PANAYIOTA C. MOSAIKOS ν. ZEHRA EREN (V23) 1 CLR 286

(1)Upon a plea of undue influence, the burden of proof cast upon the person propounding a will is in general discharged by proof of capacity and the fact of execution (Barry v. Butlin

(1838)2 Moo. P.C. 480), together with proof of knowledge and approval if the prima facie case is met. When this is discharged the burden of proving that a will was executed under undue influence is on the party who alleges it (Boyse v. Rossborough

(1857)6 H.L.C. 45). Even if the power to overbear the will of the testator is admitted, it must be shown that such power was exercised, and that the circumstances of the execution are inconsistent with any other view but undue influence (Craig v. Lamourex (192.0) A.C. 349). On these authorities the burden of proof on the issue of undue influence was on the defence. The defendant did not call any evidence, and she has therefore failed to discharge the onus cast on her.

(2)As to the issue of immorality and public policy, rule 42 of the Administration of Estates Rules, 1955, provides that a party pleading to a declaration propounding a will shall be allowed to plead only one of the five pleas set forth in that rule (and the plea of immorality is not one of those five pleas), and he can only put forward an additional plea by leave of the Court to be obtained on summons. As the defendant has failed to obtain the prior leave of the Court in respect of this plea, he cannot be heard at the hearing on this issue; but, apart from this, the defendant has not called any evidence in support of her allegation, and her claim on this plea accordingly fails.

(3)There now remains the defendant's plea under (b), namely, whether the deceased knew and approved of the contents of the will. Under rule 42 of the Administration of Estates Rules, any party pleading that the deceased at the time of the execution of the will did not know and approve of the contents thereof shall therewith (unless otherwise ordered by the Court) deliver to the adverse parties and file in the registry particulars in writing, stating shortly the substance of the case he intends to set up thereunder. It is a fact that the defendant has failed to file any particulars in writing regarding her allegation of lack of knowledge and approval of the testator. The defendant, having failed to deliver such particulars, it was the plaintiff's right to apply to die Court that the defendant should be ordered to supply the particulars and that in default this plea should be ordered to be struck out. But the plaintiff has failed to apply for such an order. Irrespective of this, and having regard to the view I take in this case (as will be fully set out hereinbelow) nothing material turns on this point. The burden of proof of the testator's knowledge and approval lies on the party setting up the will, and the burden is discharged prima facie by proof of capacity and due execution (Barry v. Butlin (supra) and Cleare v. Cleare

(1869)1 P. & D. 655). But where this prima facie presumption is met by the cross-examination of the witnesses, the party propounding must prove affirmatively that the testator knew and approved of the contents (Cleare v. Cleare (supra); and Atter v. Atkinson

(1869)1 P. & D. 665 at p. 668). Where a will is prepared in suspicious circumstances, the onus is cast upon the person propounding it to remove such suspicion, and to prove that the testator knew and approved of its contents (Tyrrell v. Painton

(1894)P. 157, C.A.).

(4)On the evidence before me there certainly exist circumstances which excite the suspicion of the Court, that is, circumstances with reference to the preparation of the will, its intrinsic terms and the circumstances surrounding the preparation and execution of such will. The plaintiff is the sole beneficiary under the will, and on the evidence I have no hesitation whatsoever in inferring that she was instrumental in having the will prepared in her favour. On the authorities quoted above, where a will is prepared in suspicious circumstances, as the present one, the onus is cast upon the person propounding it to remove such suspicion, and to prove that the testator knew and approved of its contents. On the evidence adduced by the plaintiff I am not satisfied that the will expressed the mind of the testator, and the plaintiff has failed to discharge the onus cast upon her that the testator knew and approved of the contents of his will.

