IN THE COURT OF APPEAL BETWEEN. CARLUS MEDFORD (lately a minor but now of full age) AND

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO Civil Appeal No. 85 of 2010 H.C.A. No. S-1016 of 2003 IN THE COURT OF APPEAL BETWEEN CARLUS MEDFORD (lately a minor but now of full age) AND DULCIE SAITH otherwise DIANE SAITH (Personal Representative of the Estate of Carlton Medford, deceased) Appellant Respondent PANEL: N. BEREAUX, J.A. G. SMITH, J.A. P. MOOSAI, J.A. APPEARANCES: L. Maharaj S.C, R. Kawalsingh for the Appellant H. Seunath S.C. for the Respondent DATE DELIVERED: 12 February 2015 I have read in draft the judgment of Bereaux J.A. I agree with it and do not wish to add anything. G. Smith Justice of Appeal I too agree. P. Moosai Justice of Appeal Page 1 of 27

2 JUDGMENT Delivered by Bereaux, J.A. [1] The two main issues in this appeal are: (i) Whether the testator Carlton Medford (Carlton) was of sound mind, memory and understanding when, on 1 st October 2001 (six days before his death), he purported to execute a will (the will). (ii) Whether Carlton knew and approved the contents of the will at the time of its execution. [2] There is, as well, the related question of due execution. The onus of proving that Carlton executed the will pursuant to the Wills and Probate Ordinance Ch 8 No. 2 (the Ordinance), lies on the respondent as propounder of the will. With regard to the question of knowledge and approval of the contents of the will, there is the subsidiary issue of the suspicious circumstances under which the will was prepared and whether those suspicions needed to be dispelled by the respondent. [3] The will was allegedly made by Carlton, on his sickbed on 1 st October 2001, at the Seventh Day Adventist Community Hospital, Cocorite, St. James. He died at the hospital on 7 th October He is alleged to have dictated the will to the respondent, Dulcie Saith (Dulcie) his sister, who wrote as he dictated. [4] Tiwary-Reddy J found that Carlton knew and approved of the contents of the will. She pronounced for the validity of the will pursuant to Dulcie s counterclaim. The appellant s claim for the revocation of probate was dismissed. [5] At the time of his hospitalization, Carlton was gravely ill. His medical condition was complicated. The main cause of his illness was liver failure. He had a cancerous kidney removed. The cancer had then metastasized to his liver. He was also suffering from cirrhosis of the liver and kidney failure and he was a Page 2 of 27

3 diabetic. The liver failure led to a medical condition called encephalopathy, brought on by the inability of the liver to detoxify. Patients with encephalopathy can suffer impaired mental functions because the toxins not filtered by the liver go to the brain causing the patient to be drowsy and unable to obey simple commands (see the medical evidence of Dr. Maria Bartholomew at page 17 paragraph 38 post). [6] Tiwary-Reddy J made no specific finding that Carlton was of sound mind, memory and understanding. But she found that Carlton knew and approved the contents of the will. It is implicit therefore that she found him to have been compos mentis at the time of the making of the will. Facts [7] At the time of his death Carlton was still legally married to Jean Medford (Jean) but they had been separated since Nick Medford (Nick) and Carla Medford (Carla) were the children of that marriage. At the time of Carlton s death, they were adults. The appellant (Carlus) was Carlton s second son. Carlus was twelve years old at the time of Carlton s death. He was born out of a relationship between Carlton and Bernadette Persad (Bernadette) with whom Carlton had been living immediately after his separation from Jean in Carlton s mother, Rookmin Medford (Rookmin) also survived him but died two months after him. All three children were beneficiaries under the will but Carla reaped the most benefit. [8] By the will, Carlton allegedly bequeathed to Rookmin, Jean, Bernadette and his brother Patrick Medford (Patrick), five thousand dollars ($5,000.00) each. To Carla he gave his premises at Erica Street, Montrose, Chaguanas. The residue of the estate was left to Carla, Nick and Carlus to be divided equally among them. Dulcie was appointed executor of the will. She was granted probate on 25 th April, A caveat was lodged by Carlton s brother, James Medford (James). This was removed by consent of the parties. Page 3 of 27

