NAGALINGAM SUBRAMANIAM VS. SIVALINGAM AND OTHERS

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

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.

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 wid

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