⦿ CASE SUMMARY OF:
Madam Olufunso Okelola v. Miss Adebisi Boyle (1998) – SC
⦿ LITE HOLDING
The propounder of a WILL has the duty to prove firstly that the WILL was properly executed, then the challenger to dispute such.
⦿AREA OF LAW
– Law of Succession
– Testamentary capacity.
Madam Olufunso Okelola
Miss Adebisi Boyle
(1998) JELR 45581 (SC)
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
By an indenture dated 2nd June 1986 and registered as No.43 at page 174 in Volume 29 of Register of Deeds kept at the Lagos Land Registry, one Theophilus Otemuyiwa became owner of the land and property situate and known as 163 Igbosere Road Lagos.
The said Theophilus Otemuyiwa died intestate some years ago leaving behind three children surviving him, that is Adeniyi Otemuyiwa, Gabriel Theophilus Abiodun Otemuyiwa and Adekunle Otemuyiwa. The three sons, on the death of their father, inherited the said property which became their family property under Yoruba customary law.
Adeniyi died intestate in Lagos on 10th January 1975; he had no issue. Adekunle also died intestate on 9th February 1976; he too was childless. On 28th December, 1972 during the lifetime of the three brothers, Abiodun (hereinafter is referred to as the testator) had made a Will devising his share in the property at 163 Igbosere Road Lagos to Madam Olufunso Okelola (appellant in these proceedings).
On 9th October, 1975 Abiodun suffered a stroke and was admitted into hospital; he was paralysed and he subsequently died in June 1977. He too, like his brothers before him, died childless. After the death of Abiodun, the probate registrar invited Olufunso Okelola to the reading of a Will purportedly made by the testator on 24th February 1976 in which he gave all his property to one A. Idowu George.
Olufunso Okelola (hereinafter is referred to as the plaintiff) promptly filed a caveat to the grant of probate and commenced the proceedings leading to this appeal against Miss Adebisi Boyle an executrix named in the said will.
She claimed: “(1) That the court will pronounce against the Will dated 24th day of February, 1976 purported to be the Last Will and Testament of Gabriel Theophilus Abiodun Otemuyiwa and propounded by the defendant. or in the alternative (2) That the devise of the property at 163 Igbosere Road Lagos to Mr. A Idowu George in the said Will dated 24th day of February, 1976 is void. (3) That the court will decree probate in Solemn form of Law and Will of Gabriel Theophilus Otemuyiwa (deceased) dated the 28th day of December, 1972.” Pleadings were filed and exchanged.
The learned Judge summarised his findings in these words: “In sum I have found on the evidence that the fact that the Will Ex. D1 was not translated to the testator who was an illiterate person showed that he could not have known its contents. I have found from the evidence too that the fact that a non-existent person whose name resembled that of the plaintiff and who was said to be residing in the testator’s house was made an executor showed that testator could not have known about that provision. Even if it could be said that the testator gave that instruction (a fact which I doubt) it would also show conclusively that the testator did not know what he was doing while executing the Will Ex. D1.”
He concluded: “I find that the defendant has not discharged the onus placed on her by the law in respect of the Will Ex. D1 and I find that that Will is not entitled to probate.” and proceeded to nullify the testator’s two Wills. He dismissed the defendant’s counter-claim and granted the plaintiffs main claim.
It was against this judgment that the defendant appealed to the Court of Appeal (Lagos Division) which court, in a unanimous decision, allowed the appeal, set aside the judgment of the trial court and declared that 1976 Will (Exhibit D1) vaild.
The plaintiff has now appealed to this court against the judgment of the Court of Appeal upon one original and five additional grounds of appeal.
1. On whom lies the burden of proof of the due execution of a will: the propounder of the will or its challenger?
2. Was the due execution of Exhibit D1 (the 1976 Will) established on the evidence?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. He used this passage to determine, quite wrongly, in my respectful view, that the onus was on the plaintiff – the challenger matter then on the defendant – the propounder of Exhibit DI. With the correct view of the law the position then would he as correctly found by the learned trial Judge, that the defendant as the propounder of Exhibit D1 (the 1976 Will) had the burden of showing prima facie that the deceased not only duly executed the Will but also had testamentary capacity to do so. It is only after discharging that primary duty that the onus would shift to the plaintiff as the challenger of the will to substantiate, by evidence her allegations against the making of the will.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. Having regard to my observations above and the findings of fact and inferences drawn by the learned trial Judge from the evidence, the better view of the evidence is that the defendant as the propounder of Exhibit D1 failed to discharge the primary duty on her to establish prima facie that the testator had testamentary capacity to make Exhibit D1 and that he made the instrument. With this conclusion, I must allow this appeal which is hereby allowed. I set aside the judgment of the court below and restore the judgment of Oladipo Williams, J to the effect that the Will, Exhibit D1 purportedly made by the testator, Theophilus Abiodun Otemuyiwa on 24th February 1976 be not admitted to probate. The counterclaim of the defendant also stands dismissed.
Williams and Mortimer on Executors, Administrators and Probate (1970 Edition) have this to say at page 138: “No person is capable of making a will who is not of sound mind, memory and understanding. The testator’s mind must be sound to be capable of forming the testamentary intentions in the will; his memory must be sound to recall the several persons who ought to be considered as his possible beneficiaries.”
