Interpreting a Last Will
VS
BACKGROUND
Two different
applications were filed in succession, at the interval of 1 1⁄2 years in
respect of the estate of the deceased Queenie A Nathaniels. The first application
to administer her intestate estate and the second 1 1⁄2 years after the first
to prove a purported last Will. Both matters were taken up in amalgamation and concluded.
The court decided to admit the last will to probate.
Where a Will is in
proper form and is duly executed, it gives rise to a presumption that the requirements
to constitute a valid ‘WILL’ have been fulfilled. This presumption in law is
termed as Omnia praesumuntur rite esse acta. A duly executed Last Will,
rational on its face as long as it did not shock the conscience of court as
being suspicious is to be given effect. The heirs at intestacy opposed the last
Will alleging it was a forgery and to be precise that the purported signature
of the notary on the Will is in fact not that of Mr Abeysekara NP.
It is well established
law that a last Will to be declared as proved and admitted to probate, the
conscience of court should be satisfied that it is the wish of a willing and
competent testator.
Should there be any
doubt that shocks the conscience of court as to the authenticity of the Will and
the mental and physical testamentary capacity of the author, it is then
incumbent on the propounder of the will to eliminate such a doubt. A perusal of
the purported last Will produced in this case reveals that it is not consistent
with the imperative requirements of the law. Surprisingly, the last will does
not indicate the date on which it was executed. Section 31 of the Notaries Ordinance
sets out the rules to be observed by a notary in the execution of a notarially
attested document. Rule 18 states that he shall correctly insert in letters as
in every deed or instrument executed before him the day, month, year and the place
of execution. Quite strangely, the legal requirement of having to insert the
day of execution which is an inveterate practice, deeply rooted into the art of
conveyance has been mysteriously observed in breach by the notary, despite his
wealth of experience in the relevant field. No plausible explanation has been
given by the propunder of the Will or the beneficiaries or the subscribing
witnesses for this lapse on the part of the notary. Strictly speaking the
failure to insert the day and place of execution will not invalidate the
document. Nevertheless this fact should have aroused a grave suspicion in the
mind of any prudent man, as to the due execution of the last Will.
“The group of ghosts of dissatisfied testators who, according to a late Chancellor Judge, wait on the other bank of the styx, a river in Hades across which Charon, the ferryman who brings the souls of the dead across the river styx] to receive the judicial personages who have misconstrued their last Wills. Be extremely cautious to interpret a Last Will because you have to meet author of the will when your soul is transported to the bank of Styx river
Held: The learned DJ
was in error when he admitted the Last Will to probate.
(Leave to appeal was
refused by the Supreme Court in SC (SPL) LA 318/2008 on 01.09.2009)
judgement
J Godwin Patrick
Nathaniels- petitioner-petitioner in CA application 999/2002 (revision) and
Godwin Patrick Nathaniels, Annie Indira Nathaniels and Christine Shyama
Nathaniels intervenient- respondent-petitioners- in C.A. application1000/2002
(revision) are seeking to have the judgement dated July 24, 2000 of the District
Court of Colombo delivered in case No 32997/T and 33401/T, set-aside and revised.
They will be referred
to in this judgment collectively as "petitioners". The circumstances
that led up to the filing of the two petitions, invoking the revisionary
jurisdiction of this court need to be focused to ascertain the only issue that
arises for determination in this matter.
Mrs Queenie A
Nathaniels, the late wife of Godwin Patrick Nathaniels and mother of Annie Indira
Nathaniels, Christine Shyama Nathaniels, Ajith Godwin Nathaniels and NaomiDakshine
and Sterling Nathaniels, departed this life on 29th April 1992, at St Michaels
Nursing Home Colombo 3. The intestate legal heirs of her estate were her
husband and four children. In point of fact, Queenie A Nathaniels was the
lawful owner of or otherwise seized and possessed of premises bearing No 2 and
2-1/1 Gomez place, Colombo 5.
