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					TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE H.C.A. 1978 of 1999 BETWEEN

Himraj Lookhoor also called Himraj Kalloo Plaintiff And

Dindial Lookrwah Defendant

BEFORE THE HONOURABLE MADAM JUSTICE A. TIWARY-REDDY

Appearances: Mr. M. Johnatty for the Plaintiff Ms. J. Jones instructed by Mrs. G. Scott for the Defendant

JUDGMENT

The Plaintiff seeks revocation of a grant of probate of his father‟s will in favour of his brother, the Defendant and that the Memorandum of Assent executed by the Defendant be set aside. The Plaintiff also seeks a grant of Letters of

Administration in his favour and damages for trespass, as well as a declaration of his beneficial interest in the family home. Alternatively he seeks a return of his contribution of $24,000.00 being the cost of renovations together with interest. The Defendant counterclaims a grant of probate in solemn form and damages for conversion and destruction. The latter claim for damages was abandoned by the Defendant‟s attorney in her closing submissions. The Plaintiff alleges fraud in executing the Memorandum of Assent which the Defendant has denied.

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However, the Plaintiff led no evidence on this aspect and appeared to have abandoned this claim. The Plaintiff (Himraj) and the Defendant (Dindial) are brothers and two of the seven (7) children of Kalloo Loorkhoor and Dolly Loorkhoor, both of whom were illiterate. Himraj is the youngest (34) and Dindial the eldest (52) of the children. The other children are Rajdaye Durga, Jaggessar Loorkhoor, Totteram Loorkhoor, Meena Loorkhoor and Kolahar Kalloo. Kalloo Loorkhoor (the deceased) died on 28.12.87. Probate of the deceased‟s will dated 25.9.84 was granted to Dindial on 25.11.88. The deceased who was a former employee of Caroni Ltd. suffered a stroke in 1983. As a result he was unable to walk on his own and there is a dispute as to what extent, if any, his speech was affected . The family lived at Ramsaran Trace, Bejucal in a house which stood on an acre of land. The house itself stood on one lot of this acre and was fenced with chain-link wire. The deceased was the registered owner of this property. All the children except Dindial grew up with their parents in this house. As a boy Dindial went to live with relatives in Orange Grove. After the death of the deceased the children continued to live with their mother in the said house, until they moved into their own homes. Plaintiff’s Evidence In 1989 Himraj had brought his girlfriend, Pamela Mungal to stay at the family home for the weekend to assist in cleaning up the house. His mother disapproved and became angry. As a result, after the weekend Himraj left home and stayed with Pamela for about a month. He then returned home and continued living there until 19.8.99 when Himraj received a letter from Dindial‟s attorney calling upon him to vacate the family home. Himraj alleged that on 18.8.99 Dindial took away all the contents from the home on a truck, as a result of which Himraj left the home the next day.

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In the interim, his mother died on 29.6.99 at which date Himraj alleges that he had been living in the family home and taking care of his mother. All his other siblings were then living on their own. Shortly after the mother‟s funeral Himraj, Dindial, Rajdaye and Kolahar held a meeting at the family home and discussed who would get the family home. Meena was then living abroad. All those present except Dindial, agreed that Himraj should get the family home. However, Dindial insisted that Himraj pay him for his (Dindial‟s) share. Father’s Condition No medical report was tendered about the father‟s state of health. It was

generally agreed that the father suffered a stroke in late 1983 as a result of which his walking was affected. Dindial testified that he was the only one with a car and used to take his father to see three different doctors. Himraj testified that on occasions he too took his father to Dr. Hosein. However Dr. Hosein issued a letter to the Plaintiff‟s attorney dated 16.10.99 indicating that he does not recall the deceased and has no record of his condition. According to Dindial: “Father had been to three doctors when he got the stroke. I did not try to get anything from them like a letter about my father‟s condition. I used to take my father to those doctors. All these doctors knew me.” All the family members and one family friend, Bajnath Dowtal (Dowtal) who testified, gave the following evidence: Himraj: Kolahar: “Father was not able to talk after the stroke”. “As a result of the stroke he couldn‟t walk or speak … He never recovered his ability to speak. He could speak but you couldn‟t make out what he said.” Rajdaye: ”He could not speak properly, he used to make motion with his hand.”