4 [9] Carlus then brought this action challenging the validity of the will and seeking the revocation of probate. As the propounder of the will, Dulcie bore the initial burden of proof. She was called upon to open the trial. At the close of Carlus case the judge allowed an application by counsel for Dulcie to call rebutting evidence. The judge then reserved her judgment. The judge later heard the parties on whether the hearing should be reopened to consider correspondence forwarded to counsel for Carlus and to the court, by Mr. Malcolm Johnatty, attorney at law on the record for Dulcie. In his letter, Mr. Johnatty alleged that Nick had informed him that the will had been drafted after Carlton s death at his (Nick s) home. Tiwary-Reddy J ruled that the correspondence would have no effect on the delivery of her decision. She was right to do so. [10] The evidence led on Dulcie s behalf was that the will was the second will of Carlton. The first was made in January 2001 in similar terms. It was drafted by Steve Chatoor (Chatoor) who was an attorney at law of the firm Hobson and Chatoor. Dulcie had signed as a witness. The case for Dulcie is that that will was discovered and destroyed by Bernadette. [11] At paragraph 95 of her judgment Tiwary-Reddy J found as follows: (i) Carlton and Chatoor, were close friends for a number of years and Chatoor had prepared a will for Carlton in January 2001 when Carlton was in relatively good health. (ii) Dulcie, her daughter Charmaine Saith (Charmaine) and Dulcie s best friend, Sushilla Patel (Sushilla), visited the Community Hospital in the afternoon of 1 st October By 1 st October 2001 there had been significant improvement in Carlton s mental status, and after speaking with Chatoor on the phone, Carlton gave instructions to Dulcie for the preparation of the will in terms of the will made in January (iii) Dulcie prepared the will in accordance with Carlton s instructions at his Page 4 of 27

5 hospital bed-side in the presence of Charmaine. She read over the will to Carlton who placed his X mark at the foot. Thereafter, Dulcie and Charmaine signed as witnesses. (iv) Carlton knew and approved of the contents of the will. It was executed in accordance with the provisions of the Ordinance. (v) The evidence of Dulcie was more credible than that of Bernadette. [12] The judge accepted the evidence of five of Dulcie s six witnesses as well as the evidence of Dr. Maria Bartholomew and to a lesser extent, the evidence of Dr. Alan Patrick. Both doctors had testified on behalf of Carlus. The judge then found that the evidence of these witnesses was sufficient to persuade her that Carlton knew and approved of the contents of the will. [13] The challenges on appeal, are primarily to the judge s findings of fact. In order to succeed therefore, it must be demonstrated that the judge made findings of fact which, when considered against the backdrop of the entire evidence, were so wholly unsupportable as to be plainly wrong. There must be some fundamental error in the judge s assessment of the evidence which undermines the integrity of her conclusions of fact. This will include a failure to properly analyze the entire evidence. See Maharaj Book Store v. Beacon Insurance Company, Privy Council Appeal No. 102 of 2012 paragraph 12 per Lord Hodge. [14] Six witnesses testified for Dulcie. They were Dulcie, Chatoor, Sushilla, Jean, Charmaine, Dr. Hari Maharajh. There were five witnesses for Carlus, to wit; Dr. Alan Patrick, Dr. Maria Bartholomew, Bernadette, Carlus and James. [15] A review of the relevant evidence led is necessary in order to properly assess the findings of the judge. Dr. Hari Maharajh s evidence can be immediately discounted. He did not examine nor treat Carlton. He gave a medical opinion Page 5 of 27

6 from the witness box based on the notes of Carlton s attending doctors. Tiwary- Reddy J held that little weight could be given to his testimony because he was not responsible for treating Carlton. She was entitled to do so and cannot be faulted. The evidence of Sushilla, James and Carlus were peripheral at best. I shall refer to their evidence only if necessary. Dulcie s witnesses Dulcie [16] Dulcie testified that on the 1 st October, 2001, she visited Carlton at the hospital between 2 to 4 p.m. with Charmaine and Sushilla. Charmaine had come to Trinidad the day after Carlton was admitted to hospital. She returned to Florida the day before he died. When they arrived at the hospital, Carla was visiting Carlton. Carla left shortly after they arrived. [17] Carlton told Dulcie he wouldn t last much longer. He wanted to make his will. She was saddened by this statement and went out onto the balcony to pull herself together. Carlton spoke to Chatoor, his attorney and friend, by mobile phone. He asked Chatoor to come to the hospital but Chatoor could not come to the hospital on that day. Chatoor then asked to speak with Dulcie. Chatoor reminded her of the January will which she had witnessed. Chatoor had drafted it. She recalled that when that will was drafted, she and her husband had gone with Chatoor to Carlton s home. She vaguely remembered the contents. She recalled that Carlton had kept that will. She had not asked for a copy. Chatoor had not kept a copy either. [18] Chatoor then instructed Dulcie to do exactly what was told to her by Carlton. She used paper which Charmaine had produced from her bag. Chatoor told her to write the will using separate paragraphs. He also told her to make sure she had witnesses. After she wrote Carlton s instructions, she handed the document to him. Carlton asked her to read it aloud. He then told her to add that Page 6 of 27

