Gunasekere V. Gunasekere Et Al.,
1939 Present: Wijeyewardene and Nihill JJ.

GUNASEKERE v. GUNASEKERE et al.
139-D. C. Kandy (Testy.), 26.
Last will-Proof of due execution-Presumption that the testator knew and approved of contents-Shifting of burden to objector-Bed-head tickets not a public document-Evidence Ordinance, s. 74 (Cap. 11).

Where the propounder of a last will proves the due execution of the document, a presumption would arise that the testator knew and approved of its contents, unless suspicion a priori attaches to the document by its very nature.
If, after proof of due execution, there is nothing intrinsically unnatural in the document, the burden is shifted to the objector to show that there was undue influence or fraud or that the deceased was not of a sound disposing mind when he made the will.
Held, further, that where the testator is able, while instructions are given to the will, to address himself to the matter and indicate his mind, it would not be fatal to the will that he may not have been able to follow all its provisions when it was read out to him before signature.
Quaere, whether a bed-head ticket is a public document within the meaning of section 74 of the Evidence Ordinance ?
THIS was an appeal from an order of the District Judge of Kandy. The appellant applied for probate to a document purporting to be the last will of Don Adirian Appuhamy. The appellant was named executor in the document, which devised the whole of the estate to him and his brother. The objector-respondent who was the brother of the deceased opposed the grant of probate. The learned District Judge refused probate.

H. V. Perera, K.C. (with him L. A. Rajapakse, Dudley Senanayake and C. C. Rasa-Ratnam), for petitioner, appellant.-The general rule is that the onus-probandi in every case is upon the party propounding the will, and he must satisfy the conscience of the Court that the instrument so far propounded is the last will of a free and capable testator. (Barry v. Butlin [1 2 Moo. P. C. 480.]; Fulton v. Andrews [2 L. R. 7 ; H. L. 448.].) The will is, on the face of it, a rational disposition of the small estate of the deceased, substantially amongst his two favourite nephews, as otherwise this small estate may have had to be divided amongst so many nephews.
Therefore if a will is natural on the face of it, it is presumed, in the absence of evidence to the contrary, to be valid. (Foot v. Stanton [3 1 Dick 268.].)
The notary received clear instructions when he was first called in, and in pursuance of the instructions the notary prepared the will, brought it and read it over to the deceased, who understood it as the one in pursuance of his instructions. This is borne out by the evidence. A thumb-impression had to be taken owing to the trembling of the hand of the deceased. Parker v. Felgate [4 8 L. R. P. D. 171] and Perera v. Perera [5 (1901) A. C. 356.] (a judgment of the Privy Council) are authorities for the proposition that it is not essential that the testator should at the time of his signing the will be mentally competent, if the instructions were given while he was mentally com­petent and the will is prepared in accordance with them, and if, at the time he signs the will, he understands that it is the one for which he gave instructions. Then the will is valid, although, at the time of signing it, he may not be able to understand the provisions in detail. (Jar-man on Wills, p. 54.)
Further, Voet (28.1.36) says, that not only healthy but also those situated in the struggle of death can rightly make a will, provided that they are still sound in mind.
All the circumstances in the case point to the disposition of the property by the deceased as a rational act and that he had testamentary capacity in the way that the law has always upheld.
N. Nadarajah (with him E. B. Wikremanayake), for objector-respondent.-The question is essentially a question of fact and the finding of the trial Judge should not be disturbed. See Fradd v. Brown & Coy. Ltd [6 20 N. L. R. 282.]. and Powell & Wife v. Streatham Manor Nursing Home [7 L. R. (1935) A. C. 243.]. The deceased was a very old man. The medical evidence is that for some days prior to the execution of the will the testator's brain capacity was impaired and he talked nonsense. This is corroborated by the bed-head tickets which are
admissible as public documents. It is clear from the evidence that the deceased talked nonsense even at the execution of the will. His reference to the Bodhisath clearly shows that his mind was wandering. The presence of the witnesses to the will in hospital at that time is suspicious. The evidence of the notary has not been accepted by the Judge. The burden was on the propounders to satisfy the Court that the testator, when he executed the will, was aware of what he was doing. The Court has not been satisfied and it cannot be said in the Court of Appeal that it should have been satisfied. See Rajasuriar v. Rajasuriar [1 39 N.L.R. 494.] Mitchell v. Thomas [2 6 Moores' P.C. 137.].

N. E. Weerasooria, K.C. (with him H. A. Wijemanne), for Syrus Gunasekere, respondent to the appeal.
Cur. adv. vult.
November 16, 1939.