Battan Singh v Amirchand

The judgment of their Lordships was delivered by
Lorp NorMAND. This is an appeal froma judgment and decree
of the Supreme Court of Fiji in its Probate Jurisdiction which
decreed probate of a will dated April 3, 1944, of an Indian
named Jaimal, who died on the day after the execution of the
will. The issue to be decided is whether that will, which
was in favour of the respondents Amirchand and Mehar as the
sole beneficiaries, is valid or whether a will dated February 25,
1944, in favour of the testator's nephews ought to be admitted
to probate.

The testator was a Sikh who had come to Fiji about thirty-

(eo, Dalat. (2) [1946] W. N. 118.

A. C. AND PRIVY COUNCIL.

eight years before his death. He had made a considerable
fortune as a moneylender and his estate amounts to more than
20,0001. He was illiterate and ill-educated but he could write
his name in English. Amirchand and Mehar were in no way
related to him, but they were both indebted to him at his
death, Amirchand for about 400/. and Mehar for 6,500. The
testator had no wife or child, but he had had a brother who
lived in India and who died about 1940 or 1941. This brother
had four sons, the beneficiaries under a will of November 26,
1941, which was confirmed by a codicil of July 1, 1942, and
they and their father had been the beneficiaries under a still
earlier will of January 21, 1938. It is proved that the testator
had been on affectionate terms with his brother, to whom he
paid a prolonged visit in India in 1938 to 1940, and that he
was also on good terms with his nephews, to two of whom he
had at one time given a power of attorney to enable them to
deal on his behalf with certain property belonging to him in
India. He employed a firm of solicitors in Fiji, Messrs. Ellis
Munro Warren & Leys, to attend to his affairs, and this firm
had been instructed by him to draw up the testamentary
writings above referred to except the final and disputed writing
of April 3, 1944. Jaimal became gravely ill with pulmonary
tuberculosis, and in the early part of 1944 he was in the Suva
Government hospital. He left that hospital in February and
went to the Sikh temple at Samabula. It was while he was
at this temple that he executed the will of February 25, 1944,
appointing the President, Secretary and Treasurer of the Sikh
Gurdwara Committee at Samabula, Suva, to be his executors
and trustees and leaving all his property to his four nephews
equally. Amirchand was present at the making of this will.
Shortly afterwards, as Jaimal wanted to enter the Lautoka
hospital at Ba, Amirchand brought him to a stable near
Mehar's house at Ba in which he stayed for a few days before
entering the hospital. He removed from there to the Sikh
Gurdwara at Lautoka, and was next taken to a house hired
by Mehar at Yalaleva, where he arrived about two or three
weeks before his death. On Friday, March 31, he received
a visit from a young man named Hari Charan, who as a boy
about twelve years earlier had had some acquaintanceship
with him. Hari Charan gave evidence that this was the third
. visit that he had paid to Jaimal in as many weeks and that
it was a casual visit. Jaimal, however, on this occasion, is
said to have lost no time in taking Hari Charan into his

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SINGH

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AMIRCHAND,

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AMIRCHAND.

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confidence about his testamentary intentions. According to:
Hari Charan, whose evidence the learned Chief Justice appears
to have accepted only because it was uncontradicted, Jaimal
told him that he wished to make a will in favour of Mehar
and Amirchand because they had looked after him so well,
and he asked Hari Charan to get a lawyer to draw up a will
for him. Hari Charan asked whether he had ever made
a will before and Jaimal said he had made two, but that he
was not worrying about them and that be wished to make
his last will in favour of these men. He also said that he had
neither wife nor children but that he had relatives "' regarded
"as brothers'' in India to whom' he had given sufficient.
property in the way of money and assets. It does not appear
from Hari Charan's examination in chief that Jaimal asked
him to do more than to get a lawyer for him, but in his cross-
examination he says that Jaimal asked him to get a will
drawn up in favour of Amirchand and Mehar. Hari Charan
went on the same day to Mr. Davidson, a lawyer in Fiji, and
gave him instructions which enabled Mr. Davidson to draw
up the will. Amirchand accompanied Hari Charan to
Mr. Davidson's office, but remained outside, and Mr. Davidson
is said to have had no direct communication with him that

day. The willis in the following terms :

"This is the last will and testament of me Jaimal (Father's
"name Nehala) formerly of Suva but now of Yala Levu in the
"District of Ba in the Colony of Fiji " Financier' I revoke all
"former wills and testamentary dispositions made by me and
"declare this to be my last and only will after payment of all
"my just debts funeral testamentary and medical expenses
""T give devise and bequeath unto my dear friends Amirchand
'""(Father's name Utham) and Mehar (Father's name Saudi)
"both of Yala Levu aforesaid Farmers as tenants in common
"in equal shares absolutely all my estate and property. what-
"soever and wheresoever situate and whether in possession
"reversion or remainder and I appoint them the said
"" Amirchand and Mehar to be the trustees and executors of this
"my said will. I declare that I have no next of kin nor
"blood relations in Fiji or elsewhere who are known to me
"T desire to express by this my said will my deep gratitude
"to the said Amirchand and Mehar for their devotion to me

" during my present illness."'

