THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV IN THE MATTER OF THE WILLS AND PROBATE ACT, CH. 9:03 AND THE CIVIL PROCEEDINGS RULES 1998, AS AMENDED, PART 72 AND IN THE MATTER OF THE SUCCESSION ACT, CH. 9:02 AND IN THE MATTER OF THE MARRIED PERSONS ACT, CH. 45:50 AND IN THE MATTER OF THE COMPANIES ACT, CH. 81:01 AND IN THE MATTER OF THE CIVIL PROCEEDINGS RULES 1998, AS AMENDED, PART 8.1(4)(D) AND IN THE MATTER OF THE ESTATE OF DHANRAJ MAHARAJ WHO DIED ON 1 st NOVEMBER 2011 BETWEEN SUMATIE MAHARAJ ALSO CALLED SUMATIE SEETARAM ALSO CALLED SUMATIE SEETARAM MAHARAJ CLAIMANT AND Page 1 of 14

2 (1)DARSHAN MAHARAJ (BY HIMSELF AND AS THE EXECUTOR OF THE ESTATE OF DHANRAJ MAHARAJ, DECEASED) (2) SUE S AUTO RENTALS LIMITED DEFENDANTS Before the Honourable Mr Justice Ronnie Boodoosingh Appearances: Mrs Lynette Maharaj SC leading Ms Shameli Parsad instructed by Ms Shaheera Allahar for the Claimant Mr David Alexander instructed by Ms Melissa Sinanan for the first Defendant Date: 20 November 2017 JUDGMENT 1. On 1 st November, 2013 Dhanraj Maharaj, aged seventythree (the deceased), died. He was married to the Claimant since They both lived at Plover Street, Chaguanas. 2. Before this he had been married to Chanardai Maharaj. They had four children including Darshan Maharaj, the first Defendant. This marriage ended in divorce in As part of the property settlement, the deceased had paid off Chanardai for her share in the Chaguanas property. 3. About 1991, the Claimant had moved into the Chaguanas property with her two daughters. The daughters eventually Page 2 of 14

3 left, but one of the daughters son, Stephan Schuler, continued to live with the Claimant and the deceased. 4. At the time he started his relationship with the Claimant, the deceased owned a taxi which he operated from the Piarco International Airport. 5. The Claimant and the deceased in 1993 registered a car rental business named Sue s Auto Rentals. Sue s Auto Rentals Limited replaced Sue s Auto Rentals in The deceased and Claimant each owned 50% of the company. The second defendant has agreed to abide by the decision in this matter. 6. The deceased made a Will on 16 th June, Probate was granted to the first Defendant in January, 2013 as executor. The Claimant had a previous Will dated 1 st June, The Claimant was the executrix of that Will. 7. The Claimant purchased three properties in her own name in 2006, 2007 and 2009 at Store Bay, Tobago, Carapichaima and Piarco respectively. 8. In her claim, the Claimant has brought several claims. These included: - A declaration that the 2010 Will was not duly executed under the Wills and Probate Act, Chapter 9:03. - A declaration that at the time of the 2010 Will the deceased did not know and approve of the contents of the Will. - A declaration that at the time of execution of the Will the deceased was not of sound mind, memory or understanding. - An order to revoke the Grant of Probate of the 2010 Will. Page 3 of 14

4 - An order that the Court should pronounce in favour of the 1998 Will and that the Court should decree Probate of this Will. Alternatively, the Claimant claims: - The Claimant be provided with reasonable financial provision out of the estate of the deceased. - A declaration that the application for probate was meant to defeat an application for financial provision under Part VIII of the Succession Act, Chap. 9:02. - An order the Defendant transfer and deliver possession to the Claimant of the property in the deceased s estate or a share of it. 9. Alternatively, again a declaration is sough that the property of the deceased is held in trust for the Claimant; a declaration that by agreements between the deceased and the Claimant, the Claimant is entitled to the Chaguanas property; a declaration that the Claimant is entitled, in equity, to the Chaguanas property. 10. The Claimant also seeks a declaration that the shares in the company in the deceased s name are held in trust for the Claimant and should be transferred to her. 11. Certain related reliefs under the Companies Act, Chap. 81:01 are also sought. 12. The critical issue for the Court to determine is the status of the 2010 Will. Several other matters will depend on the Court s finding in relation to this matter. Page 4 of 14

