DIRCKZE

Vs.

STEPHEN PERERAAND OTHERS

COURT OF APPEAL
SAMAYAWARDHENA, J.
CA/1157/2000/F
DC KEGALLE 33/T

Last will-Burden of proof-Exclusion of properties-Inventory-Civil Procedure Code, section 539(1)

The appellant appealed against the judgment of the District Court whereby the last will was declared proved and admitted to probate on the basis that the last will is a forgery and the testator had included in the last will properties which did not belong to him.

Held:

1. It is well settled law that the onus is on the propounder of the last will to remove all suspicious circumstances attached to the will and prove affirmatively that it is the will of a free and capable testator.

2. If the last will is a forgery, it is irreconcilable to seek the exclusion of some of the properties in the last will.

3. The notary who knew the executant personally gave evidence at the trial and marked documents without objection. This included the affidavits of the two attesting witnesses of the last will.

4. If the appellant wanted to call for an EQD report, he should have taken steps to do so. The Court is not bound by the opinion expressed by an expert witness. The evidence of a handwriting expert is only a relevant fact that the Judge may take into account in forming his own opinion on whether the signature of the testator found in the last will is genuine.

5. The concern of the appellant that the testator has included properties which did not belong to him in the last will can be considered after the inventory is tendered to Court in terms of section 359(1) of the Civil Procedure Code, which happens subsequent to the issuance of the probate.

Cases referred to:

1. De Silva v. L.B. Finance Ltd [1993] 1 Sri LR 371
2. Marian v. Jesuthasan (1956) 59 NLR 348
3. Wijegoonetilleke v. Wijegoonetilleke (1956) 60 NLR 560
4. The Solicitor General v. Ava Umma (1968) 71 NLR 512
5. Pathmawathie v. Jayasekara [1997] 1 Sri LR 248
6. Saravanamuthu v. Packiyam [2012] 1 Sri LR 298
7. Bandaranaike v. Premadasa [1978-79] 2 Sri LR 369 at 384
8. Charles De Silva v. Ariyawathie De Silva [1987] 1 Sri LR 261
9. Roslin Nona v. Herat (1960) 65 CLW 55

APPEAL from the Judgment of the District Court of Kegalle.

6th Respondent-Appellant appears in person.

L.M.K. Arulanandam, P.C., with Shamika Seneviratne for the Petitioner-Respondent.

Palitha Bandaranayake with D.M. Siriwardena for the 7A and 8th Respondent-Respondents.

cur. adv. vult.

September 2, 2019

SAMAYAWARDHENA, J.

This is an appeal filed by the 6th Respondent-Appellant (Appellant) against the Judgment of the learned District Judge of Kegalle dated 06.10.2000 whereby the Last Will No.7 dated 28.01.1996 marked P2 at the trial was declared proved and admitted to probate.

Both in the District Court and in this Court, the Appellant appeared in person.

In the statement of objections dated 26.03.1998 filed before the District Court, the Appellant, whilst praying for a declaration that the Last Will is not an act and deed of the testator, also prayed for exclusion of the properties under item No. 4 of the Last Will and item No. 5 of the schedule to the petition on the basis that the said two properties did not belong to the testator.

If the Last Will is a forgery as he claims, I cannot understand why he seeks exclusion of some of the properties from the Last Will. There lies, in my view, the real grievance of the Appellant.

It is interesting to note that at the trial the Appellant raised no issues. On behalf of the Petitioner-Respondent (Respondent), who is the executor of the Last Will, two issues were raised. They are, whether the said Last Will is an act and deed of the testator, and, if so, whether Letters of Administration shall be issued in the name of the Respondent.

The 7th and 8th Respondents through an Attorney-at-Law filed a statement of objections dated 26.03.1998 and prayed for exclusion of the property described in item No