relations.
Particulars of undue influence were called for and were given asfollows:
The testatrix is the wife of the petitioner propounding the will.
He is himself a Notary Public.
The testatrix had no opportunity of getting legal advice, and.
That the testatrix had been forced into signing it.
It had been, however, specifically stated that the husband is notalleged to have used physical force.
On the particulars of fraud the facts relied on were stated to be thesubstitution of a document in the form of a will for another documentwhich was represented to be a deed of gift by which the testatrix wasgifting her properties to her relations and that further, when thetestatrix was signing this document she was made to believe that shewas getting some benefit herself. The particulars given of undueinfluence on behalf of the first objecting petitioner was adopted asbeing valid on behalf of the intervenient – petitioners as well.
A sketch about the background of the case: the deceased hadonly one full sister – Evelyn Wickremasinghe Gunawardena (Evelyn).After their mother’s death their father married again and from thatmarriage the deceased had three step sisters and two step brothers.One step sister had predeceased her leaving behind a nephew anda niece. The persons who intervened after the full sister had soughtrevocation of the probate were these step brothers and step sistersand the nephew and the niece.
The deceased had no children but had adopted a boy calledJustin which was, however, not a legal adoption. In the result, theintestate heirs of the deceased would be her husband who wouldinherit a half share and the full sister and the half sisters and halfbrothers with the nephew and the niece who would inherit thebalance half share.
The deceased was possessed of property worth about six lakhs ofrupees at the time of her death according to the inventory filed. Shehad been brought up by her father’s brother after her mother’s deathand had received all her immovable property from him. Her fatherhad given her only some cash.
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The husband of the deceased was about 15 years older than she.He is a Notary Public and obviously a man of standing in his familycircle. At the time of the alleged execution of the will the husband’sproperties had not been worth more than Rs. 20,000/-. Going onimmovable properties the deceased was much wealthier than herhusband. But the husband appears to have enjoyed a good practiceas a Notary and by October 1969 he had attested as many as 40,000deeds. By 1934 he was married and his age at the time of marriage,sometime prior to 1934 was stated to be 34 years. If that were so atthe time of the alleged last will in 1955 he must have been 55 yearsof age while the deceased was about 40 years of age. The deceasedwas stated by the husband in his evidence to be an uneducatedlady. The deceased’s father and uncle were traders and it is probablethat her relations considered that a marriage with the husband wouldenhance her social standing as well as their’s. The deceased herselfappears to have been “a simple, kindhearted and conservative lady”.The learned trial Judge states that the evidence indicates that thedeceased was very respectful towards her husband and that shewas a very devoted and dutiful wife. She was able to read and writeSinhala but was not sufficiently educated to attend to her affairs. Shecould also sign her name in English. It is the learned trial Judge’sfinding that it was the husband that attended to all the mattersconnected with the deceased’s properties including the completionof her income tax returns. She had a bank account. The chequeshad been filled up by the petitioner and the deceased had signedthem whenever requested to do so.
The deceased had maintained a close association with her fullsister and two of her children. They had visited the deceasedfrequently and the children often lived at the deceased’s house forvarying periods of time. One of her nieces from her full sister was agirl called Wimala. She was about 17 or 18 years at the date of thelast will. She had lived in the deceased’s house from 1954-1957-thewill is alleged to have been executed in 1955. This girl had attendedschool from the house of the deceased. The deceased had providedher with clothes and books. She appears to have been fond of herfull sister and her children. She had gifted properties by way ofproviding dowries to her sister’s children. One gift was of a propertyworth Rs. 50,000/-. That was to a sister of Wimala. To Wimala andanother sister of hers, the deceased had given gifts of cash ofRs. 5,000/- each. She had, of course, gifted properties to heradopted son and even to a servant called Gunawathie.
The deceased had been very accommodating towards herhusband on occasions of financial difficulty for her husband. She has
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sold a property to liquidate the debts of her husband in 1957andmortgaged another property of hers in 1934 shortly after hermarriage to secure the repayment of monies borrowed by herhusband.
I come now to the events which had led up to the allegedexecution by the testatrix of her will on 16th February, 1955. The willhad been attested by M. U. M. Saleem, a Proctor and Notary Public.In 1955 Mr. Saleem had been in practice for 23 years. At the time hegave evidence he had been 40 years in practice. The learned trialJudge had found that the deceased (hereinafter referred to as‘testatrix’) had known Mr. Saleem from about 1937 – a period of 18years. Mr. Saleem had known her husband also for the same lengthof time. It was Mr. Saleem who had appeared in the administrationcases respecting the estates of the two sisters of the husband of thetestatrix. It was about that time that he had first come to know thetestatrix and her husband. Thereafter he had acted professionally forboth of them. He had watched their interests in certain landacquisition proceedings and also had attested deeds for them afterthat, that is, after 1937. He had been to the house of the testatrix ontwo or three occasions in connection with professional work and hadbeen treated to tea and refreshments. So that Mr. Saleem was nostranger to the testatrix and her husband.