(5)With regard to costs, as the defendant has put forward a number of defences on which she has not adduced any evidence and which she has failed to substantiate, I shall not award her any costs. Action dismissed without costs. Cases referred to: Parker v. Felgate

(1883)8 P.D. 171; Battan Singh and others v. Amirchand and others

(1948)1 All E.R. 152; Barry v. Butlin

(1838)2 Moo. P.C. 480; Boyse v. Rossborough

(1857)6 H.L.C. 45; Craig v. Lamourex

(1920)A.C. 349; Cleare v. Cleare

(1869)1 P. & D. 655; Atter v. Atkinson

(1869)1 P. & D. 665 at p. 668; Tyrrell v. Painton

(1894)P. 157, C.A. A. Tziros for the plaintiff. Fadil Korkut for the defendant. The facts sufficiently appear in the judgment of the Court which was delivered by: JOSEPHIDES, P.D.C.: The plaintiff claims to establish the will of the deceased Djemal Mehmed, of Nicosia, dated the 2nd March, 1956, under which she is the sole beneficiary. The testator, who was about 70 years old .at the time of his death, was a Cypriot Moslem Turk and the plaintiff was his mistress with whom he lived and cohabited in the same house for over 17 years prior to his death. Plaintiff who is a Greek Orthodox, is married to another man and has a son by her lawful husband aged about 40-45 who was living with her and the testator in the same house. There is no evidence as to the value of the estate of the deceased, except a statement in the indorsement of the claim to the effect that the estate is £

1. According to the evidence of Clitos Christofi, who was a neighbour of the testator and the plaintiff, the testator called him one or two days prior to his death and asked him to instruct an advocate on his behalf to prepare his will whereby he would leave all his property to the plaintiff. In fact, comparing this evidence with that of the other witnesses for the plaintiff viz. Mr. John Mavroudis and Mr. Antonios Indianos, advocate, it is certain that the alleged request of the testator was made on the morning of the day on which the will was executed, namely, on the 2nd March,
2. This witness further stated that he thereupon rang up Mr. Indianos, advocate, and passed on to him the testator's instructions for drafting a will in favour of the plaintiff. This took place at about midday on the 2nd March,
3. About an hour later, according to the evidence of Mr. Clitos Christofi, a certifying officer, namely, Mr. John Mavroudis, called at his office and asked for the testator's house and he showed it to him; Mavroudis went upstairs and Christofi left. The latter denied going into the testator's house with Mavroudis or during the time that Mavroudis was in the house while Mavroudis in his evidence contradicts him on this point. Furthermore, in cross-examination this witness stated that he did not know if the testator and the plaintiff were married nor did he know whether the plaintiff was married to any other man although they had been neighbours and on friendly terms for about 17 years prior to the death of the testator. On the whole, this witness was evasive in his replies to questions put in cross-examination and by the Court, and I was not favourably impressed as to his truthfulness; and, in the absence of any other evidence supporting his statement that the deceased asked him to instruct an advocate on his behalf to draft a will, I am not satisfied that the evidence of this witness is reliable evidence and, I, therefore, reject it in so far as the elleged instructions given by the testator for the drafting of his will are concerned. In Parker v. Felgate

(1883)8 P.D. 171 it was held that if a testator has given instructions to a solicitor at a time when he was able to appreciate that 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 date 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. In Battan Singh and others v. Amirchand, and others

(1948)1 All E.R. 152 at p. 155 the Judicial Committee were of opinion that the principle enunciated in Parker v. Felgate 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 making any presumption in favour of the validity". In this case, having regard to the demeanour of the witness Clitos Christofi in the witness box, I arn not strictly satisfied that there is no ground for suspicion, nor that he received the instructions which he said he received from the testator. But, apart from this, I still have to examine whether the will was executed in accordance with the provisions of the Wills and Succession Law (Cap. 220) and whether at the time of the execution of such will the testator knew and approved the contents thereof. The will is an exhibit before this Court (exhibit 1), and after inspecting it, and on the evidence before me as to its execution, I am satisfied that all the formalities with regard to its execution have been complied with and that the will was duly executed according to the provisions of the Wills and Succession Law. The objections to the validity of the will put forward in the statement of defence were the following: (a) that the will is not a valid will in solemn form and in conformity with the law; (b) that the testator "did not know and/or understand the contents thereof"; (c) that the will was obtained by undue influence, and (d) that the will is immoral and/or opposed to public policy because the plaintiff had illicit relations with the testator until his death. With regard to (a), I have already held that the will was duly executed in accordance with the provisions of the Wills and Succession Law. As regards (c), that is, the defence of undue influence, the burden of proof cast upon the person propounding a will is in general discharged by proof of capacity and the fact of execution (Barry v. Butlin

