Last stand against last will

This is a matter with regard to a last will, that ended up in the Supreme Court. (Ibrahim v. Faizer and Others - SLR - 133, Vol 1 of 2003 [2002] LKSC 46; (2003) 1 Sri LR 133 (September 2, 2002)).

A will, it was alleged, was a forgery and therefore parties (several defendants in District Court) alleged that the property of the deceased should be subject to administration in testamentary proceedings, and that the will was of no validity.

Supreme Court stated in judgement:

“The petitioner, Hameed Mohamed Salihu, annexing the last will dated 19th December 1971 (P1) of his elder brother Hameed Segu Mohideen, applied to the District Court, Puttalam in Testamentary case bearing No. T/66, by a petition dated 9th January 1979, to have it proved and to obtain for himself the grant of letters of administration. He averred that half the share of the income of the business called ‘Mohideen Jewellery’ carried on by the deceased at No. 30, Main Street, Puttalam was devised to the 1st respondent. He disclosed that, besides himself and his brother the 5th respondent, three sisters named as the 2nd, 3rd, and 4th respondents were the intestate heirs to the balance estate of the deceased, the particulars of which were separately set out in a Schedule”.

The testator died on October 9, 1978 without revoking his last will and as no executor was named in that will, the petitioner claimed the right to have letters of administration issued to him. However, the Appellant (in the Supreme Court) who was an adopted child of the deceased had been left half a share of the deceased’s property in the will.

As things turned out, the District Judge did not accept the position of the other defendants/respondents (as they are now in Supreme Court) and ruled in favour of the Appellant, and declared that the last will was proved. He went the nine yards, so to say, and completed the legal procedures that were required to hand the half share of land that had been left to the first respondent in the will, to the latter.

The matter via appeal in the Court of Appeal ended up eventually in the Supreme Court. The 4th respondent has appealed to the Court of Appeal to set aside the District Court judgement.

The Supreme Court judgement states:

“The District Judge by his judgement dated 26.03.1982 accepted the evidence given by four of the five witnesses to the last will called by the 1st respondent and held that the will was proved. He made order absolute issuing probate to the 1st respondent in respect of the half share which formed the subject matter of the will.”

In another twist to this tale of litigation, the fourth respondent now took up the position in the Court of Appeal that in fact the will was not a will at all but a gift which immediately devolves the property on him.

The Supreme Court judgement states:

“However, counsel for the 4th respondent submitted for the first time to the Court of Appeal as a proposition of law that the purported disposition in the impugned will was an irrevocable gift inter vivos taking effect immediately without reference to, or being conditional upon the death of the testator Segu Mohideen. It is to be noted that as the sole challenge to the will in the District Court was that it was a forgery and in the absence of a specific issue there was no finding as to whether or not the said instrument of disposition was a valid will.”

It seemed also that it’s common sense that the will was written because the Appellant was an adopted son but then a court doesn’t go into common sense as the law is what matters. However, it seems the District Judge took cognizance of the fact that there was a will and a valid one at that. On the one hand there were witnesses and on the other hand it specifically mentions ‘in the event of death’ or of course, words to that effect.

However, the 4th respondent argued that it was not a will and in pursuance of that submission said it is a gift which means it has nothing to do with the death of the owner of the property. But the Appeal Court ruled the will is not a testamentary document and ruled that the District Court should begin testamentary proceedings on the property of the deceased. The judgement of the District Court was set aside.

The Supreme Court judgement also states:

“The Court of Appeal by its judgement dated 13.3.1997 found it unnecessary to examine the question as to whether the document was a forgery or not, and held that the impugned will (P1) is not a testamentary document. The judgement of the District Court was set aside and the case was remitted back “for necessary steps by way of testamentary proceedings”.

It ought to be re-emphasized that despite everything that was submitted in Court later by the 4th respondent and other parties, the fact is that there were witnesses to the will. The document was for all intents and purposes a will because the now deceased individual made his intentions clear when he signed the will i.e. that he is bequeathing his property in the way he wishes.

The 1st respondent-appellant was granted special leave to appeal by the Supreme Court on 19.6.97 on the question whether the document P1 is a valid last Will.

The Supreme Court emphasized the fact that the Appeal Court had considered that half a share was left to the 1st respondent by the deceased in the document, but not considered the second part of the will that states that such half share devolves on the 1st respondent after the death of the deceased. The Supreme Court took up the position that no words expressed in a will can be ignored, citing the necessary case law.

The judgement states:

“And whereas I do assure that after my death the said Shahul Hameed Mohammed Ibrahim alias S.M. Ibrahim shall hold absolute right on the half share of the ‘Mohideen Jewellery’ at No. 30 Main Street, Puttalam including the premises and enjoy the benefits of same without any eviction or interruption and the said S.M. Ibrahim shall and will at all times thereafter my death enjoy same.”

“It has been noted already that upon the death of the testator, the 1st respondent-appellant was also assured of half the share of the premises besides the income. The submission of counsel for the 4th respondent-appellant that the reference in the will to the assurance of possession even after the death of the testator is superfluous because the gift took effect immediately, cannot be accepted because, as was held in Dias v Jansen ((1913) 16 NLR 502): “no words expressed in a will should be treated as superfluous if they could be given a meaning not inconsistent with the avowed intention of the testator”.

The Supreme Court held that the Court of Appeal had erred in not considering the last clause of the will and ruling that the purported will was not a testamentary document. The intention of the testator has been clearly expressed in the final clause of the will and it is clear to me that the instrument depends ‘for its vigour and effect’ on the death of the testator, the judgement held.

It was held in judgement that the document P1 is a valid will. The judgement of the Court of Appeal was therefore set aside. The appeal was allowed with costs fixed at Rs.10,000.