On the 15th of February, 1955, a day before the alleged attestationof the will, the husband and the wife had come to see him in hisoffice and indicated to him that they wished to execute a joint last willwhereby the survivor was to be appointed the executor and the solebeneficiary. He was satisfied that that was their intention andaccordingly he had taken down the instructions on a piece of paperand obtained the signatures of both of them to it. That document hadbeen produced in evidence marked P1. He had told them that thewill will be ready for signature on the following day and hadrequested them to come along with two witnesses. The document P1,is very brief and runs as follows:
“Instructions for a Joint Last WillTestators:Lokuliyanage John Edmund Cabral,
Notary and Dona Agnes Venisia
Cabral (nee Wickremasinghe Gunawardena)
husband and wife – both of Talawatuhenpita,
Adikari Patty Siyane Korale in the District of Colombo
Revocation: of all former wills.
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Executor: Survivor.
Devise and bequeath: all properties to the survivor.
Colombo, 15th Feb. 1955Sgd/.
This document was shown to the husband who gave evidence inthis case and he identified the first signature as his and the secondsignature as his wife’s, the testatrix. This document had been filed bythe Proctor with the protocol of the will and it was produced in Courtfrom the file of protocols in his custody. Then on the morning of the16th February 1955 the testatrix and her husband came with theattesting witnesses to Mr. Saleem’s office. The will was read over byMr. Saleem and it was read over by the husband of the testatrix aswell and he had explained it to the testatrix. The Proctor too had readover and explained the will to the testatrix and her husband. He haddone so in Sinhalese. Thereafter the husband of the testatrix hadsigned it, then the wife, and then the two witnesses who had allsigned in the presence of one another. The husband of the testatrixhad given evidence as the propounder of the will and he had saidthat in 1955, some days prior to the execution of the will he haddiscussed the matter of making a last will with his wife as he felt thatit was advisable to do so as they had no children. She had agreedand the two of them together had gone to see Mr. Saleem, theirProctor, on the 15th of February, 1955 and given instructions. Thediscussion and the decision to make a last will was as simple as that.The instructions given also, as I have said, had been brief andsimple. Brief as they are, these then are the events that led up to theexecution of the last will according to its propounder, the husband ofthe testatrix.
But Evelyn, the full sister of the testatrix, and HectorGunawardena, a step brother, saw or they alleged that they saw, inthe simplicity of events leading to the execution of this will as allegedby the husband of the testatrix, a great deal of complicated matterand endeavoured to attack its due execution from every angleconceivable in a disputed last will case. According to their ownevidence they had not even heard of the execution of this will, leavealone any knowledge of circumstances attending the execution of thewill. When Evelyn attacked the last will on the grounds that I have setout earlier, it was her position when giving evidence that she did so,on the advice of her lawyers. She had further testified that it was herlawyers that gave her the grounds for seeking to set aside the will.She added that the testatrix would sign anything that her husband,the Notary, wanted her to sign and that therefore she concluded that
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the testatrix did not know what she had signed. When asked whethershe had been asked by anybody else other than the lawyers tocontest this will she said that her step-brothers had asked her tocontest it referring particularly to Hector Gunawardena. She wasspecifically asked whether she grudged the fact that the testatrix hadleft her properties to her husband and her answer was that shewould not have objected if the testatrix had given her alsosomething. She, of course, spoke to the dowries in cash andproperties that the testatrix had given to her children.
Wimala Ranasinghe was a daughter of Evelyn. She had no quarrelwith the disposition in the will. This girl had been called in to giveevidence by the contesting petitioners to support a theory that thetestatrix never went out of her house with her husband and in anyevent, unaccompanied by this girl. She was living with them at therelevant time but the contesting petitioners had not been able toestablish that through this witness Wimala. This witness answeredaffirmatively a question that there must have been occasions whenthe testatrix went with her husband without her. HectorGunawardena, the half brother who gave evidence, being acontesting petitioner, was a Police Constable who later had beenpromoted an Inspector of Police. One might have expected him tohave unearthed a lot of material that has a bearing on the allegationsthat he had made together with the rest of the contesting petitionersas grounds for attacking the will. But he, as it turned out, was a dampsquib, for he could speak to nothing in relation to the signatures onthe note of instructions and the last will and in fact neither of thesetwo documents was even shown to him by Counsel and gave as hisreason for saying that the testatrix did not execute either the last willor the note of instructions that nothing had been left by the testatrix toher blood relations and also that he did not know at the time that thedeceased signed her name in English, meaning that she was not inthe habit of signing in English at this stage. The learned trial Judgehad found that the testatrix had signed her name in English at onetime and it was sometime after the attestation of the will that she hadswitched on to signing her name in Sinhala, probably after theOfficial Language Act was passed.