7 the will was read to him and that he found it Ok. Carlton thereafter put his X mark. Charmaine and she then signed as witnesses. Carlton had inscribed an X instead of his signature because his hands were swollen and he could not write his signature. Carlton asked her to keep the will. He then told her about the persons owing him money the collection of which would go to the residue of the estate. Dulcie said that she took the will to Bernadette some weeks after Carlton s death. She could not recall seeing Bernadette on 1 st October [19] She was cross-examined at length about the circumstances under which the will was made, about her relationship with Carlton, Carlton s relationship with Carla and the circumstances under which the January 2001 will was allegedly made. [20] Under cross-examination Dulcie said that even though Carlton was sedated while in hospital, there were days when he was very alert and would recognize her upon her arrival. She was asked why she did not call a doctor when Carlton stated that he wanted to make a will. She responded that he was speaking quite clearly and was in a lot better condition on that day in question. Chatoor [21] In his examination in chief, Chatoor stated that he was an attorney-at-law attached to the firm Hobsons from He ceased practising in He had known Carlton since He visited Carlton the day after he was admitted to hospital and again on the 2 nd October With regard to the January will, Carlton told him that Bernadette had destroyed it. Carlton said that Bernadette had accosted him about its contents and then stabbed him in the back with a scissors. Carlton had phoned him on the 1 st October He wanted the will to be executed on that same day. Chatoor told Carlton that he could come the following day. Carlton insisted. Carlton then asked if Dulcie could do it. Chatoor then spoke to Dulcie on the phone. He told her how to go about preparing the will. She was a bit hesitant because she could not remember the January will. He Page 7 of 27

8 also advised that Carlton put an X mark if his hands were swollen. [22] Under cross-examination Chatoor testified that he had previously done legal work for Carlton. Carlton had been asking for a will to be made years prior to He said that Carlton had put his true signature on the January will. Pressed by Mrs. Maharaj, Chatoor said that he did not think it was his duty to advise Carlton about his responsibility to Carlus, then a minor, or about the rights of Carlton s co-habitant, Bernadette. He gave no advice at the time of making the will. He did not draw to Carlton s attention that he, Carlton, had other property to which he was a beneficiary, that ought to be included in the will. [23] He added that it did not occur to him to find out who were Carlton s doctors or about his condition. He also did not advise Carlton that he should not make a will while in the hospital without a medical certificate. Chatoor also stated that he still had ten thousand dollars ($10,000) in his possession for Carlton. He said that Dulcie knew of the sum but did not apply to increase the grant. Jean [24] Jean was Carlton s wife and a nurse by profession. They had been separated for approximately fourteen years. She stated that after Carlton s first kidney surgery, he would visit her at home for her to dress his wound. After the surgery, he stayed at her house for about two days. She took him to be admitted to the hospital on the 22 September, Nick accompanied them. She also overnighted with Carlton (approximately eight nights) while he was at hospital. When he was first admitted he was vomiting and was very ill. Gradually he showed improvement. She spent the night of 1 st October 2001 with him at the hospital. She found him to be alert in the sense that he knew to whom he was speaking and where he was. She did not see Bernadette on that day. [25] She testified that Carlton told her that his dying wish was for Carla s studies to be financed from the property he would leave for her. She added that Page 8 of 27

9 Carlton had shown up at her home one day with a stab injury to his back. She dressed the wound. He told her that Bernadette found the January will and had destroyed it. Bernadette then confronted him and stabbed him in the back with a pair of scissors. Charmaine [26] Charmaine had been called to give rebutting evidence after the close of Carlus case. She was living abroad since She returned home upon hearing that Carlton was ill. She recalled that when she arrived in July of 2001, she took Carlton to one of his chemotheraphy sessions. She visited Carlton on the 26 th September He was not responsive. On 27 September when she visited again, a female doctor had started new treatment on Carlton. He was able to respond that day but weakly. On the 28 September 2001 when she visited, Carlton recognized her. She found he was getting stronger with the new treatment. He called her by her nickname, ugliness. She asked him if he was glad to see her and he jokingly responded no. [27] She had deposed to two affidavits. They were dated 21 st June 2005 and 28 th September In the 21 st June 2005 affidavit, Charmaine gave a short detail of how the will was executed. She gave a fuller account in her affidavit of 28 th September Both affidavits support the account given by her mother Dulcie, of the manner of execution of the will. [28] In both affidavits she denied telling James that the signature on the will was not hers and that it was a forgery. James had testified at the trial of a telephone conversation with Charmaine during which Charmaine allegedly disavowed signing as witness to a will and any knowledge of Carlton having made a will. [29] During cross-examination she held to her denials. She remembered the events of 1 st October 2001 because Carlton was his old self again and was Page 9 of 27

10 talking to us Her evidence largely corroborated Dulcie s account. However, a major inconsistency emerged when, contrary to her affidavit evidence, she testified that Dulcie and she, both signed the will before Carlton put his signature to it. Carlus witnesses Bernadette [30] Bernadette testified that she began a relationship with Carlton in She left her job at a supermarket to assist Carlton at his business which he conducted at his home. It was after his August 2001 chemotherapy that he became ill. Carlton was taken to hospital by Jean and Nick. Bernadette alleged that she spent every night with him at the hospital. [31] On 1 st October 2001, she paid Carlton s hospital bill. Between leaving to pay the bill and the time of her return, he had no visitors. She confirmed that later in the evening Dulcie, Charmaine and Sushilla came. They spent about three hours with Carlton. She insisted that during his stay at the hospital, Carlton was asleep for most of the time (Carlus evidence was to the same effect). She admitted she was not in the room during the entire time they visited. She never left the hospital from the 2 nd October 2001 to 7 th October She contended that Trevor Saith (Dulcie s husband) and Chatoor never visited Carlton on the 2 nd October Bernadette conceded that Dulcie and Trevor Saith did come to her home in January 2001(on the date the January will was executed). She insisted that she never destroyed any will. She contended that she knew all that Carlton owned at the time of his death. They held a joint bank account from which she could withdraw without a co-signatory. Dr. Alan Patrick [32] Dr. Patrick gave very direct evidence about Carlton s medical condition Page 10 of 27

