Parker v Felgate

The judgment of their Lordships was delivered by

Lorp MacnaGHTen. This appeal is ex parte. There are
two questions in the case, one of law and one of fact: (1.) Was
the document propounded as the will of Abraham Perera duly
executed according to the law of Ceylon? (2.) Was the alleged
testator of sound and disposing mind when he set his hand to
that document ?

Ordinance No. 7 of 1840, s. 8, enacts that no will shall be
valid unless the signature of the testator '' 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

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March 23.

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i
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at thesame time and duly attest such execution, or, if no notary
shall be present, then such signature shall be made or acknow-
ledged 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."

Perera's will was signed with a cross by the testator in the
presence of five witnesses present at the same time, who duly
subscribed the will in the presence of the testator. But there
were other persons present in the room when the will was
signed. Among them was a licensed notary public, one
Gooneratne, a near neighbour and intimate friend of the
testator, who had prepared the will, but who declined to attest
it for fear of displeasing a wealthy client of his, one Simon
Fernando. Fernando, it seems, had learnt that the will would
contain a devise of some land in Colombo to which he laid
claim, and had requested Gooneratne not to attest it, saying
that he would " spend hundreds of pounds"' in impeaching it.
In consequence of his threat the notary went to the testator
and explained his position, and advised that the will should be
executed as a non-notarial will in the presence of five witnesses.
To this the testator consented, on the notary's assurance that a
will so executed would be valid.

No objection was taken in the Court of first instance on
the ground of Gooneratne's presence; but in the Court of
Appeal both the learned judges who heard the appeal, Laurie J.
and Browne A.J., held that the will was invalid on that
ground.

The case was then brought before the Supreme Court in its
collective capacity on review preparatory to an appeal to Her
late Majesty. The Supreme Court reversed the judgment
under appeal, and then proceeded to determine the case upon
the merits. The Court, consisting of Bonser C.J., Withers
and Laurie JJ., Laurie J. dissenting, held that the testator
was of sound and disposing mind, and restored the order of the
primary judge.

Their Lordships entirely agree with the Chief Justice and
Withers J. in holding that the words of the Ordinance, "if

AAG; AND PRIVY COUNCIL.

no notary shall be present," mean, if no notary shall be present
acting in his notarial capacity. Mr. Mayne in his able argu-
ment did not contend that the mere bodily presence of a notary
would vitiate the execution of a will attested by five witnesses.
He admitted that if the notary were drunk or asleep or mentally
incapacitated he would not be present within the meaning of
the Ordinance. But he contended that in this case the notary
was not only present, but acting in a notarial capacity up to
the very last moment, when, as he argued, it was too late for
him to stand aside or retire from his position. Their Lord-
ships have some difficulty in following this argument. When
the view of Laurie J. and Browne A.J., that the merely bodily
presence of a notary who does not attest the will vitiates the
attestation of the five witnesses required by law, is abandoned,
it is difficult to see any sound distinction between the case of a
notary who is present but incapable of performing his notarial
duties, and the case of a notary who is present and refuses for
some reason or other to perform those duties. Nor is it easy
to see what difference it makes whether the notary who is
present refuses to perform his notarial duties at the last
moment, or has refused at some earlier time to act on the
occasion in his notarial capacity.

Then comes the question, Was the testator of sound and
disposing mind when he signed the instrument now in
question ?

The alleged will was executed in the early morning of June 5,
1896, between 1 and 2 o'clock a.m. Of the persons present
on that occasion no less than five gave evidence at the trial in
support of the will. They heard what the testator said. They
saw what he did. If their evidence stood alone, there could
be no doubt that the testator was then perfectly competent.
They were Gooneratne, the notary, Rodrigo, his clerk, and three
of the attesting witnesses. The other two attesting witnesses
had deposed to the like effect on the application for probate,
but they were not called at the trial. There is, however, no
suggestion that they were improperly kept back. Three other
persons were called in support of the will—William D'Abrew,
Dr. Fernando, M.D. of London University, Assistant Colonial

D.

PERERA.