5 13. The Court is entitled to consider all of the evidence placed before it although the burden of proving the due execution of a Will is on the proponent of the Will. 14. Section 42 of the Wills and Probate Act provides the requirements for due execution. Impressions of the witnesses and findings on the evidence The Claimant 15. The Claimant was an unimpressive witness. Many times she failed to answer simple questions. She appeared at times not to understand what was contained in her own affidavits. At times she answered a question with an answer unrelated to the question. 16. She was soft spoken at times, but that did not trouble the court. Some witnesses may be like that. However, her affidavits suggested she was an accomplished businesswoman. The affidavits were also very detailed and specific. Her vague or unsatisfactory answers to questions in cross-examination therefore gave the impression on several occasions of her being evasive or unwilling to answer the questions posed. On occasions she showed discomfort with the obvious answers it would lead to. 17. I also found her evidence to be contradictory in material respects. In her affidavits she sought to advance that she and the deceased did everything together from a marital and business perspective. However, the evidence also revealed that she acquired three properties in her own name. These must have been from the proceeds of the business that she owned jointly with her husband. 18. This supports the evidence of Ms Nisha Persad, attorney at law, that the deceased expressed concerns about his wife s Page 5 of 14

6 dealings with money and what he asserted that she could take care of herself. 19. If the Claimant was able to acquire three properties from the proceeds of the business, it appears that she benefitted in a disproportionate way to the deceased Dhanraj. Nisha Persad 20. She was the attorney-at-law who prepared the 2010 Will. I found her to be a reliable witness. While there are additional questions she could have asked of the deceased, Dhanraj, on the whole her evidence was clear and forthright. She explained the process she adopted. Based on her account, which I have no reason to believe is not her best recollection of the events, it is clear that Dhanraj had a determined mind about what he wanted to do with his property. 21. An attorney gives advice on legal matters and the legal implications of what the client wants to do. An attorney is not there to try to persuade a client about what to do with his or her assets or to suggest what may be the right thing to do from a moral perspective. In this regard I do not think Ms Persad can be faulted for the approach she took with the deceased. She sought to give effect to what he requested. Bernard Mac Kenzie 22. This witness testified that he interacted with the first defendant and Dhanraj over the years and not with the Claimant. I did not form the impression that he had a close relationship with either of them, but that he knew them as good customers. I considered him to be a forthright witness, who had no interest to serve by giving the evidence he did. I found him to be believable and independent. I had no difficulty in accepting his evidence. Page 6 of 14

7 Balkrishna Rampersad 23. This witness was categorical that he did not know of a promissory note and he did not request it or have anything to do with it. The Claimant s evidence in cross-examination about the promissory note was vague. She did not seem to know when, where and how it was signed. In this regard I preferred the evidence of Rampersad. But the evidence of the loan was clear. Darshan Maharaj 24. He gave direct and clear answers on the questions posed to him. I preferred his evidence to that of the Claimant. I found it plausible that as time passed his relationship with his father may have improved. His mother, his siblings and he were put out of their home by his father. It would not be unusual or unexpected that there would be strained relations for some time. It appears to me that as time passed there was some reconciliation between him and his father and his father came to rely on him in respect of some aspects of the business. 25. His evidence therefore about his involvement with his father s business is therefore plausible. Criston Williams 26. Criston Williams, an attorney-at-law, gave evidence that he witnessed the execution of the Will of the deceased (or a man identified as Dhanraj Maharaj) on the relevant date. His colleague, Naveen Maharaj, also witnessed execution of the Will. This was done in the presence of the preparer of the Will, Ms. Nisha Persad, an attorney-at-law. 27. Mr Williams was cross-examined about the process of execution, his experience at the time (he was only a few month call), whether he saw identification, and so on. Mr Williams really had no clear recollection of all the events. Page 7 of 14

