CIVIL

Doubting a Will and onus probandi

It is well-established that in a case in which a will is prepared under circumstances which raise the suspicion of the court that it does not express the mind of the testator it is for those who propound the will to remove that suspicion. What are suspicious circumstances must be judged in the facts and circumstances of each particular case. If, however, the propounder takes a prominent part in the execution of the will which confers substantial benefits on him that itself is a suspicious circumstance attending the execution of the will and in appreciating the evidence in such a case, the court should proceed in a vigilant and cautious manner. It is observed in Williams on “Executors and Administrators”, Vol. I, 13th Ed., p. 92 :

“Although the rule of Roman Law that ‘Qui se scripsit haeredem’ could take no benefit under a will does not prevail in the law of England, yet, where the persons who prepares the instrument, or conducts its execution, is himself benefited by its dispositions, that is a circumstance which ought generally to excite the suspicion of the court, and calls on it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce, unless the suspicion is removed, and it is judicially satisfied that the paper does express the true will of the deceased.”

According to the decision in Fulton v. Andrew (1875) L.R. 7 H.L. 448, “those who take a benefit under a will, and have been instrumental in preparing or obtaining it, have thrown upon them the onus of showing the righteousness of the transaction”. “There is however no unyielding rule of law (especially where the ingredient of fraud enters into the case) that, when it has been proved that a testator, competent in mind, has had a will read over to him, and has thereupon executed it, all further enquiry is shut out”. In this case, the Lord Chancellor, Lord Cairns, has cited with approval the well-known observations of Baron Parke in the case of Barry v. Butlin (1838) 2 Moo. P.C. 480. The two rules of law set out by Baron Parke are :

“first that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator”; “the second is, that, if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court and calls upon it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.” In Sarat Kumari Bibi v. Sakhi Chand & Ors., 59 I.A. 62. the Judicial Committee made it clear that “the principle which requires the propounder to remove suspicions from the mind of the Court is not confined only to cases where the propounder takes part in the execution of the will and receives benefit under it. There may be other suspicious circumstances attending on the execution of the will and even in such cases it is the duty of the propounder to remove all clouds and satisfy the conscience of the court that the instrument propounded is the last will of testator.”

This view is supported by the following observations made by Lindley and Davey, L. JJ., in Tyrrell v. Painton (1894) P. 151 :

“The rule in Barry v. Butlin 2 Moo. P.C. 480; Fulton v. Andrew (1875) L.R. 7 H.L. 448; and Brown v. Fisher (1890) 63 L.T. 465 is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will.” (Lindley, L.J.).

“It must not be supposed the principle in Barry v. Butlin 2 Moo. P.C. 480 is confined to cases where the person who prepares the will is the person who takes the benefit under it – that is one state of things which raises a suspicion; but the principle is that wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator the Court ought not to pronounce in favour of it unless that suspicion is removed.” (Davey, L.J.).

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