HOUSE OF LORDS ' [i901]

Surgeon, and de Silva, a native doctor. The evidence of the
native doctor is of little or no value. D'Abrew, who was a
broker to an European firm of merchants, apparently a man of
property and a great friend of the testator as well as of Simon
Fernando, saw the testator on business on June 5. He says
that the testator then conversed with him '' very freely for
about ten minutes," and '' talked very sensibly."" Dr. Fernando
was not called in until June 8. Perera was then in a state of
coma, which the doctor was told had set in that morning.
However, 'after a bit'? Dr. Fernando was able to rouse him
and obtain answers to a few simple questions. '' He answered
in a few words," says Dr. Fernando. ''He seemed to under-
stand my questions."

In opposition to the will three witnesses were called—the
testator's widow, Dr. Fonseka, a young medical practitioner
who was in attendance on the testator from May 25 and saw
him latterly twice a day, and Dr. Rockwood, general physician
of the Colombo Hospital and a gentleman of acknowledged
eminence in his profession. The evidence of the widow may
be disregarded. She was not believed by the judge at the trial,
or by the majority of the Court of Appeal on review. Her
story is obviously unworthy of credit. It is inconsistent with
her own conduct when the application for probate was made,
and it is contradicted on all material points by a body of
evidence which it is impossible to reject. Dr. Fonseka and
Dr. Rockwood, however, whose evidence is beyond suspicion,
give it as their opinion that from and after June 2 Perera
was not in a fit condition to execute a will. Dr. Fonseka
undoubtedly had ample opportunity of observing the testator's
condition during his last illness, but naturally he would be
much influenced by Dr. Rockwood's opinion. Dr. Rockwood
only saw Perera once, and that was on June 2. He saw him
then under great disadvantages. It was the day after Perera
had had a long and exhausting interview with Gooneratne,
sitting up in his bed for two or three hours and giving minute
instructions for the disposition of his property. Perera was
also suffering on that day from suppression of urine, which
was the immediate cause of Dr. Rockwood being sent for. It

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is not by any means improbable that these two circumstances
combined may have led Dr. Rockwood to take a more unfavour-
able view of his patient's condition than the event seems to
have justified. Certainly Perera had more vitality left in him
than Dr. Rockwood gave him credit for, and at least on two
occasions after the will was signed he shewed more intelligence
than Dr. Rockwood thought possible from his appearance on
June 2.

The question, therefore, comes to this: Having regard to
all the circumstances of the case, ought the diagnosis of
Dr. Fonseka and Dr. Rockwood, who were not present when
the will was executed, to outweigh and prevail over the testi-
mony of eye-witnesses based upon the evidence of their own
senses ?

Instructions for the will were given on June 1. Perera sent
for Gooneratne on that day. Gooneratne went in the evening.
Perera told him -he wanted to make his will. He called for
all his deeds, and, with his deeds before him, gave very full
directions for the disposal of his property. The notary was
between two and three hours taking his instructions. He took
them down in English, as he says his practice was. The will
was to be in Sinhalese. On June 2 Gooneratne received a
note purporting to come from Perera, though not signed by
him, containing some further instructions. Gooneratne took
the note to the testator who, told him to adopt it. Then the
will was drafted in Sinhalese, and afterwards copied by
Gooneratne's clerk for execution.

It is not denied that Perera was in a sufficiently rational
state on June 1 to make a will. Dr. Fonseka admits that.
Gooneratne, according to the statement of the judge of first
instance, was ''a very respectable man," and had practised as
a notary in English and Sinhalese for twenty years. There
does not seem to be the slightest reason for doubting the
accuracy of his statement as to the instructions given to him.
The only reason suggested by Laurie J. for disbelieving
Gooneratne's statement seems to be founded on the elaborate
character of the testator's instructions as taken down by
Gooneratne. They seem to have been taken down in the form

3

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360 HOUSE OF LORDS . [1901]
IOs of a will,and not as notes ormemoranda. The original instruc-
1901 tions and the letter of June 2 were produced at the trial, and ti

Perera the primary judge and the two judges who formed the majority
Prensa, Of the Supreme Court on review found nothing suspicious in
ig them. On the materials before this Board their Lordships
agree with the opinion of those learned judges. Even if their
Lordships had felt any hesitation in accepting their view upon
this part of the case, they would not be in a position to differ
because either by inadvertence or design the original instructions
for the will, as well as the letter of June 2, have been omitted

from the record.