_ Mr. Davidson deponed that the expressions of affection for
and gratitude to Amirchand and Mehar were inserted by him.

é

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of his own volition and without instructions from Hari Charan,
and that for the statement that the testator had no next of
kin nor blood relations in Fiji or elsewhere his only warrant
was Hari Charan's statement that Jaimal had no wife or
children and that he inferred the rest. Mr. Davidson typed
out this draft will either on the afternoon of Friday, March 31,
or the next morning. According to their evidence, Amirchand
and Hari Charan had expected Mr. Davidson to deal with the
will as a matter of urgency, and as no progress had been made
by Monday morning they went in a taxi cab to his office and
fetched him to see Jaimal. Mr. Davidson said that he put
questions to Jaimal and read over the will in Hindi and then
in English, which was again translated into Hindi by his
clerk : that Jaimal listened carefully and at the end gave his
assent to the will and said he wanted nothing in it changed :
that among other questions put to Jaimal before he gave his
final assent, Mr. Davidson asked who Amirchand and Mehar
were, and Jaimal put a hand on each of these two men and
spoke with affection of them and said he wanted to give them
all his property. In answer to other questions he said they
were the only persons who had helped him in his illness, that
he had no relations in Fiji and that he did not know if he had
any relations elsewhere than in Fiji: Mr. Davidson also said

he was told by Jaimal that he had made a previous will, but .

Mr. Davidson asked no questions about its contents. Jaimal
tried to sign the will, but his hand was too shaky. He then
tried to affix his thumb mark, but he was too weak to do so
unaided and Mr. Davidson had to help him. Mr. Davidson
considered that Jaimal was a very sick man though his mind
was perfectly logical. He also formed the opinion that Jaimal
was not receiving adequate medical treatment, and he said
so to Amirchand. Amirchand and Mehar were present in the
room with Mr. Davidson and Jaimal during the whole inter-
view between them, and it is significant that Amirchand, who
must have heard the questions and answers about Jaimal's
relations and who must also have known from being present
when the earlier will was made that Jaimal had nephews in
India, did not intervene to correct Jaimal's memory.
Amirchand; in his own evidence, which was disbelieved by the
learned Chief Justice, falsely depones that he did intervene
to say that Jaimal had nephews in India. It was no doubt
in consequence of Mr. Davidson's advice that Amirchand took
Jaimal to a hospital in the afternoon. Jaimal was by that

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168 . HOUSE OF LORDS [1948]

se G, time unable to speak. The doctor found that he was in a very
weak condition, but gave him some medicine and told

fies Amirchand to take him home. Jaimal died next day.
ce The objections to the validity of the will of April 3, 1944,

v. urged in the court below were :—(1.) that it was not duly
AMIRCHAND. executed according to the provisions of the Wills Act, 1837 ;
(2.) that Jaimal was not, when he executed it, of sound mind,
memory or understanding ; (3.) that the execution was obtained
by the undue influence of Amirchand and Mehar ; and (4.) that
Jaimal did not know or approve the contents. The learned
Chief Justice summarily rejected the first, third and fourth of
these objections. In the appeal to their Lordships' Board
nothing was said in support of the first objection, which was
merely a technical objection to the authentication of the will.
Nor was it maintained that Jaimal did not know the contents
of the will in the sense that he did not understand the meaning
and effect of the words read to him. It was no longer denied
that he gave his assent. The charge of undue influence was
not abandoned at the hearing of this appeal, but it was not
pressed because, as counsel for the appellant explained, the
evidence on which he relied for proof of undue influence was
in part the evidence relied on for proof that Jaimal was not of
sound mind, memory or understanding, and if it was not
. sufficient to establish that ground of objection it would not
suffice to prove the undue influence. The issue of undue
influence is in this case purely one of fact and, as the learned
Chief Justice has found in favour of the respondents, their
Lordships would not be disposed to reverse his finding though
the evidence gives reason for the gravest suspicion.