(1838)2 Moo. P.C. 480), together with proof of knowledge and approval if the prima facie case is met. When this is discharged the burden of proving that a will was executed under undue influence is on the party who alleges it (Boyse v. Rossborough

(1857)6 H.L.C. 45). Even if the power to overbear the will of the testator is admitted, it must be shown that such power was exercised, and that the circumstances of the execution are inconsistent with any other view but undue influence (Craig v. Lamourex

(1920)A.C. 349). On these authorities the burden of proof on the issue of undue influence was on the defence. The defendant did not call any evidence, and she has therefore failed to discharge the onus cast on her. With regard to (d), that is to say, the issue of immorality and public policy, rule 42 of the Administration of Estate Rules, 1955, provides that a party pleading to a declaration propounding a will shall be allowed to plead only one of the five pleas set forth in that rule (and the plea of immorality is not one of those five pleas), and he can only put forward an additional plea by leave of the Court to be obtained on summons. As the defendant has failed to obtain the prior leave of the Court in respect of this plea, he cannot be heard at the hearing on this issue; but, apart from this, the defendant has not called any evidence in support of her allegation, and her claim on this plea accordingly fails. There now remains the defendant's plea under (b), namely, whether the deceased knew and approved of the contents of the will. Under Rule 42 of the Administration of Estates Rules, any party pleading that the deceased at the time of the execution of the will did not know and approve of the contents thereof shall therewith (unless otherwise ordered by the Court) deliver to the adverse parties and file in the registry particulars in writing, stating shortly the substance of the case he intends to set up thereunder. It is a fact that the defendant has failed to file any particulars in writing regarding her allegation of lack of knowledge and approval of the testator. The defendant, having failed to deliver such particulars, it was the plaintiff's right to apply to the Court that the defendant should be ordered to supply the particulars and that in default this plea should be ordered to be struck out. But the plaintiff has failed to apply for such an order. Irrespective of this, and having regard to the view I take in this case (as will be fully set out hereinbelow) nothing material turns on this point. The burden of proof of the testator's knowledge and approval lies on the party setting up the will, and the burden is discharged prima facie by proof of capacity and due execution (Barry v. Butlin (supra) and Cleare v. Cleare

(1896)1 P. & D. 655). But where this prima facie presumption is met by the cross-examination of the witnesses, the party propounding must prove affirmatively that the testator knew and approved of the contents (Cleare v. Cleare (supra); and AIter v. Atkinson

(1869)1 P. & D. 665 at p. 668). Where a will is prepared in suspicious circumstances, the onus is cast upon the person propounding it to remove such suspicion, and to prove that the testator knew and approved of its contents (Tyrrell v. Painton

(1894)P. 157 C.A.). In delivering the judgment of the Privy Council in the case of Barry v. Butlin (supra), Parke, B. enunciated two rules which have since been universally accepted and applied as governing cases of this character. The first rule is (2 Moo. P.C. at p. 482): " .... 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". Parke, B. explained (at. p. 484) that the onus ".... is in general discharged by proof of capacity, and the fact of execution, from which the knowledge of and assent to the contents of the instrument are assumed". The second rule is (at p. 482): "..... 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 jealous 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 Tyrrell v. Painton

(1894)P. 151 the Court of Appeal held that the rule in Barry v. Butlin is not, to quote the words of Lindley, L.J. (at p. 157), "..... 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 he suspicion of the Court". Davey, L.J., concisely sums up the rule which the Court of Appeal laid down in the following words "... the principle is that whenever 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". The conclusion to be drawn from these authorities is that in dealing with a question of knowledge and approval of the contents of a will the circumstances which are held to excite the suspicion of the Court must be circumstances attending or at least relevant to, the preparation and execution of the will itself. In the light of these authorities I shall now proceed to examine the circumstances under which the will under consideration was prepared and executed. The attesting witnesses to this will dated 2nd March, 1956, are