11 and its effect on his mental acuity. He spoke from his notes. Carlton s predominant medical problem was liver failure. But there was significant kidney failure, cancer and kidney stone disease. He was also diabetic and had his left kidney removed due to cancer. [33] Dr. Patrick testified that during the period 24 th September to 7 th October 2001, Carlton was gravely ill. At his first consultation, Carlton was drowsy, hiccoughing, disoriented, jaundiced and very ill. His hiccoughing suggested severe liver and kidney failure. In Dr. Patrick s view, with this condition and from my examination, Mr. Medford was not capable of attending to his own business. He added that on 1 st October 2001, Carlton was unable to understand questions. He said that, between 7:00 a.m. to 10:00 p.m. on 1 st October 2001, he did not think that Carlton would have been capable of dictating something intelligently to anybody based on my examination and the medication which was administered. [34] Under cross-examination he accepted that a scan of Carlton s brain showed it to be normal but added that, while the brain function was within normal limits anatomically, there were circulating toxins from the liver and kidney which impaired his functions. He conceded that he did not record all of his visits and that because of his illness, Carlton would have good days and bad days. He also conceded that his visits could have been relatively brief because he used the notes of other doctors. [35] But in his view Carlton could not make a will unless it was a very simple will. Carlton did not have the intellectual capacity to collate his assets and liabilities, his responsibilities and the time sequences of his acquisitions That was a complicated process. This would also include his debts. [36] Dr. Patrick later retracted his evidence to say that Carlton could not make even a simple will. He added that while the CT scan showed that his brain functions were normal limits, the fact that Carlton was hiccoughing and had Page 11 of 27

12 tremors were indicative of brain damage. During his evidence in chief he initially stated that a certain drug had been administered to Carlton which would have made him drowsy. But he later retracted this evidence when his notes revealed that the drug had not been administered. Dr. Maria Bartholomew [37] Dr. Bartholomew is a specialist medical officer in gastro-enterology and hepathology. The latter term, she stated refers to the study of liver diseases. She had been called in by Dr. Patrick because Carlton s primary complaint was liver failure. She saw him on the evening of 25 th September She could not recall Carlton at all and relied entirely on her notes. He had an enlarged liver and fluid in the abdomen which suggested a more advanced stage of cirrhosis of the liver. He could not lift his hands off the bed nor could she get him to converse with her. She concluded that there was a significant degree of drowsiness. [38] Because of his liver failure he suffered from encephalopathy. This refers to neuro-psychiatric complications of liver failure. As she put it, because of the failure, the liver loses the ability to detoxify. So those toxins then go to the brain and affect mental function. The effect on the patient was he was drowsy and couldn t obey simple commands. She recommended intravenous antibiotics and a drug lactulose to treat his altered mental status. [39] By the 26 th September 2001 she noted mild improvement. By the morning of the 27 th September there was no change in the encephalopathy. There was no change in his mental state. Later in her evidence in chief however, she noted that on the morning of 27 th September, I found he was more responsive and recognizing relatives adding that had he been able to converse I would have noted it. [40] On the 28 th September, 2001 he was a little more alert adding that that meant less drowsy. On 29 th September she said that I documented his mental Page 12 of 27

13 status was much improved and that he was making full sentences. He was able to sit up on his own and was less drowsy My overall impression is that there was definite improvement in encephalopathy, mild improvement in renal function, diabetes was better controlled and the peritonitis was responding to treatment. She added that by sit up on his own he was able to move from prone position to sit up in bed without assistance. She added however that there was still some drowsiness because encephalopathy was still there. [41] Under cross-examination by Mr. Seunath, Dr. Bartholomew said she would spend half an hour whenever she visited him. She concentrated on the patient and his progress. The relevant part of the judge s notes is as follows: I can only go by my notes was that he could sit up. I can t say that he could have gone to the washroom with assistance. From my notes that is a sick man and I d be very surprised if he were able to stand There were times when the patient spoke, when he could recognize people. The judge s analysis [42] Tiwary-Reddy J s analysis of the evidence is set out at paragraphs 69 to 83 of her judgment. Some issue arose on the evidence as to whether Carlton had a good relationship with Carla. The judge found that Carlton and his daughter enjoyed a good relationship. She saw nothing wrong with Carlton wanting to leave the property to her to assist with funding her medical studies. [43] In analyzing the evidence on behalf of Dulcie, she found that neither Chatoor, Charmaine nor Dulcie received a benefit under the will. She found Dulcie to have been unshaken in cross examination. She found Charmaine to have been inconsistent on the issue of due execution. As to Chatoor, she found that nothing was put forward to discredit him and that Sushilla s testimony was credible and consistent. Page 13 of 27

