IN THE COURT OF APPEAL

REPUBLIC OF TRINIDAD AND TOBAGO C.A. No. S054 of 2013 IN THE COURT OF APPEAL IN THE MATTER OF THE WILLS AND PROBATE ACT CHAPTER 8:02 AND IN THE MATTER OF THE SUCCESSION ACT CHAPTER 9:02 (PART VIII) AND IN THE MATTER OF THE DISTRIBUTION OF ESTATES ACT NO 28 OF 2000 AND IN THE MATTER OFTHE ESTATE OF BONAVENTURE THEO EUGENE TOUSSAINT Deceased, late of 549 Onyx Circular, Edinburgh 500, Chaguanas BETWEEN THEODORE TOUSSAINT (Person named as Executor of the Estate of BONAVENTURE THEO EUGENE TOUSSAINT, Deceased) Appellant AND LECHELL SAMUELS Respondent Panel: ************ P. Weekes J.A. P. Jamadar J.A. R. Narine J.A. Appearances: Mr. I. Benjamin and Mr. K. Mc Quilkin for the Appellant Mr. R. Kawalsingh for the Respondent instructed by Mr. R. Mungalsingh DATE DELIVERED: 15 th December, 2014. Page 1 of 16

I have read the judgment of Narine J.A. and agree with it. I too, agree. P. Weekes Justice of Appeal. P. Jamadar Justice of Appeal. JUDGMENT Delivered by R. Narine J.A. FACTS: 1. The appellant is the executor named in the will of Bonaventure Theo Eugene Toussaint (deceased) dated 14 th August 2009. The deceased died on 21 st September 2009. He had been diagnosed with thyroid cancer in July 2009, and subsequently underwent surgery on 28 th July 2009. A breathing tube was placed down his throat. It was the appellant s case that the deceased made a will while he was at the San Fernando General Hospital on 7 th August 2009, prepared by an attorney-at-law, and he subsequently executed another will on 14 th August 2009 prepared by the same attorney for the purpose of correcting the name of his executor (the appellant). 2. It was not in dispute that before his death the deceased cohabited with the respondent for a period in excess of ten years. They last lived together at No. 549 Page 2 of 16

Onyx Circular, Edinburgh 500, Chaguanas, in a house built by the deceased, on lands previously owned by his sister, Bernadette. 3. On 12 th April 2010, the respondent filed a Fixed Date Claim seeking, inter alia, a declaration that a cohabitational relationship existed between her and the deceased, a declaration that she was entitled to the house and land situate at Edinburgh 500, and an order that the appellant do transfer that property to her. 4. On 6 th January 2012, the respondent filed another Fixed Date Claim Form and a Statement of Case seeking, inter alia, a revocation of the appellant s application for Letters of Administration with Will annexed of the estate of the deceased, orders that the court do pronounce against the validity of the wills dated 7 th August 2009, and 14 th August 2009, and a grant to her of Letters of Administration of the estate of the deceased. This action was consolidated with the earlier action. 5. On 24 th January 2013, the trial judge pronounced against the validity of both wills, and declared that the deceased died intestate. On 7 th March 2013, the judge made a further order, inter alia, directing the appellant to withdraw his application for Letters of Administration with Will annexed, and declaring that the respondent is entitled to apply for a Grant of Letters of Administration. 6. The learned trial judge found that the appellant had not established that the deceased, possessed the requisite mental capacity at the time of execution of both wills, nor that he knew and approved the contents of both wills. The trial judge also found that the earlier will had not been duly executed in accordance with Section 42 of the Wills and Probate Act, and expressed doubt with respect to the execution of the later will. In addition, the trial judge found that there were suspicious circumstances surrounding the preparation and execution of both wills, which had not been dispelled by the appellant. Page 3 of 16