It is clear that when the contesting petitioners sought revocation ofthe grant of probate on the ground of undue influence, fraud, forgeryand similar grounds set out earlier, they were merely putting thepropounder to a strict proof of the due execution of the will. That is tosay, apart from the compliance with the legal formalities required forexecution of a will they wanted proof, that the testatrix had in factsigned her last will and if she had done so, it was with a properappreciation and approval of its contents with required quality of
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understanding necessary for its due execution. The contestingpetitioners were no doubt entitled to probe the alleged execution ofthe will as severely as they could to expose if possible any lack ofunderstanding or approval of the contents thereof by the testatrix. Ifthey had succeeded in establishing their allegations affirmatively thegrant of probate would undoubtedly stand revoked. Even if they hadfallen short of establishing their allegations affirmatively but hadsucceeded only in raising a well grounded suspicion of lack of dueexecution of the will, it would have imposed the burden of dispellingsuch suspicion on the propounder, for, it is settled law that theburden lay on the propounder to establish not only the formalitiesrequired for execution of a will but also to repel a well-groundedsuspicion that the testatrix did not have the required quality ofunderstanding to appreciate and approve the contents of her will.
The formalities required are contained in Section 4 of thePrevention of Frauds Ordinance and in Sections 31(8), (9), (11), and(12) of the Notaries Ordinance. The learned trial Judge hadaccepted the evidence of Saleem, the Proctor Notary, who attestedthe last will and, the evidence of the attesting witness Jayawardenaand that of the propounder himself with regard to the formalities ofexecution.
The law in Sri Lanka in probate matters is the same as the law inEngland and the relevant considerations outlined above are to befound in the leading cases of Barry v. Butlinm and Tyrell v. Painton{2) -see Sithamparanathan v. Mathuranayagami3) – the learned trialJudge has referred to the former case and he has set down the oft-quoted passage from the said judgment in these words;
“It is clear first, that the onus of proving the will lies on the partypropounding it and secondly, he must satisfy the conscience ofthe Court that the instrument so propounded is the last will of afree and capable testator. To develop this last rule a little further,he must show that the testator knew or approved of theinstrument and intended it to be such. In all cases the onus isimposed on the party propounding a will; it is in generaldischarged by proof of capacity and the fact of execution fromwhich a knowledge of and an assent to the contents of theinstrument are assumed. The question is whether the testatorknew the effect of the document he was signing. Thecircumstances attending the execution of the document may besuch as to show that there is a suspicion attaching to the will, inwhich case it is the duty of the person propounding the will toremove that suspicion: this is done by showing that the testatorknew the effect of the document he was signing”.
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In the Court below even the formal execution of the will waschallenged in as much as it was alleged that the signature of thetestatrix had been forged. Forgery was put in issue. The learned trialJudge had observed that Evelyn and Gunawardena, two of thecontesting petitioners who were alleging forgery had not even beenshown the two documents P1 and P2 namely the note of instructionsand the last will and had not examined the signatures appearingtherein. Gunawardena gave as his reason for this allegation that hethought that the testatrix did not sign her name in English. The trialJudge was amply satisfied that the testatrix had herself signed hername in English in the two documents in question and that she hadbeen in the habit of signing her name in English during this period.He had held against the petitioners on this issue and in any eventCounsel appearing before us for the petitioners did not seek tosupport this allegation of forgery or to argue against the finding of thetrial Judge on this issue. He specifically said that he was making nosubmission against the finding of the trial Judge.