14 [44] As to the evidence of Carlton s attending doctors, the judge said this: 76. Since two of the doctors who attended to the Deceased testified at the trial, this Court decided to disregard the evidence of Dr. Maharajh and rely on the testimony of Drs. Patrick and Bartholomew, who were independent. This Court therefore placed much reliance on their opinions of the Deceased s medical condition during his hospitalisation and especially during two to three days before and up to Dr. Patrick, was one of the three physicians who had treated the Deceased at the Community Hospital. Therefore his testimony carried much weight, although he was not a qualified neurologist. It is to be noted that Dr. Patrick had examined the Deceased twice on However, his credibility was diminished by his subsequent contradictions and retractions, regarding the Deceased s mental health as well as by the fact that his visits to the Deceased were at times brief and not always documented. Dr. Patrick admitted that one of the drugs which he had prescribed would have caused additional drowsiness. However, on examining his notes he confirmed that the drug was never administered. 78. Dr. Bartholomew could not recall the patient, relied entirely on her notes and was very consistent in her testimony. She testified that the Deceased had good days and bad days as alleged by the Defendant. Unlike Dr. Patrick, she noted significant improvement in the Deceased s condition up to Further, her visits with the Deceased generally appeared to have lasted longer than those undertaken by Dr. Patrick. However she did not meet with the Deceased on as she had been away Page 14 of 27

15 from work and so could not testify to the Deceased s condition on that date. 79. In the afternoon of Dr. Bartholomew noted that the Deceased was more responsive and recognising relatives. In the morning of the Deceased was a little more alert. On the Deceased s mental status was much improved and he was making full sentences. On the Deceased was still drowsy but responded appropriately and sat up on command. She added at paragraphs 92 and 93 that, 92. Dr. Patrick saw the Deceased everyday from to his passing on While he relied heavily on the notes he made on those visits, he admitted that some visits were very brief and that he did not make notes of all his visits. Dr. Patrick saw the Deceased in 2001 and gave evidence in Dr. Patrick did not confine himself to the medical evidence. At first Dr. Patrick accepted that the Deceased could make a simple will. On being shown the will, he resiled from his earlier opinion. He appeared anxious to convince this Court that the Deceased did not have the mental capacity either to make a will or to know and approve of the contents of any will. 93. This Court preferred the evidence of Dr. Bartholomew who spent more time with the Deceased and relied entirely on her notes. Dr. Bartholomew had seen the Deceased up to the day before the will was made. Her specialty was treating diseases of the liver and the Deceased s predominant problem was liver failure. She noted definite and significant improvement in the Deceased s mental status, i.e. encephalopathy, that he was less drowsy, recognising relatives, making full sentences and able to Page 15 of 27

16 sit up on his own. She also noted that there were days when he could recognise people and speak. She then concluded that: 94. The evidence of the Defendant and her witnesses, save for Dr. Maharajh, together with the medical evidence of Dr. Bartholomew and, to a lesser extent, Dr. Patrick was sufficient to convince this Court that the Deceased knew and approved of the contents of the second will. Law and Conclusions Due execution [45] An issue arose as to whether Carlton placed his mark on the will after the attesting witnesses had signed (as a result of the inconsistent evidence of Charmaine). The judge made no express ruling on this issue of fact. It is also unclear how she treated with Charmaine s evidence. However, she unequivocally accepted all of Dulcie s evidence. Dulcie s evidence as to execution was that Carlton signed the will and both Charmaine and she then signed. In my judgment Dulcie s evidence alone was sufficient to prove the will s due execution. See Duggan v. Barker (unreported) Court of Appeal UK in which the English Court of Appeal upheld the finding of Carnwath J (as he then was). Carnwath J had found, in effect, that one attesting witness recall of both witnesses signing the will was sufficient to prove due execution. He found that the attesting witness who had denied signing was more than likely to have been confused in his recollection. Carnwath J thus upheld due execution on the basis of the other attesting witnesses evidence only. In the present case, Tiwary-Reddy J, having accepted Dulcie s evidence, was entitled to rely on that evidence as proving due execution in accordance with the Ordinance. Page 16 of 27

