DUTY TO SATISFY THE CONSCIOUS OF COURT THAT THE INSTRUMENT PROPOUNDED BEFORE IT IS THE LAST WILL OF FREE AND CAPABLE TESTATOR AND THAT HE KNEW AND APPROVED OF THE INSTRUMENT. THE EVIDENCE FURTHER GOES ON TO SHOW THAT THE TESTATOR HAD ALWAYS INTENDED THE DOCUMENT TO BE HIS LAST WILL
This is an appeal from a judgment declaring the validity of a testamentary disposition, allegedly made by a husband, in favour of the wife. The disposition has been so made by a non-notarial instrument signed before six witnesses.
The widow of the
testator (hereinafter referred to as the petitioner) upon the testator’s death,
sought to prove the “Will” so that it could be admitted to probate. The intervenient– petitioner – appellant
(hereinafter referred to as the “appellant”) who is a brother of the deceased,
opposed the application for probate, on the ground that his brother died
intestate and the “Will” sought to be
proved is a forgery. The learned
district judge after inquiry held that the opposition raised against the “Will”
is unsubstantiated by evidence and consequently dismissed the allegation of
forgery imputed to the petitioner. Thus, the “Will” of the testator came to be
admitted to probate.
The appellant
afterward preferred this appeal to have the findings and judgment set aside
inter alia on the grounds briefly set out hereunder.
1. The
findings are contrary to law and the weight of evidence adduced.
2. The court has failed to appreciate the absence
of difficulties to have the “Will” executed before a notary.
3. Failure
to take into account of the inability of the petitioner to lead the evidence of
all six witnesses to the Will to testify as to its execution.
4. Failure to consider the documentary evidence
marked as D2.
5. Failure to give adequate notice to object to
the application for probate.
6. Failure on the part of the district judge to
compare the signatures on the marriage certificate marked as “D5” with that of
the last “Will”.
7. Neglect on the part of the Court to scrutinize
the plaintiff’s case according to law.
8. Failure on the part of the district judge to
decide the dispute on the preponderance of evidence.
9. Non-compliance of section 67 in proving the “Will”...
10.
Failure to consider that the petitioner
had altered the forms tendered to the bank for the withdrawal of the deposit
made by the testator.
11. Failure of
the district judge to exercise more vigilance in deciding the issue relating to
the validity of the ‘Will’.
At the inquiry
into the validity of the “Will” the petitioner gave evidence and in addition
called three of the subscribing witnesses to the Will, namely (1) Mahera Patirennehalage Senaratne (2) Hemapala
Seram and (3) Wimalasuriya to establish
its due execution.
The evidence of
the petitioner was that her husband bequeathed by the said last “Will” only the
property purchased by him during his lifetime, i.e. residential house where
both of them lived. Under cross-examination she categorically stated that the
appellant was aware of the execution of the last ‘Will’, although he was absent
at its execution. She further stated
that she informed the appellant of her intention to produce the “Will” in
court.
Mahera
Patirennehalage Senaratne in his evidence claimed that he served on the
teaching staff of St. Mary’s college, Kegalle for nearly 10 years with the
deceased testator. On 16 August 1987 around 4.15 p.m. and at the invitation of
the deceased testator, he had participated at the execution of the last “Will”
and subscribed to the instrument as a witness. He further testified in detail
as to the other circumstances in which the “Will” came to be signed by the
testator and the witnesses who were present then. The witness with no
hesitation identified the main signature on the document to be that of the
testator.
The evidence of
Wimalasuriya was to the effect that the original “Will” had been in typed
written form and the rest of them were hand written. He claimed that he was the
first witness to place the signature on the instrument and that he was well
acquainted with other witnesses to the instrument. His uncontradicted testimony
was to the effect that the testator signed in his presence and in the presence
of the other witnesses.
The witness
Hemapala Seram had known the testator for nearly fifteen years and that on 16
August 1987 he too attended the house of the testator and signed the
“Will” as a witness. He had given a
detailed account of the manner in which the “Will” was executed. The evidence
of the three eyewitnesses called by the petitioner was quite convincing and had
in fact satisfied the conscious of the learned district judge.