The will prepared by Gooneratne from the instructions
which were given to him seems to be a fair and just disposition
of the testator's property. Moreover, there was no concealment
about the preparation of the will. So little secrecy was
observed that Simon Fernando, the principal opponent to the
will, came to hear of its contents, so far as he was interested in
them, on the very day after the instructions were given. One
other remark may be made which bears upon the testator's
apparent condition. Gooneratne, who saw Perera, frequently
during his last illness, does not seem to have thought that
there was any immediate necessity for hurrying on the com-
pletion of the transaction. The instructions were given on
June 1, but it was not until late in the evening of June 4 that
the will was brought to the testator for execution.

It is not necessary to go through the evidence of the witnesses
who were present at the execution of the will, because it is
admitted that if their account of the transaction is to be
accepted without qualification there can be no question about
the testator's mental capacity. i

The will, it seems, was read over to the testator clause by

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EERIE Re

SER See

clause by Rodrigo, Gooneratne's clerk. Both Gooneratne and
the clerk say that Perera seemed then to be of sound mind. '
After the will was read over and a clause of attestation had
been added, the attesting witnesses were called in and the will i
was executed. One of the attesting witnesses was a brother of
Simon Fernando, and on good terms with him. In conse- 4
quence of his position he declined to join the other attesting

A.C. AND PRIVY COUNCIL.

witnesses in the affidavit for probate. He was, however, called
as a witness at the trial, and seems to have given his evidence
very "fairly. In cross-examination he says he was told that
Perera wanted him. He went up to Perera's bedside and
asked him why he wanted him. Perera said there was a will
of himself and his wife, and he wanted the witness to sign.
He said there was something still to write in the will, and he
asked the witness to go and sit outside. When the witnesses
were called in again the testator was seated at a table near the
bed, and he heard the deceased say that he had not signed his
name for some time and he felt nervous. The other attesting
witnesses gave evidence to the same effect, and they added that
the notary explained that it was not necessary for the testator
to sign his name, and that it would be sufficient if he put his
mark to the will; and so Perera signed every sheet with a
Cross. "

The learned counsel for the appellant did not contend that
the witnesses in support of the will were acting in conspiracy
or saying what they knew to be false. He said that the will
may have been, and probably was, read over to the testator, but
that there was nothing to shew that he followed the reading of
the will or understood its meaning. He adopted the argument
of Laurie J., to the effect that it was not enough to prove that
a testator was of sound mind when he gave instructions for his
will, and that the instrument drawn in pursuance of those
instructions was signed by him as his will, if it is not shewn
that he was capable of understanding its provisions at the time
of signature. That, however, is not the law. In Parker v.
Felgate (1) Sir James Hannen lays down the law thus: "If a
person has given instructions to a solicitor to make a will, and
the solicitor prepares it in accordance with those instructions,
all that is necessary to make it a good will, if executed by the
testator, is that he should be able to think thus far: 'I gave
my solicitor instructions to prepare a will making a certain
disposition of my property; I have no doubt that he has given
effect to my intention, and I accept the document which is put
before me as carrying it out.'"'

(1) 8 P.D. 171.

361

J.C.
1901

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PERERA
v.
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dn (Ca
1900

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Dee. 5, 6, 12.
1901

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Feb. 8;
March 2.

HOUSE OF LORDS ' [1901]

Their Lordships think that the ruling of Sir James Hannen
is good law and good sense. They could not, therefore, hold the
will invalid even if they were persuaded that Perera was unable
to follow all the provisions of his will when it was read over to
him by Gooneratne's clerk. But they desire to add that they
see no reason to doubt or qualify the testimony of the witnesses
who agreed in saying that the testator was of sound mind when
the will was executed.

Their Lordships will, therefore, humbly advise His Majesty
that the appeal must be dismissed.