17 Want of Knowledge and Approval [46] Williams on Wills 8 th edition Volume 1, paragraph 5.1 page 51 under the rubric Knowledge and approval, states: Before a paper is entitled to probate, the court must be satisfied that the testator knew and approved of the contents at the time he signed it. It has been said that this rule is evidential rather than substantive and that in the ordinary case, proof of testamentary capacity and due execution suffices to establish knowledge and approval but in certain circumstances the court requires further affirmative evidence. Affirmative evidence of such knowledge and approval would be required when the circumstances under which the will is prepared cause doubt or suspicion as to whether the will is a true expression of the intention of the testator. [47] The best expression of the law on this issue is set out in Halsbury s 4 th Edition Vol 17. It states at paragraph 907: Whenever the circumstances under which a will is prepared raise a well-grounded suspicion that it does not express the testator s mind, the court ought not to pronounce in favour of it unless the suspicion is removed. Thus where a person propounds a will prepared by himself or on his instructions under which he benefits, the onus is on him to prove the righteousness of the transaction and that the testator knew and approved of it. A similar onus is raised where there is some weakness in the testator which, although it does not amount to incapacity, renders him liable to be made the instrument of those around him; or where the testator is of extreme age; or where knowledge of the contents of the will is not brought home to him; or where Page 17 of 27

18 the will was prepared on verbal instructions only, or was made by interrogatories; or where there was any concealment or misrepresentation; or where the will is at variance with the testator s known affections, or previous declarations, or dispositions in former wills, or a general sense of propriety. [48] There were several suspicious circumstances in this case. Carlton s will left for Carlus, his minor son, (who lived with him) the residue of his estate (jointly with Nick and Carla) after the specific dispositions set out in it. His cohabitant Bernadette, with whom he had lived for over fourteen years right up to his hospitalisation, did not know of the will at all. She was left only $5,000. The will was made while Carlton was on his sick bed and a mere six days before he died. At the time of making the will he was quite gravely ill with many medical complaints, including liver and kidney failure. Even more significantly, he suffered from a medical condition which affected his mental functions causing him to be drowsy and unable to obey simple commands. Further the will was signed by Carlton with a X although he could read and write. Those were circumstances which ought to have excited the suspicions of the court. [49] Mrs. Maharaj submitted that, the judge, in arriving at her findings, failed to appreciate that the respondent had to remove all suspicious circumstances to prove the righteousness of the preparation and execution of the will. Rather, she selectively chose evidence given by both medical doctors and did not look at the evidence in the round. Consequently, the judge did not properly use her advantage, overlooked material evidence and failed to weigh and balance the evidence appropriately. [50] I do not agree. At paragraph 88 of her judgment the judge quite correctly considered whether the will was properly executed, citing Tristram and Coote's Probate Practice 30 th edition at paragraph 34:06. Having noted that it was for the propounder to establish a prima facie case by proving due execution, she quoted the following passage: Page 18 of 27

19 If the will is not irrational, and not drawn by the person propounding it and benefiting under it, the onus is discharged unless or until, by cross-examination of the witnesses, or by pleading and evidence, the issue of capacity or want of knowledge and approval is raised. The onus on these points is then again upon the person propounding. As to the other allegations, the onus is, generally speaking on the propounder. [51] The judge found that the will was rational on its face. At paragraphs 73 to 75 she noted that Dulcie, as propounder, Charmaine, Sushilla and Chatoor, who all testified in favour of the will, did not benefit under the will. The fact that none of these persons benefitted from it even though they spoke in favour of its force and validity, heavily influenced the judge s decision to pronounce in favour of the will. All four persons were either present or participated in the preparation and execution of the will. They were an active part of the circumstances of its preparation. Thus, while she did not speak of the suspicious circumstances, Tiwary-Reddy J did have them in her contemplation and was satisfied that the circumstances of execution of the will were ultimately above reproach. [52] She then went on to say at paragraph 89 that: The second will devised the principal asset to one of the deceased s three children and the residue to be shared equally among the three children. Two of the three children were adults and the products of the deceased s marriage to Jean, while the third child was only 12 and the child of Bernadette and the deceased. This will appears rational on the face of it but it fails to make any or any adequate provision for the infant plaintiff, Carlus By this will the deceased also left $5, each to his mother, his wife Jean and Bernadette. Chatoor testified that the deceased had told him that he had discovered that Bernadette Page 19 of 27

20 was stealing from him and thus did not want her to know of the first will (There was no objection at the trial that this was hearsay evidence) The judge in effect accepted the evidence of Chatoor that Carlton did not wish to give Bernadette more than five thousand dollars ($5,000.00) because he felt she was stealing from him. She also adverted to the fact that Carlus was not fully provided for. However it is implicit in her finding that the will is rational that she did not consider this to be a sufficient basis to strike down the will as not being an expression of Carlton s intentions. More significantly she accepted that Carlton wanted to leave the property for Carla so that she could use it to fund her medical studies. This was a finding separate and apart from any evidence of ill feeling towards Bernadette. The judge, having heard and seen the witnesses, was entitled to come to these conclusions. [53] More importantly, the value of the residue left to the three children was not insignificant. The entire estate was valued at one million one hundred and seventy-five thousand dollars ($1,175,000.00). The house which was left to Carla was valued at four hundred thousand dollars ($400,000.00). When the dispositions to Rookmin, Jean, Bernadette and Patrick are also deducted, Carlus and Nick are each left with assets valued in the sum of approximately two hundred and fifty-two thousand dollars ($252,000.00). Those are not insubstantial sums. In those circumstances it was not accurate of the judge to describe the will as not having made any or any adequate provision for Carlus. [54] Mrs. Maharaj also submitted that the allegations raised in Mr. Johnatty s letter should also have excited the court s suspicions. The allegation raised by Mr. Johnatty was that Nick had told him, sometime after the close of evidence, that the will had been executed in his presence at Dulcie s home. This disclosure was made to him in the latter part of Page 20 of 27