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Dindial:

“ After he suffered the stroke it had no other effect. He couldn‟t walk properly … I don‟t know why father did not tell Dr. Wills he wanted to make a Will. He could of speak.

Dowtal

“He was able to talk – not so good. Sometimes his tongue tieing up. Sometimes he speak good.”

In answer to the Court Dindial said: “His ability to speak was not affected at all by the stroke. He always spoke the same way before and after the stroke. It‟s not true that because of the stroke he was not able to speak clearly. To my knowing there were no times when he could not speak clearly or when he mumbled. In Dr. Wills‟ office he was able to speak to Dr. Wills clearly. I‟m quite sure it‟s only his left leg that was affected by the stroke.” In paragraph 9 of her notarized declaration of 16.5.02, which was admitted into evidence, Meena said: “… In 1983 my father was suffering from the effects of a stroke and could not speak although he could make sounds with his mouth …” Defendant’s Evidence Dindial had been living away from the family home for approximately 26 years. After the father suffered the stroke Dindial usually took him to the doctor as he was the only one with a vehicle. Because of his medical condition his

employment at Caroni Ltd was terminated and he received approximately $35,200.00 in termination benefits. Dindial took his father to the bank and placed $30,000.00 of this sum on a fixed deposit at Republic Bank in Chaguanas in the

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names of both his parents. Some time after the father‟s death in 1987, the mother placed Himraj‟s name on the said fixed deposit together with hers. On a Sunday evening in February 1983 the father asked all the children to attend a meeting at the family home. Himraj and all the other siblings deny attending such a meeting. According to Dindial, at the meeting their father said that he would be willing to give his property to whoever will take care of him. Only Dindial was willing to take care of his father. All his siblings declined for various reasons. Dindial testified: “Father says he will make a will for me but I have to get a lawyer to make the will. I found a lawyer. He was Aeneas Wills. I found him in 1984. This was on the Monday after the Sunday meeting. I talk to my foreman Phillip Joseph (Joseph) and that‟s how l get to know the lawyer. After talking to the lawyer I took my father to the lawyer on the Tuesday after the meeting.” Dindial picked up his foreman Joseph from work, went to Tunapuna to change, then picked up his parents at the family home and Dowtal at Felicity. Dindial drove them into Port of Spain and they all went to the office of Dr. Wills, as he then was, at 34 Edward Street, Port of Spain. Dindial took his father into Dr. Wills‟ office and told Dr. Wills that “my father wants to make a will for me”. Dindial then went into an outer office where he waited with his mother while Joseph and Dowtal entered Dr. Wills‟ office. Some minutes later the secretary went into Dr. Wills‟ room with a piece of paper in her hand. Dr. Wills later called Dindial and handed him a piece of paper marked 34, Edward Street and the names Phillip Joseph and Gail Durham. Dindial maintained that he was not handed a will that day. According to Dindial: “We all left Dr. Wills‟ office together. Father had no paper in his hand neither did my mother, Joseph or Dowtal have any paper in their hands. I was the only one who had a piece of paper which

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had the names of the witnesses and the address 34, Edward Street, Port of Spain. No evidence was led as to where and when Dindial obtained the original will. On being cross-examined about the events in Dr. Wills‟ office, Dindial said: “My father told me to go outside and call Dowtal and Joseph. It‟s a mistake. Dr. Wills tell me to go outside and call Dowtal and Joseph … I now say Dr. Wills did not tell me to go outside and call Dowtal and Joseph …I now say he told me to tell them to come inside … He sent me outside and tell me „Tell them to come inside. I just said Dr. Wills said “Both of you come”. That is true. I now say Dr. Wills told me „Tell them to come inside‟. That is the truth. Also when I said a while ago, Dr. Wills said „Both of all you come‟ that is not true, I said so a while ago because sometimes I forget things.” It is also significant that their mother never entered Dr. Wills‟ law office that day. Dindial maintained that he paid for his father‟s funeral and produced a receipt dated 29.12.87 from Allen‟s Funeral Home for $2,400.00 being full payment for the burial of his father. Rajdaye testified that on the day her father died, she saw her mother give Dindial $3,000.00 made up of $100.00 bills “for the funeral turnout for my father”. According to Rajdaye her mother did this because she trusted Dindial and that Meena was present when her mother gave Dindial this money. In his evidence-in-chief Dindial said that his mother put Totteram in court and paid him $12,000.00 to leave the property. He later said that he paid Totteram $12,000.00 and Totteram left the family home. In cross-examination Dindial insisted that he paid Totteram $12,000.00 of his (Dindial‟s) own money. “It was not true yesterday when I said that mother paid $12,000.00.”

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Himraj sought and obtained a Court Order to permit the subject property to be rented while the trial was pending. On 19.12.00 Dindial swore an affidavit in opposition in which he referred to negotiations he had been holding with one Richard Chandler to rent the family home and that he had broken off these discussions and returned Richard Chandler‟s deposit because of an altercation with Totteram. In cross-examination Dindial said: “There was no Richard Chandler and I never get any deposit. At the time Victor Primus was my attorney. Primus made up this story about Richard Chandler and the deposit. completely untrue.” Dowtal’s Evidence According to Dowtal when they reached by the lawyer, the father, Dindial and Joseph went upstairs while he waited downstairs. Dindial came downstairs and called him upstairs, where he saw and heard Dr. Wills ask the father “what you really want?” The father replied: “I want a will make for Dindial my son.” The secretary gave a paper to Dr. Wills who read it out and asked the old man if he agreed with it. “The old man say is alright, that is good.” Dr. Wills told the father “put your finger print, you cyar read” and the father put his thumb print. Joseph and the secretary signed the paper. “I was present when the father talked to Dr. Wills. I feel he talk good that day.” The final witness for the Defendant was expected to be Dr. Wills and the trial was adjourned for three months to enable Dr. Wills to testify. By letter dated 9.10.02 from the Defendant‟s instructing Attorney, the Court was informed that Mr. Justice Wills will not be available to testify for the Defendant. No explanation was offered for his un-availability and the Defendant closed his case without Dr. Wills‟ evidence. These arrangements with Chandler are

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Probate Application When Dindial applied for probate of this will he testified that Joseph had died and that he returned to Dr. Wills‟ old office and was told that Dr. Wills was no longer at that office. He spoke to his attorneys about Gail Durham. Dindial made no attempt to locate Gail Durham although it was drawn to his attention that there was a listing “665-6426” in each of the three TSTT telephone directories for 1999 to 2002 for one Gail Durham living at 14 Rodney Road, Lange Park. It is to be noted that Dindial was a taxi-driver. In his said application for probate of this will, Dindial swore that both witnesses to the will were unavailable, that Joseph had since died and “Gail Durham has left these shores and her whereabouts are unknown”. On being pressed for an

explanation as to why he said Gail Durham had left these shores, Dindial admitted that he had made no real attempt to locate her, save for a visit to Dr. Wills‟ old office. “I did not look for her any where else. I did not search for her. I just said I couldn‟t find her nowhere in Trinidad”. On 5.9.88 Dowtal swore to an affidavit confirming that one of the signatures on the will was that of Phillip Joseph. At paragraph 2 of that affidavit Dowtal stated: “2. That I was well acquainted for many years and was a personal friend of PHILLIP JOSEPH who died on the 21st day of November, 1984. He was very close in relationship with me and we also corresponded with each other. I knew his hand-writing very well.” In cross-examination Dowtal stated: “The day Dindial came with Phillip Joseph was the first day I saw him. I never knew him before. After that day I never saw him again … I never write any letter to Phillip Joseph, I cyar even write

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good … He was not close to me at all, it‟s a lie … I don‟t know he hand-writing … I did not read this affidavit before I signed. Mr. Kowlessar read it to me before I signed. Yes he read it.” The Probate Registry queried whether anyone else was present when the will was executed and Dowtal swore to another affidavit on 8.11.88 in which he stated that he knew and was well acquainted with Phillip Joseph who died on 21.11.84. In cross-examination he said “that is not true. The fella who typed this should not put all that.” He also stated in the second affidavit that he was present together with Phillip Joseph and Gail Durham and saw the deceased execute his last will and testament on 25.9.84. Case against Totteram On 4.12.89 an action No. 5012 of 1989 was filed by Meena and the mother against Totteram seeking, inter alia, to exclude Totteram from the family home because he had assaulted and beat them. A copy of these proceedings was produced on the first day of the trial. These proceedings included an affidavit by the mother sworn on 4.12.89 in which she stated that Dindial had obtained a grant of probate of the father‟s will. A copy of the will and of the Grant of Probate were exhibited to this affidavit. It is to be noted that this bears a note that Dolly affixed her thumb-print to the affidavit in the presence of the Commissioner of Affidavits Harry Smith who noted that he had first read and explained the contents of this document to Dolly. Dindial testified that he took his mother and Meena to Fitzwilliam and Company where both women gave instructions to file the action against Totteram. A

consent order was entered in this matter wherein the mother agreed to pay Totteram $12,000.00 for his contribution to the home and Totteram agreed to vacate the home on receipt of this sum. It is significant that the surnames of all the parties in this action (No. 5012 of 1989) was spelt “Lookrwah” instead of “Lookhoor”. Dindial admitted that he was the only person in the family who spelt

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his surname as “Lookrwah” while the rest of the family spelt their surname as “Lookhoor”. These proceedings were only disclosed to the Plaintiff on the first day of the trial. After the close of the Plaintiff‟s case, on the Plaintiff‟s application I gave leave to re-open the Plaintiff‟s case and admitted into evidence an affidavit sworn by Meena before a Notary Public in the U.S.A. In her declaration Meena denied any knowledge of this action (No. 5012 of 1989) and insisted that she never attended the offices of Fitzwilliam and Company, neither did she give any instructions for the filing of this action. Meena also denied attending any family meeting called by her father. Meena’s Affidavit EvidenceIn her affidavit Meena stated that she had only seen a copy of the proceedings in HCA No. 5012 of 1989 some days earlier, that she never gave Dindial or anyone instructions to join her as a Plaintiff; that she was aware of problems between their mother and Totteram and that Dindial had offered to take Totteram to court to get him out of the house, to which their mother had agreed. Further, on one occasion Dindial arrived at their home with some papers “and told my mother that those were the papers to get Totteram out of the house and Dindial had my mother place her thumb print on the papers which she did. No one but Dindial, my mother and I were present.” According to Meena, their mother never said or gave any indication that “she knew Dindial had a will of her father in his (Dindial‟s) favour or that the family home belonged to Dindial”. Meena herself never knew of any will of her father or that Dindial ever claimed the family home as his. Paragraph 9 of Meena‟s affidavit is instructive: “9. I never attended any meeting called (by) my father in 1983 or at

any time to discuss property. In 1983 my father was suffering from the

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effects of a stroke and could not speak although he could make sounds with his mouth. In 1983 I had no intention of migrating and never said I intended to migrate. In fact in 1984 as everyone in my family knows, I got married to a Trinidadian living in Trinidad and would very likely have continued living in Trinidad had not my marriage broken up in 1985.” Meena was born on 25.10.62 and first went to the USA on 22.12.89. A nonmolestation injunction was granted ex parte against Totteram on 4.12.89, 2 ½ weeks before Meena left for the States. The Consent Order was dated 9.4.90. It must be noted that Meena was not available to be cross-examined as she lives abroad. However since Meena was also a Plaintiff and literate and she was the one who was allegedly injured by Totteram, it would have been expected that she would have sworn an affidavit to this effect in the action which was seeking to exclude Totteram from the family home. But Meena .swore no affidavit in that action.

“Sign on the property” Dindial testified that his mother was hospitalized for about three weeks before her death on 26.6.99. While their mother was in hospital, Dindial offered to give Himraj “a sign on the property” if he would return to stay in the family home. According to Dindial: “By a sign on the property – if I give him a sign, two of we would be owning the property.” It is to be noted that this was never put to Himraj. Dindial also testified that while she was in hospital their mother told Himraj to bring $20,000.00 out of the fixed deposit of $30,000.00 and her jewellery and give them to Dindial “as somebody has to take care of she”. After their mother‟s death Himraj gave Dindial a cheque

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for $20,000.00 and the jewellery in the presence of Krishna Kantasingh, Attorneyat-Law at the attorney‟s law office on 22.7.99. Dindial signed a receipt for the cheque for $20,000.00 “and jewellery to the value of $5,000.00”. Dowtal was also present at the attorney‟s office. According to Dowtal, Dindial had the jewellery tested and discovered that it was not of genuine gold but of “roll gold and brass”. As a result Dindial returned the cheque and the jewellery to Himraj and refused to give Himraj “a sign anymore”. Dindial also testified that he asked Himraj to return to live in the family home at their mother‟s wake, that immediately thereafter Himraj resumed living in the family home with Dindial‟s consent until he terminated that consent by way of a lawyer‟s letter dated 27.7.99 from Yaseen Ali, Attorney at Law, who stated at paragraph 2 that Himraj had been in unlawful occupation of the said property since 26.6.99 (the date of the mother‟s death) and had failed to vacate same despite several requests to do so. On being cross-examined Dindial confirmed that when Himraj came back to the house he was there lawfully with Dindial‟s permission but that Himraj‟s stay became unlawful from 22.7.99 when “Himraj deceive me”. Survey Plan Dindial produced 2 receipts dated 14.5.88 and 21.5.88 for the payment a total of $2,800 by him to Winston J. Sylvester, Licensed Land Surveyor for carrying out a survey of the family property at Warner Road, Ramsaran Trace. A copy of a survey plan dated 22.2.90 by Winston Sylvester was tendered in evidence and this plan stated that the parcel of land had been re-defined by Sylvester in May 1988. Neither Himraj nor any of his siblings knew when this survey was carried out. Plaintiff’s Departure from Family Home Himraj insisted that apart from one month in 1989 when he went to stay at his girl friend‟s home in Penal, he continued to live in the family home with his mother. After his mother‟s funeral he continued living there until August 1999 when he Page 12 of 22

received a letter from Dindial‟s attorney ordering him to leave. At about this time (18.8.99) while Himraj was at work Dindial came to the family home with a truck and took away all the contents of the home on the truck. Next day Himraj left the home. Rajdaye and Kolahar testified for Himraj while Meena sent a notarized declaration. Totteram was present in court but did not give evidence. Two other persons gave evidence that they saw Dindial arrive at the family home on 18.9.99 in a pick-up truck and remove the contents of the family home. One of these was a retired police officer, Noor Mohammed who was visiting Kolahar at the latter‟s home situate obliquely opposite the family home. The other person was

Ramsaran Hardeo, a neighbour whose home was about 15 feet west of the family home. Hardeo too testified that he saw Dindial remove furniture from the family home on 18.8.99. Taran Persad Bhagwandeen, a builder for some 17 years also testified for the Plaintiff. He gave his estimate of the cost of replacing the roof and installing an indoor shower and toilet some 5 to 6 years earlier. The estimate for the roof was $15,000.00 plus $15 – 180.000 for labour and for the toilet and bath was $5,000.00 plus $2,000.00 for labour. On being cross-examined Bhagwandeen‟s estimate of material for the roof was closer to $10,000.00 (32 x 18 x 9 = 5184 + 32 x 18 x 7 = 4,032) i.e. $9,216.00. Himraj had alleged that after his father‟s death he renovated the house at a cost of $24,000.00 He used to keep the receipts for these works at home but save for one receipt dated 1.6.94, the rest went missing after the break-in in August, 1999. Further, Dindial was aware that these works were going on but never informed Himraj that the property had been assented to him since 1988. Dindial made no mention of the family meeting after the mother‟s death. He denied knowing that all his siblings were prepared to give Himraj their share. Dindial valued the family home at $220,000.00 but did not accept that he was

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being offered $20,000.00 plus the mother‟s jewellery valued $5,000.00 for his one-seventh share in the family home. Want of Due Execution The onus of proving that a will being propounded was executed as required by law lies upon the party propounding it. It is for the person propounding it to establish a prima facie case by proving due execution. If the will is not irrational and was not drawn by the person propounding it and benefiting under it, the onus is discharged unless and until by cross-examination of the witnesses, or by pleading and evidence, the issue of testamentary 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 party making them – Paragraph 33.06 Tristram & Coote’s Probate Practice 28th Edn. The testator must sign or acknowledge his signature in the presence of the attesting witnesses. The witnesses must both sign in the presence of the testator and of each other – section 42 of the Wills and Probate Ordinance Ch. 8 No. 2. Neither of the named witnesses to the execution nor the attorney who prepared the will gave evidence. Joseph had died prior to the trial and I find that the Defendant made no real effort to locate the surviving witness to the execution, Gail Durham, who would have been truly independent. During the trial a three-month adjournment was granted, at the Defendant‟s request, to enable Dr. Wills to testify for the Defendant. On the resumption of the trial the Defendant offered no explanation for the failure of Dr. Wills, the person who prepared the will and supervised its execution to testify. The only other person who was allegedly present when the will was executed and gave evidence was Dowtal. Dindial said the father‟s ability to speak was not affected by the stroke while Dowtal said sometimes he spoke well and sometimes