8 He answered based on his general practice, his memory refreshing from his affidavit in the probate proceedings and his recollection of some of the events. I did not think it suspicious or unusual that Mr Williams did not recall specifically everything that transpired, but I am satisfied based on his evidence that there was due execution of the Will of His evidence was supported in general terms by the evidence of Ms Persad. 28. The next issue concerned whether the deceased knew and approved of the contents of the Will. 29. Unless the document appears suspicious such as where it is signed by mark or where the signature shows feebleness, the testator s execution of it would generally suggest that the testator knew and approved of its contents. 30. Ms Persad also gave clear evidence of her taking instructions and of her reading of the Will to the deceased before he signed in. 31. While she too could not recall all the details of the process undertaken, I was satisfied with her evidence of the process used and that it showed the deceased knew and approved of the contents of the Will. 32. The next issue related to the testamentary capacity of the deceased. 33. The testator must be shown to understand the nature of the act and its effect; the extent of the property he is disposing; the claims to which he ought to give effect: Banks v- Goodfellow (1870) L.R.5 Q.B. at page The evidence show that the deceased had several medical conditions. He had had surgery the month previously. Page 8 of 14

9 However, his medical condition, as shown, fell far short of showing that he lacked testamentary capacity. None related to senility, dementia, Alzheimer s disease or any impairment of his mental faculty. 35. The evidence of the day s events on the day the Will was made also show he had testamentary capacity. He was taken to Mr Devesh Maharaj, an attorney-at-law who had done work with him and the Claimant previously, and who considered he had a conflict of interest, and who therefore directed him to Ms Nisha Persad, who had her law office separate from him but in the same building. Ms Persad gave evidence of the process used. He had no difficulty communicating with her. He told her about the Claimant taking money from him and his concerns. 36. Notwithstanding that there were some other matters Ms Persad could have traversed with the testator, I found her evidence generally to be cogent and credible. She gave evidence of the clarity with which he indicated his dispositions and there was nothing to cause her to think he lacked capacity. 37. While a medical report may have put matters beyond dispute, the evidence of his medical complaints is not sufficiently significant to suggest he lacked capacity. Persons with the complaints the deceased had very often go about their daily lives and carry on their business with full mental capacity. 38. There was also nothing to suggest that Ms Persad was anything but an independent attorney-at-law carrying out her functions in relation to the preparation of a Will. 39. Even issues related to forgetfulness (which many people have) or relating to deteriorating sight (which persons of advancing age or with diabetes may suffer) do not take away from his capacity to make dispositions of his property. Page 9 of 14

10 40. The dispositions also do not excite any suspicion. He left the Chaguanas property to three of his children as joint tenants. He left shares to his adopted grandson Stephan, who lived with him and the proceeds of a bank account to him also. Stephan is the son of the Claimant s daughter. 41. He raised his concerns of his wife taking money from him; he allowed her a year to find alternative accommodation. The evidence is also that his wife had three properties acquired in her own name. If they communicated as well as the Claimant says, he would have known that she had these properties and he may have desired to leave something to his children of his previous marriage. 42. There is also evidence subsequent to the Will from both the Claimant and Defendant indicating he continued to have discussions about the business, and his business affairs. He also renewed his driving permit subsequently, which would have necessitated a medical doctor certifying his fitness. 43. In all of the circumstances, I find that the 2010 Will was validly made and executed. There are no circumstances presented sufficient to excite the Court s suspicion about the Will. I therefore decline to order revocation of the probate granted. 44. An issue was raised about the failure to file the affidavit of testamentary script in this case by the first Defendant. In my view, this is not fatal to this claim. Probate has already been granted. The claim is to revoke the Grant of Probate. This, therefore, is a materially distinguishable circumstance from the claim in Hugh Lee King v- Leo Martinez and Others CV per Jones J. Page 10 of 14

11 Reasonable Financial Provision 45. I turn to considering whether the deceased failed to make reasonable financial provision to the Claimant by the 2010 Will and whether any consequential order should be made. 46. Section 97(1) of the Succession Act identifies the circumstances the Court must consider. 47. Section 27(1) of the Matrimonial Proceedings and Property Act, Chap. 45:51 lists the matters the Court must consider in granting financial provision or ordering a transfer of property to an applicant. 48. In Re: Moody (deceased) [1992] 2 AER 534 Waite J. identified a two stage process: the Court (1) must consider whether the deceased s estate failed to make reasonable financial provision for an Applicant and if the answer is yes, the Court must consider what financial provision should be made for the Applicant. 49. The Court considers, additionally, what provision should have reasonably have been expected to be made if, on the date of death, the marriage had been determined by divorce. 50. The 2010 Will made no provision for the Applicant. The question is whether any provision ought to have been made for her and the extent that should have been made. 51. The estate was sworn at approximately $2.2.million. The financial resources and needs of any other person is not relevant here. There is no physical or mental disability of the Claimant. The main aspect which is of relevance is the financial resources and needs which the Claimant is likely to have in the foreseeable future. The evidence is that as part owner of the car rental company the Claimant has an income Page 11 of 14