On the other
hand, the evidence of the appellant was that his deceased brother had never
executed a “Will” as was claimed by the petitioner and that it is none other
than a forgery. In his attempt to demonstrate this, the appellant produced a
document marked D2, which he claimed as having been discovered at the residence
of the petitioner, during the time he remained at the house of the petitioner
in connection with an almsgiving ceremony held in commemoration of his late
brother. It is the position of the appellant that D2 is indicative of someone
other than his deceased brother had practised to forge the signature of his
brother as is evidenced from D2. In any event, he admitted that he did not see
anyone practicing the signature of his brother on D2.
The evidence of
the appellant as a whole did not create any doubt in the mind of the learned
judge as to the authenticity of the “Will”. Further, upon a comparative
analysis of the evidence adduced by both parties, it appears that the learned
district judge has elected to accept the evidence of the petitioner and the
three witnesses to the last “Will” in preference to the evidence given by the
appellant and his witnesses. The finding of the learned district judge on this
matter undoubtedly appears as one that stands to reason. The petitioner has
adduced overwhelming evidence of the due execution of the “Will” as opposed to
the evidence adduced on behalf of the appellant to prove the negative. In the
circumstances, the learned trial judge in my opinion cannot and should not be
faulted for arriving at the finding that the “Will” propounded by the petitioner has been proved.
The learned
counsel of the appellant contended that the failure of the petitioner to lead
the evidence of all six witnesses to the “Will” should necessarily lead up to
an inference, adverse to the petitioner regarding the authenticity of the
'Will’. For this purpose, he appears to rely heavily on section 67 of the
Evidence Ordinance. His position is that unless all the witnesses to a “Will”
testify as to the execution, it cannot be said that the “Will” is proved.
Section 67 of
the evidence ordinance contemplates the proof of signature and handwriting of
person alleged to have signed or written in documents produced in court. In
terms of section 67 of the Evidence Ordinance, if document alleged to be signed
or has been written wholly or in part by any person, the signature on the
handwriting of so much of the document as he is alleged to be that person’s
handwriting must be proved to be in his handwriting. In this matter the petitioner alleged that
the signature on the “Will “produced before court contained the signature of
her husband. Proof of execution of such a document is therefore governed by
section 68 of the Evidence Ordinance, which provides for the mode of proof of
documents required by law to be attested. In terms of section 68 document required by
law to be attested, shall not be used as evidence until one attesting witness
at least has been called for proving its execution if there be an attesting
witness alive. In this matter, the
petitioner has called three attesting witnesses to testify to the execution of
the “Will”. Hence, in my view it is not
open for the appellant to challenge the judgment of the learned district Judge
on the ground that it has not been proved according to law.
It is contended
on behalf of the appellant that the trial judge has erred by failing to
consider the evidence arising from the document D2 that was produced by the
appellant, signifying that someone had used to get familiar with the
handwriting of the deceased. Upon a perusal
of the judgment of the learned district judge, it appears that the trial judge
has effectively considered the evidential value of the document marked as
D2. The learned judge has fully
considered the document marked as D2. As
far as D2 is concerned, even if it is assumed as being proved, yet the
evidential value of it can never be taken as prejudicial to the petitioner’s
case. At the most, the conclusion would
be that someone unknown to appellant had attempted to practise the signature of
the testator.
Learned counsel
of the petitioner has strongly urged that it is extremely unlikely that a
visitor could have had access to such a document when he came to an almsgiving
as a visitor. In any event, D2 has no value without any supporting evidence
that the particular person who alleged to have executed the Will wrote the
signatures. He has further contended that the appellant himself can easily
prepare such a document. The submissions made by the petitioner in this
respect, I should say, are not all together without any merit.
It has been
submitted on behalf of the appellant that the learned district judge should
have been more cautious and should have seen to it that the document D2 is
forwarded to the examiner of questioned documents for clarification. In this respect suffice it would be to state
that there is no burden or duty cast on the district judge to go out of her way
to forward a document to the examiner of questioned document, without the party
challenging the document taking the initiative, unless it is extremely
necessary. As there were, no such exceptional circumstances to warrant the
learned district judge to act ex mero motu, it cannot be said that she should
have taken the initiative herself to
send the document to the examiner of questioned documents.
