Initial burden on propounder of a WILL

Sri Lanka Law Reports 2012 - Volume 2 , Page No - 179 - Testamentary Case - Application for letters of administration - Last will tendered -Initial burden on propounder of the will - Rational will - Due execution - Shocks conscience of Court - Presumption of due execution - Suspicion? Omina praesumuntur rite esse acta.  Estate of one S was administered and the Petitioner R applied for letters. Pending the determination of the application, a brother of the deceased intervened in the action and claimed that the deceased had left a last will - No- 3523 which he sought to prove in the case The Learned District Judge after inquiry held that the deceased died intestate and issued fetters to the widow of the deceased. The intervenient Petitioner appealed. 

Sri Lanka Law Reports 2012 - Volume 2 , Page No - 179 NAGALINGAM SUBRAMANIAM VS. SIVALINGAM AND OTHERS COURT OF APPEAL ABDUS SALAM, J CA 786/1999 DC MOUNT LAVINIA No: 443/96T Testamentary Case - Application for letters of administration - Last will tendered -Initial burden on propounder of the will - Rational will - Due execution - Shocks conscience of Court - Presumption of due execution - Suspicion? Omina praesumuntur rite esse acta. Estate of one S was administered and the Petitioner R applied for letters. Pending the determination of the application, a brother of the deceased intervened in the action and claimed that the deceased had left a last will - No- 3523 which he sought to prove in the case The Learned District Judge after inquiry held that the deceased died intestate and issued fetters to the widow of the deceased. The intervenient Petitioner appealed. Held: (1) it is trite law that when a will is in proper form and duly executed it is presumed in law that all the requirements attached to the will had been fulfilled. This presumption in law is known as ominia praesumurtur rite esse acta. Per Abdus Salam, J. "It is quite apparent that Court has failed to appreciate the legal principles applicable to a rational will." (2) If a rational will is produced and shown to have been duly executed, Court ought to be told to find in favour of the testator's competence The legal burden rests on the party who propounds the Will. (3) If a Will is rational on the dace of it, and appears to be duly executed, it is presumed, in the absence of evidence to the contrary to be valid. Per Abdus Salam, J. "Since the Will produced by the appellant was prima facie shown to be duly executed and appeared on the face of it to be quite rational the learned District 180 Judge was obliged to apply the principle relating to presumption of due execution coupled with presumptive sanity in testamentary dispositions." (3) Our Courts have always approached the presumption with a touch of profound respect and courteous regard. A duly executed Last Will rational on its face as long as it does not shock the conscience of Court as being suspicious, deserves to be illuminated with this presumption. Per Abdus Salam, J. "The District Judge who was obliged to apply the principle relating to presumption of due execution coupled with a presumptive sanity in testamentary dispositions has unfortunately failed to view the issue in its correct perspective The findings of the District Judge has ended up in a miscarriage of justice." APPEAL from the Judgment of the District Court of Mount Lavinia. Cases referred to: (1) Sri Lanka Ports Authority vs. Jugolinilia 1981 1 Sri L.R. 18 (2) Gunasekara vs Gunasekara (1939) 41 NLR 351 (3) Wijewardena and another vs. Ellawala (1991) 2 SLR 14 Mano Devasagayam with Eranga Athapaththu for the intervenient Respondent Appellant. Dr. Sunil Cooray with K. Sabaratnam and Shaminda Silva for the Petitioner Respondent Respondent. Cur.adv vult. February 2, 2009. ABDUS SALAM, J. This appeal arises from the judgment in a testamentary case in which the main issue which arose for determination was the genuiness of a Last Will. Nagalingam Sivalingam whose estate was sought to be administered in the testamentary action departed this life on 4th November. 1995 The petitioner-respondent (hereinafter referred to as the "respondent") then applied for letters of administration on the basis of intestacy. The hairs of the deceased at intestacy were the petitioner and the mother of the deceased. 181 Pending the determination of the application for letters of administration, a brother of the deceased, intervened in the action to claim that the deceased left a last will bearing No. 3523 dated 25th August, 1985 which he sought to prove in the case. At the conclusion of the inquiry, the learned district judge inter alia held that the deceased died intestate and issued letters of administration to the widow of the deceased, rejecting the claim that the deceased died leaving a last will This appeal has been preferred by the intervenient-respondent (hereinafter referred to as the "appellant') to have the judgment of the learned district judge set aside. The main issues on which the matter proceeded to inquiry before the learned district judge was whether the deceased died leaving last will no 3523 dated 25th August, 1985 attested by W. Senthilnathan or whether he died intestate. The respondent invited Court to ascertain as to whether the last Will