1946 Present : Jayetileke and Canekeratne JJ.

FERNANDO, Appellant, and PEIRIS Respondent

88- D. C. ( Inty.) Chilaw, 2,324.

Will ? Undue influence
   
Where a testator, when he was seriously ill, executed a will devising and bequeathing to his wife all his property and the validity of  the will  was challenged on the ground of undue influence the only evidence in support of the plea being that at the time of the execution of the will  the wife was present and was weeping-
   
Held, that the court was not entitled to presume that the wife exercised under influence on the testator.

APPEAL from a judgment of the District Judge of Chilaw.

               L. A. Rajapakse, K. C. (with him C. S. Barr Kumarakulasinghe and  T. B. Dissanayaka), for the petitioner, appellant.-

The doctrine of influence is taken over from the English Law. We have adopted it. It is a doctrine applicable to transactions inter Vivos, e. g. ,conveyances, deed of gifts, &c.

This is a case of a Last Will.

No such doctrine is applicable in the case of Last Wills. The existence of a fiduciary relationship or active  confidence does not create any presumption of undue influence. It is on the ground go fraud of coercion only that a last will can be avoided- Peiris v. Peiris 1; Gray v. Kretser 2;  Perera v. Tissera 3; Boyse v. Rossborough 4; Hailsham pp.230- 231. Ordinary influence, importunity or persuasion is not undue influence in  The case of Last Wills- Croos vi. Croos5; Spencer Bower on Actionable Non- Disclosure p.414, sec. 447.
   
The burden is on the party alleging the coercion- Brampy Nona v. Vitanage 6; Gunasekera v: Gunasekera 7. There is no doctrine of undue Influence in the Roman- Dutch Law; it deals with only unsoundness of  Mind ? Soysa v.Soysa.8

N. Nadarajah , K.  C. (with him S.W. Jayasuriya), for the first Respondent.-

There are circumstances in this case which arouse suspicion as in the Case of Andrado v. Silva 9.

The devisee has not given evidence to clear these suspicions. She  has not discharged the onus. The testator was in a physically helpless condition and may have agreed to execute the Last Will or otherwise he  may have been left to die. His mental condition may have been impaired too.

Foot notes

1   (1906) 9 N.L.R. 14.                                                                                                         5 (1919) 21 N.L.R. 208.
2    (1916) 2 C. W. R. 190.                                                                                                    6 (1942) 23 C.L.W. 110.
3    (1933) 35 N.L.R. 257.                                                                                                                                        7 (1939) 41 N.L.R.  351.
4   (1856) 6 II.L.C.2.                                                                                                             8 (1916) 19 N.L.R. 314.
                                                                                        9 (1920) 22 N.L.R.5.

April 11, 1946. JAYETILEKE J.-

By his will dated June 28, 1944, the testator, Simon Peiris, devised and Bequeathed to his wife, the appellant, all his immovable and movable  property of the value of Rs. 8,000 to do as she pleased with it. At the  time of the execution of the will the testator was seriously ill having been gored by a bull but was in full possession of his mental faculties. He was removed form the Chilaw hospital as the doctor pronounced his case to be hopeless and, on the way, he was taken to the house of his proctor, who took instructions from him, prepared the will, and obtained his thumb impression to it. The validity of the will was challenged by the respondents, who are the brother and sister of the testator, on the ground of undue influence. The trial Judge upheld the plea and declared the will to be invalid. The appeal is against that order. The only evidence in support of the plea was that a