Will of Jaimal, Deceased v Amirchand & Or [1945] FijiLawRp 3; [1875-1946] 3 FLR 388 (1 June 1945)

[1875-1946] 3 FLR 388

SUPREME COURT OF FIJI

Probate Jurisdiction

in re THE WILL OF JAIMAL DECEASED. BATTAN SINGH AND OR

v

AMIRCHAND AND OR

Corrie, C.J

June 1, 1945

Testamentary capacity-testator alleged to be of unsound mind, memory or understanding at time of execution-evidence that testator was of sound mind at time of giving instructions for preparation of the will-how far proof of unsound mind at time of execution is relevant.

The deceased Jaimal gave instructions to a solicitor's clerk for the preparation of a will on 31st March 1944. He executed this will on 3rd April 1944 and died on 4th April, 1944. There was then in existence an earlier will dated 25th February, 1944 and the plaintiffs as executors of the earlier will claimed that the Court should pronounce against the will dated 3rd April, 1944, and decree probate of the will dated 25th February, 1944. The solicitor's clerk who received instructions from the deceased on 31st March 1944 gave evidence suggesting that on that occasion the deceased's memory was not defective. The solicitor and others present on 3rd April 1944 when the will was executed gave evidence as to his condition at that time.

HELD –

Following Parker v Felgate, it being found that at the time of giving instructions for preparation of his will deceased was of sound mind, memory and understanding it is unnecessary to decide the precise condition of his memory at the time of execution of the will if he dearly understood the provisions of the will he was executing and made it clear that they were in accordance with his wishes.

[EDITORIAL NOTE.-This judgment is the subject of an appeal (pending) to the Privy Council.]

Cases referred to:-

(1) Parker v Felgate [1883] 8 PD 171; 52 LJP 95; 47 JP 808; 44 Dig. 251.

(2) Perera and ors v Perera and or [1901] AC 354; 70 LJPC 46; 84 LT 371; 17 TLR 389; Dig. Supp. Vol. 33 case 264a.

ACTION for probate. The facts appear from the judgment.

D. M. N. McFarlane and N. S. Chalmers, for Battan Singh, Walaiti Ram and Khazan Singh executors of the will of 25th February 1944, plaintiffs.

R. L. Munro, P. Rice, and A. D. Patel, for Amirchand and Mehar, executors of the will of 3^rd April, 1944, defendants.

A. C. Morley, for Waryama, Banta, Sandhi and Munshi beneficiaries under the will of 25th February, 1944 defendants.