Upon her demise, two
different applications were filed in succession, noticeably at an interval of 1
1⁄2 years, for the administration of her estate. The first of such application
was filed to administer her estate on the footing that she died intestate and was
assigned No. 32997/T. Pending the determination of the first application, on 18.11.1993
Dr Shirley Nicholas Samuel (5th petitioner-respondent in C.A
999/2002) filed a second application (11⁄2 years after the first application)
to have a purported last Will of Mrs Queenie A Nathaniels (hereinafter
sometimes referred to as the "testatrix") proved and admitted to
probate. The number assigned by that Court to this application is 33401/T.
Pursuant to an
agreement reached among the parties to have both cases heard and concluded in
amalgamation and the learned District Judge decided on the issues to be tried
in such a manner, so as to reflect the material questions for determination, in
one set of consolidated issues and proceeded to inquire into both matters at
the same instant.
At the conclusion of
the inquiry the learned District Judge held that Mrs Queenie A Nathaniels had
died leaving a last Will bearing No 307. Consequently, the court decided to
admit the last Will to probate. This invariably resulted in the rejection of
the version of the petitioners that she died intestate.
That is the summary of
the background in which the petitioners finally invoked the revisionary jurisdiction
of this court in a desperate attempt to nullify the effect of the finding of
the learned district judge. It would therefore be seen
that the pivotal question for determination is the validity of the last Will
said to be that of late Queenie Arthurine Nathaniels.
It is trite law that
where a Will is in proper form and is duly executed, it gives rise to a
presumption that the requirements to constitute a valid ‘WILL’ have been
fulfilled. This presumption in law is termed as omnia praesumuntur rite et solemniter esse acta donec probetur in
contrarium, which may be shortened to omnia
praesumuntur rite et solemniter esse acta or omnia praesumuntur rite esse acta.
Having thus stated the
case let me begin to sort out the issue by quoting some of the relevant
passages by Wijetunga, J in Wijewardena and another Vs Ellawala (1991) 2 Sri Lanka
Law Report page 14, as regards 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 presumption of sanity in testamentary cases.
JARMAN ON WILLS (1951)
8TH EDITION, VOLUME I PAGE 50
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.
Our courts have always
given effect to this presumption to a duly executed Last Will, rational on its
face as long as it did not shock the conscience of court as being suspicious.
To trace the development of the law in this field, a leading case on this
aspect can be cited as Gunasekere v. Gunasekera, (1939) 41 NLR 351 in which the
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.
A judgment pronounced
in the recent past touching upon the heavy burden cast upon the propounder of a
Last Will deserves to quoted at this stage. That is the case of De Silvea vs Seneviratna
– reported in 1981- 2- Sri lanka Law Report at page 07. The principle enunciated in this case is as follows…
1. it
is the duty of the person who produces a Will to prove that the Will is the act
and declaration of a free and capable testator.
2. That
the testator was not only aware of it but also approved the contents thereof.
3. That
the testator intended the document to be his Last Will and the Last Will had
been duly executed according to Law should there be any suspicion. With regard
to any of the circumstances enumerated under item no’s 1 to 3 above then it is
the duty of the propounder to remove all such doubts and prove affirmatively the
required elements.
In the light of the
above principles of law, it would be seen that the main question arises for determination
in these consolidated revision applications is whether the last Will produced
was shown to be duly executed and appeared on the face of it to be quite
rational and the extent to which the learned District Judge was obliged to apply
the principle relating to presumption of due execution coupled with a
presumptive sanity in testamentary dispositions.
As far as the propounded
last Will is concerned, the heirs at intestacy took up the position that the last
Will was a forgery, to be precise that the purported signature of the notary on
the Will is in fact not that of Mr. Abeysekara NP. Learned President's counsel
who opposed the admission of the last Will to probate has emphasized on the requirements
to be satisfied before it is admitted to probate. It is well established law
that a last Will to be declared as being proved and admitted to probate, the
conscience of court should be satisfied that it is the wish of a willing and competent
testator. Should there be any doubt that shocks the conscience of court as to the
authenticity of the Will and the mental and physical testamentary capacity of
the author, it is then incumbent on the propounder of the will to eliminate
such a doubt.
