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					TRINIDAD AND TOBAGO

                   IN THE HIGH COURT OF JUSTICE


H.C.A. No.2051 of 1997


                                         BETWEEN


                                DEBRA CHRISTIANI                     Plaintiff


                                             AND


                               LENNARD MOHAMMED                        Defendant


Before the Honourable Mr. Justice Ventour


Appearances:

Mr. Durity instructed by Mr. Charles for the Plaintiff
Dr. Seepersad instructed by Mr. Ramdeen for the Defendant



                                        JUDGMENT


The Background:

       The Testator died on 8th November, 1986. He had six children - Aldron, Lennard, Victor,

Bernard, Gemma and Genora. The evidence revealed that the Testator made three Wills during

his lifetime. The first of those three Wills was made on 31st January, 1991 following the death

of his first son Aldron in 1988. His three (3) remaining sons were appointed as Executors of his

first Will. The second Will which revoked the earlier Will was made on 13th August, 1996

approximately one month after the death of another son Bernard. The two (2) remaining sons



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Lennard and Victor were appointed as Executors of the second Will. Bernard died in the month

of July, 1996. The third Will was allegedly made on 17th October, 1996 and that Will purported

to revoke the Will of August 13, 1996.    The Testator’s daughter, Gemma Hudson and his grand

daughter Debra Christiani, the Plaintiff herein, were appointed as Executrices of the third Will.

In what is alleged to be his final Will the following statement was inserted:

       “The Will which I hereby revoke was made under duress and pressure

       brought on by my two sons Victor Mohammed and Lennard Mohammed

       by their continuous nagging that I should make a Will in accordance with

       their dictates.”

       I shall comment further on that clause at a later stage in this judgment. On 21st February,

1999, Debra Christiani applied to the High Court for a Grant of Probate of the Will of October

17, 1996. For reasons to which I shall refer later, Gemma Hudson renounced her Executorship

of the said Will on February 3rd, 1997. Lennard Mohammed one of the sons of the deceased and

a named Executor of the Testator’s second Will objected to the Application for the Grant of

Probate made by the Plaintiff with respect to the Will of October 17, 1996. In the events that

followed, the Plaintiff filed her Writ of Summons with Statement of Claim endorsed thereon on

14th August, 1997.

The Defence and Counterclaim:

       The Defendant filed a Defence and Counterclaim on 30th September, 1997 in which he

alleges that the Will dated 17th October, 1996 purporting to be executed by the deceased is not

the Will of the deceased in that it was not duly executed in accordance with the Wills and

Probate Ordinance Chap.8 No.2 (“The Act”). He alleges further that the Testator did not sign

nor acknowledge his signature to the Will in the presence of the attesting witnesses, neither did




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the witnesses attest and subscribe their names in the presence of the Testator and in the presence

of each other.

The Defence and Counterclaim:

       The Defendant also alleges that the Testator did not know nor did he approve of the

contents of the said Will at the time the Will is alleged to have been executed. In the particulars

provided the Defendant contends that the deceased never gave any instructions for the

preparation alleged Will and that the Will was not read over to him or properly explained to him

nor did the Testator read the Will himself before it was executed and that he was not aware of its

nature and effect. In his Counterclaim the Defendant asked the Court to pronounce against the

Will of October 17, 1996 and to pronounce on the validity of the second Will of the Testator, that

is, the Will made on 13th August, 1996.

The Defence and Counterclaim Amended:

       On 11th December, 2001, that is more than four years after filing his Defence and

Counterclaim the Defendant sought and obtained leave to amend his Pleadings. The amended

Pleading was filed on 15th February, 2002 and in it the Defendant alleges that the deceased

executed the purported Will of 17th October, 1996 whilst under the undue influence of the

Plaintiff at a time when he was vulnerable by reason of his age, infirmity and deteriorating

physical and mental capacity. The following particulars were provided in support of this new

allegation:

       (i)       The deceased was 84 years of age, suffering from cancer of the liver;

       (ii)      The deceased was, by reason of his age and infirmity, unable to leave

                 his bedroom;

       (iii)     The deceased was in constant pain in the weeks proceeding his death,




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               receiving blood and drips intravenously and was distressed and

               tearful regularly;

       (iv)    The deceased’s memory was defective and untrustworthy i.e. he was unable to

               remember whether he had spoken to someone earlier in the day or had seen

               someone a day previously;

       (v)     The Plaintiff arrived before 7:00 a.m. at the house of the deceased on 29th

               October, 1996 and spent most of the day with the deceased, locked the door

               which gave entry to the deceased’s bedroom thus excluding other persons other

               than those whom she wished to admit.