Also touching on the formalities of execution of the will is theallegation of fraud that was put in issue. The particulars of fraudsupplied at the commencement of the trial alleged that the will hadbeen substituted in place of a deed of gift which the testatrix wasmade, to believe she was signing. Capitalising on some answersgiven by the propounder in the course of his evidence, thecontesting petitioners developed a line of cross-examination of thepropounder suggesting that the will was in any event not signedbefore the Proctor Notary in his office but it had been signed in thehome of the testatrix at the instance of the propounder, her husband,and that she had been made to do so in the belief that she hadsigned a deed of gift. The propounder gave evidence after theProctor Notary did with the result that no questions relating to thissuggestion were even put to the Proctor Notary when he was in thewitness box. This issue, however, was pressed in appeal before usand it had been contended that the trial Judge was far too indulgentto the propounder on account of his old age in particular and thecondition of his health (the propounder was partially paralyzed at thetime he was giving evidence) and it is this indulgence that haddiverted the trial Judge from a proper approach to the investigationof the material elicited or rather unwittingly given as a bonanza bythe propounder of his own accord in irrelevant answers and thusprevented himself from a critical or hostile approach to what thepropounder said in his evidence bearing on this issue which the lawdemanded. Counsel for the appellant (a contesting petitioner) didnot, however, challenge the honesty, integrity or even truthfulness ofthe evidence of Saleem, the Proctor Notary, who attested the will.Without attacking the integrity of the Proctor Notary the way was too
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short and narrow for Counsel to tread along successfully to contendthat the two documents and the will in particular had been preparedoutside and brought to Mr. Saleem’s office for him to attest it without thetestatrix signing it in his presence. As I said earlier it was thepropounder himself who opened the floodgates for this suggestionwith an irrelevant answer that he gave to a question put to him. Sincethis evidence of the propounder and the build-up thereon by Counselfor the petitioners in the court below had loomed large in theproceedings of the Court below, I shall set out the questions to and theanswers given by the propounder on this part of the case even as thetrial Judge himself had done in his judgment.
Having identified his signatures and his wife’s on both P1 and P2,he was asked:
“Q. What is this document P2 ? A. That is that will.
Q. Did you sign it ? A. I failed to sign the earlier document andtherefore another document has been signed by me.
Q. What is this earlier document that you have referred to ?
A. It is a copy of this.
Q. You say that your wife has signed after you ?
A. Yes.
Q. Did she read this document before signing it ?
A. Prior to this another document was written out and we failed tosign that and therefore this was signed.
(To Court)Q. You said you read this document before you signed it ? A.Yes.
Q. Did your wife also read it before she signed ?
A. We have failed to sign an earlier document and we signedthis.
Q. You said you did not sign an earlier document ?
A. We wrote out a small receipt to the effect that we had givenour instructions.
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Q. Did you sign that ? A. Yes, we signed that.
Q. Then what is the document which you say that you did notsign ?
A. We failed to sign one portion.
Q. You read the contents of this document ? A. Yes.
Q. You understood what is in that ? A. That is the will.
Q. Before you signed it did you approve the contents of that will?A. Yes.
Q. Did your wife approve of the contents of that will ? A. Iaccept that she has signed. (Witness gives this answerafter a little delay).
Q. How did she know what was in the will ? A. The Proctorexplained it to her.
Q. Did you listen to the Proctor’s explanation yourself ? A. Yes.
Q. Did you yourself approve of what the Proctor said ?
A. We failed to sign an earlier document and therefore we signedthis.
(To Court)Q. Did you approve of what the Proctor told your wife ?
A. What is to be done when we have failed.
Q. You read the deed and understood it? A. Yes.
Q. Then you were asked how your wife understood it ? A. Yes.She said that she failed to sign a note where instructionswere given and therefore she was asked to sign this.
Q. How does your wife know what was in the document ?
A. She signed. What was required was the instructions whichwere given.”
It is thus seen that the answers at this stage had indicated that theoropounder and his wife had signed only one document and not two.
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Though he identified the two signatures on both P1 and P2 he stillpersisted in saying that they failed to sign an earlier document. Buton a subsequent day when the propounder was being cross-examined on the same point he denied having given the evidencereferred to above. He said at this stage in no uncertain terms that itwas both of them that had gone and given instructions to ProctorSaleem. I shall set out some of the questions and answers asrecorded on the subsequent day that had a bearing on his previousday's evidence.
“Q. In the first instance you instructed Mr. Saleem, the Proctor with
regard to this matter? A. It is both of us who came and gave
instructions to Mr. Saleem.
Q. On the last date you said one document had not been written.
Which document was not written ? A. I misunderstood that
question.
Q. Did you read your last date’s evidence ? A. No.”
“(To Court)Q. Was it because of the question asked today that there weretwo writings you thought you had made a mistake on thelast date ?
A. I was asked whether there were two writings. I said if therewere it must be a mistake.
Q. You were asked by Mr. Samarakoon whether you remembersigning a will and you answered “I failed to sign an earlierdocument and therefore another document was signed byme”?
A. I had failed to sign the instructions written out.
Q. When you said "I failed to sign the earlier document" youreferred to the instructions ? A. May be that.
Q. I must know what you meant ? A. There is no earlierdocument or later document. This is only one document andthat is the last will.