7. Unsurprisingly, the oral and written submissions of counsel centred around the issues of the testamentary capacity of the deceased, whether he knew and approved of the contents of both wills, due execution and suspicious circumstances. TESTAMENTARY CAPACITY 8. The learning with respect to testamentary capacity is conveniently summarised by the learned authors of Tristram and Coote s Probate Practice 13 th ed. at paragraphs 34.26, 34.27 and 34.29 as follows: 34.26 A duly executed will, rational on the face of it, is presumed, in the absence of evidence to the contrary, to be that of a person of competent understanding (Symes v. Green (1859) 1 Sw & Tr 401; Sutton v. Sandler (1857) 3 CBNS 87). Sanity must be presumed until the contrary is shown (Burrows v. Burrows (1827) 1 Hag Ecc 109). 34.27 Where unsoundness of mind is alleged, the burden of proof rests upon those who set up the will, and, a fortiori, when it has already appeared that there was, in some particular, undoubtedly unsoundness of mind, that burden is considerably increased (Smee v. Smee (1879) 5 PD 84 at 91; but see Dew v. Clark and Clark (1826) 3 Add 79; Wheeler and Batsford v. Alderson (1831) 3 Hag Ecc 574 at 598; and Waring v. Waring (1848) 6 Moo PCC 341). So also where the will is not rational on the face of it (Arbery v. Ashe (1828) 1 Hag Ecc 214)...... 34.29 The testator must understand the nature of the act and effect; the extent of the property of which he is disposing; the claims to which he ought to give effect; and, with a view to the latter object; no disorder of the mind must poison his affections, pervert his Page 4 of 16

sense of right or prevent the exercise of his natural faculties, and no insane delusion must influence his will in disposing of his property, and bring about a disposal of it which, if the mind had been sound, would not have been made (Banks v. Goodfellow (1870) LR 5 QB 549 at 565; Harwood v. Baker (1840) 3 Moo PCC 282; Re Belliss, Polson v. Parrott (1929) 141 LT 245). 9. The evidence as to how the will dated 7 th August 2009 came into existence came from Ms. Kerra Bazzy an attorney-at-law, who was contacted by telephone on 5 th August by one Ms. Cowie, an employee in the human resources department of Phoenix Park Gas Processors (the deceased s employers), and requested to attend upon the deceased for the purpose of assisting the deceased in making a will. The deceased was warded at the San Fernando General Hospital. 10. Ms. Bazzy met the deceased for the first time on 7 th August 2009 at around 7:00 a.m. She observed that there was a tube in his throat. However, he was able to communicate in a loud whisper. Despite this, he was able to move about freely, and to carry on conversations on his cell phone. He gave the attorney a piece of paper containing hand written instructions for discussion, which carried a recorded time of 5:00 a.m. Ms. Bazzy then had a two hour conference with the deceased during which she took further instructions, and obtained further clarification of his written instructions. 11. Ms. Bazzy then went to her office, prepared the will and returned several hours later with a type-written document. She took the precaution of finding out the names of the deceased s doctors, and asked them whether they would be willing to witness the will, and to verify that the deceased was of sound mind and fully understood the nature of the transaction before execution of the will. 12. The deceased s doctors were Dr. Naresh Armoogam, a surgeon, and Dr. Christian Beharry, a House Officer. Dr. Armoogam had been treating the deceased for some 10 days, and given the gravity of his condition, had advised the deceased to Page 5 of 16

put his affairs in order. Dr. Armoogam questioned the deceased in the presence of Ms. Bazzy, Dr. Beharrry and two trainee nurses before the will was executed. 13. Dr. Beharry was called as a witness by the respondent. In his brief witness summary, he confirmed that the deceased responded well to questions asked and his assessment was that the deceased was of sound mind. Ms. Bazzy also expressed the view that on 7 th August 2009, the deceased appeared to be lucid and coherent and appeared to fully understand his instructions and the contents of his will. 14. In her statement of case filed on 6 th January 2012, the respondent pleaded at paragraphs 10 and 11, that the purported will dated 7 th August 2009 was not duly executed in accordance with the Wills and Probate Ordinance, and the deceased did not know and approve its contents. Curiously, in paragraph 12 the respondent pleaded in the alternative that the deceased was not of sound mind, memory and understanding on 7 th August 2009. The particulars also pleaded in the alternative at paragraph 14, set out that the deceased was in such a condition of mind and memory as to be unable to understand the nature of the act and its effect, or the extent of the property of which he was disposing, or to comprehend and appreciate the claims to which he ought to give effect. 15. It is not in dispute in this case that the deceased was terminally ill, and on 7 th August 2009 had a tube inserted in his throat. But there is no evidence whatsoever, medical or otherwise that his illness affected his mental capacity. The respondent, his common law wife of some 13 years, in her witness statement, claimed that his decline in health took a toll on him physically and mentally. However, she gives no evidence whatsoever as to how she was able to conclude that his illness affected his mental status. In fact apart from the evidence of Dr. Beharry, the respondent led no evidence whatsoever on the issue of the mental capacity of the deceased. As noted earlier, Dr. Beharry s evidence was that the deceased was of sound mind at the time of execution of the will dated 7 th August 2009. Page 6 of 16

