The testator made two wills while he was m. The first was dated November 4, 1961, and the second January 10, 1962. The second will was prepared by the testator's nephew, who took benefits Uinder it. Before executing the second will, he burnt the first, and later said vvith reference to it: " They think I am a fool. They went and drew up a vvill and no provision was made for my twin sister and my relations." The executors of the second will (the plaintiffs) sought to propound it in solemn form of law. The testator's widow (the defendant) objected to this will on the following grounds: (1) that the testator did not give instructions for its preparation; (2) that the testator neither read the will over to himself nor was it read or explained to him at the time f 1 . f sound mind, memory and understanding when he executed it. The ~~~ ~ asked the court to pronounce in favour of the first wilL Wl Held for the plaintiffs, (1) the party propounding a win has the burden of sati:ryin~ the court that the document propounded is the last will of a free and apable testator. c (Z) If a person prepa:e~ a will under which he takes benefits, this. at once ought to excite the suspiCIOn of t~e court,. and the burden of removmg such spicion is on the party propoundmg the w1U. su (3) The burning of the first will by the testator coupled with his words with reference to it showed an animus revocandi on his part. Cases referred to; Barry v. Butlin (1838) 12 E.R. 1089; In re R., deed. !1950] 2 All E.R. 117; Wintle v. Nye (1959] 1 All E.R. 552; Rattan Singh and ~thers v. Amirchand and others [1948] 1 All E.R. 152. Mrs. Ursula D. Khan for the plaintiffs. A1elville C. Marke for the defendant. Note: This decision was affirmed by the Court of Appeal on March 20, 1964 (Civil Appeal 22/63). B&"'K.OLE Jo!'<"ES Ao.C.J. In this action two of the three executors named in a will dated January 10, 1962, of Llewellyn Philemon Modupe Okoro Wray (deceased), hereafter referred to as the "deceased," who died on March l, l962, are asking this court to pronounce in favour of the said will in solemn form of law. The third executor, not a party to the action, was responsible for the preparation of the will and took benefits under it. The defendant is the widow of the deceased and is disputing the will on the grounds, first, that the deceased did not give instructions for its preparation, which at the time of its execution was not read over and explained to him ; secondly, that the deceased did not read the will over himself before he executed it, nor was he aware of its nature and effect and, thirdly, that the deceased was not of sound mind, memory and understanding at the time he purported to have executed it. The 8Ubstance of this third allegation is stated in the defendant's statement of defence as follows: " At the time the above-named deceased executed the said alleged wili he was suffering from, among other forms of iilness, chronic nephritis complicated by arteriosclerosis. His memory was defective and untrustworthy and progressively exhibited signs of disorientation and stupor and marked and increasing disability to evaluate matters in their true and proper perspective. The mind and memory of the said deceased at the time of the execution of the said alleged will were in such condition that the said deceased could not possibly understand the nature of the act and its effects, the property of which he was disposing or comprehend and appreciate the claims to which he ought to give effect." The defendant has also counterclaimed that another will dated November 4, 1961, in which she was appointed executrix, be pronounced in solemn form of law and that the court pronounce against the will propounded by the plaintiffs. I think it is necessary at the very outset to state the rules governing cases ~f this kind. The first is that the onus probandi lies upon the party propoundmg a will, and he must satisfy the conscience of the court that the instrument ~ propounded is the last will of a free and capable testator. This onus isin general discharged by proof of capacity and the fact of execution from which the knowledge of and assent to its contents by the testator will be assumed. The second is 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-see Barry v. Butlin (1838) 12 E.R. 1089 and Wintle v. Nye [1959] 1 All E.R. 552, 557. In the present case it is said that the deceased did not give instructions for the preparation of the will sought to be propounded by the plaintiffs and that at the time of its execution it was not read over and explained to him, nor did he read it himself before executing it. I accept unreservedly the evidence of Mr. Williams, the person who prepared the will, that not only did the deceased instruct him to prepare the will but that it was read to him in its final form and that the deceased himself read it before he executed it and at his request invited the attesting witnesses to sign it in his presence and in the presence of each other. I reject the evidence of Mr. Smith, one of the attesting witnesses called by the defence, to the effect that when he appended his signature to the will he was not told what he was signing; nor did he inquire. Mr. Smith's admitted experience of over 20 years as a solicitor's clerk does him no credit. He was clearly and palpably an interested partisan on behalf of the defendant. Was the deceased of sound mind and memory when he executed the will of January 10, 1962? I find that he was. The evidence of Mr. Inniss, Mr. Marsh and pre-eminently that of Mr. Johnson, the Deputy Registrar-General, all disinterested persons, leaves me in no doubt about this. But if any confirmation is required, the evidence of the deceased's own doctor supports the conclusion I have arrived at. Dr. Pratt swore that around January 10, 1962, the date of the execution of the will, the deceased "was able to evaluate matters in their true perspective." Again, he swore as follows: "Round about January 10, 1962, if the deceased was given a document written in simple English, he would have been able to understand the contents .... " Mr. Inniss and Mr. Williams, who were present at the execution, said that the deceased was able to understand that he was executing his will, which it is not disputed was written in simple English. I am, therefore, satisfied that the deceased was of competent testamentary capacity not Gnly at the time he gave instructions for his will to be prepared, but also at the time he executed it. Now, did the deceased know and approve of the contents of the will prepared by his nephew, a layman who took benefits under it? Mr. Marke has not suggested, and in fact could not have, that because of these circumstances the will should be pronounced against. His contention is that the second rule which I have stated earlier should be applied to these circumstances. He is quite right. I find Viscount Simonds, in the Wintle v. Nye case referred to above, at page 557, saying: "It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion which must be removed by the persons pro, pounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may