21 [55] This is a new submission made on appeal. It was not raised before the trial judge and we do not propose to entertain it now. In any event it was open to Carlus to subpoena Nick so as to permit Tiwary-Reddy J the opportunity to hear and assess his evidence. Given that Nick did not testify, it is not evidence which is properly before us upon which we can now express an opinion. [56] Mrs. Maharaj also criticised Tiwary-Reddy J for proceeding, from the outset of her judgment, on the basis that Carlton had made two wills. She submitted that the judge could not simply proceed on that basis without first setting out the process by which she arrived at that conclusion. [57] However valid the criticism may be, the fact is that the judge accepted the evidence of Dulcie and her witnesses, including Chatoor, without qualification. It was the clear evidence of both Dulcie and Chatoor that Carlton had made two wills; the first of which was made in January There is sufficient clarity in the latter part of the judgment as to the reasons why she accepted that evidence of Dulcie and her witnesses. Having accepted that evidence it follows that there was a proper evidential basis for her proceeding on the basis of the execution of a first will. Testamentary Capacity [58] Carlus contends that Carlton was not of sound mind, memory and understanding on 1 st October 2001, because: (i) He was hospitalised with cancer of the kidney, liver failure and other complications and was under the care of medical staff at the Cocorite Community Hospital. (ii) The on-going medical treatment together with his deteriorating health rendered his memory defective to the extent that he was frequently unable to recognize many of his closest relatives and friends. Page 21 of 27

22 (iii) He was in such a condition of mind and memory as to be unable to understand the nature of the act of making a will and its effects or the extent of the property he owned and could dispose of or to understand and appreciate the claims to which he ought to have given effect. The judge did not expressly find that Carlton had the testamentary capacity. But she found that he knew and approved of the contents of the will. It is inherent in that finding that he did in fact have the testamentary capacity. The question is whether she was plainly wrong to have found so. [59] Cockburn LJ in Banks v. Goodfellow (1870) LR 5 QB 549 at 565 noted that with respect to testamentary capacity: It is essential to the exercise of such power that a testator shall understand the nature of his act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect, and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the natural exercise of his faculties, that no insane delusion shall influence his will in disposing of his property and bring about a disposal if it, which if his mind had been sound, would not have been made. He goes further to add, As long as a testator knows that he wants to leave the assets in a specific proportion for reasons that are clear, rational and consistent, then he might be considered capable. [60] Wooding CJ in Moonan v. Moonan (1963) 7 WIR 420 at 421 I stated that: the onus of proving testamentary capacity was on the appellants Page 22 of 27

23 who were propounding the will. If the matter is left in doubt, then they fail to prove that the testator was capable of making a will. The resolution of that issue may be in one of three ways: either that the court is affirmatively satisfied that [the testator] was sound in mind, memory and understanding, or that the court is satisfied that he was not sound in any of these respects or that the court is left in doubt, with the result that the issue has to be resolved against the appellants who were propounding the will. [61] The issues of lack of testamentary capacity and absence of knowledge and approval turned essentially on the evidence of Doctors Patrick and Bartholomew. Dr. Patrick vividly remembered treating Carlton. Dr. Bartholomew did not. Dr. Patrick was quite blunt is his assessment of Carlton. He initially did not think that Carlton could have made a will unless it was a simple will. When shown the will he recanted. He felt that even the simplest of wills could not have been recited by Carlton. From his experience of will making, he did not think that Carlton could have dictated a will on 1 st October [62] Tiwary-Reddy J found his evidence to be inconsistent because of his errors and because of his adjustments of his evidence. But she also found that he did not spend as much time with Carlton as did Dr. Bartholomew. For those reasons she preferred Dr. Bartholomew s evidence. I consider that Tiwary-Reddy J, as the presiding judge, was entitled to be wary of Dr. Patrick s evidence. [63] Dr. Bartholomew s evidence was that Carlton s liver failure caused encephalopathy which affected his mental state. She treated his encephalopathy with lactulose. By the 30 th September 2001 he had shown improvement and was able to sit up in bed. The judge, relying on Dr. Bartholomew s evidence of Carlton s improvement by 30 th September 2001 and on the evidence of Dulcie, Charmaine, Sushilla and Chatoor, found that Carlton at the time of the making of the will knew and approved of the contents of the will. Page 23 of 27