16. According to the learning in Banks v. Goodfellow (supra), testamentary capacity comprises three essential elements. The testator must possess: (i) an understanding of the nature and effect of the act of making a will; (ii) knowledge of the extent of the property of which he is disposing, and (iii) an appreciation of the claims to which he ought to give effect. 17. As noted earlier, where a will is rational on the face of it, and is duly executed, a presumption arises, in the absence of evidence to the contrary, that the testator is a person of competent understanding. There is a presumption of sanity in the absence of evidence to the contrary. Where unsoundness of mind is alleged, the burden of proving soundness of mind rests on the person propounding the will, to show that the testator was of sound mind at the time he made the will. 18. In this case the respondent led no evidence that the deceased was of unsound mind on 7 th August 2009, and 14 th August 2009, when the second will was executed. The respondent relied on inferences to be drawn from the testator s medical condition on 7 th August 2009 and from the fact that he underwent a whole body scan on 14 th August 2009, having been injected with iodine sometime earlier. There is no evidence that due to his illness or medication on 7 th August 2009, the deceased s mental status was compromised. Nor is there any evidence that the body scan on the 14 th or the injection of iodine would have had any effect on his mental condition. There is no evidence from the respondent or any other witness that the speech or behaviour of the deceased on either dates indicated any cause for concern about his mental status. 19. Having regard to the absence of evidence of unsoundness of mind, in our view the evidence of Dr. Beharry and Ms. Bazzy with respect to the deceased s mental condition on 7 th August 2009, was sufficient to discharge the burden on the appellant to show that the deceased was mentally competent on that day. With respect to the 14 th August 2009, there was the evidence of Ms. Bazzy as well as the evidence of the appellant that the deceased was at all times clear, logical and Page 7 of 16

coherent in his conversations with him. In the absence of evidence to the contrary, in my view this evidence was sufficient in the circumstances of this case, to establish mental capacity, and the ability of the deceased to understand the nature and effect of his act on both occasions. 20. Issues have been raised with respect to the knowledge of the deceased of the extent of his property on 7 th August 2009. It was submitted that the deceased omitted a policy of insurance with CLICO in the sum of $800,000.00, which formed a substantial part of his estate. In addition, it was suggested that his devise of the property at Edinburgh 500 (on which he had built his home) to his sister Bernadette, betrayed a lack of appreciation of the deceased s interest therein. 21. In her affidavit filed on 31 st January 2011, Bernadette deposed that she had transferred the property to the deceased by deed of gift in April 2006, in order to raise a mortgage for the purpose of building a house on the land, on condition that the deceased would return the land to her, after he had paid off the mortgage. She had earlier given the deceased access to her Unit Trust account for the purpose of building a house on the land. The deceased had misused the money, and had subsequently agreed to build the house, with monies to be raised on a mortgage of the land. It was in these circumstances that she agreed to transfer the land to him. She later gave the deceased a further $4,000.00 (U.S.) to effect certain repairs/modifications. 22. Having regard to the evidence of Bernadette, the deceased was clearly acting in accordance with his agreement when he gave the instructions to devise the property to her. It appears from the evidence of Ms. Bazzy, that the deceased was pained by his decision to give the respondent six months to leave the property. He informed Ms. Bazzy that there was too much confusion in the family, and he wanted the respondent to acquire her own home, and to avoid further interaction with his family after his death. To this end he decided to leave the appellant sufficient funds to enable her to purchase her own home. In her affidavit of 31 st January 2012 Bernadette confirms that she and the respondent did not have a harmonious relationship. Page 8 of 16

