Andrado V. Silva Et Al.,

1920 Present : Bertram C.J. and Shaw J.

ANDRADO v. SILVA et al.

131-D. C. Colombo, 6,537.

Last will-Undue influence-Suspicious circumstances-Burden of proof- Observations as to the proper scope of medical evidence.-

Whenever a will is prepared and executed under circumstances which arouse the suspicion of the Court, it ought not to pronounce in favour of it, unless the party propounding it adduces evidence which would remove such suspicion and satisfies the Court that the testator knew and approved of the contents of the instrument.

" The burden of proof of undue influence is on those who allege it. It cannot be presumed. The burden of proving mental competancy, on the other hand, lies on the propounders. They are not bound to show affirmatively that the testator's mind is free from any influence which the law considers ' undue ' . . . . I do not mean to say that the principle that it is the duty of the propounders to remove suspicions does not apply to undue influence. I think it does so apply in exactly the same manner as it applies to fraud . . . . If the circumstances are such that a suspicion

arises that the apparent approval by the testator is not a real approval, that his act was not the expression of his own free will but of a will coerced or dominated by another, then it is for the propounders to remove the suspicion, and if they fail to do so their whole case fails, even though the suspicious circumstances do not constitute a prima facie case of undue influence, and even though on a review of the evidence on both sides it cannot be said that undue influence was positively established."

To amount to undue influence, the influence exercised must be something in the nature of coercion.

It is for the medical witness to describe the mental condition of the testator; it is for the Court to determine whether that " condition was such as to impair his testamentary competency.

THE facts appear from the judgment.

H. J. C. Pereira (with him Elliott, B. F. de Silva, Cooray, and G. W. Perera), for appellants.

A. St. V. Jayawardene (with him Drieberg, Bartholomeusz, and H. E. Garvin), for respondent.

Cur. adv. vult.

July 20, 1920. BERTRAM C.J.-

I have had the advantage of reading the judgment of Shaw J. I concur in that judgment, and have only to add the following observations.

We were much pressed by Mr. Elliott, in his very able reply, to hold that this case was covered by the case of Peries v. Silva,1[(1919) 7 C. W. R. 89.] and to decide that as the Judge's finding was accompanied with a misgiving, the onus which lies upon the propounders of the will was not discharged. In the case on which Mr. Elliott relied, Peries v. Silva,1[(1919) 7 C. W. R. 89.] the Judge indicated that his judgment was founded upon a bare possibility. In this case it is based upon substantial reason, and upon a logical process, which seems to me unassailable.

With regard to testamentary competency, the grounds on which it is usually impeached are two, that is to say, either the existence of delusions, or the fact that the testator's mind was so enfeebled by physical conditions as to be incapable of mental concentration sufficient to enable him to envisage his affairs as a whole, and to take account at once of his obligation to his family and of the effect of his dispositions. It was the latter ground that was alleged in this case. On this point great weight is, no doubt, to be attached to the evidence of Dr. Paul. But such a condition as he describes, though one of progressive deterioration, would necessarily be one of a fluctuating character. A man in this condition may well be worse on one day than another, and Dr. Paul's evidence must be compared with that of other witnesses who had opportunities of observing the mental capacity of the testator at this time.

I may add that I agree with the observations of Shaw J. as to the proper scope of medical evidence in such a

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