       On 27th February, 2002 the Defendant once again sought and obtained leave of the Court

to re-amend his Defence and Counterclaim.         In the re-amended Pleading the Defendant, in

support of his allegation that the deceased did not know nor approve of the Will allegedly made

on 17th October, 1996, provided certain particulars to the effect that the said Will was a radical

departure from the previous disposition made by the deceased in his Wills of January 31st 1991

and August 13th 1996. He also contends that the deceased was aged and infirm and his memory

was defective and untrustworthy and that he could not recall certain events.

       The Defendant introduced a new paragraph 4 in the re-amended Pleading alleging that at

the time when the Will was alleged to have been executed the deceased was not of sound mind,

memory and understanding. In support of this allegation the Defendant repeated several of the

particulars which he had relied upon in support of other allegations made in his Pleadings. For

example, he once again referred to the Testator’s age and the fact that he was suffering from

cancer of the liver; that the Testator was in a state of depression and severe grief, having buried

his son Bernard on 31st July, 1996 and his first son having died in 1988; that the Testator was in




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such a condition of mind and memory as to be unable to understand the nature of the act and its

effect or the extent of the property which he was disposing or to comprehend and appreciate the

claims to which he ought to give effect.

       By way of reply the Plaintiff denies the allegations made by the Defendant in his re-

amended Defence and Counterclaim.

The Plaintiff does not follow the Rules:

       At the start of the trial Counsel for the Defendant Dr. Seepersad indicated to the Court

that the Plaintiff was in breach of Order 74 Rule 2 of the Rules of the Supreme Court in that the

Writ of Summons was issued without the requisite memorandum of the Registrar.

Notwithstanding the non compliance with the Rules Dr. Seepersad indicated to the Court that the

Defendant was prepared to waive any rights he may have had as a result of the Plaintiff’s breach

of the Rules and is ready to proceed with the hearing of the trial.

The Plaintiff supports her case:

       In order to discharge the burden of due execution of the Will allegedly made on October

17th 1996 the Plaintiff called three witnesses. The first was Mr. Ronald Kowlessar an Attorney

at Law who testified that he had worked for the deceased for quite some time. He recalled

having prepared a Will for the deceased sometime around August 1996. At that time he said that

the deceased had visited his Office accompanied by his two sons whom he later learnt were

Victor and Lennard. The witness said that the deceased subsequently called him from his home

and made a request of him, as a result of which he delivered the copy of the August Will to the

deceased’s daughter Mrs. Genora Parray. He said he did as he was instructed and gave the copy

to the daughter. He said that at the time the deceased made the request he sounded quite normal.




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       Under cross examination by Dr. Seepersad the witness said that he did not give his Clerk

the copy of the Will made in August 1996 to take to the deceased because the deceased had

specifically instructed him to give it to his daughter whom he said will attend on him for that

purpose. Mr. Kowlessar further said that the Will which he had prepared in August 1996 was

executed by the deceased in his office and witnessed by his Clerk. He said it was executed in

accordance with the provisions of the Act. Prior to the execution, he said that the deceased and

his two sons spent approximately 1 to 1½ hours at his office and that he did not notice any

pressure being exerted on the deceased by his two sons while they were in his presence. Mr.

Kowlessar said that from the conversation he had with the deceased in October 1996 he knew

that the deceased was making over his Will and that he did not think it necessary to ask the

deceased any questions.    Finally, in answer to a question from Counsel for the Defendant, the

witness said that he did not find it strange that the deceased, whom he had known for many

years, did not ask him to act on his behalf in the preparation of the new Will.

       Jason Ragoo testified on behalf of the Plaintiff. He said that he went to the deceased

home on Thursday 17th October, 1996. When he got there, he rang the bell and a fair skin

woman came downstairs and opened the door for him. He indicated to her why he was there and

she took him upstairs to the bedroom of the deceased who was sitting up in his bed at the time.

Jason said it was about 10 to 10:30 a.m.     He said the Plaintiff was also in the room when the

deceased said that he would like him (Jason) to witness his Will. He said the deceased then sent

for one Robert Archibald who subsequently entered the room and was told by the deceased that

he wanted him (Robert) to witness his Will. The deceased then took out the Will from his bed

head and signed it and then gave it to Mr. Archibald who signed and handed it to Jason who

signed as well. Immediately after signing the Will Jason said that he left the house because he




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had to get back to work. He identified the Will (exhibit “A”) and pointed out to the Court the

deceased’s signature and that of Mr. Archibald as well as his own signature.

       Under cross-examination by Counsel for the Defendant Mr. Ragoo did not quite

accurately describe the physical features of Mr. Robert Archibald i.e. his age and weight, and as

a consequence Counsel asked the Court not to accept the witness as a witness of truth. When

asked by Counsel when was the date i.e. 17th October, 1996, inserted in the Will, he witness said

that the Will was already dated when he signed and that he was sure it was 17th October, 1996

because his employer Mrs. Genora Parray gave him the message on the Wednesday before that

the deceased wanted to see him on 17th October, 1996. When asked what independent means he

had to verify that it was 17th October, 1996 the witness said that he usually fast on a Thursday

and that he had noted the date on a calendar.