23. Having regard to the evidence, there was nothing irrational in the devise to Bernadette. It may be that the deceased may have been mistaken as to his equitable interest in the property. However, a misapprehension as to his strict legal rights is not, in my view, a sufficient basis for concluding that the deceased lack testamentary capacity. As a lay person, he may not have fully appreciated his interest in the property. It may well be, however, that he was aware of his interest but intended to effect a clean break between the respondent and his family, by not pursuing any equitable interest he may have had in the property. 24. Apart from the CLICO policy, it is evident that the deceased addressed his mind to all his assets in giving his instructions, including his pension plan and savings plan with his employer, his accounts at Venture Credit Union and First Citizens Bank, his life insurance policy at Maritime General Insurance Limited and his real estate. The fact that he appears to have omitted one of his assets can hardly be a basis for concluding that he lacked testamentary capacity. 25. It is evident as well that the deceased fully appreciated the claims to which he ought to give effect. He made provision for his mother, his common law wife, her son Niccoli whom he treated as his own, his sister Angela who appeared to have a physical disability, and his sister Bernadette. 26. The trial judge expressed the view that the dispositions to the respondent and her son could not be described as rational, when compared to the provision the deceased made for his mother. The respondent in fact received the sums of $267,201.54 and $11,491.13, being 40% of the deceased s pension benefit and the proceeds of his savings plan. Niccoli was given the shares in the Credit Union valued at $121,768.60 and his accounts at the First Citizens Bank which contained $20,019.87, $179.77 and $2,111.01. It is not in dispute that the deceased s mother received property at Rio Claro valued at $375,000.00, 60% of the pension fund in the sum of $400,802.30 and the residue of the estate, into which the CLICO policy worth $835,000.00, fell. Page 9 of 16

27. The bequests to the respondent and her son, when compared to those to the deceased s mother, may appear to be disproportionate and unfair. However, it is not for the court to re-write the will of the testator based on notions of fairness, and its own view of what was appropriate. This is not a case where the testator made no provision for his dependants. The dispositions to the respondent and her son were substantial. It may well be that the deceased gave more to his mother because of her age and her inability to provide for herself in her declining years, while the respondent was relatively young and could work to augment the provision he made for her. It is not for the court to second guess the testator. Once, the testator is of sound mind, as the evidence establishes in this case, it is a matter for him to dispose of his assets as he pleases. 28. For these reasons, I am of the view that the trial judge was wrong in finding that the deceased lacked testamentary capacity on 7 th August 2009 and 14 th August 2009. KNOWLEDGE AND APPROVAL 29. The case law on this issue is summarised in Tristram and Coote s Probate Practice paragraphs 34.48, 34.49 and 34.50: 34.48 It is essential to the validity of a will that the testator should know and approve of its contents (Hastilow v. Stobie (1865) LR 1 P & D 64; Guardhouse v Blackburn (1866) LR 1 P & D 109; but see Parker v. Felgate (1883) 8 PD 171; Battan Singh v. Amirchand [1948] AC 161 [1948] 1 All ER 152). 34.49 Unless suspicion attaches to the document, the testator s execution is sufficient evidence of his knowledge and approval (Guardhouse v. Blackburn (1866) LR 1 P & D 109). Where there is no question of fraud, the fact that a will has been read over to or by a capable testator, or the contents brought to his knowledge in some other way, is (as a rule) conclusive evidence that he knew and approved of the contents of it (Guardhouse v. Page 10 of 16

Blackburn (1866) LR 1 P & D 109; Atter V. Atkinson (1869) LR 1 P & D 665 at 670). (N.B. The words as a rule above are introduced owing to the case of Fulton v. Andrew (1875) LR 7 HL 448, where Lord Cairns comments on the two cases cited, and rather questions the unyielding nature of the above proposition of law.) See also Re Crerar, Rushforth v. Rushforth (1956) 106 L Jo 694; Wintle v. Nye [1959] 1 all ER 552, [1959] 1 WLR 284; Re Morris, Lloyds Bank Ltd v. Peake [1971] P 62, [1970] 1 all ER 1057, in which it was held that the rule in Guardhouse v. Blackburn, no longer survives. But if the way in which the will was read over is called in question, the above presumption may be rebutted (Garnett-Botfield v. Garnett-Botfield [1901] P 335), but only by the clearest evidence (Gregson v. Taylor [1917] P 256. If knowledge and approval are clearly established at the time of giving instructions for a will, or drafting it, very little evidence of the position at the time of execution is required (Re Wallace s Estate, Solicitor of the Duchy of Cornwall v. Batten [1952] 2 TLR 925). 34.50 The burden of proof of the testator s knowledge and approval lies on the party setting up the will (Barry v. Butlin (1838) 2 Moo PCC 480 at 482; Cleare and Forster v. Cleare (1869) LR 1 P & D 655), and the burden is discharged prima facie by proof of capacity and due execution (Barry v. Butlin; Cleare v. Cleare); but where this prima facie presumption is met by the cross-examination of the witnesses, the party propounding must prove affirmatively that the testator knew and approved of the contents (Cleare and Forste v. Cleare); Atter v. Atkinson (1869) LR 1 P & D 665 at 668). Where a will is prepared in suspicious circumstances the onus is cast upon the person propounding it to remove such suspicion, and to prove that the testator knew and approved of its contents (Tyrell v. Painton [1894] P 151 at 157, CA, followed in Re Scott, Huggett v. Reichman (1966) 110 Sol Jo 852. So where a person propounds a Page 11 of 16

