DANTHIKA LAKSHAMANI ABEYWARDENA WICKRAMASINGHE VS. HETTIARACHCHIGE SUNNY DE ALWIS - HON. A. H. M. D. NAWAZ, J

• Jurisdiction: Sri Lanka
• Case Number: 2016SCOA1269C2000Y
• Citation: 2016SCOA1269C2000Y
• Date: 02 September 2016
• Court: Court of Appeal (Sri Lanka)
• Type of Document: Unreported judgment

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Danthika Lakshamani Abeywardena Wickramasinghe

Vs.

Hettiarachchige Sunny de Alwis - Hon. A. H. M. D. Nawaz, J

C.A. Case No. 1269/2000 (F)
D.C. Galle No. 2750/SPL/97

1. Danthika Lakshamani Abeywardena
Wickramasinghe,
No. 154, Old Galle Road,
Weligama.

2. Chinthanika Abeywardena
Wickramasinghe,
Batadolawatte, Kirinda,
Puhuwella.

PLAINTIFF - APPELLANTS

Vs


Hettiarachchige Sunny de Alwis

1st DEFENDANT-RESPONDENT

1a. Hettiarachchige Uditha Kumara Alwis,
No. 221/2, 2nd Lane,
Soma Thalagala Mawatha, Gangodawila,
Nugegoda.

1b. Hettiarachchige Bandula Kumara Alwis,
Weweldegiliya, Mihintala Road,
Galkulama.

1c. Kumarasinghe Mohottalalage Anulawathie,
Weweldegiliya, Mihintala Road,
Galkulama.

SUBSTITUTED 1st DEFENDANT - RESPONDENTS

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2. National Savings Bank,
No.255, Galle Road,
Colombo 3.

3. Manager, National
Savings Bank, Galle Branch, Kaluwella,
Galle.

DEFENDANT - RESPONDENTS - RESPONDENTS

BEFORE : A.H.M.D. Nawaz,j.

COUNSEL : D.P. Mendis, PC with J.K. Siriwardena for Plaintiff-Appellants
Champika Ladduwahetty for 1st Defendant Respondent and substituted 1st Defendant Respondent

Written Submissions on : 15.07.2015 (Plaintiff-Appellants)
24.07.2015 (Substituted 1(a) to 1(c) Defendant Respondents)

Decided on : 02.09.2016

A.H.M.D. Nawaz,J.

When one of the joint holders to a bank account dies the question that inevitably arises is who is entitled to the balance held to the credit of the account. This appeal from the District Court of Galle raises just that issue. Here is a case where the maternal aunt of the two Plaintiff-Appellants (hereinafter sometimes referred to as "the Plaintiffs") one Irene Somawathie Pandithasekera and her husband Don Charles Pandithasekera) (hereinafter sometimes referred to as

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"Pandithasekera") made a mutual last will bearing No.5214 and dated 15.01.1992 and in respect of the will the probate was eventually issued in Case No.20, after the aunt (the first to die of the testators) had passed away on 09.12.1994. As the two Plaintiffs averred in their plaint, the surviving uncle Don Charles Pandithasekera himself crossed the great divide on 26.01.1997 but the fact remains prior to his death he had disposed of a portion of the land described in paragraph 3 of the plaint and deposited the proceeds of sale namely a sum of Rs.1 million in a joint "fixed deposit" at National Savings Bank, Galle.

The Plaintiffs further stated that since the 1st Defendant-one Hettiarachchige Sunny de Alwis had been staying with an otherwise feeble uncle Pandithasekera, Pandithasekera opened this joint account along with the 1st Defendant for transactional convenience. It was the case of the Plaintiffs that upon the death of uncle Pandithasekera on 26.01.1997, the funds in the joint account did not vest in the surviving account holder the 1st Defendant but rather the moneys became the undisposed property of Pandithasekera. As the mutual will referred to above provides for the undisposed properties of Pandithasekera at the time of his death to be vested in the Plaintiffs (the nieces of the testators of the mutual will), the Plaintiffs averred in their plaint that the funds in the joint account belonged to them. Thus there is a declaration prayed for to the effect that the funds in the joint account belong to them.

In a nutshell the mutual will bearing No.5214 provided for absolute ownership of the wife's properties to be vested in Pandithasekera upon her death and he enjoyed absolute discretion to deal with her properties as he pleased. The mutual will also provided that all those properties undisposed of by Pandithasekera at the time of his death would vest in the Plaintiffs.

The joint last will contains among other things the following covenants:

"We give and bequeath to the survivor of us all property movable and immovable that we may own and die possessed of wheresoever situate, absolutely and without exception whatsoever.

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The above bequests shall specifically mean and include all moneys in banks, furniture and other movables lying in our residence at No.300, Wakwella Road, Galle.