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
In Johnson and anor v. Maja and Ors. 13 WACA 290 at 291-292, (the leading case of the point) Lewey, J.A. delivering the judgment of the West African Court of Appeal, observed: “On the hearing of this appeal, argument was addressed to this court by both counsel upon the question as to where the onus lies in cases of this kind where one party propounds a will, and the other party challenges not only its execution, but also the mental capacity and free will of the testator. I wish to deal at once with this point, since it is of importance in relation to each of the three grounds of challenge in this case to which I have referred, and because it was inevitably given prominence on this appeal, by reason of a passage in the judgment, where the learned Judge observed as follows: ‘A testator has every right to change his mind at any time before his death provided it is conclusively proved to the satisfaction of the court that at the time of his executing the will he was a free agent and under no influence and that the will was properly executed.’ These observations as to the burden of proof were the subject of one of the grounds of appeal, and were strongly criticised by Mr. Williams on behalf of the appellants, who are seeking, of course, to have the will upheld. It was the appellants’ contention that the burden of proof lay on those who attacked the will and its execution, while Mr. Coker, for the defendant respondent, argued that the onus was on those who propounded the will. There was thus a sharp divergence between counsel, each of who cited a number of authorities in support of his contention. It would seem at first sight, that those authorities are contradictory; but, on a closer examination of them, I doubt whether that can be said to be so. Mr. Coker placed great reliance on the judgment in Barry v. Butlin (12 E.R 1090), and particularly on an observation in that case by Parke, B., to the effect that the onus probandi lies in every case upon the party propounding a will, who must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. In placing reliance on that principle, Mr Coker was, I think, on sure ground, for it is one that cannot be challenged. But he went on to endeavour in support of his contention as to the burden of proof – to apply to the present appeal, certain other passages in Barry v. Butlin relating to the vigilance and jealously with which a court must examine the evidence in support of the instrument, where there are circumstances which ought to excite the suspicion of the court, and laying down the rule that the court should not pronounce in favour of the will unless the suspicion is removed, and unless it is judicially satisfied that the paper pro-pounded does express the true me will of the deceased. Here, however, it seems to that Mr. Coker was carrying his argument too far, for the circumstances in Barry v. Butlin, as in Baker v. Batt (2 ER 1026), which was also referred to, were very different from those in the present case, and the extended rule on which Mr. Coker relics, refers, on the question of onus, to cases where the will has been prepared by, or by the direction of, a person who himself benefits under the will. That this is so is, I think, made quite clear in other passages in Barry v. Butlin and in the case of Craig v. Lamoureux (1920), A.C. at 356), where the application of the rule is discussed. The rule enunciated by Parke, B., that in every case the onus lies on the propounders of a will to satisfy the court that the instrument is “the last will of a free and capable testator”, must, however, be taken, I think, to refer only to the first stage, so to speak, of the onus; for the onus does not necessarily remain fixed; it shifts. Where there is a dispute as to a will, those who propound it must clearly show by evidence that, prima facie, all is in order; that is to say, that there has been due execution, and that the testator had the necessary mental capacity, and was a free agent. Once they have satisfied the court, prima facie, as to these matters, it seems to me that the burden is then cast upon those who attack the will, and that they are required to substantiate by evidence the allegations they have made as to lack of capacity, undue influence, and so forth. That, it is clear to me, must be their responsibility and nothing can relieve them of it; it is not only a rule of common sense but a rule of law, as appears from numerous authorities.”
Johnson v. Maja 13 WACA 290, the basic principle of law is that- “Where there is a dispute as to a Will, those who propound it must clearly show by evidence that, prima facie, all is in order; that is to say, that there has been due execution, and that the testator had the necessary mental capacity and was a free agent. Once they have satisfied the Court, prima facie as to these matters, it seems to me that the burden is then cast upon those who attack the Will, and that they are required to substantiate by evidence, the allegations they have made as to lack of capacity, undue influence and so forth.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
The burden of proof of the genuineness and authenticity of a will lies on the party propounding it- (the defendant/respondent in the present proceedings). The onus of proof shifts. In the first stage, where there is a dispute as to a will, the person who propounds it must clearly show by evidence that prima facie everything is in order. Having done this, the burden is cast upon the party who attacks the will (the plaintiff/appellant herein) to substantiate by evidence the allegation he had made. The decision will ultimately depend upon the consideration of the value of the evidence given by both sides, the court having given due regard to the shifting burden of proof. The Court of Appeal wrongly placed the burden of establishing a prima facie case on the plaintiff/appellant. – Ogwuegbu, JSC. Okelola v. Boyle (1998)
It is trite law that when the findings of fact by the trial court are based on credibility of witnesses, as in the instant case, it is not the business of the appellate court to substitute its own views for the views of the trial court which had the advantage of seeing and watching the demeanour of the witnesses. – Onu, JSC. Okelola v. Boyle (1998)
It is known them the testator in this case was an illiterate. Ex. D1 contains a jurat to the effect that the contents were read and explained to the testator in Yoruba language but the jurat was unsigned and contains no name or an interpreter nor evidence of such interpretation. I would not think that in such circumstance the maxim applies. – Ogundare, JSC. Okelola v. Boyle (1998)
The burden was really on the defendant who propounded the will, to show that prima facie the will was validly made as rightly held by the trial High Court and not on the plaintiff who merely challenged same, as erroneously stated by the Court of Appeal. It was only after the plaintiff had done that, that the burden shifted on the defendant, who attacked the will, to substantiate by evidence the allegations she made against the will. – Kutigi, JSC. Okelola v. Boyle (1998)
Thus, in Onwudinjoh v. Onwudinjoh 2 ENLR (per Ainley CJ.) the will was refused probate for non-compliance with formalities of the Wills Acts, 1837 and 1852. – Onu, JSC. Okelola v. Boyle (1998)