will prepared by himself and under which he takes benefit, he must give clear proof that the testator knew and approved of that part under which he takes a benefit (Hegarty v. King (1880) 5 LR Ir 249; affd (1880) 7 LR Ir 18, CA). See also Re Liver, Scott v. Woods (1955) 106 L Jo 75. This plea refers to the circumstances attending the preparation and execution of the will itself, and not to extraneous matter (Re R [1951] P 10, [1950] 2 All ER 117). A person who is instrumental in preparing a will under which he is a beneficiary has to satisfy the court on the balance of probabilities that the testator knew and approved the contents, and while the amount of suspicion would vary depending on the circumstances there is no basis for imposing a burden beyond reasonable doubt. The question is not whether the court approves of the circumstances in which the will was executed but whether it is satisfied that it truly represents the testator s testamentary intentions (Fuller v,. Strum [2001] EWCA Civ 1897, [2002] 1 WLR 1097, Hart v. Dabbs [2001] WTLR 527). 30. As the learning sets out, there is a presumption of knowledge and approval which arises from the testator s execution of the will, unless suspicion attaches to the document. In this case, Ms. Bazzy s evidence is that she attended upon the deceased on 7 th August 2009 at the request of his employer. She took his instructions in writing and orally. She gave details of these instructions in her evidence. She later returned with a type-written document, which was executed by the deceased and witnessed by two of the deceased s doctors in her presence. In cross-examination, Ms. Bazzy testified that she conferred with the deceased upon her return to the hospital, and confirmed that the will reflected his intentions and his instructions. 31. In my view, there were no suspicious circumstances in this case, which would have any effect on the presumption of knowledge and approval. There is no evidence that the attorney knew the testator or any of the parties involved, nor did Page 12 of 16

she take any benefit under the will, or had any personal interest whatsoever in the outcome of this matter. In addition, knowledge and approval of the deceased are clearly established on the evidence at the time of giving instructions. Accordingly, very little evidence is required at the time of execution: Tristram (supra) paragraph 34.49. The evidence of the attorney with respect to the conference she had with the deceased after she returned with the will, more than suffices for this purpose. 32. The will of 14 th August 2009, is in identical terms to the will of 7 th August 2009, except that the earlier will referred to the executor as Isac Toussaint, and the later will changes that name to Theodore Toussaint, which on the evidence is the correct name of the appellant. The evidence of Ms. Bazzy is that she asked the deceased whether he wished to make any other change to the will. He replied in the negative. The deceased read the will and then signed in the presence of the two witnesses. 33. Having regard to the evidence in the case, I am of the view that the trial judge was wrong in finding that the deceased did not possess knowledge and approval of both wills at the time of execution. DUE EXECUTION 34. It is trite law that a will must be signed by the testator in the presence of two witnesses present at the same time who in his presence and the presence of each other subscribe their names as witnesses: Section 42 Wills and Probate Act. 35. Where a will is duly executed on the face of it, is regular in form, and contains a properly worded attestation clause, a presumption arises in favour of due execution, unless the court is satisfied on the strongest evidence that the presumption has been rebutted: Tristram and Coote s Probate Practice paragraph 34.19 and the cases cited thereunder. 36. In this case, the will appears to be duly executed on the face of it. It is regular in form, and has a properly worded attestation clause. Moreover, there is direct Page 13 of 16

