PIERIS v. PIERIS et al.

PIERIS v. PIERIS et al.

D. C, Colombo, C 1,850 (Testamentary).

last will-Ordinance No. 7 of 1840 s. 3-Ordinance No. 2 of 1877, s. 26, sub-s. 8, as amended by Ordinance No. 21 of 1900-Due attestation-Notary empowered to attest deeds in English-Duty of notary to read over and explain the instrument-Interpretation in Sinhalese -Execution of will by undue influence-Burden of proof as to use of undue influence by coercion or fraud-Opinion of assessors given many days after close of case.

Where a notary public, authorized to draw, authenticate, and attest deeds or instruments in the English language only, did not read out the last will he had drawn for a testatrix in English, but interpreted and explained it clause by clause to her in her own language, which was Sinhalese, and where one of the attesting witnesses was in the next room during the greater part of the interpretation, but at such a distance that he could see the testatrix and those around her through the open door which connected the two rooms, and could have heard what was said to and by the testatrix if he had given ear to it,-

Held, that as, in terms of the Ordinance No. 7 of 1840, section 3, the will had been attested by a notary public and two witnesses, who saw the testatrix sign and thereafter subscribed their own names, all four persons being present together, it was duly attested.

Since " attestation " means execution of a deed or will in the presence of witnesses, and " attesting witness " means a person who has seen a party execute a deed or sign a written agreement, section 3 of the Ordinance No. 7 of 1840 must be construed as dealing only with the authentication and proof of the bare fact of signing by a party. Beyond that it contains nothing designed or calculated to secure the understanding by the party of the contents of the instrument, nor anything implying knowledge by the witnesses of such contents.

The notary need not necessarily know anything of the contents of the will which he attests.

Sub-section 8 of section 26 of Ordinance No. 2 of 1877, which forbids the notary to attest any deed or instrument whatever in any case in which the person executing the same shall be unable to read the same, unless and until he shall have read over and explained the same or caused the same to be explained in the presence and hearing of such person and of the attesting witnesses thereto, does not amount to an enactment that, in failure of the requirements of this rule being observed, the deed or instrument should be deemed not duly attested.

Where it was alleged, in opposition to the will propounded, that one of the sons of the testatrix, who had the management of her affairs and possession of her title deeds, had certain deeds of gift executed in his favour, and endeavoured to take advantage of her weak state of health to get her to execute a will which she declined, but eventually by undue influence he had obtained the will in question,-

Held, that where it has been once proved that a will has been duly executed by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under an undue influence is on the party who alleges it.

The equity rule in reference to gifts inter vivos, that the party benefited must show affirmatively that the other party could have formed a free unfettered judgment in the matter, does not apply to the making of wills.

To vitiate a will the influence used must be either by coercion or fraud.

Where it was complained that the assessors, who were associated with the District Judge to hear the case, gave their opinion some days after the conclusion of the evidence and without the facts being recalled to their minds by a summing up of the Judge,-

Held, that this was not a fatal irregularity.

THIS was an application for probate of the last will of one Mrs. Jeronis Peiris by her executors, Mr. H. A. Pieris, Mr. Ch

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