A leading case on this
point is Gunasekera v. Gunasekera, (1939) 41 NLR 351, where the propounder of a
Last Will proved due execution. The judgment in this case, 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 a priori
attaches to the document by its very nature.
A judgement pronounced
in the recent past touching upon the heavy burden cast on the propounder of a
last Will deserves to be quoted at this stage. That is the case of De Silva Vs
Seneviratna reported in 1981 2 Sri Lanka Law report at 07. The principles
enunciated in this case is that (1) it is the duty of the person who produces a
will to prove that the will is the act and declaration of a free and capable
testator (2) that the testator was not only aware of it but also approved the
contents thereof (3) that the testator intended the document to be his last
Will and the last Will had been duly executed according to law. Should there be
any suspicions with regard to any of the circumstances enumerated under item
numbers (1) to (3) above, then it is the duty of the propounder to remove all such
doubts and prove affirmatively the required elements.
In the case of Gamini
Ranasinghe Vs Corea 1988 2 Sri Lanka Law reports 200 it was emphasized that in
addition to the other requirements a Will should be duly executed according to
law. From the above it is manifestly clear that one of the essential
ingredients to constitute a valid last Will is “due execution”.
In terms of section 4
of the Prevention of Frauds Ordinance a last Will could be executed either before
five witnesses or in the alternative before two witnesses and a notary.
Needless to stress that in the latter case the document has to be duly attested
by the notary and witnesses. The requirements relating to a duly attested
document are found in the Notaries Ordinance.
The form of the
attestation is set out in the schedule under item E to the Notaries Ordinance. It
reads as follows.
"I AB Notary
Public, do hereby certify and attest that the foregoing instrument having been
duly read over by me to the said CD who has signed this deed as C and who is
known to me, in the presence of (insert the names of the witnesses in full with
their residences or if the name a of witness defers from the signature described
him as above by both that name and the name given in the signature) the subscribing
witnesses hereto both of whom are known to me (if the case be so ) the same was
signed by the said CD and also by the said witnesses in my presence and in the
presence of one another all being present at the same time
on the.....
dayof......, at............."
A perusal of the purported
last Will produced in this case reveals that it is not consistent with the imperative
requirements of the law. Surprisingly, the last will does not indicate the date
on which it was executed. Section 31 of
the Notaries Ordinance sets out the rules to be observed by a notary in the
execution of notarially attested document. Rule 18 states that he shall
correctly insert in letters as in every deed or instrument executed before him
the day, month, year and the place of execution. Quite strangely, the legal requirement
of having to insert the day of execution which is an inveterate practice,
deeply rooted into the art of conveyancing, has been mysteriously observed in
breach by the notary, despite his wealth of experience in the relevant field.
No plausible explanation has been given by the propunder of the Will or the
beneficiaries or the subscribing witnesses for this lapse on the part of the
notary. Strictly speaking the failure to insert the day and place of execution
will not invalidate the document. Nevertheless, this fact should have aroused a
grave suspicion in the mind of any prudent man, as to the due execution of the
last Will. It is common knowledge that the notary has executed 306 instruments
prior to the execution of P1. In my assessment, it is very unlikely, especially
in the case of the execution of a last Will to omit the insertion of the day on
which it was signed, even due to inadvertence, as it can have far-reaching
consequences. For instance, if a person
who opposes the admission of the last Will to probate, is desirous of
establishing lack of testamentary disposition of the testator, it is quite significant
to know the date on which the last Will was executed. It may equally be
important when someone needs to attack the genuineness of a Will on the ground of undue influence, forgery, impossibility
of the testator, witnesses or the notary to make themselves available on the
given day and time and at the place it was signed or any other grounds
acceptable in law.