evidence of due execution which has not been controverted by any other evidence. In the case of the will of 7 th August 2009, Ms. Bazzy deposed in her witness statement that Dr. Armoogam and Dr. Beharry witnessed the deceased s signature in her presence. After the deceased signed, she guided both doctors as to how to complete execution of the will by signing their names and stating their occupation and address. In his witness summary, Dr. Beharry stated that he and Dr. Armoogam saw the deceased sign and then they both signed the document. 37. In the case of the later will, the witness statements of the attesting witnesses, the appellant and his wife, supported by that of Ms. Bazzy, establish that the testator signed the will in the presence of both witnesses, who then signed in his presence. Counsel for the respondent has asked us to put what may be regarded as a strained interpretation of the evidence. The witness statements are in the form of a narrative, outlining events as they happen. There is no reason to infer, given the narrative described by the witnesses, that there were intervening events between the signature of the deceased and those of the witnesses, which resulted in the signatures of the deceased or the witnesses, not having been subscribed in their joint presence. 38. For these reasons, I find that the evidence clearly established due execution of both wills, and the trial judge s findings on this sissue are not supported by the evidence. SUSPICIOUS CIRCUMSTANCES 39. As noted earlier, there is no evidence that Ms. Bazzy knew the testator or any of his relatives before 7 th August 2009, that she took any benefit under the will, or that she had any interest whatsoever in the outcome of this matter. Likewise, there is no evidence that the appellant took any benefit whatsoever under either will or that he was in any way involved in the giving of instructions for the preparation of the first will. In my view there were no suspicious circumstances in this case which should have given the court below cause for concern. Page 14 of 16

40. The trial judge attached great significance to what appears to be an inconsistency between the evidence of Dr. Beharry and Ms. Bazzy as to the time of execution of the will of 7 th August 2009. Ms. Bazzy s evidence was that she arrived at the hospital around 7:00 a.m. She had a two hour conference with the deceased. She went to her office and returned several hours later with a type-written document which was signed by the deceased in the presence of Dr. Beharrry and Dr. Armoogam. Dr. Beharry s witness summary sets out that the only time he saw Ms. Bazzy that day was around 7:00 a.m., in the presence of Dr. Armoogam, and sometime thereafter he and Dr. Armoogam witnessed the execution of the will. Dr. Beharry was called by the respondent, and was not cross-examined by attorney for the appellant. In cross-examination, it was put to Ms. Bazzy that it was not true that she saw Dr. Beharry and Dr. Armoogam in the afternoon, in the light of Dr. Beharry s evidence. Nothing further was put to Ms. Bazzy as a consequence of the inconsistency. 41. Based on this evidence, the trial judge inferred that if Ms. Bazzy had received instructions for the preparation of the will, those instructions were not received by Ms. Bazzy on the morning of 7 th August 2009, and that when she attended the deceased at 7:00 a.m., she already had prepared a completed will for execution. Later in the judgment, the trial judge sought to make it clear that her conclusions were not intended to reflect adversely on the conduct or integrity of Ms. Bazzy. It is difficult, however, to see how the inferences drawn could do otherwise. 42. It must be noted that it was never a part of the respondent s case that Ms. Bazzy did not take the deceased s instructions on that day, but simply turned up at the hospital at 7:00 a.m. with a prepared will for execution. This was not pleaded in the statement of case, nor was it put to Ms. Bazzy. 43. It is of course open to a trial judge to draw reasonable inferences from findings of primary facts. However, the judge should consider the inferences that are available, and the probabilities that attach to them. The probability of an officer of the court deliberately perjuring herself and fabricating evidence in a case in which she has no discernible interest to serve, must be weighed against the probability Page 15 of 16

that Dr. Beharry may have made a mistake with respect to the time that he saw the attorney on that day. In assessing the probabilities, the court should also consider the gravity of such a finding against an officer of the court and the consequences for the professional reputation and integrity of the attorney. Such an inference should be drawn only on the clearest evidence. In my view, if the probabilities of the available inferences were properly assessed, the more plausible and reasonable inference to be drawn is that the doctor made a mistake as to the time that he saw Ms. Bazzy on that day. 44. In conclusion, I am of the view that the trial judge was wrong in her findings with respect to testamentary capacity, want of knowledge and approval, due execution and suspicious circumstances. It follows that these findings must be set aside. In doing so, I am mindful of the advantage enjoyed by the trial judge of having seen and heard the witnesses that the appellate court does not enjoy. However, although an appellate court is slow to set aside findings of fact made by a trial judge, it will do so when it is satisfied that the judge has not taken proper advantage of having seen and heard the evidence, and has made findings that cannot be supported by the evidence in the case: Beacon Insurance Company Ltd v. Maharaj Bookstore Ltd. 2014 UKPC 21. 45. It follows that the appeal is allowed, and the orders of the trial judge are set aside. The respondent must pay the appellant s costs in the court below in the sum of $14,000.00 and 2/3 of that sum as costs of the appeal. Dated 15 th December, 2014. R. Narine Justice of Appeal. Page 16 of 16