LAST WILL- HOW TO PROVE- WITNESSES

 

IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA     

 

C.A.  609/98 F

D.C. Panadura: 2386/T

Kathrithantri Hewage

Hitler Jayaweera Peiris,

“Srawasttri”

Alubomulla.

Petitioner-Appellant

Vs

Kathrithantri Hewage

Willington Dudley

Peiris, “Pushpa”,

Aruggoda,

Alubomulla.

Respondent- Respondent

 

Before:    A W A Salam, J.

Counsel:  D.S.Wijesinghe P.C with C.Ladduwahetti for the petitioner-appellant and Riza Muzni with David Weeraratna for the respondent-respondent.                   

Written Submissions Filed on           :      04.03.2008.

Decided on                                       :      16.06.2008

           

A.W.Abdus Salậm, J.

 

The petitioner-appellant (for purpose of convenience hereinafter referred to as the "petitioner") invoked the testamentary jurisdiction of the district court of Panadura in the above proceedings, to prove the Last Will of his mother A.P.Karunawathie Piyaseeli (hereinafter sometimes referred to as the "testatrix”). The Last Will in question bearing No. 407 dated 17-11-83 has been attested by K.V.P. Jayathilaka, Notary Public of Panadura.  Admittedly, the heirs of the testator in the event of intestacy are the children, i.e. the petitioner, respondent-respondent (hereinafter referred to as the "respondent"), and Leslie Peiris.  The said Leslie Peiris did not object to the Will being admitted to probate. Conversely, the respondent opposed the application of the petitioner. He denied the genuineness of the signature on the Last Will, purported to be that of the testatrix. In the statement of claim, he maintained that the signatures appearing in the purported Last Will and the letter of instructions to the Notary public attached to the petition were forged.  The alternative position taken up by him was that in any event, the Last Will is not the act and deed of a free and capable testatrix.

Six issues were recorded by the court as being matters of controversy. Three of them were recorded at the instance of the petitioner and the rest at the initiation of the respondent.  For purpose of this judgment, suffice it would be to reproduce three of the said issues recorded at the instance of the respondent.  They are as follows.

 4.       Was the signature on the Last Will is that of the   

          testatrix?

5.        If so, has she signed the same unwillingly?

6.        If so, is the Last Will invalid and of no effect in  

            law?

As regards the issue, No’s 4 and 5 the learned District Judge concluded that the signature on the Last Will was that of the testatrix and it has not been placed voluntarily.  Hence, he determined that the said Last Will is invalid in law and the mother of both parties departed this life intestate.  This appeal has been preferred by the petitioner, challenging the propriety of the said findings, judgment, and the decree that followed.

As a matter of law, the respondent has urged that the appeal should be dismissed inlimine, inasmuch as the petitioner has failed to prefer it within the appealable period. It is well-recognized law that the petition of appeal against a final judgment and decree pronounced by a court should be filed in the Court of the first instance within 60 days from the date of judgment. In this case, the judgment has been written by the learned District Judge on a special appointment made by the Judicial Service Commission, after he was transferred from the district court of Panadura, pending the pronouncement of the judgment. As a result, the judgment of the said District Judge dated 20-05-98 has been pronounced with notice to the parties by his successor on  02-07-98. The petition of appeal has been filed on 27-08-98, within a period of 60 days from the date on which the judgment was so pronounced. The contention of the respondent is that the 60 days contemplated by section 755(3) of the Civil Procedure Code must be reckoned from the date of the judgment, as opposed to the date on which it was pronounced.  Applying the argument advanced by the respondent, if the judgment of the learned District Judge who heard the case was pronounced after notice to the parties, on the 61st day after it was written, then the petitioner would have had no right of appeal against the decision.  In a situation such as this the maxim Actus curiae neminem gravabit applies and in the light of the said maxim, and in my view the objection appears to be baseless.

It has been contended on behalf of the respondent that the affidavits annexed to the petition in the district court are invalid in as much as they were alleged to have been signed before the instructing attorney at law of the petitioner. The position that the affidavits in question had not been signed before the justice of the peace before whom they were purported to have been signed was never put to the witnesses. The witnesses who testified as to the due execution of the Last Will have only stated that the said affidavits had been drafted by the instructing attorney at law of the petitioner and they signed the same at her request. There is no evidence on record to warrant the conclusion that the said witnesses had not signed the affidavit in the presence of the justice of the peace who purported to have administered the oath on the deponents. Hence, the objection raised against the validity of the affidavit by the respondent should necessarily fail.