24 [64] Mrs. Maharaj submitted that the judge did not have regard to the documentary evidence. She referred to the record at page 723 which showed that Carlton received 25 mg of largactil at 9:00 a.m., 1 p.m. and 6:00 p.m. on 1 st October She submitted that the evidence was that largactil had a sedative effect. So that at the time of the making of the will, Carlton, in addition to the drowsiness induced by the encephalopathy, would also have had to deal with the effects of the largactil. The judge did not consider that evidence. [65] Certainly there is no record of the judge referring to the documentary evidence at all. But that does not mean she did not consider it. The question is whether having regard to the evidence as a whole Tiwary-Reddy J was plainly wrong in the decision she made. (See Beacon (supra) paragraph 12) [66] While the medical evidence was important, the lay witnesses evidence on behalf of Dulcie could not be easily discounted. Their oral evidence of Carlton s lucidity on 1 st October 2001 must have impressed the judge. I am also mindful of the dictum of Lord Sumner in SS Hontestroom (Owners) v. SS Sagaporack (Owners) [1927] AC 37, 47:.. not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. [67] Mrs. Maharaj also submitted that the onus was on Dulcie to prove the testamentary capacity of the testator and that she had failed to discharge it. She submitted that no sufficient medical evidence was produced to affirmatively assert that Carlton was of sound mind at the time of the making of the will. The medical Page 24 of 27

25 evidence which was produced came from Carlus witnesses. [68] Certainly it was advisable for Dulcie to have sought medical advice as to the mental state of Carlton at the time of making of the will. It is also true that after the medical evidence of Doctors Patrick and Bartholomew was given no further medical evidence was called. The rebutting evidence of Charmaine was not relevant to this question. However, there are two features of the evidence upon which the judge s finding is sustainable. [69] The first is that Tiwary-Reddy J had the evidence of the two most important attending physicians. Even though the onus lay on Dulcie to prove testamentary capacity, the actual evidence by which such capacity could have been proven was produced to the court. Dr. Bartholomew was the doctor who treated the main cause of Carlton s illness. I agree with Mr. Seunath that no better medical evidence was available. Both doctors, as experts, were independent witnesses with no axes to grind. [70] The second point is that both doctors conceded that Carlton had good days. Dr. Bartholomew s evidence was that patients with encephalopathy would fluctuate between good and bad days. By good days I understand the medical evidence to mean that Carlton was fully alert and aware of his situation on those days. Dr. Patrick did not think that Carlton was sufficiently mentally acute on 1 st October But his was not the only evidence. Tiwary-Reddy J was entitled to consider the probability that the 1 st October 2001 was a good day having regard to Dr. Bartholomew s evidence of his improvement by 30 th September 2001, as well as the evidence of Dulcie and her witnesses. [71] In considering the evidence as a whole and the medical evidence in particular, the judge had also to weigh in the balance, the lay witnesses evidence. For instance, Dulcie testified that Carlton told her about the persons owing him money. This was in contrast to Dr. Patrick s assertion that Carlton s medical condition rendered him unable to recall his debts. Medical opinion is important Page 25 of 27

26 but not conclusive. The final decision was for the court having regard to all the evidence. See Re Key [2010] EW HC 408 (Ch) per Briggs J where he said at paragraph 98: the issue as to testamentary capacity is, from first to last, for the decision of the court. It is not to be delegated to experts, however eminent, albeit that their knowledge, skill and experience may be an invaluable tool in the analysis, affording insights into the workings of the mind otherwise entirely beyond the grasp of laymen, including for that purpose, lawyers and in particular judges. [72] Sick patients have time and again proven medical opinion wrong. There is no underestimating the power of the human mind in overcoming illness and adversity, more so, if the patient is strongly desirous of expressing his last intentions. [73] All that was required was a window of lucidity sufficient to permit the making of the will. Dr. Bartholomew was the doctor who treated Carlton s liver failure which was the main cause of his illness at that time. Her evidence was that she had administered the drug lactulose which treats the encephalopathy. By the 30 th September 2001, Carlton s condition had improved. This, together with the evidence of Carlton s lucidity, on 1 st October 2001, given by Dulcie and her witnesses, who had nothing to gain, were sufficient bases upon which the court could have concluded that he was compos mentis on that date, when the will was made. There was no clear evidence that the drug largactil, which Carlton was given at 6:00 a.m. and 1:00 p.m. on 1 st October 2001, had actually affected him. Dr. Bartholomew s evidence was merely that it can have a sedative effect. The medical evidence though weighty, is not conclusive. The final decision was one for the judge. There was a proper evidential basis for the decision to which the judge came. Page 26 of 27

27 [74] In the result, I cannot say that Tiwary-Reddy J was plainly wrong to have ruled for the force and validity of the will. The appeal is dismissed. We will hear the parties on costs. Nolan P.G. Bereaux Justice of Appeal Page 27 of 27