Q. Who told you that ? A. I say so.”
Still later on, however, the matter being pursued he answers thequestions as follows:
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“Q. A little later the Court asked you “Did your wife also read itbefore she signed it (Will) ? A. It was written and explained bythe Proctor.
Q. To you ? A. To my wife.
Q. Did the Court ask you the question "Did your wife also read itbefore she signed it” ? A. Yes.
Q. And your answer was “We have failed to sign the earlierdocument and so we signed this”. Did you say that ? A. No.
Q. You do not know what that means, namely, “having failed to signthe earlier document” ?
A. (No answer).
Q. Did you say that what is recorded is wrong ? A. According towhat is written down there it looks that there were two writings,but there were no two writings.”
Then after further questioning he was again asked.
“Q. Then your reply was “We failed to sign the earlier document andtherefore we signed this ?
A. By the earlier document I meant the instructions.
Q. You did not sign the instructions ? A. Now I cannot rememberwhether we signed the instructions or not but the last will writtenout on the instructions given was signed by me.
Q. That was signed in your house ? A. No. The last will was signedin Colombo.
Q. The witnesses were in your house ? A. The witnesses came toColombo to sign the will.
Q. Not in your house ? A. In the house of the Proctor.
Q. Is it not the fact that you got the document and went and got thesignatures from your wife and the witnesses in your house ?
A. No. It is not.”
Since the Counsel for the contesting petitioners had strenuouslycontended in the Court below that the above evidence of the
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propounder was very damaging to the propounder's case and that itconstituted a well-grounded suspicion that this will had not beenexecuted before the Notary and thus touching on the formalities ofexecution the trial Judge made a hostile approach to his evidence inexamining it though Counsel argued before us that he has not. Heposed to himself a number of relevant questions and asked himselfspecifically the question whether the propounder in giving thisevidence was speaking to what actually happened or was thisevidence given by him because of his confused state of mind due tohis ill-health.
The trial Judge had observed that the “propounder was 80 yearsold at the time he gave this evidence. He had a stroke and waspartially paralysed. He had to be helped to talk and was unable tokeep standing. He found difficulty in forming his words and ofexpressing himself. His speech was slurred and at times a questionhad to be repeated several times before he appeared to understandit. It is difficult to assess whether this was due to any difficulty inhearing or any loss of the power of comprehension but theimpression he created in my mind was that he was slow inunderstanding the questions that were put to him. His memory inregard to time and dates was vague and unreliable. At times hisanswers indicated that he failed to understand the questions whichwere put to him. He appeared to tire easily and in fact proceedingshad to be adjourned on more than one occasion owing to this. Theevidence given by him immediately prior to and soon after theevidence referred to above showed no lack of understanding orincoherence or confusion. This would certainly indicate that thepropounder was able to understand the questions asked of him inthe course of his examination referred to above. Could he then havebeen speaking the truth, or was he making a mistake? On asubsequent date when the petitioner was being cross-examined onthe same incidents he denied having given the evidence referred toabove. He was then definite that both P1 and P2 were signed by thedeceased in Mr. Saleem’s office. He was also definite that P2 wasexplained to the deceased by Mr. Saleem before she signed it. Thequestion which I have to consider is what effect this evidence wouldhave on the facts in issue. Do they tend to negative the otherevidence which has been led. Does it tend to create suspicionsregarding the execution of the will and the testamentary capacity andunderstanding of the deceased?”
The trial Judge thereafter examines in detail the evidence of thetwo contesting petitioners and Mr. Saleem himself and has nohesitation in coming to the conclusion that the evidence of thepropounder that seem to indicate the preparation of a document
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other than P1 and P2 was the result of a confusion in his mind andthat, he being the propounder would naturally not willingly andwittingly come out with something that was so damaging to his caseand what he had come to establish and more so that there was noneed for him to have said those things if, in fact, he was dishonest orwas a designing witness. It must be remembered that Mr. Saleem’sown integrity was in jeopardy as a result of this evidence and as thetrial Judge has accepted Mr. Saleem’s evidence and not doubted hisintegrity, the conclusion of the trial Judge would be justified that thepropounder was obviously confused.
But as I said it was pressed before us in appeal that the learnedtrial Judge was wrong in having looked at the evidence that way andshould not have accommodated the propounder in the manner thathe had done and found excuses for the contradictory nature of hisevidence. It is our view that the trial Judge was in a much betterposition than we are to sort out this problem and the eventualconclusion as a finding of fact was within his competence andjurisdiction to reach and unless we are satisfied that he had made awrong approach to examining the evidence and not followed inpractice the precept that he had laid down for himself, we would notbe justified in upsetting the finding of fact on this issue reached bythe trial Judge. We accordingly hold that as far as the formalities ofexecution are concerned the learned trial Judge had rightly come tothe conclusion that the fact of execution and the mental competencyof the testatrix and the other formalities required by law for executionof a will have been satisfactorily established.