The Will referred to as P1 has been executed before a Notary Public, in the presence of two witnesses namely M.J. Tikmond Silva and H.Alankarage Piyadasa.  Incidentally, all three of them were attorneys at law by profession.

According to the evidence led at the inquiry, the Notary Public before whom the Will has been executed was a senior practitioner at the Panadura Bar.  He has been called to the Bar in the year 1968.  As regards the circumstances in which P1 was executed, K.N.P. Jayathilaka has given convincing evidence in the lower court.  It was suggested to the Notary that P1 was prepared by the petitioner and the Notary executed the same in order to help the latter who was a colleague of the Notary at the Bar.  The Notary Public denied this allegation and gave cogent reasons recounting how he came to be acquainted with the testatrix while he was on the teaching staff at a Government School in Alubogahamulla, where the testatrix lived. He further elaborated the conditions under which P1 came to be executed.

The subscribing witnesses also gave evidence in the like manner as to the execution of the Will. M.J.Tikmond Silva who is one of the witnesses to P1 has started his career as a member of the legal profession way back in 1954.  From the year 1962 to 1969 he has functioned as a president of the Rural Court. In the year 1969 due to medical reasons he has retired from judicial service and reverted back to private practice in 1971.  He has signed P1 as a witness at the specific request made by the testatrix that had been conveyed through the Notary who attested the Last Will.

Hewa Alankarage Piyadasa featured in P1 as the second witness.  He too is an Attorney-at-Law attached to the same Bar.  When P1 came to be executed, Piyadasa had been in active practice for nearly 2 1/2 years.  It is at the request of the testatrix conveyed in the like manner Piyadasa witnessed the Last Will.  Incidentally, witness Piyadasa during the relevant period functioned in the same office in which the petitioner also occupied as a lawyer.

Even though there was overwhelming evidence relating to the execution of P1, quite surprisingly the learned District Judge has totally ignored the evidential value of the witnesses testified on behalf of the petitioner and without analyzing the evidence of the respondent and his witnesses accepted the respondent's version and dismissed the petitioner’s application.

In regard to the evidence of the Notary and the two subscribing witnesses to P1, it has to be observed that the respondent has not been able to discredit them in any manner. The suggestion put to them under cross-examination was that they were testifying in favour of the petitioner to help a colleague at Bar. This suggestion was strongly denied by all three witnesses and until the conclusion of the inquiry, it remained an unsubstantiated suggestion.

The respondent has been quite critical of the lack of participation of any of the family members of the testatrix at the execution of P1, without appreciating the decision of the testatrix to keep even the petitioner away from the execution of P1. The testatrix was the executor by nomination under the Last Will of her deceased husband and an active Buddhist worker in the area.  Without the assistance of her husband and any of the children, she has successfully prosecuted a partition action in the district court and also an appeal connected with it. With this experience, it appears that the testatrix had decided not to disclose any information regarding her testamentary disposition and strictly meant it to be kept a secret. The learned District Judge has totally misapprehended the said decision of the testatrix when he viewed the execution of P1 as being tainted with doubt.

It is noteworthy that for reason of her own the testatrix has handpicked the witnesses to P1. The learned District Judge does not appear to have appreciated the importance of having people of standing as subscribing witnesses to a Last Will, but commented adversely against the Notary and the two witnesses, as being partial towards the petitioner, without any semblance of assertion to that effect either in the evidence of the respondent or the statement of objection. As has been previously mentioned it was only a baseless imputation made to them under cross examination that the evidence regarding the execution of the Last Will was influenced by their desire to extend a helping hand to a fellow practitioner at the Bar.