12 from which she can maintain herself. This was a business both she and the deceased worked in and built up. We also know that she has been able to purchase three properties in recent times. This was better than what the deceased did. Put another way, the deceased may have chosen to save his earnings from the company or to use it, while the Claimant chose to invest in property. She did this for her benefit without naming him as a joint owner. This demonstrated her ability to earn income and shows that she has some financial strength by having these properties, which can later be translated into cash if need be. 52. Having been married to the deceased for eleven years and cohabited before for approximately nine years, it can be accepted that she would have contributed to the home and the domestic arrangements of it. 53. Considering the section 27 factors of the MPPA, the Court has to look at all the circumstances of the case and seek to achieve a practical, just and equitable outcome. 54. In terms of those factors which are especially relevant here, it would seem from the evidence that both parties had similar earning capacities as being part of the business arrangement. Their standard of living was likely to be comfortable and the Claimant would have contributed to the domestic arrangements of the home. 55. They both had the same share in the company and would both be entitled to equal shares of the profits of the business. The other aspects of the estate are the house, is the deceased s 50% share in the business and the proceeds of an account. The deceased choose to leave the proceeds in his account to the Claimant s grandson and to share the business, 25% to the deceased s son and 25% to the Claimant s grandson. Page 12 of 14

13 56. There is evidence of the Claimant s contribution to the Chaguanas property, but this is not sufficient to entitle her to the entirety of the property. The evidence is not clear as to whether the improvements were made with personal funds of the Applicant or whether proceeds of the company went into the house. I am of the view, that she is entitled to a share in the property on account of her contributions, but that this should be at 25% of its value. 57. I also conclude that the other testamentary dispositions should stand. I find as a fact that the first Defendant did have a positive relationship with his father in the last years of his life. He assisted his father in the business. No doubt, the relationship would have been affected by the breakdown in the marriage of the deceased to the first Defendant s mother, but I accepted his evidence that the relationship improved as time went on. It is also clear that the deceased assumed some responsibility for the Claimant s grandson, who grew up with him and it is accordingly quite plausible that provision was made for the deceased s children of his first marriage and the Claimant s grandson in these circumstances. The deceased must have considered that the Claimant had earning capacity in the business and had means to support herself by her ownership of other properties. The Claimant, in fact, has the means by which she can continue to live comfortably and has other properties where she can live in or derive an income from. 58. On the trust claim, the evidence does not establish on a balance of probabilities that any trust relationship arose in this case. I did not accept the Claimant s evidence in relation to promises being made by the deceased. I have already set out what my impressions of the individual witnesses were and those findings directly affected whether I accepted the Claimant s assertions about the various promises she said the deceased made. I have already noted that I accepted Ms Nisha Persad as a credible witness who told us that the deceased had stated he had reservations about the Claimant s handling of monies. Page 13 of 14

14 59. The business had been registered in both the deceased s and the Claimant s names as half share owners. The evidence is that both of them were involved in the business. In crossexamination the Claimant accepted that the deceased continued to be involved in the business up to the time of his death. There is no conduct on his part to suggest that he held his shares in trust for her. Up to the making of the Will he showed he intended to keep control of his share of the business and to dispose of it. 60. In conclusion, the Claimant has been shown to have a 25% interest in the Plover Street property. I make an order that she be paid for her interest in accordance with the valuation of the property. Costs 61. The Claimant has not succeeded in her claim as pleaded. She brought a claim for revocation of the Grant of Probate. She also brought alternative claims seeking other reliefs. In my view, it is not appropriate that the estate should be burdened with the costs of this claim. I have, however, considered that the effect of the judgment is that the parties will either have to work together in the business, one party may have to buy out the interest of the other or the company may have to be wound up and each paid a share of the business. A costs order may unnecessarily complicate this process. Be that as it may, the first Defendant has succeeded and there is no sufficient reason to depart from costs following the event. The Claimant must pay the costs of the first Defendant on the prescribed scale in the sum of $14, Ronnie Boodoosingh Judge Page 14 of 14