The question still remains as to whether the testatrix hadknowledge of the contents of the will and given her approval to thecontents thereof apart from any suspicious circumstances arising onthe evidence.
Barry’s case referred to clearly shows that under the English Lawthe propounder discharges his onus if he shows,
capacity; and,
the fact of execution. From this the knowledge of the contentsby the testator is presumed.
Sir J. P. Wilde in After v. Atkinson<4) – states the proposition in thesewords:
“Once get the facts admitted or proved that a testator iscapable, that there is no fraud, that the will was read over tohim, and that he put his hand to it, and the question whether heknew and approved of the contents is answered".
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In relation to a complicated testamentary document, however, thisdecision may seem to require some qualification. But be that as itmay. In the instant case, however, the question whether the testatrixknew and approved of the contents was put in issue and at the trialcross-examination of the propounder and the Notary was directedtowards establishing that the contents of the will had not beencommunicated to the testatrix with the competence of knowledge ofthe Sinhalese language required for the purpose by the Notary.Accordingly the presumption raised was sought to be rebutted. In myview, the evidence of instructions given by the testatrix to the Notaryand the reading over to her of the will afford the best proof ofknowledge of its contents, if the evidence of competence in thatlanguage on the part of the Notary is established. The Notary is aMuslim by nationality and his mother tongue is not Sinhalese. At thetime of the execution of the will the Notary had been 23 years inpractice and at the time he gave evidence, some 16 years after theexecution of the will the Notary had been nearly 40 years in practiceattesting deeds ail in English and a good proportion of his clientelemust have been Sinhalese and the occasion therefore mustnecessarily have arisen for him to have explained the contents of thedeeds that he had been attesting to the Sinhalese clients. Mr. Saleemin his evidence said that he read and explained the will to thedeceased in Sinhalese. He was questioned as to his knowledge ofSinhalese and his ability to explain the contents of the will in thatlanguage. He stated in Sinhalese in his evidence what.he had toldthe testatrix and from what he stated in Court, the trial Judge finds(the trial Judge himself is a Sinhalese) that he had adequatelyexplained the will in Sinhalese which was a joint will whereby thesurvivor was instituted the sole beneficiary. The testatrix also had thebenefit of the will being explained to her in Sinhalese by her ownhusband in the presence of the Notary. It is true that the Notary hassaid that he was able to speak only broken Sinhalese and even thepropounder said that the Notary had only a broken knowledge ofSinhalese. But that is different from saying that the broken knowledgeof Sinhalese that the Notary had was not adequate to explaining thislast will, regard being had to its nature and its simplicity. The note ofinstructions purported to have been given by the testatrix and herhusband I have set out above, and it shows how simple thedocument is. The will itself contains only three paragraphs and thethird paragraph by which the two of them devised and bequeathedall their properties, estates and effects whether real or immovable tothe survivor is simple enough. So that the testatrix need not havemental faculties of a high nature or education or literacy beyond anaverage standard to render herself capable of appreciating andunderstanding the nature and effect of this kind of will if it is borne inmind that it is a very simple document containing no provisions
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which would require in order that they should be appreciated andunderstood anything more than an ordinary mental effort. It wasstrenuously contended before us in appeal that the trial Judge isagain wrong in finding the Notary to be competent enough to havebeen able to communicate its contents with the kind of brokenknowledge of Sinhalese that he had. All that we need say here, sittingin appeal, is that it was a matter for the trial Judge to ascertain as amatter of fact whether the Notary was competent to understand theinstructions given by the testatrix and to translate and explain thecontents of the will written in English to the testatrix. I am mindful ofthe fact that translating and explaining are two different things, but,as I said, having regard to the simple nature of the document, I findno material on record on which I can disagree with the learned trialJudge's finding of competence of knowledge in the Notary for thissimple purpose. It was the submission of Counsel for the appellantthat the knowledge of the Notary in respect of the language, not toosatisfactory as it was even at the time of evidence, was very probablydeplorably poor at the time of the execution of the will. I cannot fail tonote that her husband also had testified that he too added his weightof an unquestioned superiority of knowledge of the language on thisoccasion to what the Notary said. I have no doubt that more thansufficient must have been said to make the testatrix understand thecontents of the will. We are, therefore, of the view that the trial Judgeis right in his conclusion that the testatrix understood the contents ofthe will and signified her approval thereto.
