O.P.No. 272 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 03.08.2023

CORAM

THE HONOURABLE MS.JUSTICE R.N.MANJULA

O.P.No. 272 of 2023

Francis William Fernandez alias Frankie Fernandez

Represented by his Power of Attorney Agent

Russel Adrian Fernandez

…

Petitioner

Original Petition filed for Testamentary and Intestate under Sections

222 and 276 of the Indian Succession Act XXXIX of 1925 read with Order

XXV Rule 4 of the Original Side Rules, prays the petitioner may be allowed

to prove the Will in common form and to grant probate thereof to have

effect to the State of Tamil Nadu.

For Petitioner : Mr.V.Krishnamurthy

ORDER

This Original Petition has been filed for issuance of Probate for the

last Will and testament dated 15.05.2017 executed by Late Hazel Josephine

Fernandez who died on 19.05.2020.

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O.P.No. 272 of 2023

2. The petition mentioned property is the self acquired property of

testatrix Hazel Josephine Fernandez by virtue of a sale deed dated

15.06.1999. The said Hazel Josephine Fernandez died on 19.05.2000 and

her husband died on 20.08.2006. The couple had no issues. During the

lifetime of testatrix, she had executed a Will dated 15.05.2017 by

bequeathing the petition mentioned property in favour of the petitioner who

is the son of her brother late Mervyn William Joseph Fernandez. After the

demise of the testatrix, the Will came into force and the petitioner had file

this petition through his power of attorney agent, seeking probate.

3. The petitioner examined himself as P.W.1 and marked Exs.P1 to

P11.

4. The Will dated 15.05.2017 has been marked as Ex.P6 and the

death certificate of testatrix Hazel Josephine Fernandez is marked as Ex.P4.

The sale deed executed in favour of the Hazel Josephine Fernandez is

marked as Ex.P8. Ex.P7 is the death certificate of father of the petitioner.

5. One of the attestors of the Will by name Molly Susan Prem was

examined as P.W.2 and she has stated in her evidence about her presence

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O.P.No. 272 of 2023

during the execution of the Will by the testatrix and she had stated that she

was present along with one Glyndon who is the second attesting witness.

From the evidence of P.W.2 it is revealed that the she had affixed her

signature in the presence of the testatrix and the testatrix had also affixed

her signature in their presence. She stated that the testatrix was found to be

in sound and disposing state of mind at the time of execution of the Will.

6. The evidences of PW.1 and PW.2 and the documents available on

record would show that the Will has been executed as per the terms of

Section 63(c) of the Indian Successions Act and the same has been proved

in terms of Section 68 of the Indian Evidence Act. Since the petitioner had

proved the genuineness of the Will, the relief sought shall be granted.

7. In the result, the Original Petition is allowed by granting probate

of the last Will and Testament dated 15.05.2017 of late Hazel Josephine

Fernandez, to the petitioner to have effect limited throughout the State of

Tamil Nadu.

03.08.2023

bkn

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O.P.No. 272 of 2023

Appendix

Witnesses examined:

P.W.1 – Russel Adrian Fernandez

P.W.2 – Molly Susan Prem

Documents marked:

Exhibits

Documents

P1

Photocopy of the power of attorney dated 08.07.2022 given by the petitioner

in P.W.1's favour

P2

Affidavit sworn by P.W.1

P3

Photocopy of the Aadhaar card of P.W.1

P4

Computer generated death certificate of Hazel Josephine Fernandez

P5

Photocopy of the death certificate of Alfred Gualbert Fernandez

P6

Original Will executed by Hazel Josephine Fernandez dated 15.05.2017

P7

Computer generated death certificate of Mervyn William Joseph Fernandez

P8

Photocopy of the sale deed dated 15.06.1999 executed in favour of Hazel

Josphine Fernandez

P9

Computer generated property tax receipt.

P10

Affidavit of assets showing the