The appellant
has not led the evidence of any handwriting experts to strengthen his position
that the deceased had not signed any testamentary disposition. Amidst the
overwhelming evidence of the three subscribing witnesses, to the “Will” and that
of the petitioner, the testimony of the appellant and his two witnesses appear
to be extremely unsatisfactory.
As pointed out by
the counsel for the appellant, in determining the existence of a writing of
testamentary nature, a court of law has to be tremendously cautious and the
case of the person who produces a “Will” for his own benefit should be
scrutinized with utmost jealousy. As far
as the approach of the learned district judge towards the fulfillment of this
object is concerned, it cannot even remotely be said of the trial judge that
she has failed in that duty.
Learned counsel
of the appellant has also adverted me to the judgment in the case of H.
Venkadachala Invegar vs Thimmajamma and others, where it was held that the
important feature which distinguishes a last Will from other documents. Unlike
other documents the last Will speaks to the death of the testator and so when
it is propounded before a court the testator who has already departed from this
world cannot say whether it is his “Will” or not.
The principle
that a “LAST Will” should always be free of any taint of doubt is required to
strictly be followed, as the testator is
not before Court to assist the judge
towards the resolution of any dispute that may arise regarding the
authenticity of the “Will” or the mental condition to effect a testamentary
disposition or due execution.
The only ground
on which the appellant has attacked the authenticity of the Will centres
round the baseless and hypothetical allegation that was imputed to the
petitioner of having forged the signature of the testator. As has been seen
earlier the suspicion regarding the authenticity of the Will has arisen in the minds of the appellant only
after the discovery of D2 which the
learned district Judge has quite correctly rejected for want of proof and also
due to the suspicious circumstances in which the document is said to have come
into the hands of the appellant.
It is quite
significant to observe that the appellant before the learned district Judge has
not challenged the last Will on the ground of the testator’s incapacity to
effect a testamentary disposition due to feebleness or debility or other mental
infirmities which may in the circumstances be considered as a disqualification
to write his “last Will”.
In the
circumstances, when the totality of the evidence led at the inquiry is
considered as a whole, I conceive that
the petitioner has satisfied the conscious of Court that the instrument
propounded before it is the last Will of free and capable testator and that he
knew and approved of the instrument. The evidence further goes on to show that
the testator had always intended the document to be his last Will.
The testator was
living with the petitioner as husband-and-wife and the property bequeathed in
favour of the wife is the matrimonial home, in which they lived as such. There is no evidence to point towards the
testator having any special reasons not
to make the petitioner the sole beneficiary of his Will. The deceased testator
and the petitioner had no children by their marriage. In the circumstances it is quite safe to
draw the inference that the deceased testator may have intended to provide the
petitioner a shelter above her head, which he may have thought as a moral duty
he owed towards his wife to the
exclusion of his brother. Therefore, it would be seen that the disposition made
by the “Will” is neither unnatural nor improbable in the light of relevant
circumstances.
I consider it
as prudent at this stage to advert to
the principles enunciated in the case of De Silva vs Seneviratne 1981 2 SLR 7 in which it was held
that the propounder of a last Will must prove that the document in question is
the act and deed of a free and capable testator; that the testator was not only
aware of but also approved of the contents of the said document; that the
testator intended the document to be his LAST Will; that the said document had
been duly executed according to law.
Taking into
consideration the evidence led at the trial by both parties, I have no hesitation
to conclude that the petitioner has satisfied the three principles laid down in
the case of De Silva vs Seneviratne
(supra) and therefore the judgment of the learned district Judge cannot be said
to be unfair or perverse.
For the above
reasons, I am not inclined to subscribe to the view that the deceased testator
had died intestate. Hence, I affirm the
judgment of the learned district Judge and dismiss the appeal with costs.
Judge of the
Court of Appeal
end note
IN THE COURT OF APPEAL OF THE DEMOCRATIC
SOCIALIST REPUBLIC OF SRI LANKA
Case No. CA 10632/2000 (F)
D.C. ( Kagalle). 228/T
Ganegedallage Mudiyanse
Pinnagolla
vs
Wadduwage Beta Nona,
Petitioner Respondent
Before : A. W.A.Salam. J
Decided on: 16.10.2007.
Abdul Salam, J.
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