The importance of selecting witnesses of intelligence and respectability has been stressed upon by several well-known jurists. In the case of Wijewardena and another Vs Ellawala (1991) 2 Sri Lanka Law Report page 14 at page 22, Wijetunga J, in a painstaking judgment dealt in detail with the competence of the witnesses in testamentary dispositions.  According to jurists the invitations extended to professionals to witness testamentary dispositions is a salutary practice. The advantage seems to be that when professional men subscribe as witnesses to a Last Will, it generally gives rise to an assumption that every requirement to make the document legally valid has been satisfied. 

Accordingly, the propounder of such a Will is in an advantageous position to find such witnesses, without much difficulty. Even if they are not among the living when the propounder seeks to prove the Will, the degree of difficulty in proving their handwriting will be negligible as opposed to the proof of handwriting/signature of a nonprofessional.

The learned District Judge has failed to appreciate the significance attached to men of standing subscribing their names as witnesses to testamentary dispositions and also failed to evaluate the credibility attached to the uncontradicted testimony of the Notary and the two witnesses against whom admittedly no impropriety has been proved either in regard to their personnel conduct or professional uprightness.  Moreover, the respondent has admittedly retained the services of the Notary Public in the latter’s capacity as an attorney at law, in relation to a civil case of his wife. Quite unexpectedly, the respondent or his wife had not lost faith in their lawyer, namely the Notary who attested P1. In the circumstances, the learned District Judge appears to have gravely misdirected himself by not conferring the presumptive effect to the Last Will.

It is trite law that where a Will is in proper form and is duly executed the presumption that arises in law is that all requirements attached to the Will have been fulfilled. This presumption in law is termed as omnia praesumuntur rite esse acta.

It is appropriate at this stage to reproduce some of the relevant passages quoted by Wijetunga, J in Wijayawada's case (supra) that deal with the consequences relating to proof of due execution of a Will. The relevant passages read thus.

“If a rational Will is produced, and shown to have been duly executed, the Jury ought to be told to find in favour of the testator's competence. The legal burden rests on the party who propounds the Will, but the rule that he does not have to adduce evidence of capacity in the first instance is sometimes said to raise a presumption of sanity in testamentary cases."

Cross on Evidence, 2nd Edition at page 104.

If a Will is rational on the face of it, and appears to be duly executed, it is presumed, in the absence of evidence to the contrary, to be valid.

Jarman on Wills (1951) 8th Edition, Volume I page 50. 

Our courts have always given effect to the presumption to a duly executed Last Will rational on it’s face and when it did not shock the conscience of court as being suspicious, save and except where an objector proved the contrary position to defeat the Will.

A leading case on this aspect is Gunasekere v. Gunasekera, (1939) 41 NLR 351, where the propounder of a Last Will proved due execution.  It was specifically laid down that in such a situation the presumption that the testator knew and approved of its contents should be given effect to unless suspicion is attached to the document by its very nature.

Since the Will produced by the petitioner was shown to be duly executed and appeared on the face of it to be quite rational, the learned District Judge was obliged to apply the principle relating to presumption of due execution coupled with presumptive sanity in testamentary dispositions. Had the learned District Judge properly applied the said two principles to the facts of the present case, he would have possibly not encountered any difficulties in coming to the correct conclusion.

In the light of the evidence led at the inquiry by the petitioner, it was quite obvious that the testatrix was absolutely sane when she made the Will. She had lived for nine long years after having made the Last Will and there was no occasion for her to complain against the Notary, the subscribing witnesses, or the petitioner.  During the said period, she has made no attempts whatsoever to revoke or annul the Will either. 

Further during this crucial period, the respondent and Leslie had met her on numerous occasions. The respondent claimed that he met the testatrix almost every day. In the event of undue influence of any sort had been exerted on her, the most suitable person she could have ever complained against such conduct of the petitioner was none but the respondent. The fact that the testatrix never complained to anyone either prior or immediately after or in the least degree during any time after the execution of P1, for a period of nine long years, puts the matter beyond doubt that P1 clearly is the act and deed of freely and willing author of a Last Will and a clear and unequivocal wish was to effect a testamentary disposition to the exclusion of the other two children. What more, the evidence points to the fact that for reasons of her own, the testatrix was determined to conceal the fact of having signed the Last Will from all her children. She was sane not only when she did execute it, but throughout the period of 9 years until she came by the death.  Upon consideration of the above, it should be the view of any person of prudence and reasonableness that the circumstances, cry out for the application of the presumption that the testatrix was quite sane and well aware of the nature and consequences of the testamentary dispositions she made, special regard being had to P2. 