(1)Dr. G. Michaelides,

(2)A. Demetriou (Mr. Indianos's clerk) and

(3)J. Mavroudis. Witnesses No.1 and 3 gave evidence in this case. I shall first deal with the evidence of Mr. J. Mavroudis. This witness is an honest and reliable person whose evidence was accepted by both sides in toto. According to this witness at about 3.30 p.m. on the 2nd March, 1956, at the request of the clerk of Mr. Indianos, advocate, he proceeded to the testator's house in Nicosia for the purpose of certifying a signature, as he was told. He did not know at the time that he would be required to be an attesting witness to a will. Mr. Mavroudis who is a certifying officer under the provisions of the Certifying Officers Law, Cap. 57, understood that he would be required to certify the signature of a person on a document but not a will. On going to the testator's house he saw the testator sick in bed. There he saw the plaintiff, the sole beneficiary under the will, and enquired of her about the document to be signed by the testator. The plaintiff thereupon said to Mavroudis that she thought that he had brought the document with him from the office of Mr. Indianos, and it was then that Mavroudis learnt for the first time that the document in question was a will. He then informed the plaintiff that before he would sign as an attesting witness to the will he would require the testator to be examined by a doctor who should certify that the testator was of sound mind and understanding. The plaintiff then referred Mavroudis to Clitos Christofi her neighbour. Mavroudis went to Clitos who, in his presence, rang up Dr. Dervis, a medical practitioner in Nicosia; as Dr. Dervis was not in, Clitos rang up Mr. Indianos, advocate, to sent the will for signature. Mavroudis then left and returned to the testator's house at 5 p.m. on the same day when he stayed for about half an hour. When Mavroudis went to the testator's house at 5 p.m. he found there Mr. Indianos's clerk, A. Demetriou, the other attesting witness, holding the will in his hands. He also found there Dr. G. Michaelides and Clitos Christofi. According to the evidence of Mavroudis, Dr. Michaelides examined the testator alone in the room and then he came out where Mavroudis and the other persons were and informed them that the testator was of sound mind and that he knew what he was doing. Thereupon, Dr. Michaelides, A. Demetriou and Mavroudis entered the testator's room. Mavroudis explained to the testator in Greek the contents of the will which had been prepared in English. Mavroudis stated in evidence: "I explained to him that he would sign his will bequeathing all his property to the plaintiff. He nodded with his head and uttered a ward which sounded like 'Nai' in Greek (which means Yes) or 'evvet' in Turkish (which again means Yes). Then I translated the contents of the will in Greek to the testator. I asked him to sign the will. He nodded and showed his thumb. The doctor said to me that the testator could not direct his hand to sign and that we should help him to affix his mark. I did so and the testator affixed his mark on the will. Then I told him that he had signed his will and asked I him if he wanted me, the doctor and A. Demetriou to sign as attesting witnesses. He nodded his head and uttered a ward like 'Nai' or 'evvet'. Then Dr. G. Michaelides signed first, then A. Demetriou and then myself....". During -all this time there was no other person present in the room, but the door was ajar and there were persons in the hall who might see the testator and the witnesses in the room and could hear what was going on if they tried to over-hear. Fallowing the signing of the will Mavroudis and Demetriou left the house, the latter carrying the Will with him. They went together to the office of Mr. Indianos where Demetriou delivered the will to Indianos. In crass-examination Mavroudis said:- "When I asked him to sign the will the testator moved a bit his right hand and showed his thumb. He did not then say either 'Nai' or 'evvet '. But before that when I explained the contents of the will to him he uttered the sound resembling 'Nai' or 'evvet'". According to Mavroudis the testator was very ill but did not appear to be in pain. He was about 70 years old and appeared to be very weak. During the whale time that he was with the testator Mavroudis did not hear him speak at all except the moving of his lips and a sound from his mouth which resembled the word 'Nai' or 'Evvet', and the nodding of his head. This is the substance of the evidence given by Mavroudis before the Court. I think that I ought to state that I was very impressed with the care, frankness and impartiality with which Mavroudis gave his evidence. He kept detailed notes of what took place on that day (which notes he prepared on the same day of the signing of the will on his return to his office), and while giving evidence he constantly consulted his notes. The other attesting witness who gave evidence in this case is Dr. C. Michaelides. He said that he had known the testator for some time before his death and that he had operated on him for hernia about a