Quite surprisingly, in
none of the other notarially attested instruments of the same notary, has the
date of execution ever been omitted. A practicing lawyer who has written such a
large number of deeds could not have possibly omitted the date of execution and
also failed to attest the same. The failure on the part of the Notary Public to
insert the day on which the last Will was written and the glaring omission to append
an attestation as is required by the Notaries Ordinance, not only show that the
Will has not been duly executed but on the contrary strengthens the opinion
expressed by the handwriting expert as to the highest degree of improbability
of the notary having signed the last Will.
The main ground on
which the intestate legal heirs of the alleged testatrix relied upon to avoid
the last Will was that it was not the act and deed of Mrs Queenie A Nathaniels and in fact it was a
forgery. To substantiate this allegation the petitioners tendered D10, being an
opinion expressed by A.DF.H.Samaranayaka examiner of questioned documents as to
the genuiness of the signature of the notary in P1. This document was produced
at the inquiry through Mr. Sinnadurei Sundaralingam to whom it is addressed to
and who had acted for petitioners of the said Mrs Nathaniels. Unfortunately,
A.DF. H. Samaranayaka was not among the living when D 10 was produced in court.
In any event when the document was marked as D10 and produced, no objection was
raised against the reception of the document in evidence. Quite significantly, even
at the close of the respondent's case the beneficiaries of the last Will did
not insist on the proof of D10 or reiterate that D10 was not proved.
Such a failure on the
part of the respondents to object to D10 being received in evidence, would amount
to a waiver of the objection and the trial judge was not empowered to simply
reject the opinion, without giving plausible reasons.
At this stage it is of
significance to note the contents of D 10. It is a written opinion expressed by
the then examiner of questioned documents upon a request made by Messer’s
Sundaralingam associates, attorneys at law on behalf of the parties who opposed
the admission of the purported last Will to probate. According to D10,the
examiner of questioned documents has carried out a detailed examination of the
signature purports to be that of E.A.Abeysekara, attorney at law and Notary
Public, appearing in the last Will bearing No 307. This signature of the notary
on the last Will has been compared with at least 10 contemporaneous signatures
of the notary placed on several duplicate copies of deeds. The examiner of
questioned documents concerned, has been requested to examine the specimen signatures
of the notary and report as to whether the person who signed as “E A Abeysekara
on the documents namely S1,S2,S3,S4,S5,S6,S7,S8,S9 and S10 signed the disputed
signature "E.A.Abeysekara" on the last Will marked as P1. For this
purpose the examiner of questioned documents had visited the district court of Colombo
and the land registry. Having examined the questioned signature and the
specimen signatures microscopically and by the other optical analytical
techniques, the examiner of questioned documents has come to the definite
conclusion that the signature on the last Will defers from the specimen
signatures in quality, capability, speed, size, breaks, pen lifts and it also
revealed significant and fundamental differences.
He further observed
that in the execution of the letters in the questioned signature the letters capital
A of the surname, the letter b succeeding, a, y, the commencement of k the
letters which appear to represent or between y and k in the disputed signature
on P1 are completely absent. The examiner of questioned documents also expressed
a precise view that the dissimilarities seen by him were the result of
practised simulation. In conclusion the examiner of questioned documents stated
that in his opinion the last Will has not been signed by the same person who
had signed the 10 duplicate copies of deeds
S1 to S10.
The propounder of the
last Will has not seriously challenged the opinion expressed in D10 except to allege
that the examiner of questioned documents had issued D10 at a time when his
eyesight was weak. This allegation made against the examiner of questioned
documents with regard to his impaired eyesight has not been established. He has
also failed to adduce any evidence disputing to the written opinion. In the
circumstances, the learned District Judge has totally misdirected himself and
erred in law in rejecting and/or not giving the proper evidential weight to D10.