bearing No. 3523 was a forgery and if so whether the application of the intervenient petitioner (the propcunder of the will) for probate should be dismissed. Presumably as it was the appellant who relied on the last Will for purpose of the administration of the estate of the deceased, it was he who had to start the case first. In doing so the appellant led the evidence of W. S Senthilnathan, attorney-at-law and Notary Public who claimed to have attested the last Will and that of one Kanakgasabapathy a subscribing witness to it and closed his case. Senthilnathan, has been called to the bar as an advocate in the year 1967 and later as a proctor in 1969. He practiced law in Jaffna, up to 1990. A resident of Jaffna Senthilnathan had his office in Jaffna town In the year 1990 he proceeded to Madras and on his return, came to realize that due to the civil war that had broken out between the LTTE and the Government forces, he was unable to return to Jaffna. His house too was in the war zone and occupied by the LTTE. As such he was forced to resume his legal practice in Colombo. Guided by the number of deeds executed before him from 1969 to 1990, it is quite obvious that he had enjoyed a lucrative practice as a Notary Public. 182 Quite significantly, to his credit none of his deeds had ever been contested save and except the present testamentary disposition The protocols of his deeds were in bound form in several volumes each one of them containing 100 such copies His sister-in-law had removed all his documents due to the state of civil war that prevailed in the peninsula. He has the opportunity of visiting Jaffna in the year 1992 when it was under the control of the LTTE and upon such visit he had learnt that his books and the protocols of his deeds in the form of bound volumes had been removed from his office. He claimed that the last Will in question was executed before him and denied the several allegations made against him with regard to its execution As regards the acquaintance with the testator, Senthilnathan gave a satisfactory and detailed account of the background in which he came to know him Incidentally the testator had been introduced to him by one of the subscribing witness to the last Will, namely Kanagasabapathy whom he had known for a long period of time, as a member of the teaching staff at a school 'where Senthilnathan also had taught before he took to law Recounting the several occasions on which he had met the testator, Senthilnathan specifically referred to the meeting at which the testator had expressed his displeasure over his marriage The details of which he testified in his evidence. He claimed that the deceased met him in his office in Jaffna on 24th August, 1985 and instructed him to draw up his Last Will Having taken down the instructions, he had requested the deceased to call over on the next day to sign the Last Will When the deceased came to the office of the notary in the company of witness Kanagasabapathy he had read out and explained the contents of the Last Will to the deceased in the presence of the subscribing witness and the deceased has signed the same thereafter. At the inquiry the original of the last Will was produced by the appellant with a distinct mark The signature of the testator in the Last Will was also given a distinct mark Quite strangely the respondent who alleged that the last will was a forgery made no meaningful attempt to prove the allegation. On the Contrary she admitted by necessary implication the genuineness of the signature of the testator on the will. Quite strikingly, 183 the execution of the Last Will as narrated by the notary and the subscribing witness was not seriously challenged by the Respondent, except the Last Will on 25.8.1985 and that it was a forgery. This was categorically denied by the Notary Hence. it would be seen that the respondent was not able to justify or substantiate in any manner the allegation she leveled against the notary and the subscribing witnesses. The respondent places much reliance to prove the allegation, on the monthly lists dispatched to the registrar of lands by the notary As this allegation was made for the first time under cross-examination, the notary secured from his sister-in-law the monthly list in which the last Will No 3523 had been disclosed to the Registrar of Lands. The monthly list of deeds attested by the notary concerned was marked as R2 and the relevant entry against instrument No 3523 was marked as R2a, the signature of the notary as R2b and the rubber stamp placed by the Registrar in acknowledgement of having received the particular monthly list as R2c. Thus there had been overwhelming evidence as to the genuineness of the monthly list forwarded by the notary indicating that instrument No. 3523 was nothing but a last Will. Even though R2 was marked subject to proof for reasons of her own the respondent did not insist on the proof of R2 nor did she object to the document R2 being received in evidence at the close of the intervenient - petitioner's case. In the circumstances the learned District Judge was duty-bound to consider the document R2 in the light of the decision in Sri Lanka Ports Authority and another Vs Jugolinilia Boal East. Therefore it would be seen that a document which ought to have