The issue whether Jaimal was of sound mind, memory and
understanding was decided by the learned Chief Justice on
what seems to their Lordships a misunderstanding of Parker v.
Felgate (1). That case decided that if a testator has given
instructions to a solicitor at a time when he was able to
appreciate what he was doing in all its relevant bearings, and
if the solicitor prepares the will in accordance with these
instructions, the will will stand good, though at the time of
execution the testator is capable only of understanding that he
is executing the will which he has instructed, but is no longer
capable of understanding the instructions themselves or the
clauses in the will which give effect to them. The learned
Chief Justice applied this case by holding that Jaimal gave

; (1) 8 P. D. 171.

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instructions to Hari Charan at a time when his memory was
not proved to be defective; that these instructions were
properly embodied in the draft will by Mr. Davidson ; that
Jaimal was able to understand the will and to give his assent
to it on the day of execution, and therefore that Jaimal was
of sound disposing mind at that date.

The principle illustrated in Parker v. Felgate (x) and in the
similar case of Perera v. Perera (2) has, in their Lordships'
opinion, no application to the present case. Apart from the
single answer already noticed in cross-examination the tenor
of Hari Charan's evidence is that Jaimal merely asked him to
obtain a lawyer to draw his will. The words spoken to by
Hari Charan in the examination in chief are " will you procure
"a lawyer for me to draw up the will," and in another place
he was asked " and he asked you to get a lawyer for him and
"you promised to do so?" and answered "' That's right."'
Their Lordships would be reluctant on this evidence to take
it as proved that Jaimal asked Hari Charan to give specific
instructions to a solicitor on his behalf. Nor is it apparent
from Hari Charan's account of the conversation that Jaimal
intended to leave the whole of his property, wherever situated,
to Amirchand and Mehar to the exclusion of his relations, and
Hari Charan does not speak of any express direction that the
previous will should be destroyed or cancelled. The learned
Chief Justice has made no specific finding but has tacitly
assumed that Hari Charan received specific instructions which
he was to transmit to a solicitor to draw a will cancelling all
previous wills and leaving all that Jaimal possessed to
Amirchand and Mehar equally between them, Their Lordships
are further of opinion that the principle enunciated in Parker v.
Felgate (1) should be applied with the greatest caution and
reserve when the testator does not himself give instructions
to the solicitor who draws the will, but to a lay intermediary
who repeats them to the solicitor. -The opportunities for error
in transmission and of misunderstanding and of deception in
such a situation are obvious, and the court ought to be strictly
satisfied that there is no ground for suspicion, and that the
instructions given to the intermediary were unambiguous and
clearly understood, faithfully reported by him and rightly
apprehended by the solicitor, before nuaking any presumption
in favour of validity.

The learned Chief Justice was accordingly not entitled to

(2)'o Bs rrr 7e, (2) [1901] A. C. 354.

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conclude, as he did; that it was unnecessary to determine what
was the condition of Jaimal's memory on the day when the
will was executed. That was indeed the only day on which
Jaimal was seen by Mr. Davidson, and it is plain from
Mr. Davidson's evidence that though he had drafted a will
on information supplied to him by Hari Charan with, as, he.
supposed, the authority of Jaimal, he was not satisfied until
he had obtained instructions from Jaimal himself. There
were, moreover, in the draft will, as has been seen, statements:
which Mr. Davidson had inserted of his own volition and he
said he was at pains to put these statements to Jaimal. One;
of these was the statement that Jaimal had no next of kin,
nor blood relations in Fiji or elsewhere. It was on this
statement that the appellants chiefly founded the argument
that the testator was not of sound mind, memory and under-
standing when he executed the will. The respondents'
counsel maintained that the finding that Jaimal knew and
understood the contents of the will was a conclusive answer
to this argument. But that is a misunderstanding of the
judgment of the learned Chief Justice, who expressly says
that he found it unnecessary to inquire into the state, of
jJaimal's memory on the day when the will was executed.
A testator may have a clear apprehension of the meaning of
a draft will submitted to him and may approve of it, and. yet
if he was at the time through infirmity or disease so deficient
in memory that he was oblivious of the claims of his relations,
and if that forgetfulness was an inducing cause of his choosing
strangers to be his legatees, the will is invalid. In Banks v.
Goodfellow (x), Cockburn C.J., delivering the judgment of the
court, said, (2) '' it is essential to the exercise of such a power':
(scilicet, testamentary power) "' that a testator shall under-
"stand the nature of the act and its effects ; shall understand
" the extent of the property of which he is disposing ; shall be
"able to comprehend and appreciate the claims to which he
"ought to give effect ; and, with a view to the latter object,
"that no disorder of the mind shall poison his affections,
"pervert his sense of right, or prevent the exercise of his.
" natural faculties—that no insane delusion shall influence his
"will in disposing of his property and bring about.a disposal.
"of it which, if the mind had been sound, would not have
"been made." In Harwood v. Baker (3), the same principle

(1) L. R. 5 Q. B. 549. (3) 3 Moo. P. C. 282. ©
(2) Ibid. 565.