It is next urged that the testatrix was not a free agent and that herwill had been overborne and virtually coerced into signing this lastwill even, assuming that she understood and approved its contents.That is, the contesting petitioners alleged undue influence. Theburden, of course, of proving that the will was executed under undueinfluence rests on the party who alleges this. I am for the time beingnot considering any suspicions of undue influence, if any, that mayarise on the evidence.
The allegation was put in issue and particulars of undue influencewere stated at the commencement of the trial. It was urged at the trialthat three factors, namely, that the testatrix was the wife of thepropounder, that the propounder was a Notary Public and that thetestatrix had no opportunity of getting independent legal advice, allcumulatively if not separately constituted an influence which musthave morally pressurised the testatrix signing the will much againsther wishes. In the argument before us further factors were addednamely, that there was a disparity in age between the two of themamounting to as much as 15 years, that the testatrix was noteducated enough to be able to manage her affairs, that she was so
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conservative in her outlook and in her relationship with her husbandthat she would unhesitatingly do his bidding and that her husbandwas so elevated in social status compared to her and her relationsthat she was all the same in respectful awe of him and in short thatshe was so pliant to his suggestions as to render her helpless inmatters of this nature.
It is the propounder’s evidence that in or about 1955 when he wasabout 55 years old and his wife was about 40 years he thought tohimself that there being no issue of theirs from the marriage, it wouldbe a good thing to write the last will to avoid trouble whatever it maymean at the time of death of either of them. So he discussed thematter with his wife, the testatrix and she also agreed. All that theywished to say in their last will was the survivor should be the solebeneficiary of the other. That done the two of them went on the 15thof February, 1955 to the Notary and told him that in Sinhalese and theNotary took it down in English. That is the note of instructions. Beinga short disposition the Notary had asked them to come the followingday and when they went the following day, the will was ready andthey signed it. The contesting petitioners did not know anythingabout the circumstances under which the will came to be written. Thetestatrix died 15 years after the execution of the will. So that beyondwhat the husband himself had said from the witness box it isimpossible to ascertain how matters must have stood in regard to theevents leading up to the execution of the will at the time of itsexecution. True it is, that the husband had played a leading role insuggesting and indicating to the Proctor Notary how the will shouldbe prepared. The testatrix may have been merely a consenting party.True it is, also that the husband regard being had to his status andthe disparity in age and the other matters that I have mentionedearlier, had the power undoubtedly to overbear the will of the testatrixif he was so minded. It is the law that the Courts will scan theevidence of independent volition closely in order to be sure that therehas been a thorough understanding of consequences by a testatorwhose will has been prepared at the instance of another. But unlike inthe case of a gift inter vivos, the Courts have not in the case of willsgiven to this principle the sweeping application which they haveapplied. There is no reason why a husband or a parent on whosepart it is natural that he should do so may not put put his claimsbefore the wife or the child and ask for their recognition provided theperson making the will knows what is being done. The pursuasionmust of course stop short of coercion and the testamentarydisposition must be made in comprehension of what is being done.See Lord Penzance in Parfitt v. Lawlessi5). Again as was said in theHouse of Lords in Boyse v. Rossborough<6) it is not sufficient that thecircumstances attending the execution of a will are consistent with
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the hypothesis of its having been obtained by undue influence, itmust also be shown that they are inconsistent with a contraryhypothesis. The relationship of a marriage is such that when a will isexecuted between husband and wife how matters must have stoodbetween them is not easy to ascertain. It must be borne in mind thereis no presumption of undue influence between husband and wife, inany event, in respect of wills that one or the other may make or makejointly – See Craig v. Lamoureuxm.