been admitted in evidence and considered the evidential value has been unduly rejected by the learned district judge. The failure to consider the evidential value of R2 thus amounts to a misdirection in law resulting in a serious miscarriage of justice. Witness Kanagasabapathy maintained that he worked with the deceased at the Central Bank in Colombo and his acquaintance with the deceased counted more than 30 years. The sentiments expressed by the deceased over his marriage as spoken to by Senthilnathan was amply corroborated by the testimony of Kanagasabapathy who had associated the deceased for three decades Kanagasabapathy has corroborated Senthilnathan on all material particulars on the execution of the Last Will. 184 The Respondent admitted that three months after the death of the deceased, she came to know of the claim made by the intervenient-petitioner as to the existence of the Last Will alleged to have been executed by the deceased. She further admitted that she knew that the said Last Will was alleged to be in the custody of the intervenient petitioner. It was somewhat surprising as to what made the respondent not to inquire further about the contents of the last Will or to call for a copy of the same from her brother-in-law. Instead she filed an application for the administration of the estate of the deceased on the basis of intestacy and conveniently omitted to make the intervenient-petitioner a party to the application She never made any inquiries about it but sought to apply for Letters of Administration on the ground of intestacy. It was put to her in cross-examination that she chose not to reveal this fact but proceeded on the ground of intestacy because she was aware that she was not the beneficiary under the will. She admitted that throughout her married life she never lived with the deceased in Colombo and that the deceased did not ask her to come to Colombo except when he fell ill a few months before his death of cancer. The Respondent in her evidence never stated that the Last Will was a forgery or that it was executed after the deceased's death. On the contrary she admitted knowledge of the fact that the deceased had executed a last will. She produces 3 letters marked P1, P2 and P3, written to her by the deceased It is important to note that throughout the period during which the testator was employed at the central bank, the respondent had never come and lived with him in Colombo Despite the fact that the testator has stated in P3 dated 13 January, 1993 that after his retirement in February 1993 he would come to Jaffna he had never come to Jaffna to live with the respondent. The fact remains that despite his retirement he continued to stay in Colombo up to the time of his death on 4th November, 1995. Learned counsel of the appellant has contended that all these facts indicate that the failure of the marriage between the parties could be the reason as to why the Respondent was not the beneficiary under the last 185 Will and therefore the righteousness of the transaction cannot be questioned. These are matters the trial judge will have to go into, taking into consideration the comparative strength of the version put forward by both parties. It is trite law that when a will is in proper form and duly executed it is presumed to law that all the requirements attached to the Will had been fulfilled. This presumption in law is known as omnia praesumuntur rite esse acta. On a perusal of the judgment of the learned district Judge it is quite apparent that he has failed to appreciate the legal principles applicable to a rational Will According to Cross on Evidence, 2nd edition (page 104) "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 presumption of sanity in testamentary dispositions." The same principle is found in the treatise of Jarman on Wills (1951) Eight Edition volume 1 page 50 where it is stated as follows: "if a will is rational on the face of it and appears to be duty executed, it is presumed, in the absence of evidence to the contrary to be valid." In one of the early decisions of our Courts namely in Gunasekara vs Gunasekara(2), it was laid down that where a propounder of a last Will proves due execution, the presumption which follows is that the testator knew and approved of its contents to be given effect to unless suspicion a priori is attached to the documents by its very nature. Since the Will produced by the appellant was prima-facie 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 trial Judge properly addressed his mind to the facts of the present case, the burden of proof, the presumptive sanity in testamentary dispositions, perhaps he may not have come to the same conclusion that he did arrive at in this case. 186 The learned District Judge has also commented in an adverse manner as to the failure of the appellant to give evidence at the inquiry He was also unduly critical of the failure on the part of the power of attorney holder of the appellant to testify in court. It does not seem to me as proper to comment adversely on such failure, as they did not participate at the execution of the Last Will. As regards the execution of the Last Will the appellant has led the evidence of the notary and one of the subscribing witnesses The evidence thus led on behalf