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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2012-01600

IN THE MATTER OF THE ESTATE OF VIJAYA ROOPCHAND POORAN

OTHERWISE VIJAYA POORAN

SANJAY POORAN

Claimant

AND

LUTCHMIN ROOPCHAND

Defendant

BEFORE THE HONOURABLE JUSTICE JOAN CHARLES

Appearances: For the Claimant: Ms. Hyacinth Griffith For the Defendant: Mr. Shaheed Hosein Date of Delivery: 24th April 2018

JUDGMENT

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THE CLAIM

[1] By Claim Form filed on the 19th April 2012 the Claimant sought the following

reliefs:

a) An Order pronouncing against the validity of the pretended will of Vijaya

Roopchand-Pooran otherwise called Vijaya Pooran, (the Deceased), dated

the 22nd May 2007, (the said will);

b) An Order that a Grant of Letters of Administration of the estate of the

Deceased be issued to the Claimant;

c) Costs.

[2] The Claimant is the son of the deceased who died on the 25th May 2007; he is also

one of the persons entitled to share her estate on an intestacy. The only other

person entitled to a share of the Deceased’s estate on an intestacy is the Claimant’s

sister Priya Pooran.

[3] The Defendant is the mother of the Deceased and the principal beneficiary under

the said will. She died on the 25th May 2007 and was substituted by Roma Pooran,

sister of the Deceased. One of the principal bequests thereunder was the property

situate at 119 Eastern Main Road, St. Augustine (the said property) to the

Defendant and Priya Pooran as join tenants.

[4] The Claimant challenged the validity of the said will on the following grounds:

a) That at the time of the execution of the said will, the Deceased did not know

and approve its contents since she was deathly ill, extremely weak and

slipping in and out of consciousness; the Deceased could not sit up, was in

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great pain and was only able to breath with the assistance of an oxygen

tank;

b) In light of her medical condition above, the Deceased could not, in her state

have known of the contents of the said will if she in fact signed same;

c) In the alternative, the deceased was not of sound mind, memory and

understanding at the time of the execution of the said will and did not

therefore have testamentary capacity;

d) On the 23rd May 2007 the Deceased collapsed and was revived by the

Claimant and his father. After this episode the Deceased slipped in and out

of consciousness until her eventual death on the 25th May 2007;

e) Further in the alternative, that the execution of the said will was obtained

by the undue influence of the Defendant;

f) The purported will was prepared by Aurora Coker, a law clerk employed

by EC Sirjoo and Company, attorneys at law who were the Defendant’s

standing attorneys over many years. This will does not reflect the wishes of

the deceased since she was very weak, unable to eat, in pain and therefore

unable to give instructions for the said will;

g) Aurora Coker, aforesaid, was named an executor of the said will, however,

she renounced her right to apply for probate of the said will;

h) The name of the Deceased is misspelt in two places in the will as ‘Pijaya’;

i) No specific devise of several of the Deceased’s valuable assets/property are

made in the said will – her lands in Morvant, bank accounts and jewellery;

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j) The Defendant applied for an Order that she be permitted to apply for

Letters of Administration with the will annexed.

[5] In 1996 the Deceased became very ill and was diagnosed with an incurable illness

– Waldenstrom Macroglobulinemia. Her doctors in the United Kingdom advised

the Deceased that, as a result of her condition, she now had a life expectancy of ten

(10) years from the date of diagnosis.

[6] From 1996 to 2006 the Deceased endured extensive medical treatment in Trinidad,

the United States of America and the United Kingdom including surgeries and

chemotherapy. In or about March 2007 the Deceased’s condition deteriorated

dramatically despite ongoing treatment aforesaid.

[7] The Claimant pleaded that the Deceased relied upon his father to make medical

decisions about her care and provide all-round assistance.

[8] It was averred that two weeks before the execution of the said will the Deceased

was advised by her doctors in the United Kingdom that she did not have much

longer to live since her condition was worsening rapidly and they could offer no

further treatment.

[9] The Deceased returned to Trinidad on the 15th May 2007, in a poor state. She

was in pain, very weak and as a result of a low blood count and the malignancy.

She was unable to care for herself and arranged for the Claimant and his father,

both medical doctors, to care for her.

[10] Within 24 hours of her return to Trinidad, the Deceased needed oxygen to assist

her in breathing. She could not eat solid foods and consumed a liquid diet. She

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was so weak that she had to be assisted from the bed to the toilet. She was also

cared for by Dr. Waveney Charles, a consultant haemotologist, who arranged for

daily testing of her blood and consulted with the Deceased’s United Kingdom’s

physicians. The Claimant’s father stayed with the Deceased since she required 24

hour care; he only left her to arrange her blood samples to be tested, collect

medication and food.

[11] The Deceased continued to rapidly deteriorate and on the 23rd May 2007 the

attending doctors decided to take the Deceased to Medical Associates in order to

obtain a blood transfusion in the hope that this would allow her to travel to the

United Kingdom by air ambulance for further treatment.

[12] Arrangements for her admission to Medical Associates and for her travel by air

ambulance were made by the Claimant and his father. Shortly before being taken

to Medical Associates hospital, the Deceased collapsed and was revived by the

Claimant and his father. She was eventually taken to Medical Associates where

she remained in a semi-conscious state until her death on the 25th May 2007.

DEFENCE

[13] The Defendant denied the Claimant’s case that the Deceased was so ill at the time

of the execution of the will that she could not give instructions for its preparation,

or that she did not know or understand its contents at the time that she affixed her

signature. The Defendant specifically denied that the Deceased was not of sound

mind, memory and understanding and therefore lacked testamentary capacity.

[14] The Defendant pleaded that the Deceased, notwithstanding her illness was fully

coherent, mentally alert and capable to handling and dealing with her affairs;

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business acquaintances and visitors visited her and she dealt with her affairs

without assistance.

[15] The Defendant asserted that for days prior to the execution of the said will, she

had been prevented from speaking with /visiting or contacting the Deceased. It

was averred that the Deceased and the Claimant’s father had been divorced for

many years and she did not have a cordial relationship with either the Claimant

or his father.

[16] As for the medical condition of the Deceased leading up to the execution of the

will, the Defendant did not admit that facts pleaded by the Claimant and put him

to strict proof with respect to those pleas.

[17] The Defendant also denied that the Claimant and his father provided any medical

care for the Deceased; the latter did not wish to be treated by either of them. The

Defendant asserted further, that any care provided by the Claimant and his father

was forced upon the Deceased.

[18] The Defendant pleaded further that all arrangements for the care of the Deceased

was made by one Roy Mahabir, her friend, who accompanied her to the United

Kingdom on her last visit to her doctors there. Mr. Mahabir returned with the

Deceased on the 15th May 2007 and made all arrangements for her nursing care

including paying for same.

[19] It was further denied that the Claimant or his father had any input in the medical

care of the Deceased upon her return to Trinidad in May 2007.

[20] The Defendant also denied being abusive to the Deceased during her last days at

his home and alleged that it was the Claimant and his father who were abusive

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and disrespectful to Lutchmin, preventing her from speaking to her daughter or

entering her room.

[21] It was pleaded further, that the Defendant executed a valid will prepared by

Aurora Coker, witnessed by the said Aurora Coker and Yvonne Comma. It was

admitted that the Defendant applied for Letters of Administration with the said

will annexed.

[22] The Defendant however denied that:

1. the will did not reflect the true wishes of the Deceased;

2. that Aurora Coker renounced her right to apply for probate;

3. that the Deceased’s name was incorrectly spelled in the will and portions of

the Deceased’s property not included in bequests under the will.

[23] The Defendant denied that she participated in making arrangements for Aurora

Coker’s attendance or her preparation of the said will.

[24] The Defendant counterclaimed for the following Orders:

1. An Order dismissing the Claimant’s claim against the Defendant with costs;

2. A declaration that all material times the Deceased had full testamentary

capacity and was capable of giving instruction for and executing a valid

will and testament;

3. A declaration that the will dated the 22nd May 2007 is valid and the last will

and testament of the deceased;

4. A declaration that the Defendant is entitled to apply for and obtain a grant

of Letters of Administration with the said will dated the 22nd May 2007;

5. Costs.

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REPLY

[25] The Claimant denied that following pleas in the defence:

1. That the Claimant was mentally alert and capable of managing her affairs

at the time of the execution of the said will;

2. That the Claimant and his father prevented the Defendant from seeing the

Deceased in the Defendant’s home;

3. That there was a poor relationship between the Claimant and the Deceased

or between the latter and the Claimant’s father;

4. The Roy Mahabir made the arrangements for the Deceased’s care upon her

return to Trinidad on the 15th May 2007 until her death.

[26] Witness statements were filed by the following witnesses on behalf of the

Claimant:

a) The Claimant;

b) Dr. Shastri Pooran;

c) Professor Allan Victor Hoffbrand;

d) Dr. Waveney Charles;

e) Dr. Deryck Chen.

[27] The Defendant filed the following witness statements:

a) Herman Lee King;

b) Aurora Coker;

c) Roma Pooran.

[28] The legal principles to be applied when determining the issue of testamentary

capacity due to acute poor health are outlined below.

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LAW

[29] In Walker v Walker Bereaux JA opined,

“The law may be stated thus:

1. The onus lies on a party seeking to propound the will. He must satisfy the

court that the instrument so propounded is the last will of a free and

capable testator per Wooding CJ in Moonan v Moonan (1965 7 WIR

420)”.

2. In absence of evidence to the contrary a will which is shown to have been

executed and attested in the manner prescribed by law and which appears

to be rational on the face of it, is presumed to be that of a person of

competent understanding. See Moonan v Moonan supra.

3. Once there is evidence before the Court which casts doubt upon the validity

of that presumption in any case, its conscience cannot or should not be

satisfied without some affirmative proof. See the judgment of Wooding CJ

in Alvarez v Chandler (1962) 5 WIR 226”

[30] In Lalla v Lalla Mendonça JA opined:

“59. The onus of proving a will lies upon the party propounding it. He

must satisfy the conscience of the Court that the instrument so propounded

is the last will of a free and capable testator. Where there are circumstances

which excite the suspicion of the Court, the Court ought not to pronounce

in favour of the will unless the suspicion is removed so that the Court is

satisfied that the will propounded does express the true will of the deceased

(see Barry v Butlin 2 Moo P. C. 480).

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60. The circumstances which have been held to excite the suspicion of the

Court are those which relate to the preparation of the will, its intrinsic

terms and the circumstances of its preparation and execution (see Davis

V. Mayhew supra). Moreover the circumstances are primarily those

existing at the time when the will was executed. However subsequent

events may give rise to a suspicion (see Davis v Mayhew, supra, 286 and

287).

…

62.It should be noted that the rule that suspicious circumstances should be

dispelled before the Court pronounces for the force and validity of a will,

does not mean that the Court’s approach must be one of permanent distrust

and disbelief of the evidence before it if there are suspicious circumstances.

As Lord du Parcq stated in Harmes v. Hinkson [1964] 3 D.L.R. 497,

511:

“Those rules enjoin a reasonable skepticism, not an obdurate persistence

in disbelief. They do not demand from the Judge, even in circumstances of

grave suspicion, a resolute and impenetrable incredulity. He is never

required to close his mind to the truth.”

…

65. However, it should be noted that it has been held that it is not sufficient

for the judge to say that he believes one witness as opposed to the other. He

must assess the evidence with the suspicious circumstances in mind (see

Thomas v. Thomas (1969) 20 W.I.R. 58 and Bankay v. Sukhdeo,

supra)

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[31] In Mohammed v Christiani Warner JA opined:

13. In Moonan v Moonan 7 WIR 420 and a number of subsequent cases

in this jurisdiction, the definition of ‘suspicion’ as stated by Lindley L.J.,

in Tyrrell v Painton [1894] p 151 was recognised and confirmed.

‘Suspicion’ in this context ‘extends to all cases’ in which circumstances

exist which excite the suspicion of the court. It is used, in reference to the

preparation of a Will, not only of its intrinsic terms, but also the

circumstances surrounding its preparation and execution. (See Alvarez v

Chandler 5 WIR 1962, Elias v Elias CvA. No. 138 of 1995 (unreported).