       Mrs. Debra Christiani the Plaintiff supported the evidence of Mr. Jason Ragoo. She said

that she was present when the deceased signed the Will and gave it to Mr. Archibald who signed

and then gave it to Jason who also signed. She said they all signed in the presence of each other.

She said that the Testator then gave her the Will after putting it in an envelope and asked her to

keep it safely and not to open it until he died and to ensure that his wishes were carried out.

The Defendant’s challenge:

       Three witnesses testified on behalf of the Defendant.          Victor Mohammed the first

witness for the Defendant is the eldest son of the deceased and he gave a long history of the

family and the relationship the deceased had with his children. He said there were four boys and

two girls. Aldron one of the boys died in 1988. Following Aldron’s death the deceased made a

Will on 31st January, 1991 in which he appointed Bernard, Lennard and Victor as the three

Executors. He said that the deceased was very hurt when Aldron died in 1988. Another brother




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Bernard died in July 1996. He said that at the time of Bernard’s death the deceased (his father)

was holidaying in Canada at his (Victor’s) home and upon hearing the news he (the deceased)

became very depressed. He returned to Trinidad immediately. Victor accompanied him on his

return trip.

        The following month August 13, 1996 both Victor and Lenard accompanied the deceased

to the office of Mr. Kowlessar, an Attorney at Law for the purpose of preparing his second Will.

Victor said that his deceased father told Mr. Kowlessar exactly what he wanted. When asked by

his Counsel what part he played, if any, in the preparation of his father’s Will he said that he had

made two suggestions about the sums of money his father was leaving for certain named

beneficiaries. He admitted to his father that he was unhappy that “this lady” (meaning Cynthia,

his father’s loyal companion) was getting more money than his sisters Genora and Gemma. He

suggested to the deceased that they be given an equal sum but his father refused to follow his

suggestion.    Victor said that he never expected his father to prepare a Will without first

discussing it with him. He expected his father to tell him before hand if he was not going to be

appointed as Executor of his Will.

        Under cross-examination however, Victor admitted that he only knew about the contents

of the 1991 Will after Bernard’s death in July 1996. He also admitted that his father did not

discuss with him the fact that he had given Cynthia (his father loyal companion) a 21 year lease

over the High Street property, the family’s home in Princes Town. The deceased had retained a

life interest in the said property. Victor said that he had only learnt about that transaction in the

early 1990’s that is before 1996.     Victor also testified that he had owned a piece of land in

Marabella and had given it to his sister Genora at a time when she had recently returned from the

United Kingdom. He said that she had first requested of her father a piece of land but that




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request was turned down. Under cross-examination it turned out that Victor was holding the

piece of land in Marabella on trust for his sister Genora and that he simply did what he had to do

when called upon to effect the transfer.

       Gemma Hudson was the second witness for the Defendant. She is one of the two

daughters of the deceased. She described her father as a kind and generous man. She said that in

March 1996 he was diagnosed with cancer of the liver and was treated by Dr. Ramsaran. She

said that after Bernard’s death her father was not remembering things as before and that he was

getting very tired easily. As a result she began spending more time with him.

       In the month of October 1996 she said that she was at his side every day, sometimes

staying overnight. She said that in September and October of 1996 her father was only able to

move around with assistance. Dr. Silochan the deceased grand son-in-law was quite often at the

family’s home and that it was he who had put the deceased on drips on about three or four

occasions prior to his death in November 1996.

       Gemma said that she saw the October Will for the first time at Mr. Kowlessar’s office.

She had never seen the Will made in August 1996. She said that after reading the October Will

she decided to renounce executorship because she was unhappy with what she had seen in the

Will. She said if her father wanted her to be an Executrix he would have sought her consent.

She was concerned about the paragraph dealing with the allegation of duress and the fact that her

father’s main property went to Debra and not Lenard as she had expected. She also found that

the fact that the Will was not made by Kowlessar was very strange because he had made all her

father’s previous Wills.

       This witness also said that around the first week of October 1996 her father transferred to

her his motor vehicle PAN 9107. She had gone to Licensing Office with Robert Archibald on




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30th October, 1996 to effect the transfer. Her father had signed the transfer form at home some

three (3) weeks earlier and while at the Licensing Office Robert was asked by an officer to sign

the said form by an officer at the Licensing Department. She also said that if Robert Archibald

said that he did not sign the form it would not be true.

       Robert Archibald proved to be the most important witness for the Defence. He said that

he had known the deceased since he was age 16. He worked for him. He first drove one of the

deceased ice van and then later a bus, while in the employ of the deceased. He collected rent for

the deceased with respect to several properties the deceased owned in and around San Fernando.

