Back
IN RE THE ESTATE OF DINGIRALA
NLR21V330
In re THE ESTATE OF DINGIRALA
.
91-D. C. Kandy (Testamentary A).
Document executed by person when
very ill-Document in the form of a deed-Intention to dispose of property by last
will.
Where a document executed by a person was somewhat in the nature of a deed, but
where it was clear that he intended that it should take effect as a testamentary
disposition, the Court gave effect to the document as a last will.
THE
facts are set out in the judgment.
This was an appeal from a refusal of the District Judge of Kandy to admit to
probate the document which was put forward as a will, on the ground that it was
not a document intended to take effect after the grantor's death, but an
immediate gift.
The document (translation) was as follows: " Know all men by these presents that
I Dingirala, of . . . . , being now afflicted with the disease called
Ratta-attisara (dysentery), and being convinced that by this disease my life
will become extinct, and during the time I have my sound mind and memory, I am
desirous of making over my paraveni lands to my son, who is with me, rendering
me assistance, the following property [here follows the names and description of
the property] . . . . ; these lands. . . . are hereby made over unto my
legitimate son . to be dealt with at his pleasure, in the presence of the
undersigned witnesses.
(Signed) DINGIRALA.
" [Here follows signatures of 14
witnesses.]
" This was drawn by Appuhamy Korala of W ....
" (Signed) H. E. A. WELAPAHALA.
" 26-5-19. "
L. H. de Alwis (with him
Weerasinghe), for appellant.-Although the document is partially in the form of a
deed, it is clearly testamentary in character. It is the intention of the
testator that must be looked to, not the form of the document. Allowance must be
made for the crude draftsmanship of a layman. The testator did not expect to
recover from his illness, and executed the document in contemplation of death,
and the document must be regarded as intended to take effect upon his death.
Again, the document cannot take effect as a deed, for it is unstamped, nor
executed with the formalities required by law for the transfer of immovable
property. It is a maxim of law that if
a paper would be ineffectual in
one way, endeavours should be made to give it effect in another way. It has been
held that a deed-poll and even an agreement or other instrument between parties
has a testamentary operation. Counsel cited Thorold v. Thorold; 1 In bonis
Morgan; 2 Cock v. Cooke; 3 Green v. Froude; 4 In bonis Colyer; 5 Robertson v.
Smith et at.; 6 In bonis Slinn; 7 In bonis Baxter. 8
January 22, 1920. BERTRAM C.J.-
This is a point of some interest. The action is a testamentary action, and the
document which is put forward as a will commences " Know all men by these
presents," and is otherwise, at first sight, in the form of an ordinary deed. It
was drawn by the Korala at a time when the person executing it was very ill, and
it was witnessed by no less than fourteen witnesses. The learned District Judge,
from this point of view of the document, has made this note: " This document is
not a document intended to take effect after the grantor's death, but an
immediate gift. I decline to admit it to probate."
Mr. De Alwis and Mr. Weerasinghe, for the appellant, have drawn our attention to
a number of cases in which it has been clearly laid down that if the intention
was, in fact, testamentary, the Court will not be deterred by the form of the
document from giving effect to it as a will. These cases are of early date. The
earliest cited to us was the case of Green v. Froude.4 They have also drawn our
attention to the case of Thorold v. Thorold,1 and also to more modern cases,
amongst others, of In the Goods of Slinn9 and In the Goods of Colyer.10
In all these cases the document admitted to probate was in form of a deed,
commencing " Know all men by these presents," or some similar expression, and
