PIERIS v. PIERIS et al

Present; Sir Charles Peter Layard, Kt., Chief Justice, Mr. Justice
Wendt, and Mr. Justice Wood Renton.

PIERIS v. PIERIS et al

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

Last will - " Due attestation " - Presence - " Explanation " - " Interpretation " formalities - Testamentary capacity - Suspicion,? circumstances-Undue influence-Onus-Difference between wills and gifts-Evidence Act (Ordinance 14 of 1895), section 3-Ordinance No. 7 of 1840, section 3-Ordinance No. 21 of 1900.

A testatrix who could not read English employed a Notary who was only licensed to practise in English to prepare a will. The Notary prepared the will in English and interpreted it to the testatrix clause by clause from English into Sinhalese.

One of the attesting witnesses was not in the room where the will was interpreted and did not hear what was being said, but he was in an adjoining room from where he could both see what was going on and hear, if he had chosen to listen, what was being said.

Held, that the will was duly executed within the meaning of Ordinance No. 7 of 1840, section 3.

WOOD RENTON -J.-Section 8 of the Notaries' Ordinance, 1900, does not prescribe fresh formalities on which the validity of wills depends. The object of the Ordinance in section 3 is a disciplinary one. It proscribes rules for the conduct of Notaries and attaches a penalty to the breach of such rules. It does not say that, if a notary fails to comply with any of them in the preparation or execution of a will, the will itself will be invalid, provided that the requirements of Ordinance No. 7 of 1840, section 3, have been satisfied.

WOOD RENTON .J.-The explanation of a will to a testator and the making of such explanation in the hearing of the attesting witnesses are not pre-requisites. to its validity, however important they may be from the standpoint of evidence of approval of its contents. It is sufficient if the testator, at the moment of execution, believes the will to be, and if the will is, in accordance with instructions previously given.

Perera v. Perera (1901) A.C. 364 and Parker v. Felgate, (1883) 8 P.D. 171, followed.

WOOD RENTON J.-(1) Undue influence is not to be presumed but must be proved by the party alleging it. (Boyse v. Ross-borough, 6 H, L. C. 2).

(2) If, in the progress of a testamentary case circumstances of suspicion arise, whether from the fact that the parties propounding a will benefit largely under its provisions and have been instrumental in securing its execution or otherwise, the suspicion must be removed by the executors. They must satisfy the court that the will is the act of a free, as well as a capable, testator. Fulton, v. Andrew (7 Eng. and Ir. App. 448) and Tyrrell v. Pain-ton (1894 P. 151) followed.

(3) In order to be undue, the influence must amount to coercion or fraud.

(4) In the case of wills, unlike that of gifts, the existence of a fiduciary relationship does not create any presumption of undue influence. An attorney or a child may legitimately importune a client or a parent for a legacy so long as the importunity does not amount to coercion or fraud.

Parfitt v. Lawless (L. R. 2 P. A D. 462) followed.

Section 3 of the Evidence Ordinance (No. 14 of 1896) is confined to transactions inter partes and does not alter the English rules as to wills.

It has not been the practice in Ceylon for District Judges to charge assessors on the law applicable to any issue of fact before them.

HEARING in review of the judgment of the Supreme Court(1) preparatory to appeal to His Majesty in Council.

The facts and arguments are fully set out in the judgment of Wood Renton J.

Walter Pereira, K.C. (Elliott with him), for the appellants. Dornhorst, K.C, and Sampayo, K.C. (H, J. G. Pereira with them), for respondents.

Cur. adv. vult.

Foot Notes:

(1) 8 N. L. R. 179.

27th February, 1906. WOOD RENTON J.-

In our opinion the judgment under review, affirming that of the District Co

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