He said he had a very close relationship with the deceased. He considered him as a father. He

also worked with one of the Testator’s son, Bernard in his Insurance Agency business. Robert

said that he did not know of any illness affecting the Testator until after the death of Bernard in

July 1996. Mr. Archibald said that after he had learnt of the deceased’s illness he visited him

almost every day between 7:30 a.m. and 8:00 a.m. He recognized that after Bernard’s death the

deceased started loosing weight.

       This witness denied that he was in the deceased bedroom on 17th October, 1996 with

Jason Ragoo the Plaintiff. He said that on 29th October, 1996 he arrived at the deceased’s home

at around 7:30 a.m.     He went upstairs to the deceased’s bedroom. Surprisingly, he said, the

door was locked; it is usually ajar. He knocked and called the deceased’s name. He heard the

deceased say, “that is Robert’s voice, open the door.” A young lady opened the door and he

entered. The deceased told him that the young lady was his grand daughter and that he wanted

him (Robert) to sign something for her as she was travelling shortly. Robert said that just around

that time the young lady made a telephone call while in the deceased bedroom. She then handed

the phone to the deceased saying “my mother would like to speak to you.” The witness said that




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all he heard then was the deceased saying “oh God Robert they want to kill me for what I have.”

The deceased then handed him (Robert) the phone and he said “Gene this is Robert like all yuh

want to kill the man before his time.” He said she did not respond and he rest the phone down.

       Robert further related how he became emotional when he saw the deceased trembling and

crying after handing him the phone. He said he felt sad as it looked as though the deceased was

going to pass away. He then simply touched him and told him that he had to go to work and that

he would see him later. On his way out and while going down the stairs he said that Debra

followed him and asked, “Robert are you not signing the document the old man ask you to sign

for me.”   He said that she handed him a sheet of paper folded. She told him where to sign and

he did. He said he did not examine nor did he read the paper. He handed the paper back to her

after he had signed and she asked him to put his address as well. He said he did. He said further

that the paper had no typing on it, no other writing whatsoever. He was able to identify his

signature on exhibit “A” – the Will of 17th October, 1996. He however testified that he never

signed the document in the presence of the deceased nor in the presence of Jason Ragoo.

       This witness further testified that sometime after Bernard’s death the deceased displayed

a tendency of forgetfullness. For example, he said that he would have given to the Testator rent

which he had collected and sometime after the deceased would enquire about the rent. Under

cross-examination he admitted he was at the deceased’s residence on 17 th October, 1996 for

about ten minutes to pay his usual visit. When asked by Counsel for the Plaintiff on what date

the transfer of PAN 9107 was effected the witness said that he could not remember the date

although it turned out to be the day after the incident which he said took place on 29th October,

1996 at the deceased residence. He said he was able to recall the 29th October, 1996 because he




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had on that day given instructions to two workers to install three fire extinguishers at the Post

Office in Princess Town.

       Under further cross-examination the witness denied that he had personally signed the

transfer form to effect the transfer of the motor vehicle PAN 9107 from the deceased, to the

deceased’s daughter Gemma Hudson. When, however, he was shown a Certified Copy of the

said form he was able to identify his signature on the said document. When asked by Counsel

whether from his knowledge of Ameer Mohammed (the deceased) could any one persuade him

(the deceased) to do what he did not want to do he answered in the negative.

       Robert Archibald has been the main witness for the Defence. The evidence of the other

two (2) witnesses for the Defence has had very little impact if any, on the due execution of the

Will of 17th October, 1996. The credibility of Robert as a witness is therefore very important in

establishing the case for the Defendant. It is clear that Robert does not dispute the fact that his

signature appears as a witness to the execution of the Will purporting to be that of the deceased.

He denies however signing the document in the presence of the Testator or in the presence of

Jason Ragoo, the other witness to the Will. Robert also testified that he signed the document on

the 29th October, 1996 (and not on 17th October, 1996 as alleged by the Plaintiff) in

circumstances which led him to believe that it was being signed for the purpose of travel

arrangements.

The Court assesses the Defendant’s evidence:

       I shall proceed to examine Robert Archibald’s evidence. Robert said that on the morning

of October 29, 1996 he arrived at the Testator’s home at around 7:00 a.m. He found the door to

the Testator’s bedroom locked. Usually, he says, the door is left ajar. He knocked the door and

mentioned his name and from the outside he heard the Testator say that that voice is Robert’s




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and directed that the door be opened. A young lady opened the door and he entered the room

where upon the Testator introduced the young lady as his grand daughter and told Robert that she

would be travelling shortly and needed to get a document signed for that purpose.

       Robert testified that the young lady then made a telephone call and then handed the

receiver to the Testator saying “my mother wants to talk to you.” Robert then heard the Testator

say, “oh God Robert, they want to kill me for what I have.” According to Robert the deceased

then handed him the phone and he (Robert) said, “Gene this is Robert like all yuh want to kill the

man before his time.” He said she did not respond and he put the phone down.

       Let me say at this stage that listening to and observing Robert as he gave his evidence I

entertained grave doubt as to its veracity. The Plaintiff has denied under cross-examination,

every detail of the alleged meeting with Robert at the Testator’s home on 29th October, 1996. In

fact she has no recollection of being at her grandfather’s home on 29th October, 1996. Robert is

asking this Court to believe that this young woman (Debra) who the Defence says arrived at the

house at around 6:00 a.m. on the morning of the 29th October, 1996, locked herself in the

bedroom with her grand father, for whatever reason, and a little more than an hour later when a

complete stranger enters the bedroom she then makes a telephone call to her mother and handed

the phone to her grandfather telling him that her mother wanted to talk to him. If, indeed, that

was part of the Plaintiff’s “plot” as alleged by the Defendant would it not be foolhardy of her to

execute it (or part of it) in the presence of a complete stranger. Would it not be more prudent to

have waited until the stranger had left the room before making the telephone call. Did Debra not

consider a telephone discussion between her mother and her grand father a private matter.

Further, it makes little sense to me why the deceased would have handed the phone to Robert

after speaking to his daughter (Debra’s mother).




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       I next turn to the circumstances which Robert said gave rise to his signing the Will of 17th

October, 1996 (Exhibit “A”). It was after the incident surrounding the telephone discussion

between the Testator and Debra’s mother that Robert said he had left the room as he had to go to

work for 8:00 a.m. He said that while walking down the stairs Debra called out to him and said

“Robert you not signing the document the old man ask you to sign for me” and she ran down the

stairs and handed him a sheet of paper which he said was folded and indicated to him where he

should sign. He said he signed as directed. He admitted to not having examined the document

nor did he read the paper which he was asked to sign. She also asked him to put his address and

he complied. He said that the paper had no writing on it but how could he have known when he

admitted not having examined nor did he attempt to read the document.

       That in essence, is Robert’s explanation as to how his name and address appeared on the

Testator’s Will of 17th October, 1996. This is the testimony of a witness who has had to carry

considerable responsibilities for the greater part of his working life. He has been a Bailiff for

many years; he has had the responsibility of collecting the rent from all the Testator’s properties;

he has been given a power of Attorney by the Testator in April 1996 to conduct and manage all

the affairs of the Testator; he was trusted to take to the bank the monies collected from

Bernard’s Insurance Agency business and to provide security for the business. This is the same

witness who is telling this Court that he was given a piece of paper, folded, by a young lady who

he met for the first time a few minutes before and told to sign his name and put his address where

she indicated. That he complied with her request without asking any question or without

unfolding the paper to read the contents is indeed inconceivable as well as incredible. The

Plaintiff has denied that such an incident ever took place. This Court has no hesitation in




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rejecting Robert’s explanation as to how his signature appeared on the Will of the deceased of

October 17, 1996.

       Based on the evidence of the Plaintiff and Jason I am inclined to believe that such an

incident never took place. Jason’s evidence in chief was not shaken under cross-examination.

Listening to Jason Ragoo as he recaptured the events leading up to his witnessing the Will by

placing his signature where it appeared on exhibit “A” I find it difficult to conclude that he had

fabricated the story as Counsel for the Defendant seems to suggest during his detailed cross-

examination of the witness. I was impressed with the veracity of Jason’s testimony. As I said

before I don’t accept as truthful the evidence of Robert Archibald that he did not sign the Will of

the Testator in the Testator’s presence and in the presence of Jason Ragoo the other attesting

witness on the 17th October, 1996.

       There is yet another aspect of Robert’s testimony which has caused some concern to this

Court and touches on the credibility of the witness. He denied under cross-examination that he

had signed a transfer form to effect the change of ownership of PAN 9107 from the Testator to

Gemma Hudson. When, however, he was confronted with a certified copy of the Transfer Form

with his signature he then sought to deny that he had ever said he had not signed the form. The

evidence before the Court is that he did deny signing the form.

       In addition, under cross-examination Robert was unable to recall the date that he had

gone to the Licensing Office to effect the transfer of motor vehicle PAN 9107. But if the events

of the 29th October, 1996 as dramatically narrated by Robert, did take place in the Testator’s

bedroom, how could Robert not recall accompanying the daughter of the deceased (Gemma

Hudson) to the Licensing Office the following morning to effect the transfer of the said motor

vehicle.




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       According to the evidence of Robert the incident of the 29th October, 1996 did leave the

Testator tearful and trembling “as if he would pass away”. In the normal course of things one

would have expected Robert to relate to the Testator’s daughter, in whose company he was the

following morning (30th October, 1996), exactly what transpired at the Testator’s home the day

before, that is, the 29th October, 1996. But there was no such conversation between them on the

30th October, 1996. Why? The answer to me is quite obvious and that is because it is more than

probable that the incident which Robert said, took place in the Testator’s bedroom on the 29th

October, 1996 did not in fact occur.

The Plaintiff must satisfy the conscience of the Court:

       Was the Will dated 17th October, 1996 executed in accordance with the provisions of the

Act. The onus probandi requires that the Plaintiff must satisfy the conscience of the Court that

the instrument is the last will of a free and capable Testator. Those were the words of Parke, B.

in the case of Barry –vs- Butlin (1838) 12 ER 1089. The guiding principle is that if on the face

of the document there is due execution, that is, the signature of the Testator and the two attesting

witnesses, then there is a presumption, of regularity. However, once there is evidence before the

Court which cast doubt upon the validity of that presumption in any case, the Court’s conscience

cannot, or should not be satisfied without some affirmative proof -see Wooding, CJ in the case of

Alvarez –vs- Chandler 5 WIR 226 at page 228.



The Defence alleges suspicious circumstances:

       Counsel for the Defendant has referred the Court to several matters, the nature of which,

he submitted, gave rise to suspicious circumstances.        Those circumstances are detailed as

follows:




Page 16 of 28
                (1)    The Will was never read over to the Testator (per Plaintiff and Ragoo);

                (2)    The Will was in an envelope (per Plaintiff);           Ragoo mentioned no

                       envelope before or after he witnessed the Will.              No envelope was

                       produced in evidence. Will does not appear to be creased;

                (3)    Why was Attorney, Wesley Gopaul at the house on the morning that the

                       Plaintiff was there (but Ragoo did not see him) when the alleged Will was

                       produced by the Testator; why was Dr. Rattan            at the house on 29 th

                       October, 1996;

                (4)    Ragoo, a yard maintenance man, not a business nor a social acquaintance

                       is allegedly sent for to witness the Will of the Testator;

                (5)    No one knows when the date 17th October, 1996 was written on the Will

                       or indeed who wrote that date;

                (6)    Why would the Testator get a Will prepared by someone other than his

                       practising Attorney Mr. Kowlessar who did his work for over 32 years?

                (7)    Why would the Testator remove his sons as Executors in the October,

                       1996 Will?

                (8)    Who prepared the Will and who gave the instructions for the preparation

                       of that Will?

                (9)    Why would the Testator make such a radical departure from his

                       dispositions in his previous Wills?

                (10)   The 1991 Will was made after Aldron’s death (1988) and the August,

                       1996 Will was made after Bernard’s death (1996). What was the catalyst

                       for the October 1996 Will?




Page 17 of 28
       Counsel for the Defendant correctly submitted in my view that the degree of suspicion

could vary with the circumstances of each case.      He argued that the suspicion might be slight

and therefore easily dispelled or on the other hand it may be so grave that it could hardly be

removed. He contended further that the circumstances of the instant case are such as to impose

on the Plaintiff as heavy a burden as can well be imagined; and, Counsel felt that the degree of

suspicion in the instant case is so great that it can hardly be removed.

The Court examines the allegations of suspicion:

       Let us examine those circumstances which Counsel has outlined as giving rise to

suspicious circumstances surrounding the Will of October 1996.

       (1)      The Will was never read over to the Testator.

                It is true that the evidence of both the Plaintiff and Jason Ragoo does not establish

                that the Will was ever read over to the Testator. In fact, there is no evidence as to

                who prepared the Will. Mr. Kowlessar said it was quite clear to him that the

                deceased intended to revoke the Will of August 1996 and to have another Will

                prepared.

                The evidence is that the Testator had asked Mr. Kowlessar to give the Will of

                August 13th to his daughter which Mr. Kowlessar did.           Mr. Kowlessar also

                testified that when he spoke to the deceased about returning the Will of August

                13th the deceased appeared to be quite normal. The fact that there is no evidence

                before the Court as to who prepared the Will of October 17, 1996 nor as to

                whether the said Will was read over to the Testator is not in my respectful view a

                basis for suspicion having regard to all the circumstances;




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      (2)       The Will was in an envelope (per Plaintiff) Ragoo mentioned no envelope

                before or after he witnessed the Will. No envelope was produced in evidence.

                Will does not appear to be creased;

                It is true that the Plaintiff did testify that following execution of the Will the

                Testator did put the Will in an envelope and handed same to her. Jason on the

                other hand offered no evidence as to the existence of any envelope whether before

                or after he had signed the Will. He did testify however, that after he had signed

                the Will he left as he had to return to work.

                I do not, with respect, see any reason for suspicion because the Plaintiff has failed

                to produce an envelope which she said the Will was placed into when it was

                handed to the Plaintiff after execution. Counsel also argued that the Will appears

                not to have been creased but no evidence was led to determine the size of the

                envelope into which the Will was placed. The Will may not have had to be

                creased at all depending on the size of the envelope into which it was placed.

      (3)       Why was Attorney Wesley Gopaul at the house on the morning that the

                Plaintiff was there (but Ragoo did not see him) when the alleged Will was

                produced by the Testator; why was Dr Rattan at the house on 29 th October,

                1996?

                It would have been helpful if the Defendant had summoned both Mr. Wesley

                Gopaul, Attorney at Law and Dr. Rattan to provide the necessary evidence as to

                why they were at the Testator’s house on the date alleged by the Defendant. In

                the absence of such testimony there could be no basis for suspicion.




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      (4)       Ragoo, a yard maintenance man, not a business man or a social acquaintance

                is allegedly sent for to witness the Will of the Testator;

                There is absolutely nothing suspicious in my view      about “a yard maintenance

                man” being asked to witness a Will. In law he has the capacity and is competent

                to do so. In fact Jason Ragoo appears to this Court to be a very intelligent man

                despite his humble occupation. One does not have to be a business or social

                acquaintance of a Testator to witness a Will. The 1991 Will and the August 1996

                Will bear testimony to that fact. There is no evidence that the Clerk and/or

                Secretary of Mr. Kowlessar is or was a business or social acquaintance of the

                deceased yet they were able to witness the previous Wills of the Testator;

      (5)       No one knows when the date 17th October, 1996 was written on the Will or

                indeed who wrote that date.

                The evidence of Jason Ragoo is that the date was on the Will when the Will was

                handed to him for his signature. It must be presumed that the Testator inserted the

                date in the absence of evidence to the contrary;

      (6)       Why would the Testator get a Will prepared by someone other than his

                practising Attorney Mr. Kowlessar who did his work for 32 years?

                There could hardly be anything suspicious about that since in April 1996 the

                Testator had gone to Mr. Ramsaran, Attorney at Law to prepare a Power of

                Attorney in favour of Robert Archibald. Apparently the Testator was a man of

                many ideas and had no difficulty having his work done by more than one

                professional. Mr. Kowlessar himself had said that the fact that the Testator had




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                gone to someone else to prepare the October 1996 Will was neither strange nor

                was it unusual.

      (7)       Why would a Testator remove his sons as Executors in the October 1996

                Will?

                Admittedly, this question is difficult for the Court to answer. Certainly one could

                look to the Will of October 17, 1996 for the answer. In fact it is the Testator who

                expressly stated the reason in his Will of October 17, 1996 why he was revoking

                his previous Will.   He said:

                “The Will which I hereby revoke was made under duress

                and pressure brought on by my two sons Victor Mohammed

                and Lennard Mohammed by their continuous nagging that I should

                make a Will in accordance with their dictates.”

                Having so stated the Testator then proceeded to appoint his daughter Gemma

                Hudson and his grand daughter Debra Christiani to be the Executrices of his Will

                of 17th October, 1996. If, therefore, the said Will is valid and truly expresses the

                wishes of the Testator then it is reasonable to conclude that the Testator removed

                his sons as Executors of the October 1996 Will because, as he says, they

                pressured him into making a Will in accordance with their dictates. It must also

                be remembered that while Victor had denied using any threat or pressure on his

                father with respect to the preparation of his Will, he did admit that he had tried to

                influence his father’s decision on the pecuniary legacies to his (Victor’s) sisters

                and the lady who the deceased described as his loyal companion.




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      (8)       Who prepared the Will and who took the instructions for the preparation of

                that Will?

                There is no evidence as to who prepared the Will or who gave instructions for the

                preparation of the Will. It seems clear from the evidence of Mr. Kowlessar that it

                was the Testator’s intention to have the Will of 13th August, 1996 redone. In the

                circumstances, the fact that there is no evidence as who prepared the Will or who

                gave instructions for its preparation does not give rise to suspicion.

      (9)       Why would the Testator make such a radical departure from the dispositions

                in his previous Will?

                Once again if the contents of the Will are accepted then we must look to that

                document for any reason why the Testator departed from previous dispositions. I

                do not believe the re-distribution of the Testator’s assets in the October 17 Will is

                such as to give rise to the kind of suspicion that would excite the conscience of

                the Court.

      (10)      The 1991 Will was made after Aldron’s death (1988) and the August               1996

                Will was made after Bernard’s death (1996). What was the catalyst for

                October 1996 Will?

                There is no evidence before this Court to suggest that the Testator made his first

                Will in January 1991 because of the death of his son Aldron who died in 1988

                some three (3) years earlier. However, it is true that the Testator did effect certain

                changes to the 1991 Will because of the death of his son Bernard who died in July

                1996. The August 1996 Will was in fact made approximately one (1) month after

                Bernard’s death.    Victor did admit that he tried to influence the Testator’s




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                pecuniary legacies in that he suggested to his father that Cynthia (the Testator’s

                loyal companion) ought not to be the recipient of a larger sum than his two sisters

                - Gemma and Genora. The Testator refused to accept Victor’s suggestion.