P2 is the document obtained by the Notary from the testatrix confirming her verbal instructions. It is in the handwriting of the testatrix herself.  Neither the signatures on P1 and P2 nor the handwriting in P2 were seriously contested by the respondent except making certain suggestions to the witnesses for the mere sake of denying the signature.  The learned District Judge has completely misdirected himself in making his observation against the Notary for having obtained P2. He has also failed to consider the evidential value of P2. The document marked as P2 is self-explanatory as to the decision the testatrix had taken, in relation to her testamentary disposition.  The discretion exercised by her in the Last Will, cannot be questioned or faltered however inequitable it may appear to be on the face of it. For these reasons the learned District Judge should have presumed that the testatrix was sane and she made a sensible testamentary disposition when she perfected the Will and it was for the respondent to prove the allegation of undue influence.  

A perusal of the judgment reveals that the learned district judge was influenced to a great degree in his decision by the alleged undue influence said to have exerted by the petitioner on the testatrix. There was no specific issue raised as to undue influence.  In order to establish the element of undue influence, the respondent relied heavily on the special relationship of confidence that existed between the testatrix (mother) and the petitioner (son).  It was strenuously argued on behalf of the respondent that the kind of relationship between testatrix and the petitioner was such which gave rise to a presumption of undue influence and the petitioner by his silence has failed to rebut the presumption.

Reliance was placed by the respondent in the judgment of the Supreme Court, in Ratwatta Vs Gunasekara 1987 2 SLR 260, where it was held that contract which may be rescinded on the basis of undue influence fall into two categories, i.e. where there is no special relationship between the parties and where the special relationship of confidence exists and that in the latter case undue influence is presumed to exist and the onus is on the party taking the benefit to justify that it was free from undue influence.

Learned President's counsel of the petitioner has contended that the authority relied upon by the respondent in proof of the proposition that undue influence is presumed in the case of the special relationship of confidence between the parties, is a clear misconception. On behalf of the petitioner, it has been further contended that the law as it stands today recognizes the right of a child to importune a parent for a legacy as long as the importunity does not amount to coercion or fraud. 

The principle relating to importunity has been recognized in the judgment of Parfitt Vs Lawless LR 2P&D 462. In the local case of Peiris Vs Peiris 9 NLR 14 @ page 24, the right of a child to importunity has been recognized following the decision in Parfitt’s case. In Anderado Vs Silva 22  NLR 4 it was held that the burden of proving undue influence is on those who allege it.

The Will that is propounded in this case has been positively established to have been sufficiently acknowledged and approved by the testatrix by her prior and subsequent conduct. The respondent has not raised any question concerning her knowledge and approval of the contents of the Will, except a vague defence of undue influence.  

The proposition of the law on this matter quoted with approval in the case of  Wijewardena (supra) is worth being re-quoted.  It reads as follows.

“that if a Will appears to be formally valid, the burden of proving that it is invalid lies on the party who challenges it; and that a Will is invalid if the testator when he made it was mentally incapable of appreciating the nature and effect of his act but the burden of proving this rests on the person alleging it”.

Lee: South African Law of Property, Family Relations and Succession (1954 Edition) at pages 180 and 187

After the evidence of the witnesses for the petitioner was led, there could not have been possibly any doubt with regard to the due execution of the Will and the sound disposing mind of the testatrix. Further nothing essentially unnatural in the document could arise when it is carefully perused and examined.  In such an event the burden undoubtedly shifts on to the objector to show the contrary, namely the existence of undue influence, etc.

It is convenient at this point to consider the extent to which the respondent was able to prove the purported undue influence. The respondent has not spoken to in his evidence of any particular incident of undue influence being exerted on the testatrix. On the other hand, the witnesses who were present at the execution of the Will had every reason to believe and in fact, they were of the firm belief that the testatrix signed in their presence with the full knowledge as to what she was signing and its consequences.  There were no suspicious circumstances that existed at the time of signing the Will or surrounding the preparation of the same. The allegation of undue influence remained a mere allegation without any substance. Since there were no such compelling reasons to accept that there was at least a semblance of undue influence surrounding the circumstances of the testamentary disposition in question, I am of the firm opinion that the finding of the learned District Judge, as to the involuntariness of the testatrix signing the Will is totally irrational and inconsistent with the evidence led before him.