year before his death. On that occasion the testator stayed in his clinic for 12 to 15 days. The doctor said that the testator could speak Greek well and that he had seen him while in his clinic reading Greek newspapers. After the operation the testator went to see the doctor on two or three occasions and the latter attended the testator on 3-4 occasions during his last illness. According to the doctor the testator was suffering from kidney trouble (uraemia) and he died from insufficiency of the kidneys. When he examined the testator immediately prior to the signing of the will, the latter was in a very weak and dangerous condition. The testator did not speak to the doctor who was of opinion that speech tired him. The doctor was of the view that the deceased was of sound mind and that he was in a position to understand what was spoken to him but that it was difficult for him to speak or sign. On being questioned by the Court, the doctor said that the testator was in a very serious condition, and that if there was no improvement in the uria then the testator's case would be fatal. But he could not specify the time within which death would occur. It could be a few days or months. The rest of the evidence of this witness corroborates that of Mavroudis with regard to the explanation of the contents of the will and the signing of the testator and the witnesses. The doctor said that, as far as he remembered, he did not see the testator after his death nor did he remember whether he signed the death certificate. Although he gave his evidence some 20 months after the signing of the will and the last examination of the testator the doctor did not consult any records in giving his evidence before the Court; nor did he keep any notes at the time. Mr. Antonis Indianos was the fourth and last witness who gave evidence for the plaintiff in this case. He said that he drafted the will on the instructions of Clitos Christofi who was a client of his. He received his instructions on the telephone and he drafted the will in accordance with those instructions. The will was drafted by him on the same day he received the instructions. He was the executor named in the will but he renounced the executorship as, according to him, the estate is very small and not worth his trouble. It should be noted that Clitos Christofi in his evidence did not state that the testator had asked him to appoint Mr. Indianos as his executor (See will Exh. 1). Mr. indianos finally said that he did not know nor had he ever seen the testator and that he had not been paid yet for the drafting of the will. The plaintiff did not come to the witness box to give her version as to the circumstances attending the preparation and execution of the will. Neither did the defendant, who lives in Turkey, give any evidence, nor did she call any witnesses. With all respect to the doctor who gave evidence in this case I am not prepared to accept his opinion that a person who was so enfeebled by disease that he was unable to speak to him at all on that day had a clear, logical and sound mind as to be in a position to understand and approve of the contents of the will. I have no evidence before me as to the exact time of the testator's death but on the pleadings it is stated that he died on the 3rd March, 1956. As the will was signed at about 5 p.m. to 5.30 p.m. on the 2nd March, 1956, it may be that the testator died only a few hours after the signing of the will, I have no evidence before me as to his condition after the signing. This is the case of a man seriously ill in bed who immediately prior and during the time of the signing of the will was unable to speak, and did not in fact speak at all, except nodding his head and uttering a word resembling the Greek word "Nai" or the Turkish word "Evvet". On the evidence before me there certainly exist circumstances which excite the Suspicion of the Court, that is, circumstances with reference to the preparation of the will, its intrinsic terms and the circumstances surrounding the preparation and execution of such will. The plaintiff is the sole beneficiary under the will, and on the evidence I have no hesitation whatsoever in inferring that she was instrumental in having the will prepared in her favour. On the authorities quoted above, where a will is prepared in suspicious circumstances, as the present one, the onus is east upon the person propounding it to remove such suspicion, and to prove that the testator knew and approved of its contents. On the evidence adduced by the plaintiff I am not satisfied that the will expressed the mind of the testator, and the plaintiff has failed to discharge the onus cast upon her that the testator knew and approved of the contents of his will. For all these reasons the plaintiff's claim fails. With regard to costs, as the defendant has put forward a number of defences on which she has not adduced any evidence and which she has failed to substantiate, I shall not award her any costs. The action is, therefore, dismissed without costs. Action dismissed without costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο