republic of trinidad and tobago in the court of...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Civil Appeal No. 85 of 2010

H.C.A. No. S-1016 of 2003

BETWEEN

CARLUS MEDFORD

(lately a minor but now of full age)

Appellant

AND

DULCIE SAITH otherwise DIANE SAITH

(Personal Representative of the Estate of

Carlton Medford, deceased)

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

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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 1st 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 1st October

2001, at the Seventh Day Adventist Community Hospital, Cocorite, St. James.

He died at the hospital on 7th

October 2001. 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

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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 1987. 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 1987.

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 25th

April,

2003. A caveat was lodged by Carlton’s brother, James Medford (James). This

was removed by consent of the parties.

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[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 1st October 2001. 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 2001.

(iii) Dulcie prepared the will in accordance with Carlton’s instructions at his

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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

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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 1st 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

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“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 1st October 2001.

[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 1978. He ceased practising in 1995. He had

known Carlton since 1979. He visited Carlton the day after he was admitted to

hospital and again on the 2nd

October 2001. 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 1st October 2001. 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

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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 2001. 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, 2001. 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 1st 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

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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 1987. 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 26th

September 2001. 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 21st June 2005 and

28th

September 2006. In the 21st June 2005 affidavit, Charmaine gave a short

detail of how the will was executed. She gave a fuller account in her affidavit of

28th

September 2006. 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 1st October 2001 because Carlton was his “old self again and was

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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 1987.

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 1st

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 2nd

October 2001 to 7th

October 2001. She contended

that Trevor Saith (Dulcie’s husband) and Chatoor never visited Carlton on the 2nd

October 2001. 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

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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 24th

September to 7th

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 1st October 2001, Carlton was unable to understand

questions. He said that, between 7:00 a.m. to 10:00 p.m. on 1st 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

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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 25th

September 2001. 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 26th

September 2001 she noted “mild improvement”. By the

morning of the 27th

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 27th

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 28th

September, 2001 he was a “little more alert” adding that that

meant “less drowsy”. On 29th

September she said that “I documented his mental

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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.

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[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 1.10.01.

77. 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 1.10.01. 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 30.9.01. 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 1.10.01 as she had been away

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from work and so could not testify to the Deceased’s condition on

that date.

79. In the afternoon of 27.9.01 Dr. Bartholomew noted that the

Deceased was more responsive and recognising relatives. In the

morning of 28.9.01 the Deceased was a little more alert. On

29.9.01 the Deceased’s mental status was much improved and he

was making full sentences. On 30.9.01 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 23.9.01 to his

passing on 7.10.01. 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 2005. 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

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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 22.9.97 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.

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Want of Knowledge and Approval

[46] Williams on Wills 8th

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 4th

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

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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 30th

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:

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“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 $5,000.00 each to his

mother, his wife Jean and Bernadette. Chatoor testified that the

deceased had told him that he had discovered that Bernadette

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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 2006.

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[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 2001. 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 1st 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.

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(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

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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 1st October 2001.

[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 30th

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 30th

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.

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[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 1st

October 2001. 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 1st 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

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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 1st

October 2001. But his was not the only evidence. Tiwary-Reddy J was entitled

to consider the probability that the 1st October 2001 was a “good day” having

regard to Dr. Bartholomew’s evidence of his improvement by 30th

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

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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

30th

September 2001, Carlton’s condition had improved. This, together with the

evidence of Carlton’s lucidity, on 1st 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 1st 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.

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[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

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