in general discharged by proof of capacity and the fact of execution from which the knowledge of and assent to its contents by the testator will be assumed. The second is 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-see Barry v. Butlin (1838) 12 E.R. 1089 and Wintle v. Nye [1959] 1 All E.R. 552, 557. In the present case it is said that the deceased did not give instructions for the preparation of the will sought to be propounded by the plaintiffs and that at the time of its execution it was not read over and explained to him, nor did he read it himself before executing it. I accept unreservedly the evidence of Mr. Williams, the person who prepared the will, that not only did the deceased instruct him to prepare the will but that it was read to him in its final form and that the deceased himself read it before he executed it and at his request invited the attesting witnesses to sign it in his presence and in the presence of each other. I reject the evidence of Mr. Smith, one of the attesting witnesses called by the defence, to the effect that when he appended his signature to the will he was not told what he was signing; nor did he inquire. Mr. Smith's admitted experience of over 20 years as a solicitor's clerk does him no credit. He was clearly and palpably an interested partisan on behalf of the defendant. Was the deceased of sound mind and memory when he executed the will of January 10, 1962? I find that he was. The evidence of Mr. Inniss, Mr. Marsh and pre-eminently that of Mr. Johnson, the Deputy Registrar-General, all disinterested persons, leaves me in no doubt about this. But if any confirmation is required, the evidence of the deceased's own doctor supports the conclusion I have arrived at. Dr. Pratt swore that around January 10, 1962, the date of the execution of the will, the deceased "was able to evaluate matters in their true perspective." Again, he swore as follows: "Round about January 10, 1962, if the deceased was given a document written in simple English, he would have been able to understand the contents .... " Mr. Inniss and Mr. Williams, who were present at the execution, said that the deceased was able to understand that he was executing his will, which it is not disputed was written in simple English. I am, therefore, satisfied that the deceased was of competent testamentary capacity not Gnly at the time he gave instructions for his will to be prepared, but also at the time he executed it. Now, did the deceased know and approve of the contents of the will prepared by his nephew, a layman who took benefits under it? Mr. Marke has not suggested, and in fact could not have, that because of these circumstances the will should be pronounced against. His contention is that the second rule which I have stated earlier should be applied to these circumstances. He is quite right. I find Viscount Simonds, in the Wintle v. Nye case referred to above, at page 557, saying: "It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion which must be removed by the persons pro, pounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may_ 1 . ht and easily dispelled. It may, on the other hand, be so grave that ne ~ng d., ( h · li d) , ~an hardly be remove · emp as1s supp e . ,t ~the present case, the suspicious circumstances on which Mr. Marke . In ~ th"' following: Mr. Williams is a beneficiary entitled to the sun1 of :el!es ar~ fi;st charge in priority to other monetary gifts. He is entitled to a 1;.~~ ::oice in deceased's wearing apparel and personal effects. He is gi_ven fh . th of the property, 40, Rawdon Street, as well as a further one-sixth or:e-sitXhe death or remarriage of the defendant, and finally he is the residuary af,er N f b d . • . ; ee and legatee. ow, apart rom monetary equests, etc., and evmes aev.s ed h" 1 · f I h" · · h d by the deceas to Is re at10ns, or examp e, IS twm s1ster, anot er :.~ ... :ew, a niece, a daughter and a son of his, grandchildren, lawful or unlawful, :;.v·deceased bequeathed and devised to his "dear wife," the defendant, the ~ ·~lowing: The sum of £200, his land at Wilberforce Village at the back of ;~e military barracks, all his household furniture, one-sixth share of 40, Rawdon .:~e.et " for her lifetime or her remarriage, whichever event comes first." lt ~ quite clear that the deceased did not, so to speak, " cut off " the defendant ;n his will. She is provided for, and it was within the deceased's competence to have known that his dear wife was the owner of several other properties in Freetown and was in receipt of a good salary which was pensionable. Be that as it may, however, I have come to the conclusion that the scrupulous pains with which the deceased personally saw to it that his will should be kept and preserved in the office of the Registrar-General, especially the sealing of it in an envelope in his presence for which he expressed satisfaction, coupled with the evidence that earlier on the day of the execution of this will, a previous will said to have been executed by him on November 4, 1961, was burnt, a matter admitted by the defence, all point to the irresistible conclusion that the deceased not only knew what he was doing but also knew and approved of the contents of his later will dated January 10, 1962. In the circumstances, I hold that the plaintiffs have discharged the burden placed upon them, albeit, in all the circumstances, not a heavy burden, of removing every suspicion that the testator did not know and approve of the contents of the will. He knew and approved. As to the defendant's counterclaim, I find no merit whatever in it. In her affidavit of script, it was made to appear that there actually existed a will executed by the deceased dated November 4, 1961. The evidence discloses that there is no such will in existence. If there was such a will, on the admitted evidence, as has been pointed out, it was burnt on the day the deceased executed the will of January 10, 1962, and burnt by the deceased himself and l'Js daughter before the execution of the said will of January 10, 1962. After execution of this will, the deceased's daughter told Mr. Inniss of the of the earlier will on that day and showed him the spot on the verandah where the will had been burnt. The deceased, hearing this, said: " They think I am a fool. They went and drew up a will and no provision made for my twin sister and my relations." The will of January 10, 1962, made provisions for the deceased's twin sister and relations. These circumstances, to my mind, clearly showed an animus revocandi on the part of the deceased. An attempt was made to produce and tender a draft copy of the l:m~t Will prepared by a solicitor. That attempt was foiled by my ruhng agamst its production. There is, therefore, no will of the kind described by the defence before this court.The plaintiffs succeed and I therefore pronounce in solemn form of law in favour of the will dated January 10, 1962, propounded by them, as the deceased's last will and testament. I dismiss the defendant's counterclaim. I order that the costs of this action be paid out of the estate.