WIJEWARDANE v. DE SOYSA

007-SLLR-SLLR-2002-V-1-WIJEWARDANE-v.-DE-SOYSA.pdf


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[2002] 1 Sri L.R.
WIJEWARDANE
v.
DE SOYSA
COURT OF APPEALTILAKAWARDANE, J., ANDUDALAGAMA, J.
CA NO. 1034/98 (F)
DC MT. LAVANIA NO. 209/95/TAPRIL 2, 2001
Last will – Undue influence – Testamentary capacity of testator – Rules of lawin proving a last will – Onus probandi.
Held:
There are two relevant Rules of Law in proving a Last Will. The first isthat onus probandi lies in every case upon the party propounding the Will,and he must satisfy the conscience of the Court that the instrument sopropounded was the Last Will of a free and capable testator. The secondis that if a party prepares a Will under which he takes a benefit, that isa circumstance that ought generally to excite the suspicion of the Courtand calls upon it to be vigilant and jealous in examining the evidence infavour of which it ought not to pronounce unless the suspicion is removedand it is judicially satisfied that the paper propounded does express thefree will of the deceased.
The onus of proving fraud or undue influence is upon those who opposethe Will. To impeach a Will on the ground of undue influence, it must beproved that the influence exercised amounted to coercion. The fact thata person is a friend and confidante of the testator is not proof that therewas undue influence.
The evidence does not disclose that there was a well grounded suspicionthat the Will did not express the mind of the testator.
APPEAL from the District Court of Mt. Lavinia.
CA
Wijewardane v. De Soysa (Shiranee Tilakawardane, J.)
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Cases referred to:
N. Sithamparanathan v. Muthuranayagam – 73 NLR 53.
Tyrell v. Painton – 1894 Probate 151 at 159.
Barry v. Buttin – 1838 2 Moo PC 430.
Perera v. Perera – (1901) AC 354.
Parker v. Felgate – (1883) 8 PD 171.
M.H. B. Morais for defendant-appellant.
N.R. M. Daluwatte, PC with Gamini Silva for plaintiff-respondent.
Cur. adv. vult.
May 30, 2001
SHIRANEE TILAKAWARDANE, J.
This Appeal has been preferred against the judgment of the District 1Judge, Mt. Lavinia dated 09. 09. 1998 wherein he had grantedprobate to the petitioner and dismissed the objections of substitutedrespondents.
The only matter to be decided by this court was whether the LastWill of the deceased Molligoda Usliyanage Lionel Surasena de Silvabearing No. 2716 dated 12. 03. 1989 (A) attested by Earl Russellde Soysa, Notary Public, was the act and deed of the testator.
The Counsel for the substituted defendant-appellant submitted thatthe testator had been unduly influenced at the time the Last Will was 10prepared and signed. He submitted that, therefore, it should be setaside, as on the grounds of undue influence it could not be consideredto be the act and deed of the testator.
It has been held in the case of N. Sithamparanathan v.Muthuranayagamf'> that, “whenever a Will is prepared under circum-stances which raise a well-grounded suspicion that it does not expressthe mind or Will of the testator a Court should not pronounce in favourof the testator unless and until that suspicion is removed".
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Wherever such circumstance exists, and whatever their nature maybe it is for those who propound the Will to remove such suspicion, 20and to prove affirmatively, that the testator knew and approved of thecontents of the document, and it is only where this is done that theonus is thrown on those who oppose the Will to prove fraud or undueinfluence, or whatever they rely on to displace the case made forproving the Will. (Tyrell v. PaintorP).
There are two relevant Rules of Law in proving a Last Will. Thefirst is that the onus probandi lies in every case upon the partypropounding the Will; and he must satisfy the conscience of the Courtthat the instrument so propounded was the Last Will of a free andcapable testator. The second is that if a party writes or prepares a 30Will under which he takes a benefit, that is circumstance that oughtgenerally to excite the suspicion of the Court, and calls upon it tobe vigilant and jealous in examining the evidence in support ofthe instrument, in favour of which it ought not to pronounce unlessthe suspicion is removed, and it is judicially satisfied that thepaper propounded does express the true Will of the deceased.{Barry v. ButHri3)).
Ordinarily, those who propound a Will must show that the Will whichprobate is sought was the act and Will of the testator, and that thetestator was a person of testamentary capacity.40
In the case where there was no suggestion to the contrary, a personwho was shown to have executed a Will in the ordinary form will bepresumed to have testamentary capacity. The moment however thatthe capacity is called in question then at once the onus lies on thosepropounding the Will to affirm positively the testamentary capacity ofthe testator.
The first matter to be considered by this Court was whether therewere well-grounded suspicions regarding the testamentary capacityof the testator or whether the Will was really the act and deed ofthe testator.
CA
Wijewardane v. De Soysa (Shiranee Tilakawardane, J.)
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Admittedly, the petitioner was no relation of the deceased. The sopetitioner had been a close friend with the deceased from 1967. Thetestator was employed in the FAO division of the UNDP. The petitionerwas employed in the UNDP as an Administrative Officer, a job thatthe deceased had secured for him. Their friendship was such thatthey met on a daily basis, and would be seen almost every eveningsharing a drink at the club. The petitioner had regularly driven thetestator around over the many years of their association. The testatorhad prepared and earlier Will which the petitioner had signed as awitness. The testator had referred to him as his 'dear friend' in hisWill bearing No. 2716 dated 12. 03 1989 (P3), which had been soprepared after the demise of his sister. There was no doubt that theywere "inseparable friends" as observed by the District Judge. Thepetitioner had been with the testator during his last days in DelmonHospital and after the death of the testator on 10. 01. 1995 he hadinformed a relative of the deceased, one Douglas Sirimanne. Thepetitioner had made all the funeral arrangements.