On a comparison of the
signatures reproduced above, the learned District Judge could not have experienced
any difficulties in coming to the basic conclusion that the specimen signatures
and the disputed signature of the Notary Public totally differ from each other
and required an explanation in relation to the fundamental differences. As there
was expert opinion placed by the party who contested the last Will, the learned
district judge had every right to compare the signatures himself with the view
to ascertain the truth. Besides, the learned District Judge also should have
considered the failure on the part of the propounder of the last Will to place
any expert evidence to show that the purported signature appeared on the last
Will, is in fact the signature of the particular notary public.
The last Will in
question is said to have been signed by the testatrix in the presence of two witnesses
and the Notary Public. There is no certification or attestation appended to the
Will to indicate that it was signed by the testatrix in the presence of the two
witnesses and the Notary Public, all being present at the same time. The last
Will carried no written proof as to where it had been signed. It gives no
details as to the names of the witnesses, their occupations and addresses and
whether the testatrix is known to the witnesses or whether the testatrix is
known to the Notary Public and the particulars regarding the acquaintance of
the Notary Public with the witnesses.
In passing I would like
to observe that a last Will which should undoubtedly be treated as a sacred document
in nature, by the reason of the expression of desire or inclination of a
deceased person it carries, in relation to the distribution of his properties.
It is generally given effect to by those who are destined to live after the testator.
In case of dispute as to the genuineness of a last Will, the court does not
have the assistance, by way of firsthand information of the testator himself.
The far-reaching consequences of lastWill includes the alteration of the right
of inheritance relating to properties left by the deceased person. It also may
disentitle an heir at intestacy, inheriting from a deceased. Therefore, whenever
a court is invited to admit a Will to probate, the propounder must not only
adduce satisfactory evidence as to its genuineness, but also duty bound to
remove every suspicious item of evidence that may stand in the way of it being so
admitted.
Witness Hiraira claimed
that the last Will was read out to the testatrix by the notary in the presence of
the witnesses. It has been the practice of the notaries to read and explain the
contents of the last Will in the absence of the witnesses and to have the
participation of the witnesses only at the signing of the Will. Section 31 (11)
of the Notaries Ordinance provides inter alia that a notary shall not
authenticate or attest any deed or instrument in any case in which the person
executing or acknowledging the same shall be or profess to be unable to read
the same or in which such person shall require him to read over the same unless
and until he shall have read over and explained the same or cause the same to
be explained, in the presence and hearing of such person and in the presence of
the attesting witnesses. The only exception to this rule is embodied in section
31 (11) of the Notaries Ordinance itself which exempts a notary from the
responsibility of having to read over and explain the same or cause the same to
be explained in the presence of the attesting witnesses. In other words the
notary before whom a last Will is executed, is not obliged to explain the
contents of the last Will in the presence of the attesting witnesses, unlike
other instruments.
It is common knowledge
that notaries do follow the practice of taking the precautions to ensure
confidentiality of every last Will. In order to achieve this object they do not
read out and/or explain the contents of a last Wills to testators in the
presence of the attesting witnesses. However witness Hiraira claimed that he
had been present at the execution of last Wills at least on 80 occasions and he had witnessed around 40 last
Wills. Whenever he signed as a witness to a last Will, he asserted that
notaries did explain the contents to testators in the presence of the attesting
witnesses. This evidence of the witness is not consistent with the practice
hitherto jealously followed by the notaries.
The totality of the
evidence of the only attesting witness who testified at the inquiry was full of
infirmities. He did not know as to who subscribed to the last Will as the
second witness. The evidence of this witness with regard to his employment, at
the time of the execution of the last Will, is totally unsatisfactory.
According to him he had left the employment of Mr Abeysekara in the year 1982.
As at the time he left him, he had counted a period of service extending up to
6-7 years. This would undoubtedly lead to the inference that he had started his
career as a clerk under Mr Abeysekara somewhere in 1976. The last Will has been
allegedly executed in March 1973.