It is significant that the testatrix had been told by her husband tokeep the execution of the will a secret from everybody, according tohis evidence and she appears to have faithfully followed that requestfor the full 15 years since its execution up to the time of her death, asnone of her relations was aware of a will having being executed byher. After the execution of this will she had gifted properties to herrelations on more than one occasion and on each of these occasionsit was her husband who attested the deeds. She had also given giftsof cash to the children of her full sister on the occasions of theirmarriage. She could not have parted with her properties or cash ifher husband had contrived to get her to execute a will with thedesign of keeping all her properties to himself after 1955. If she hadwanted to gift away the properties without the knowledge of herhusband she would not have got the deeds attested by him. Sincethe deeds had been attested by her husband it is not difficult to seethat he had not stood in the way of his wife gifting her properties asshe wanted and that she herself was under no restraint by herhusband in respect of these matters. If the will had been executedagainst her wishes and because she was pressurised to do so by herhusband she could well have taken the opportunities that came herway during the 15 years after its execution and before her death, tohave disposed of all the properties to her full sister’s children that shewas undoubtedly fond of. Even on the evidence of HectorGunawardena, one of the contesting petitioners, the testatrix hadshown no attachment to any of her step-brothers or step-sisters andthe nephew and the niece. There is no evidence that the allegedundue influence exercised on her in 1955 continued throughout therest of the 15 years. As I said she had ample time to free herself ofany alleged undue influence and dispose of her properties accordingto her inclinations as she had done as and when the occasionsarose. I cannot overlook the fact that at the time the will wasexecuted, If anybody was expecting to benefit from it, it must havebeen the wife, that is the testatrix, who was younger than thepropounder by 15 years. There does not appear to be any evidencefrom which any well-grounded suspicion arises of the will of thetestatrix having been overborne or pressurised into executing thiswill. The trial Judge has found the allegations of undue influence tobe based on flimsy and unreal material and it is also his view with
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which I agree that the decision of the deceased to leave all herproperties to her husband in the event of her predeceasing himwhich, as I said, it was very unlikely she contemplated, to be notunnatural in the circumstances. She had no abiding affection orattachment to any of her step-brothers and step-sisters and herassociation with them was confined to occasional visits paid to herby them. The evidence indicates a long period of marriagenotwithstanding their disparity in age which appears to have beenhappy and harmonious. So that the will cannot be said to be anunnatural will, it is hard to find any reason why she should not havebequeathed her properties in the manner she has done to herhusband as a free agent. In fact a property had been sold in 1969and also a mortgage bond had been entered into in that year by thetestatrix to accommodate her husband to liquidate some of hisdebts. The husband, therefore, could easily have got the testatrix totransfer the properties to him or to sell the properties to anybody elsein the manner he wanted and to the extent he wanted withoutresorting unnecessarily to getting his wife to execute a will.
All the issues that had been raised and all the arguments thatwere submitted to us relating to the issues centred on questions offact that the trial Judge had to decide. What was really pressedbefore us by Counsel for the contesting petitioners was that the trialJudge had not drawn correct inferences from the evidence led. Butwe can set aside those inferences only if they amount to findings offact based on:
inadmissible evidence or,
after rejecting admissible and relevant evidence or,
if the inferences are unsupported by evidence or,
(e) if the inference or conclusion is not rationally possible or wasperverse.
See Naidu Company v. Commissioner of Income Tax™ and D.S.Mahavithane v. Commissioner of Inland Revenue™. In the casebefore us we do not see that the findings of the trial Judge and theinferences drawn by him are vitiated by any of these considerations.The evidence relating to every issue had been critically analysed andtested and his approach to the examination of the evidence led hadbeen critical and jealous as the law required and from this cruciblethe last will had emerged undamaged and as a document executedby a free agent with full appreciation of its consequences.
Taking a bird’s eye view of the factual landscape of this case, wefind it to be conspicuous that the opponents of the will had made anattempt to make a mountain of such features as that it was the
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husband of the testatrix who took the initiative to make the will andtook a very active interest in procuring the will against thebackground of the disparity in age between the husband and wifeand the elevated social status of the husband compared to that ofthe wife. But in the case of Andrado v. Silvam, instructions for the willhad been written out by one Andrado himself and he hadaccompanied the testator on his visits to the Notary who attested thewill and avoided using the services of the Notary who wasacquainted with the family circumstances and who might thereforeremonstrate with the testator and in addition Andrado had declinedto go into the box and give evidence on substantial matters whichonly he could give. The will principally benefited Andrado and hisfamily and he was living with the testator. Andrado was the petitionerseeking to propound the will. Notwithstanding the matters that I havementioned, Bertram C.J., took the view that though thesecircumstances required the Court to examine the evidence withjealousy and care, still these facts do not cause one to suspect thatthe will of the testator was either coerced or dominated. If this wasthe view taken in respect of a beneficiary of a will who was a mererelation of the testator, there is hardly any ground for reaching aconclusion in respect of the disposition in this case by the testatrix toher own husband that the will of the testatrix was either coerced ordominated. The view, of the matters mentioned in the case cited,taken by Bertram C.J., confirms us in our view that the allegedsuspicions do not in any event amount to suspicions sufficientenough to recall probate already granted of the will.
It is also urged that this will does not satisfy “the conscience of theCourt” or that it does not show that the "transaction had beenrighteous”. These phrases do not mean that it is the duty of the Courtto see that a testator makes a just distribution of his property. Theseare two forcible expressions used in cases to emphasize theprinciple that a Court must 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 of thedeceased”. See The Alim Will case{" per Bertram C.J., at page 494.The trial Judge was mindful of this principle and it is manifest that hehas applied it in his judgment.
For these reasons, we are of the view that this appeal should bedismissed and it is accordingly dismissed with costs.
RANASINGHE, J. -1 agree.
Appeal dismissed.