According to the evidence disclosed at the trial the only relationthe testator had associated with in his lifetime was his sister,Kusumawathy, who had been residing with him. In fact, under hisearlier Will bearing No. 2048 dated 24. 08. 1978 (P4) she had been 70his sole beneficiary. In 1988 she had predeceased the testator.Thereafter, he had written a fresh Will (A) bequeathing all his movableand immovable property to the petitioner. Before he prepared the Willhe had given written instructions (P3) regarding the preparationof the Will to his Notary who produced it at the trial.
Counsel for the substituted defendant-appellant submitted that oneof the 'suspicious' circumstances was that the obituary notice of thetestator had not contained the names of other members of the immediatefamily. The petitioner explained this by producing P5, the press noticepertaining to the death of Kusumawathy, the sister who predeceased sothe testator. He was able to prove that in that notice too the namesof other members of the family had been excluded. Mention had only
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been made in the said press notice of the testator. The petitionerexplained that apart from his relationship with this sister the testatorhardly had any other dealings with his other relations. He therebyproved that the only relative who had been associated with the testatorwas Kusumawathy, his deceased sister. The testator clearly appearsto have deliberately cut off association with his other relatives ashe had estranged relationships with them.
It is evident therefore that the press notice regarding the obituary 90of the testator had similarly been inserted in accordance with hiswishes. The names of his other relatives being accordingly omittedeven when notifying the relatives of the testator's death he hadfollowed the pattern that had been followed by the testator concerningthe death of Kusumawathie. At that time the testator had only informedDouglas Sirimanne who had in turn informed the others. When thetestator died the petitioner too had only informed the same DouglasSirimanne.
So it cannot be inferred that grounds for suspicion existed eitherbecause their names had not been included in the obituary or because 100the petitioner had failed to inform them individually of the testator'sdeath. I, therefore, find that on the evidence of this case no circum-stances of suspicion have arisen as to the conduct of the petitioner.
His conduct regarding the press notice and the notification of thetestator's death to his relatives can be reasonably explained in thelight of the aforesaid antecedent circumstances.
This Court is also satisfied that the petitioner had proved that theWill was the act and deed of a capable testator who had sufficientmental faculties to fully comprehend the testamentary act he had done.
The evidence does not disclose that there was a well-grounded nosuspicion that the Will did not express the mind of the testator. Heclearly knew and approved of the contents of the Will P3. In this caseno circumstances of suspicion as to the free volition of the testatorwas evident in the case.
Wijewardane v. De Soysa (Shiranee Tilakawardane, J.)
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CA
The next matter to be considered was the allegation by counselappearing for substituted defendant-appellant that there was undueinfluence brought upon the testator at the time he drew up his Will.This was not pleaded nor raised at the trial as an issue by thedefendants.
The onus of proving fraud or undue influence is upon those who 120oppose the Will. To impeach a Will on the ground of undue influence,it must be proved that the influence exercised amounted to coercion.That it compelled the testator to do something he did not want todo. The fact that a person is a friend and confidante of the testatoris not proof that there was undue influence. There may have beeninfluence, but unless that influence amounted to coercion or whereit compelled the testator to do what he did not want to do, it wasnot illegal. The existence of a relationship even a fiduciary one doesnot create a presumption of undue influence. A person having arelationship may legitimately importune a testator for a legacy so longas the importunity does not amount to coercion or fraud.130
Counsel submitted that as the petitioner knew the Notary, and hehad personally escorted the testator to the drawing of the Will itshowed undue influence. Both these are matters that are equallyconsistent with the degree of their intimacy as it appears that thepetitioner regularly escorted the testator on his errands. Even afterthe execution of the Will it had been the petitioner who had collectedthe Will on the testator's authorization (page 104). In any event theWill had been drawn in 1989 and the testator had died in 1995. Thisgave the testator several years to consider the contents of his Willand if he so desired to change its contents. He had chosen not to 140do so.
Counsel has also referred this Court to certain minor discrepanciesregarding matters relating to the form of the Will. The Notary andwitness Gordon Peiris contradicted the petitioner with regard to theplace of execution and attestation. But, since the former says
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Mt. Lavinia and the latter says Ratmalana, Lumbini Road (which issituated between Ratmalana and Mt. Lavinia) and even counsel referredto it as a "minor difference" it does not bear much significance.
Additionally, the testator had given specific written instructions (P3)that are clearly consistent with the contents of the disputed Will.It has been held that it is sufficient if the testator, at themoment of execution, believes the Will to be and if the Will is inaccordance with the instructions previously given (Perera v. Pereraf4)Parker v. Feigatd5)).
In all these circumstances I find that there is no evidence to sustainthe allegation that there had been undue influence on the testatoror that he had been forced to do what he did not wish to do. Iaccordingly dismiss the appeal with taxed costs payable by thesubstituted defendant-appellant to the petitioner-respondent.
TlLAKAWARDANE, J. – I agree.UDALAGAMA, J. – I agree.
Appeal dismissed.