Consequently, the
witness who claims to have worked under Mr Abeysekara could not have served him
during the time material to the execution of the last Will. However, when the witness
was cross examined on another day he changed his position and categorically
stated that he worked under Mr. Abeysekara for 12 years until 1986. The
petitioners contend that the witnesses had uttered a palpable falsehood with an
ulterior motive, namely to impress upon Court that he was working under Mr
Abeysekara in 1973 when the Will in question was executed. The contradiction that
arises on the evidence of this witness in this respect, cannot be lightly taken
as he is the only witness who testified at the inquiry with regard to the
execution of the last Will.
Witness Hiraira had
been questioned as to his involvement in several matters where accusations had
been made against him for improper conduct as a lawyer’s clerk. He admitted at
least on three occasions his conduct as a lawyer’s clerk had been reported to
Court. Even though there was no proof of his having been convicted of those allegations,
yet the learned District Judge could not have disregarded the allegations, amidst
the unsatisfactory evidence he has given with regard to the execution of the
last Will in question. The learned District Judge has failed to carry out a proper
evaluation of the unsatisfactory evidence of the only attesting witness, which
strengthened the opinion expressed by the examiner of questioned documents and
created serious doubt as to the genuineness of the last Will. This doubt had
never been explained or otherwise countered with any persuasive evidence or
arguments to the contrary.
It is unfortunate that
quite often than not, witnesses of repute are not invited to witness last Wills
and other notarial documents or the significance of the participation of such
witnesses is not explained by lawyers to their clients who seek the
professional assistance of the former to execute such documents. In the case of
WIJEWARDENA VS. Ellawalain SLR – 1991 Vol.2, Page No - 14 in SLR - 1991 Vol.2,
Page No - 14 Wijetunga J Cited Hayes & Jarman's "Concise Forms of
Wills" 15th Edition at page 120 where it is stated as follows..
"Witnesses of
intelligence and respectability should be selected and preference is to be
given to professional men, whose subscription of the memorandum of attestation
raises a presumption that the formalities of execution have been strictly attended
to. Moreover, there is greater facility in finding such witnesses, if living,
and in proving their handwriting, if dead".
Many a contested and
protracted litigations of luxurious nature could easily be avoided and precious
time of everyone concerned saved for better purposes, if men of reputation are
invited to subscribe to last Wills and documents of similar import.
It will be a great
relief to the legal profession and the judges in particular, if Wills can be
drafted in the simplest possible language devoid ambiguities, so as to reflect
the real intention of the testators and executed exactly in the manner provided
by law, with a view to relieve courts of having to engage in the task of
ascertaining the intention of a deceased and to determine whether a last Will
had in fact been written, the latter being the task the court is called upon to
perform in the instant matter.
If this could be
achieved, undoubtedly many a last Wills may not be misconstrued. Although it is
not relevant, it may not be inappropriate, to quote the words of contentment
expressed by Lord Atkin, when the house of Lords took the initiative to end the
mistaken approach of interpreting last Wills, in Perrin and another,
(Appellants) Vs Morgan and another (Respondents) Appeal cases- House of Lords-
1943- page 399 at page 415.
The obiter of Lord
Atkin in this respect reads as follows..
“The group of ghosts of
dissatisfied testators who, according to a late Chancellor Judge, wait on the other
bank of the styx , to receive the judicial personages who have misconstrued
their last Wills, may be considerably diminished”.
The obiter of Lord
Atkin would be applicable not only to
the construction of a last Will but in relation to the question as to the
validity of a Will as well, as is the question for determination in this case.
The attesting witness
of the Will who testified in court was not able to state with certainty as to
the details of the other witness. He stated firmly that he had never come
across any last Will unattested. According to him the last Will in question had
not been dated, except the insertion of the month and year and he considered it
to be a serious lapse. The witness did not distinctly recall having signed the
last Will on the particular date on which it was signed. He was able to state
to court that he signed the last Will only after having seen it in court. The
evidence given by this witness with regard to the execution of the last Will by
itself is totally unacceptable. Even when compared with the other material,
particularly D10, the evidence of this witness turns out to be totally
irrational and misleading.