The Court’s Findings:

       The truth is that I have not been able to find any suspicious circumstances in the instant

case that would excite the Court’s conscience and therefore cast doubt upon the validity of the

presumption of regularity of the Will of 17th October, 1996. This is what Lord Wilberforce had

to say at page 367 in the case of Lucky –vs- Tiwari & oth. (1965) 8 WIR 363:

                “…. the evidence of facts giving rise to suspicion must be such as

                to create a real doubt that the Testator did not know or approve

                of the contents of the Will; it is not enough merely to show that

                the circumstances in which the Will was prepared were unusual or

                that the Testator did not make use of the legal advisor whom he

                might have been expected to consult.”

       The facts of the Lucky’s case are similar to the facts of the instant case. In that case the

Testator had made three Wills and on each occasion he had reasons for changing the Executors.

The first Will made on 10th November, 1956 the Testator appointed three of his nine children as

Executors; the second Will made on 11th February, 1957 he removed his children as executors

and appointed two sons-in-law and a non family member as Executors; the third Will made on

7th September, 1960 the Testator removed his sons-in-law and appointed two non family

members as Executors. He then re-distributed his property to his children and wife. The 1956

and 1957 Wills were prepared by one Chadee a well known Solicitor Clerk. However, in the




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preparation of the 1960, Chadee was not consulted. One of the Executors to the 1957 Will

challenged the validity of the Will of September 7, 1960.

       The trial Judge found that on the face of the 1960 Will, due execution was proved but

refused to admit it to probate on the ground that the Appellant had succeeded in discharging the

onus of showing suspicious circumstances attending its execution.           The Court of Appeal

disagreed with the trial Judge’s assessment of the facts and reversed the decision. The members

of the Board of the Privy Council dismissed the appeal of the Appellant and confirmed the

decision of the Court of Appeal.

       The words of Lord Wilberforce quoted earlier are very pertinent to the facts of the instant

case. The suspicion, if any, referred to by Counsel for the Defendant has failed to create a real

doubt that the Testator did not know or approve of the contents of the Will of October 17, 1996.

There is, in fact, no evidence as to whom he gave instructions for the preparation of the Will or

whether the Will was read over to the testator following its preparation but the absence of such

evidence does not, in my respectful view, give rise to any suspicion.

       Further the Defendant has failed to produce any medical or other evidence to support the

allegations made in his defence to the effect that the Testator’s health had deteriorated to such an

extent that his mind, memory and understanding were affected thereby making him incapable of

making a Will and appreciating the nature and effect of such an act. At page 565 of the case of

Banks –v- Goodfellow (1870) LR 5QB 549 Cockburn, C.J. stated the principle this way:

       “It is essential to the exercise of such a power that a Testator shall

       understand the nature of the act and its effects; shall understand

       the extent of the property of which he is exposing; shall be able to

       comprehend and appreciate the claims to which he ought to give




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       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 exercise of his natural faculties – that no insane



       delusion shall influence his will in disposing of his property and

       bring about a disposal of it which, if the mind has been sound,

       would not have been made.”

       No evidence has been presented before this Court to establish that the Testator was not of

sound mind, memory and understanding despite the fact that he was, as early as April 1996,

diagnosed with cancer of the liver. In the absence of medical evidence to the contrary such an

affliction does not in my view prevent the proper exercise of one’s mental faculties. While it is

true that the deceased’s health formed a major part of the Defendant’s case against the validity of

the Will of 17th October, 1996, yet it is strange that neither of the doctors, who, the Defendant

admits, was at the home of the deceased at some time prior to his death, was called to give

evidence as to the state of health of the deceased prior to the execution of the Will.

       Again there is not one shred of evidence (despite the allegation made by the Defendant)

to prove that the Plaintiff has, by act or deed, unduly influenced the Testator in the execution of

the said Will or that she made use of her bond with the deceased as his first grand daughter to

force him to sign the said Will contrary to his wishes. Indeed, it was the Defendant’s witness

(Robert Archibald) who testified that despite the Testator’s generosity he was a man who could

not have been easily persuaded to act against his Will. We recall that Victor, his son, had failed

in his attempt to persuade the Testator to alter the pecuniary legacy made in favour of the

Testator’s loyal companion.




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Conclusion and Order:

       On the totality of the evidence presented before this Court I find that the Defendant has

not produced any evidence to disturb the presumption of regularity of the Will executed on 17th

October, 1996 and accordingly this Court doth pronounce on the force and validity of the Will of

the Testator executed on 17th October, 1996.        The Defendant’s Counterclaim is hereby

dismissed.

       The Defendant will pay to the Plaintiff the cost of the Claim and Counterclaim to be

taxed in default of agreement.



                                  Dated this 30th day of July, 2002




                                                                            Sebastian Ventour
                                                                                        Judge




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