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had been stated, and it was observed that when a testator:

suffering from a debilitating disease had made a will excluding
from his bounty his near relations in favour of his wife, it was
necessary to determine whether he was at the time capable of

recollecting who those relations were, of understanding their
respective claims on his regard and bounty, and of deliberately:

forming an intelligent purpose of excluding them from any

share of his property. In Sivewrightv. Sivewright's Trustees (1),

Lord Haldane, with whom Lord Dunedin and Lord Buckmaster

concurred, said, 'The question whether there is such un-.
"soundness of mind as renders it impossible in law to make,
"a testamentary disposition is one of degree. A testator'

"must be able to exercise a rational appreciation of what he
"is doing. He must understand the nature of his act... .

"Tf his act is the outcome of a delusion so irrational that it.

¢

"is not to be taken as that of one having appreciated what he
"was doing sufficiently to make his action in the particular
"case that of a mind sane upon the question, the will cannot

"stand. But, in that case, if the testator is not generally:

"insane, the will must be shown to have been the outcome

""of the special delusion "' (2).. There is, of course, in the

present case no question of insanity in the general or in the
popular sense. But here the testator, who is proved to have

been in the last stages of consumption and to have. been

reduced by disease to extreme weakness, has declared in his
will that he had no relations anywhere, though if he had been
of sound mind in the sense of the cases cited he must have
known that the statement was untrue.

The testator, immediately before giving assent to the terms
of the will, had said that he did not know whether he had
relations elsewhere than in Fiji. This, however, does not
better the case, but merely provides additional evidence of his

weakness and vacillation of memory about his relations.

There is evidence that at an earlier stage of his illness the
testator had at one. time remembered these nephews, in whose
favour he had made a will as recently as in February, 1944,

and had been under the mistaken belief that he had made'

by gift adequate provision for them. At other times he
appears, according to some of the evidence, to have remembered
that they took benefits under the wills. he had made. The
evidence as a whole shows that, though the Chief Justice

(1) 1920 S. (eh (H. L.) 63. . (2) Ibid. 64.

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may or may not have been warranted in saying that there
was no good ground for inferring that Jaimal's memory was
defective on March 31, there was a rapid degradation of his
memory of his nephews till at last he reached the stage, when
he executed his will, of denying their existence. It is relevant
to note that he failed to employ the solicitor who had acted
for him on previous occasions or even to ask him to send the
previous wills or copies of them, for these are precautions
which a testator of sound mind who deliberately intended to
alter his will and to disinherit his near relations would naturally
take. The result was that he obtained the services of a solicitor
unacquainted with his family affairs and unable to judge
whether he had the capacity to make a will with due regard for
the claims of his nephews for whom he had till the closing
days of his life always felt a warm affection. The opinion of
Mr. Davidson and some other witnesses that Jaimal's mind was
clear and logical and sound, though it might have had some
value if the question had been one of his general sanity, is of
no value in the present case where the question is whether
there was a particular defect of memory caused by the
weakness of disease. Witnesses were adduced to prove that
the testator had, a week or so before his death, expressed to
them his intention of leaving his property to Amirchand and
Mehar. The evidence is of little relevance to the issue on
which the appeal must turn. The learned Chief Justice does
not mention this evidence, and their Lordships do not doubt
that he had the fullest justification for ignoring it, and since
it was pressed on their attention their Lordships think it
proper to say that, after considering it, they deem it unworthy
of credit and that its only effect is to deepen the suspicion
which surrounds the will.

Their Lordships are satisfied that the proper conclusion,
disregarding all questions of onus, is that the will is the product
of a man so enfeebled by disease as to be without sound
mind or memory at the time of execution, and that the dis-
position of his property under it was the outcome of the
delusion touching his nephews' existence. The will is therefore
invalid. Their Lordships will humbly advise His Majesty
that the appeal should be allowed, and that judgment should
be entered against the will of April 3, and that probate of the
will of February 25, 1944, should be decreed in solemn form,
and that the order for costs in the court below should be set
aside, except so far as it applies to the executors of the will

A. C. AND PRIVY COUNCIL. ; 173

dated February 25, 1944. The respondents will pay the J..€.
appellants' costs in the appeal.

1947