Learned counsel of the
beneficiaries of the last Will has emphasized that there had been a long delay in
filing the revision application which should disentitle the petitioners from
invoking the discretionary remedy. However, the petitioners have taken up the
position that they filed within time a notice of appeal, but as the petition of
appeal was filed late, it was rejected on that ground. However the petitioners
have thereafter filed applications bearing No 900/2000 and 901/2000, seeking to
admit the appeal notwithstanding lapse of time. These applications are
presently pending in this Court. On a perusal of the petition and the arguments
advanced against the judgment of the learned district judge, even if there be
delay in invoking the revisionary jurisdiction, it is my considered opinion
that the learned District Judge has completely erred himself with regard to his
finding that P1 constituted a valid last Will. Since the pronouncement of the
learned district judge, as to the legality of the last Will is based on a
totally incorrect legal basis, I do not think the petitioners should be shut
out from inviting this court to exercise its discretion by way of revisionary jurisdiction.
It is settled law that
a propounder of a last Will must satisfy court that the instrument relied on by
him is the last Will of a willing and competent testator and that it had been
duly executed. As regards the requirement of the last Will having to be duly
executed the learned District Judge has totally misdirected himself in coming
to the conclusion that there is an attestation appended to the last Will, when
there was none. The learned District Judge in his judgment came to the conclusion
that the last Will had been duly attested by the notary, as there is no
specific format laid down in the Prevention Of Frauds Ordinance regarding the
attestation of a Will.
On this question,
suffice it would be to cite the judgment in Kusumawathie Mohinie Gunasekara Vs
Navaratne Gunawathie Gunawardena (C A Appeal 177/88 (F)- C. A Minutes 13-8-2001
in which Her Ladyship Shirani Thilakawardena J, in a painstaking exercise
stated as follows.
"Learned
President's counsel for the petitioner appellant has submitted that the
provisions of section 31 (11) of the Notaries Ordinance does not apply to Wills
and codicils. This is not tenable in law. What the section simply states is
that in the case of Wills and Codicils, it is not imperative that the contents
need be even read and explained by the notary in the presence of the attesting
witnesses, the procedure mandated in other deeds or instruments. But the
original part of the section requires the notary to attest the fact that the person
executing or acknowledging the instrument being unable to read the same had
been furnished the information of the contents of the instrument, by reading
over and explaining the same. This applies to and includes both Wills and
Codicils".(Emphasis is mine) The facts relating to the case in hand are
even worse. In this matter the notary has not appended any form of attestation.
Noticeably, it is neither stated in the Last Will nor can it be inferred from
it, that the testatrix was known to the notary or whether she signed the same
in his presence and in the presence of the witnesses all being present at the
same time. From the document it cannot be determined as to whether the two
witnesses and the notary signed in the presence of one another and in the
presence of the testatrix. There is no mention what so ever as to whether the
testatrix was of sound and disposing mind. The Last Will does not even bear out
that the contents of it were read out and understood by the testatrix or
whether it was read and explained to her
or caused to be read and explained.
Taking all these
matters into consideration, in my opinion the learned trial judge has acted in
blatant violation of the accepted norms and law relating to the due execution
of a last Will and held the last Will to have been proved without the
petitioner's discharging their burden of what is known as onus probandi. Thus, the finding in favour of the Will has been
reached without satisfactory evidence being led to prove that the last Will had
proceeded from a free and capable testator. Even otherwise the grave suspicion
that had arisen in the course of the presentation of the petitioner's case had
not been removed by the petitioners until the conclusion of the case.