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“his tongue tieing up”. All the siblings who testified maintained that their father‟s speech was adversely affected by the stroke. Dowtal himself agreed that it was unusual for the deceased, who got along well with all his children, to leave his entire property to one son. Since the will was irrational and was drawn by Dindial the person propounding it, the onus shifted to Dindial. I turn next to the issue of want of knowledge and approval. Want of Knowledge and Approval In his Amended Statement of Claim, the Plaintiff has alleged want of due execution and want of knowledge and approval. With respect to the latter plea the Plaintiff gave the following particulars: 1. 2. That the deceased was illiterate and could not read and write at all. That at the time of the execution, the deceased was unable to speak as a result of the stroke he suffered ion 1983. 3. That the alleged will was not read over to him before he affixed his thumb-print. “It is essential to the validity of a will that the testator should know and approve of its contents “(Hastilow v Stobie (1865) LR 1 P&D 64)” -Tristram and Cootes Probate Practice 28th Edition Paragraph 33.48. In Ramcoomarsingh v Administrator General (2002) 61 WIR 525 the Privy Council held inter alia, that where a prospective beneficiary who is in a fiduciary relationship with an intending testator prepares or is closely involved in the preparation of the will or in informing the testator‟s intentions he must, if the will is challenged, satisfy the court that the testator knew and understood what he was doing and that the will gives effect to the testator‟s intentions. Lord Sylnn of Hadley delivered the advice of the Board and referred to statements of the relevant principles set out in several old authorities at paragraphs 13 to 18:

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“Thus in Brown v Fisher (1890) 63 LT 465 it was said that: ‘The court is to approach with suspicion the consideration of a will procured and propounded by a person taking a large benefit thereunder, although the will may have been prepared by a solicitor, and though fraud is not pleaded by the person opposing the will and where there was no testamentary incapacity on the part of the testator or the witness.‟ [14] In Barry v Butlin (1838) 2 Moo PCC 480 at 482, Parke

B said that there were two rules. The first was that the person preparing a will – ‘must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. The second is, that if a party writes or prepares a will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.’ The first of these principles was more recently followed in Alvarez v Chandler (1962) 5 WIR 226. [15] In Tyrrell v Painton [1894] P 151 at 157, Lindley LJ

said that where circumstances exist which excite suspicion the onus is on the person propounding the will to prove that the testator –

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‘knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will.’ [16] But as Lord Hatherley stressed in Fulton

v Andrew (1875) LR 7 HL 448 at 469, there is no absolutely rigid rule that, if a testator of competent mind has had his will read over to him, further injury is shut out but where that is done ‘very strong evidence is required in opposition to it in order to set aside any instrument so executed’. As Lord Cairns LC put it (at p. 463), the duty is to bring home to the mind of the testator the effect of his testamentary act. In Cordery on Solicitors (8th Edn, 1988) p 18, affirmative proof of the testator’s knowledge and approval can be ‘most satisfactorily furnished by showing that the will was read over to the testator or is in accordance with instructions proceeding from him’. [17] It seems to the Board that the approach to be followed is that

stated by Viscount Simmonds in Wintle v Nye [1959] 1 WLR 284 at 291, as agreed to by other members of the House of Lords. Approving the judgment of Parke B in Barry v Butlin, he added: It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed.’

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[18]

These authorities, and many others to which it is not necessary

to make reference since they are on similar lines, make it clear that where a person is in a fiduciary relationship with another who is intending to make a will, that person if he prepares or is closely involved in the preparation of the will or in informing the testator’s intentions must, if the will is challenged, satisfy the court that the testator knew and understood what he was doing and that the will has given effect to his intentions.” Dindial was clearly in a fiduciary relationship with his father who had recently suffered a stroke which affected his left leg and his speech. He was closely involved in the preparation of his father‟s will as, unknown to his siblings, he took his father to an attorney at law who prepared a will in which all the father‟s property was left to Dindial. At the time when this will was prepared, the father was living in the family home and being cared for by the mother and the children, including the Plaintiff, who were then living in the home. Although the mother accompanied them to Dr. Wills‟ office she remained in an outer office when the instructions were given and the will executed. Further, although the parents had lived together for over 40 years in the will the deceased left nothing for the mother. Has Dindial satisfied the Court that his father knew and understood what he was doing and that the will has given effect to his father‟s intentions? Lack of Medical Evidence Where a testator is elderly and infirm his will should be witnessed and approved by a medical practitioner who satisfies himself as to the capacity and understanding of the testator and who records his examination and findings – Re Simpson, Schaniel v Simpson 1977 121 Sol Jo 224 The deceased was both elderly and infirm. Further, Dindial maintained that he was the only person who took his father to the doctor. Yet Dindial failed to Page 18 of 22

provide any medical evidence of the deceased‟s condition at the date of the will neither did he volunteer an explanation for this failure.