of the appellant to prove the execution of the will is more than adequate to prove the execution of such a Will In the circumstances the critical approach adopted by the learned District Judge of the failure of the appellant and his power of attorney holder to give evidence is totally unwarranted and absolutely unnecessary. No doubt, the initial burden is on the propounder of a will to prove it as an act and deed of a free testator and that he was not only aware but approved the contents as well. It is the duty of the propounder of the will to impress upon Court according to the standard of proof required that the last Will has been duly executed according to law. The learned trial Judge has also taken irrelevant matters into consideration when he expressed doubt as to the genuineness of the last Will based on the finding that the intervenient petitioner has not explained the interim custody of the last Will after its execution and prior to it being produced in court. This was neither an issue in the case nor has the respondent attacked the Will on that basis. Having embarked on such an irrelevant consideration the learned District Judge appears to have lost track of the requirement of the law relating to the proof of a Last Will namely whether it was executed by the deceased and that it is the act and deed of a willing testator. Further, the learned District Judge was not entitled to draw any adverse inference as he appears to have done, for the reason that the appellant had failed to sent a copy of the last Will to the respondent. In this respect it is relevant to note that the respondent has not shown any interest to call for a copy of the will from the appellant even after she had been informed of the execution of such last Will. Learned District Judge has once again fallen a serious error, when he commented unfavourably against the appellant for not shoving the 187 signature on the last Will to the respondent in court. It is undisputed that the appellant had brought the notice of the respondent of the last Will executed by the deceased. Despite such information (he respondent has not taken any steps either to call for a copy of the last Will or to examine the same in any other manner. The last Will is an exhibit attached to the statement of objection filed by the appellant. As regards the execution of the last Will the appellant had adduced evidence in terms of section 68 of the Evidence Ordinance and it was not up to the appellant to show the signature of the testator The fact remains that despite the respondent having raised an important issue as to the genuineness of the signature of the testator on the last Will, she has not even examined the signature on the will Even under cross examination the allegation of forgery has not been seriously pursued by the respondent The learned trial judge has completely misapprehended the proof required of a last Will under section 68 of the Evidence Ordinance. The appellant has led the evidence of the notary and one of the subscribing witnesses whose evidence would be more than adequate to consider the question of due execution. Let me quote Wijetunga, J who emphasized the consequences that flow from a duly executed Will, in his painstaking judgment in Wijewardena and another Vs Ellawala(3). "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 approached the presumption with a touch of profound respect and courteous regard. A duly executed Last Will, rational on its face as long as it does not shock the conscience of court as being suspicious, deserves to be illuminated with this presumption. To 188 trace the development of the law In this field, Gunasekara v Gunasekara, can be cited as a leading case on this aspect. In that case a propounder of a Last Will having proved due execution was granted the benefit of the presumption. This case laid down the principle that in such a situation the presumption that the testator knew and approved of its contents be given effect to, unless suspicion a priori attaches to the document by its very nature. In the light of the principles enumerated in the authorities, there would be no difficulty to conclude that the pivotal issue has not been properly addressed by the learned district judge, before he decided to issue letters of a administration to the respondent. The learned district judge who was obliged to apply the principle relating to presumption of due execution coupled with a presumptive sanity in testamentary dispositions has unfortunately failed to view the issue in its correct perspective. For the reasons set out above, I am compelled to hold that the findings of the learned District Judge is contrary to law as he has failed to examine the genuineness of the last Will, according to the principles relating to the evidential burden and burden of proof as required by law As such the finding of the learned District Judge has ended up in a miscarriage of justice. In the circumstances, I set aside the impugned judgment and direct that the case be reheard. As the learned Judge who heard the case is no longer a district judge, his successor will determine with participation of the parties, as to the extent to which the evidence led at the previous trial could be adopted according to law. Case directed to be reheard.