In the Matter of the Last Will and Testament of Kolambapata bendige Abraham Perera, of Horatuduwa, deceased. K. Haramanis Perera and another, Applicants and Respondents. And K. Johana Perera and eleven others, Respondents and Appellants.

In the Matter of the Last Will and Testament of Kolambapata

bendige Abraham Perera, of Horatuduwa, deceased.

K. Haramanis Perera and another, Applicants and Respondents.

And

K. Johana Perera and eleven others,

Respondents and Appellants.

D. C., Kalutara, 130.

 

Will-Execution in presence of five witnesses-Presence of notary- Validity of will-Roman-Dutch Law-Ordinance No. 7 of 1840, a. 3.

Per Bonser, C.J., and Withers, J. (dissentiente Lawrie, J).- Under section 3 of Ordinance No. 7 of 1840 it is optional for an intending testator to make his will before a notary public or before five or more witnesses. The mere presence of a notary public when a will is executed before five witnesses does not render it invalid.

Per Bonser, C.J.-By the law of Holland a will might be made either before a notary and two witnesses, or without a notary by a will signed by the testator and seven witnesses.

By Ordinance No. 7 of 1834 the testamentary power was enlarged on the one hand and contracted on the other. It was provided that no devise of immovable property should be valid unless duly attested by a notary and two witnesses. On the other hand, a testator in extremis was allowed to make a nuncupative will in presence of two witnesses, who were to reduce it to writing and within twenty days from the death make a declaration before a notary. A will of movables signed by a testator in the presence of seven witnesses was still valid.

The Ordinance No. 7 of 1840 makes no distinction between wills of movables and wills of movable property. It abolished nuncupative wills, and reduced the number of witnesses required to attest a non-notarial will from seven to five.

The intention of the Legislature was to restore the option that testators had under the Roman-Dutch Law of having their wills either notarially attested or attested by witnesses.

The words in section 3 of Ordinance No. 7 of 1840, " if no notary shall be present," mean " if a notary shall not be present in his notarial capacity," or, in other words, " if the will be not attested by a notary."

IN this case two persons applied for probate of a will, bearing dated 5th June. 1896, said to have been executed by one Abraham Perera and his wife Johanna. Abraham Perera died on 10th June, 1896, five days after the execution of the will, leaving him surviving his widow.

After the application for probate was made she and two other persons interested in the estate of the deceased Abraham Perera appeared before the Court and objected to the will being admitted to probate. Their objections were heard by Mr. Haughton, District Judge, on 4th November, 1896, and on the 10th December

1896, he made the order nisi absolute. An appeal was lodged against this order by some of the respondents, and the Appellate Court in setting aside this order remitted the case to the Court below for further inquiry on the following issues: -

(1)    Did the deceased Abraham Perera put his mark to the paper sought to be propounded as his last will ?

(2)    Was he of sound mind when he signed the document by his mark?

The case came on for trial on these two issues before Mr. Roosmalecocq, who delivered the following judgment:-

" The notary who drew up the will states that he received instructions from the deceased Abraham Perera to draw it on the evening of 1st June, 1896, and he explains why he did not attest it in the usual way, namely, because the eighth respondent, Mututan-trige Siman Fernando (the real opponent), threatened that he would impeach the will and spend hundreds of pounds in so doing, as he had heard that a valuable piece of land situate in the Cinnamon Gardens, Colombo, and which he claimed as his property, was

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