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JAYASUNDERA et al. v. PERERA
NLR48V196
1947 Present: Soertsz
A.C.J, and Cannon J.
JAYASUNDERA et al Appellants, and PERERA, Respondent.
34-D. C. Kalutara, 3,037
Will-Probate-Denial by
attesting witness of due attestation-Effect of such denial-Prevention of Frauds
Ordinance (Cap. 57), s. 4-Unsuccessful objection to grant of probate-Liability
of estate for costs.
In an application for probate of a will, the only issue was whether or not the
will was duly witnessed by the five persons whose names appeared in the
document. Two of these attesting witnesses contradicted the attestation clauses
of the will, while two others supported the attestation.
Held, that the Court could grant probate on the evidence of the two .
witnesses who supported the attestation.
Held, further, that where an application for probate is unsuccessfully
opposed by blood relations of the testator the costs of the proceedings may be
directed to be paid out of the estate, if the circumstances merit such an order.
APPEAL
from a Judgment of the District Court,
Kalutara.
F. A. Hayley, K.C (with him N. Nadarajah, K.C., D. W, Fernando and A.
C. Gunaratne) for the objectors appellants.
H. V. Perera, K.C. (with him N. E. Weerasooria, K.C. Ivor Misso and
Vernon Wijetunge) for the petitioner, respondent.
Cur. adv. vult.
February 18, 1947.
CANNON J.-
This litigation concerns the execution of a will by one Andiris Goonetileke of
Talpitiya in 1941. It is a non-notarial testament and therefore required
attestation by five witnesses. In it the testator, a wealthy man, bequeathed ail
his property to his adopted son. Tudor Perera, The application for probate,
which was made by Tudor's first cousin as the surviving executor, was opposed by
the testator's sister and the children and grand-children of another sister and
brother. The District Judge granted probate and it is against that order that
this appeal is brought.
The evidence adduced at the trial and the argument, addressed to us for the
appellants would, I think, have been more relevant, had the dispute been as to
the existence of the will, or undue influence or the mental condition of the
testator, or whether the attesting witnesses had signed in each other's
presence. It is, however, conceded that the testator did himself execute the
will, and that the question of undue influence was not an issue in the Court
below. The testator's mental capacity had been an issue in previous proceedings,
but they ended in favour of the testator, and that decision was upheld by this
Court. The present issue was merely whether or not the will ,was duly witnessed
by the five persons, whose names appear in the document, in accordance with the
Prevention of Frauds Ordinance, Chapter 57, section 4t which requires that-
. " . . it shall be signed at the foot or end thereof by the testator, or by
some other person in his presence and by his direction, and such signature shall
be made or acknowledged by the testator in the presence of a licensed notary
public and two or more witnesses who shall be present at the same time and duly
attest such execution, or if no notary shall be present, then such signature
shall be made or acknowledged by the testator in the presence of five or more
witnesses present at the same time, and such witnesses shall subscribe the will
in the presence of the testator, but no form of attestation shall be necessary.
It was argued in support of the appeal that the evidence was not sufficiently
cogent to enable the District Judge to grant probate. At the trial before the
District Judge three of the attesting witnesses were called by the petitioner
and one, named Vionis perera. by the objectors. Girigoris Fonseka, one of the
three witnesses called by the petitioner.
stated that he did not see the
testator execute the will, while Vionis Perera stated that all five witnesses
were not there at the time. This evidence of Girigoris was in direct
contradiction of an affida