We have given considerable thought to the manner in which the survivor of us should finally dispose of our assets. Whilst reiterating the bequests made earlier and not in any way interfering with the absolute discretion given to the survivor of us to deal with such property during his her life-time it is our wish and desire such property should devolve on:-

1) MRS. DANTIKA SIRlW ARDENE nee DANTIKA ABEYW ARDENE WIKREMASINGHE of Weligama

And

2) MRS. CHINTHANIKA SENEVlRATNE nee ABEYW ARDENE WIKREMASINGHE of Puhuwella, our beloved nieces in equal shares, but as stated earlier this bequest will only operate at the discretion of the survivor of us and only in the event of the survivor's death taking place without any bequests being made during the life-time of the survivor of us.

We do hereby appoint the survivor of us to be the executor-executrix of this Last Will and Testament."

As could be seen, the above will which is quite infelicitously entitled 'Joint last will" bears the hallmarks and features of commonality with a tyP/CAl mutual will wherein two individuals, for instance a husband and wife as in this case, come together to an agreement in the will that the first to die (wife) will leave her property to the survivor (husband), with a further bequest that whatever is left at husband's death will devolve on one or more ultimate beneficiaries.

Joint Will vis-a-vis a Mutual Will

A mutual will has to be contrasted with a joint will where two or more persons execute the same document as the will of both of them. It is often said that joint wills are lawful but not usually appropriate. The joint will operates as the separate will of

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each testator, and either (or any) of the testators may revoke or vary the joint will so far as it applies to them. It does not matter whether the other person is still alive or whether they consent.

According to Caroline Sawyer and Miriam Spero in their work Succession, Wills and Probate (Third Edition, 2015), joint wills are rare in practice and useful only insofar as they can effectively exercise a power given to two persons jointly to appoint by will.

In fact there is a clear distinction made between these two types of wills in Halsbury's Laws of England (the section entitled Wills and Intestacy [Vol 102-103] 2016). Whilst paragraph 1 of Volume 102 deals with joint wills, mutual wills are discussed in paragraph 2. The discussion therein goes as follows.

"A joint will is a will made by two or more testators contained in a single document, duly executed by each testator, and disposing either of their separate properties or of their joint property.2 It is not, however, recognised in English law as a single wile It is in effect two or more wills, and it operates on the death of each testator as his will disposing of his own separate property; on the death of the first to die it is admitted to probate as his own will and on the death of the survivor, if no fresh will has been made, it is admitted to probate as the disposition of the property of the survivor.4 Joint wills are now rarely, if ever, made."

Paragraph 2 of Volume 102 of Halsbury's Laws of England discusses mutual wills.

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¹Re Piazzi-Smyth [1898] P 7; Re Hagger, Freeman v Arscott [1930] 2 Ch 190; Re Hack (1930) 169 LT Jo 285; Re O'Connar [1942] 1 All ER 546. In Re Stracey (1855) Dea & Sw 6, a joint will made by husband and wife operated as an exercise of the wife's power of appointment.

² Re Raine (1858) 1 Sw & Tr 144; Re Lovegrove (1862) 2 Sw & Tr 453. A dictum by Lord Mansfield in Earl of Darlington v Pulteney (1775) 1 Cowp 260 at 268, that there could not be a joint will, cannot be supported. A joint power of appointment by will may be exercised by a joint will and becomes effective on the death of the survivor, provided that at that time the will remains unaltered: Re Duddell, Roundway v Roundway [1932]1 Ch 585.

³ Hobson v Blackburn and Blackburn (1822) 1 Add 274.

⁴ Re Duddell, Roundway v Roundway [1932]1 Ch 585. See also Re Stracey (1855) Dea & Sw 6; Re Lovegrave (1862) 2 Sw & Tr 453; Re Miskelly (1869) IR 4 Eq 62; Re Fletcher (1883) 11 LR Ir 359 (where there was a separate will following and recognising a joint will); Re Crofton (1897) 13 TLR 374 (where there was a joint codicil to separate wills); Re Piazzi Smyth [1898] P 7; Re Heys, Walker v Gaskill [1914] P 192 at 196.

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"Wills are mutual when the testators confer on each other reciprocal benefits, which may be absolute benefits in each other's property⁵ or life interests with the same ultimate disposition of each estate on the death of the survivor⁶. Apparently, a mutual will in the strict sense of the term is a joint will, but, where by agreement or arrangement similar provisions are made by separate wills, these are also conveniently known as mutual wills. Wills which by agreement confer benefit on persons other than the testators, without the testators conferring benefits on each other, can also be mutual wills⁷ Where there is an agreement not to revoke mutual wills and one party dies having stood by the agreement, a survivor is bound by it⁸"

The above discussion was necessitated because there was a misdescription by the draftsman of the will made by Irene Somawathie Pandithasekera and Don Charles Pandithasekera as their joint will and from the foregoing it is clear that such misdescription does not detract from the fact that it was in fact a mutual will which conferred reciprocal benefits on each other. One of the benefits was the passage of dominium of Irene's property to her husband Don Charles Pandithasekera upon her death and he could deal with it as his own. He did exercise the benefit by selling one such property qua owner and made a deposit of the proceeds of sale in a joint...