In the circumstances,
the learned district judge could not have possibly arrived at the conclusion complained
of as the last Will had never been attested by the notary. There is no positive
evidence that stems from the Will that it had been signed by all four
signatories, namely the testatrix, two witnesses and the notary in the presence
of one another, all being present at the same time. There is also a serious
doubt as to whether the last Will was read and understood by the testatrix or
whether it was read and explained by the notary or caused to be read and
explained.
Above all the document
P1 by itself is devoid of any proof as to whether the testatrix was of sound physical
and mental testamentary disposition.
Significantly the
unattested last Will P1 is not duly executed and therefore lacking in basic qualifications
to attract probate. Finally, on a balance of probability, there was no proof
that the notary has signed the last Will. By the strong expression employed by
the author of D10, the purported signature of the notary on the last Will is
nothing more than a practised simulation.
In the result the last
Will has not been signed by the testatrix in the presence of two witnesses and a
notary as required by the Prevention of Frauds Ordinance, but signed by the
testatrix before two witnesses at the most. Had it been signed in the presence
of three more witnesses the Will could have been admitted to probate. Therefore,
the learned judge’s findings are contrary to law and blatantly violative of the
principles applicable to the last Wills and its standard of proof.
Hence, the conclusions
reached by the learned District Judge are perverse and work out serious miscarriage
of justice. Whenever a trial Judge is in gross error in regard to findings of
fact and apparently acted in transgression of the bounds of the law, Appeal
Court cannot turn a blind eye to it,
even if there be a delay in invoking the revisionary powers by the petitioners.
In any event the allegation of delay in this matter has been explained by the
petitioners.
For the above reasons,
I regret my inability to conclude that Mrs. Queenie A Nathaniels, the late wife
of Godwin Patrick Nathaniels and mother of Annie Indira Nathaniels Christine
Shyama Nathaniels Ajith Godwin Nathaniels and Naomi Dakshine Sterling Nathaniels
had died leaving the last Will. Consequently, I am compelled to set-aside the
judgement of the learned District Judge and answer the issues in the following
manner.
1. Did
the deceased passed away without leaving a last Will? Yes
2. If
so should letters of Administration be granted to the petitioners? Yes, but the
proper person entitled to letters of administration
should be decided after proper inquiry by the learned district judge.
3. In view of the answers given to issue numbers
1 and 2 the respondents are not entitled to have their issues answered in their
favour.
Subject to the above
the judgement of the learned District Judge stands varied. Revision
applications allowed subject to the above findings. The Registrar is directed
to ensure that this judgement is filed of record in the respective dockets of
both revision applications. The petitioners in both applications are entitled
to costs.
Sgd.
Judge of the Court of
Appeal
1. Wijewardena
VS. Ellawala SLR - 1991 Vol.2, Page No – 14
2. Gunasekere v. Gunasekera, (1939) 41 NLR 351
3. Gamini Ranasinghe Vs Corea 1988 2 Sri Lanka
Law reports 200
OTHER DATAILS
PARTIES Chiristine
Shayama
Nathaniels No. 31/3,
Saranankara
Road, Dehiwala.
Substituted-Petitioner-Petitioner
1. Annie Indra
Nathaniels
2. Chiristine Shayama
Nathaniels Of No.
31/3, Saranankara Road,
Dehiwala.
3. Naomi Dhakshine
Sterling nee
Nathaniels Of No.2/48,
South Stream, Elwood,Victoria, 3184
Australia (now at
Parkin Street, Rockingham W. A. 6168 western
Australia.)
4. Ajith Godwin Nathaniels,
No.2, Gomes Path off De
Fonseka Road,
Colombo 05.
Presently of Air force,
Diyathalawa.
Respondents-Respondents-Respondents.
BEFORE : A.W.A.SALAM,
J.
COUNSEL : A.R.Surendran
PC with K.V.S.Ganesharajan, N,Kandeepan and Tharshini for the petitioners and
C.J.Ladduwahetti with M/s Sonali Jayasuriya for the respodents.
ARGUED ON : 12.02.2008
DECIDED ON : 28.10.2008
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