CONCLUSION AND FINDINGS Both Dindial and Dowtal readily swore to falsehoods in their respective affidavits and were unrepentant on being confronted in cross-examination. Dowtal said the father‟s right leg “get defeated” by the stroke while Dindial said it was his left leg. Dowtal said Joseph was “light skin” while Dindial said he was “brown skin”. Dindial said his father called the family meeting on a Sunday evening in February 1983, that he spoke to Joseph on the Monday and that he took his father to Dr. Wills on the next day (the Tuesday). However, the will was dated 25.9.84, some eighteen months later. Having seen and heard all the witnesses, except Meena, I prefer the evidence of the Plaintiff and his witnesses and I make the following findings: 1. The deceased‟s speech was impaired after the stroke and I am not satisfied that he was able to make himself clearly understood at the date of the will. 2. Prior to their mother‟s death in 1999 Dindial never informed any of his siblings that the deceased had made a will in 1984 which he had proved in 1988 and/or that he had executed a Memorandum of Assent to himself in 1989. 3. Dindial and not his mother or Meena, gave instructions to Fitzwilliam and Company to file the action No. 5012 of 1989 against Totteram. Further, I do not believe that the mother‟s affidavit sworn on 4.12.89 was read over to her before she affixed her thumb-print thereto.

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4. The deceased did not call a family meeting to discuss who would get the family home in either 1983 or 1984 or at all. Dindial, Himraj and the other siblings held a family meeting shortly after the mother‟s death at which Dindial insisted that he be paid for his one-seventh share of the family property. 5. Dindial never invited Himraj to live in the family home. Himraj had always been living and maintaining same from the time of the deceased‟s death up to August, 1999 save for a period of one month. 6. While Dindial had obtained a grant of probate and had assented to the family home in his name, he permitted Himraj to carry out renovations on the home at Himraj‟s expense and failed to disclose his interest in the said property to Himraj. These renovations cost approximately $15,000.00. 7. Dindial removed the contents of the home on 18.8.99. However

Himraj has not established that these contents belonged to him (Himraj). Further, I am not satisfied as to the value, if any, of the mother‟s jewellery. DECISION I hold that the Defendant has failed to remove the suspicion of the Court and this Court is not satisfied that the deceased knew and understood what he was doing and/or that the will dated 25.9.84 gave effect to his intentions. Accordingly this Court: (1) (2) Pronounces against the force and validity of the will dated 25.9.84. Revokes the Grant of Probate of the will of 25.9.84 in favour of the Defendant.

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(3)

Grants letters of Administration of the estate of the deceased in favour of the Plaintiff.

(4)

Sets aside the Memorandum of Assent filed in Volume 3296 Folio 487 in favour of the Defendant Dindial Lookrwah.

(5)

Declares that the Plaintiff is entitled to a refund of $15,000.00, which sum shall be a charge on the family home situate at Ramsaran Trace, Bejucal.

(6) Costs

Dismisses the Counterclaim.

Costs are always in the discretion of the Court and as a rule will follow the event unless for example, the litigation flowed from some act or default on the part of the testator or where there were reasonable grounds to question the execution of the will – De Nobriga v De Nobriga 12 WIR. 342. The facts in the instant case do not fall within these exceptions. Having regard to my findings on the conduct of the Defendant, I see no reason to depart from the general rule. Accordingly, I order the Defendant personally to pay the Plaintiff‟s costs of the claim and counterclaim. The proceedings “L 1706 of 1988 in the Estate of Loorkoot, deceased”, which were tendered into evidence at the trial are to be returned to the Registrar.

Dated this 30th day of September, 2004.

…………………………………… Amrika Tiwary-Reddy Page 21 of 22

Judge.

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