The next question to be addressed is whether the claim made by the Notary, the two subscribing witnesses and Jayanthi Peiris that they never disclosed the fact of P1 being executed to the petitioner, would amount to conduct expected of ordinary men.  Section 114 of the Evidence Ordinance enacts as follows.  

114. The court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct, public and private businesses in relation to the facts of the particular case.

The court has to then determine the extent to which the learned district judge could have invoked section 114 of the Evidence Ordinance to presume the attitude of the witnesses towards the non-disclosure of the making of the Will, as being contrary to ordinary human conduct.  In presuming thus he appears to have completely lost sight of the fact that the Notary and the two witnesses and also the witness named as Jayanthi were not ordinary witnesses.  All four of them were attorneys at law engaged in the active practice of law.  

 

The main reason as to why the learned district judge appears to have entertained a grave suspicion as to the genuineness of P1 was the strict confidentiality maintained by them with regard to its existence.  It is quite unfortunate that the learned district judge has failed to address his mind to the very nature of the confidentiality; the law has conferred on testamentary dispositions such as P1.  The implied objective of the several provisions of the law contained in Notaries Ordinance, Registration of Documents Ordinance etc. undoubtedly expect both lawyers and laymen to maintain the highest degree of secret with regard to the making of a Last   Will, during the lifetime of the testator, particularly when the author is desirous of having the fact of making the Will a secret or when other circumstances may demand irrespective of the authors approach on that matter. It is extremely inappropriate on the part of the learned District Judge to have drawn the presumption that the conduct of the Notary and the witnesses was unusual. On the contrary, taking into account the very nature of the confidentiality the last Will deserves to be treated with, everyone who is acquainted with such a Will is bound not to publicize it. 

 

It is to be observed that commenting adversely on the Notary and the witnesses of the petitioner the learned Judge remarked that simply because the petitioner is a lawyer he can not have his own way.      

The trial judge does not seem to have appreciated that information regarding a will is usually withheld from the beneficiaries or legatees for reasons of public policy. The rationale behind this thinking is to ensure the safety of the author of the Will. Besides, the testator has an unquestionable right to annul or revoke a Will. In that context the conduct of the Notary, two subscribing witnesses, and that of Jayanthi who remained tightlipped throughout, until the demise of the testatrix is quite consistent with the attendant circumstances. Their exemplary conduct in relation to the Last Will in question is in harmony with the ordinary conduct of persons learned in the law. Besides, there was no proof before the trial judge as to what the ordinary human conduct would be, of a person when possessed with knowledge relating to the execution of a Last Will or any other similar testamentary dispositions. Hence the trial judge was in error when he disbelieved them, mainly on the basis that the act of withholding the information which they were bound not to disclose, was not the ordinary human conduct. 

Further, the impugned judgment lacks proper analysis of the evidence of the respondent with regard to his credibility.  As has been averred in the statement of objection, the signatures that appear on P1 and P2 are forgeries.  Reasoning out his position, the respondent stated in his evidence that his mother (testatrix) always used to sign her name as "adilin Piyaseeli Peiris" and not in the way she has signed P1. The full name of the testatrix in P1 is given as ‘Tudawage Adilin Perera Karunawathie Piyaseeli’ and she has signed P1 in English as "T.E.K.Piyaseeli". 

Even though the respondent made a serious allegation of forgery against the petitioner in his desperate attempt to nullify the effect of the Last Will, quite surprisingly no steps were taken by him to have the signature on the impugned Will, examined for purpose of ascertaining it’s genuineness.  This he could have done by obtaining a commission on the examiner of questioned documents, probably with a direction to compare the impugned signature with the other signatures of the testatrix that may have been placed on other documents.  

P4 to P8 are five deeds signed by the testatrix jointly with the respondent.  When questioned as to the failure to have the signature on P1 examined through an EQD, the evasive answers given by the respondent cannot simply be ignored.  The explanation given by the respondent for his lapse on that account was that he instructed his lawyers to do so but they failed in their duty. This in my opinion should not have constituted a reasonable explanation.

