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
Page 1 of 27

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 Dulcies

counterclaim. The appellants 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

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 Carltons
death, they were adults. The appellant (Carlus) was Carltons second son. Carlus
was twelve years old at the time of Carltons 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.
Carltons 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 Carltons brother, James Medford (James). This
was removed by consent of the parties.
Page 3 of 27

[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 Carltons death at his
(Nicks) 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 Dulcies 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 Dulcies best

friend, Sushilla Patel (Sushilla), visited the Community Hospital in the
afternoon of 1st October 2001.

By 1st October 2001 there had been

significant improvement in Carltons 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 Carltons instructions at his

Page 4 of 27

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 Dulcies 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 judges 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 judges 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 Maharajhs evidence can be immediately
discounted. He did not examine nor treat Carlton. He gave a medical opinion
Page 5 of 27

from the witness box based on the notes of Carltons attending doctors. TiwaryReddy 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.
Dulcies 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 wouldnt 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 Carltons 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 Carltons 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

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 Carltons 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, Carltons 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
Page 7 of 27

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 Carltons co-habitant, Bernadette. He gave no advice at the time of making the
will. He did not draw to Carltons 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 Carltons

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 Carltons wife and a nurse by profession. They had been

separated for approximately fourteen years. She stated that after Carltons 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 Carlas

studies to be financed from the property he would leave for her. She added that
Page 8 of 27

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
Page 9 of 27

talking to us Her evidence largely corroborated Dulcies 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 Carltons 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 (Dulcies 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 Carltons medical condition
Page 10 of 27

and its effect on his mental acuity.

He spoke from his notes.

Carltons

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. Patricks 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 Carltons 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

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 Carltons 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
couldnt 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
Page 12 of 27

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 judges notes is as follows:
I can only go by my notes was that he could sit up. I cant
say that he could have gone to the washroom with assistance.
From my notes that is a sick man and Id be very surprised if he
were able to stand There were times when the patient spoke,
when he could recognize people.
The judges analysis

[42]

Tiwary-Reddy Js 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 Sushillas testimony was
credible and consistent.
Page 13 of 27

[44]

As to the evidence of Carltons 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 Deceaseds

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 Deceaseds 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 Deceaseds 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

Page 14 of 27

from work and so could not testify to the Deceaseds 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 Deceaseds 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 Deceaseds predominant problem was liver
failure. She noted definite and significant improvement in the
Deceaseds mental status, i.e. encephalopathy, that he was less
drowsy, recognising relatives, making full sentences and able to
Page 15 of 27

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 Charmaines evidence. However, she unequivocally
accepted all of Dulcies evidence. Dulcies evidence as to execution was that
Carlton signed the will and both Charmaine and she then signed. In my judgment
Dulcies evidence alone was sufficient to prove the wills 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 Dulcies evidence, was entitled to rely on that evidence as
proving due execution in accordance with the Ordinance.

Page 16 of 27

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 Halsburys 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
testators 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

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
testators 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. Carltons 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:
Page 18 of 27

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 judges 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
deceaseds 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 deceaseds 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
Page 19 of 27

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 Carltons 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. Johnattys

letter should also have excited the courts 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 Dulcies home. This disclosure was
made to him in the latter part of 2006.

Page 20 of 27

[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.
Page 21 of 27

(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

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. Bartholomews evidence. I consider that Tiwary-Reddy
J, as the presiding judge, was entitled to be wary of Dr. Patricks evidence.

[63]

Dr. Bartholomews evidence was that Carltons 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. Bartholomews evidence of
Carltons 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.
Page 23 of 27

[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 Carltons
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
Page 24 of 27

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 judges 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 Carltons 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. Bartholomews 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. Bartholomews 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. Patricks assertion that Carltons medical
condition rendered him unable to recall his debts. Medical opinion is important
Page 25 of 27

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 Carltons 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, Carltons condition had improved. This, together with the
evidence of Carltons 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. Bartholomews 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

[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