 

According to the petitioner, the testatrix usually signed her name in an identical manner, as she did in P1 and P2.  Conversely, as stated above the respondent maintained that his mother always signed as Adilin Piyaseeli Peiris.  The petitioner in order to contradict the respondent produced five deeds marked as P4 to P8, all of them had been signed by the testatrix as one of the vendors, in association with the respondent and Leslie Peiris. When the signatures on these five deeds were shown to the respondent where the testatrix (as one of the vendors) has signed as “T.E.K.Piyaseeli” immediately above the signature of the respondent and in his presence he (the respondent) had the shameless audacity to deny any knowledge of her mother signing the deeds.  Confronted with the difficulty of having to admit the signatures of his mother, the respondent was eventually compelled to state that he could not remember the transactions and that he was unable to identify the signature of his mother. Regrettably, the learned District Judge has not posed the question within himself as to how the respondent could then say that the signature on P1 is a forgery when he could not identify the signature of his mother placed on deeds to which the respondent was also a party.  This clearly shows that the respondent has taken up a baseless defence for the sake of attacking the Last Will.

 

As far as the respondent's case is concerned another matter that loomed large was his frivolous defence, that the impugned Last Will could never have been signed around 2:30 p.m. on 17-11-83.  The reason attributed for the alleged impossibility has to be carefully examined.  According to the respondent on 17.11.83 both the Notary and M.J.T.Silva had appeared in a civil trial, a case in which the wife of the respondent was a party. His position was that M.J.T.Silva  appeared for his wife. The matter being taken up for trial on that day had commenced at 11 AM and ended at 4:30 p.m.  The respondent was quite emphatic that both the lawyers could not have been able to participate in the execution of P1, since they were engaged in the discharge of their professional duties as lawyers for both sides in the said case. When counteracted by counsel of the petitioner with details as to what happened in the said case, the respondent had to reluctantly admit that on 17-11-83, the case in question was only mentioned from the calling roll. He further admitted that everything in connection with the said case was over around 11AM.  The falsity of the evidence given by the respondent on this matter has not at all been taken into account by the learned District Judge in evaluating the weight attached to the defence raised by the respondent. Further, the learned District Judge in evaluating the evidence of the respondent has not analyzed the same with a critical approach.

The evidence of the respondent and the unsatisfactory defence  raised by him against the Last Will clearly point to the fact that the respondent was not worthy of any credit. Even though the respondent attempted to maintain that his mother was a timid person, suggesting that she could easily be influenced, he was later compelled to admit that she is a person of determination who had looked after the family with dedication. 

Had the learned District Judge addressed his mind to the infirmities in the defence and the unsuccessful attempt made by the respondent to mislead Court to defeat the intention of the testatrix, he would never have arrived at the findings he did arrive in this case.

In order to render the impugned judgment consistent with the principles of law enunciated hereinbefore, I am compelled to conclude that the learned district judge has completely misdirected himself as to the onus of proof and generally of the law applicable to the proof of a Last Will. His evaluation of the evidence adduced at the inquiry is totally unsatisfactory. The decision of the learned District Judge, therefore, is tainted with multitudes of illegalities, resulting in a travesty of justice. The petitioner would suffer irreparable loss and the the desire of the testatrix, which is of utmost importance, would be rendered absolutely meaningless if the findings of the learned District Judge are allowed to remain.

Hence, I feel obliged, in the exercise of the appellate jurisdiction, to set aside the judgment, findings and decree, entered in this case. Undoubtedly, such a power has to be exercised in an extreme case of necessity to avoid a miscarriage of justice. As regards the grounds urged by the petitioner in the instant appeal, it is my view that this is a fit case where such a course should take precedence over the respondent’s baseless assertion.   Consequently, I set-aside the findings, judgment and decree of the learned district Judge.   In conclusion, I hold that the Last Will of the testatrix as having been duly proved and accordingly direct the learned district judge to admit it to probate.

The petitioner is entitled to costs.

 

Sgd.

Judge of  the Court of Appeal

 

TW