14. In Moonan (supra) Wooding C. J. cited the learning set out in Hals.

Laws 3rd Edition Vol. 39, p. 858-9.

“Whenever the circumstances under which a will is prepared

raise a well-grounded suspicion that it does not express the

testator’s mind, the court ought not to pronounce in favour of

it unless the suspicion is removed. Thus where a person

propounds a will prepared by himself or on his instructions

under which he benefits, the onus is on him to prove the

righteousness of the transaction and that the testator knew and

approved of it. A similar onus is raised where there is some

weakness in the testator which, although it does not amount to

incapacity, renders him liable to be made the instrument of

those around him; or where the testator is of extreme age; or

where knowledge of the contents of the will is not brought home

to him; or where the will was prepared on verbal instructions

only, or was made by interrogatories; or where there was any

concealment or misrepresentation; or where the will is at

variance with the testator’s known affections, or previous

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declarations, or dispositions in former wills, or a general sense

of propriety.”

15. In a more recent case of Fuller v Strum [2000] EWCA Civ. 1879 (7

December 2001), where the trial judge was not satisfied with the

‘righteousness of the transaction,’ the court in setting aside the trial

judge’s order, had this to say per Chadwick L.J. –

“the question is not whether the court approves of the

circumstances in which the document was executed, or of its

contents, the question is whether the court is satisfied that the

contents do truly represent the testator’ testamentary

intentions. The phrase ‘the onus of showing the righteousness

of the transaction’ is not to be taken as a licence to refuse

probate of a document of which it disapproves.

In the same case, Longmore L.J. said –

“the vigilance and jealousy of the court is directed to being

satisfied that the testator did know and approve of the contents

of his Will; no less but also no more.”

[32] An assessment of the evidence of all the witnesses is crucial to the determination

of this case; I therefore embark upon such assessment below.

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THE EVIDENCE FOR THE CLAIMANT

Witness Statement of Dr. Shastri Pooran

[33] He was the Claimant’s father and was married to the deceased until their divorce

in 1989 when she returned to the home of the Defendant, her mother. He testified

that despite their separation and divorce, they maintained a close relationship,

caring for their two children and visiting each other. Dr. Pooran revealed that his

relationship with Lutchmin Pooran was poor since she was hostile toward him

and any continued relationship between himself, her daughter and the Deceased.

[34] This witness testified that he and the deceased drew closer after her illness – he

offered her advice, support and attended medical appointments with her. After

her return from the United Kingdom in May 2007, Dr. Pooran stayed with the

deceased except for periods when he left to purchase medication, food or have her

blood tested. He asserted that Lutchmin abused him daily while he remained at

her home but did not assist in the Deceased’s care except for the provision of a

nurse, against Vijaya’s wishes.

[35] This witness also asserted that Dr. Waveney Charles and Dr. Deryck Chen paid

home visits to care for the Deceased and that during this period and up to her

death, the Deceased never stated that she had made a will.

[36] When he learnt of the existence of a will, this witness questioned its authenticity.

He visited Aurora Coker at her home to ask about her preparation of the said will.

Aurora Coker advised him to retain an attorney to lodge a caveat against the

probate of the said will. He gave her $800.00 for this purpose and a caveat was

lodged by Janet James Sebastian, Attorney at Law, whom he did not meet before.

The said caveat was filed.

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[37] It was also his evidence that he had never heard the Deceased refer to herself as

‘Pijaya’ nor heard anyone call her by that name.

Cross examination of Dr. Shastri Pooran

[38] This witness testified that he and the Deceased separated in 1982 and divorced in

1989. From her return to Trinidad on the 15th May 2007 until her death he stayed

with her at nights and looked after her. He confirmed that Dr. Charles visited the

Deceased every day. Dr. Shastri Pooran confirmed that a nursing assistant, one

Yvonne Comma, assisted the Deceased however neither he nor his son had hired

her. He claimed not to know who had hired her but in his witness statement he

had testified that the Defendant, his mother in law had done so.

[39] Dr. Pooran admitted that he always has access to the house while the Deceased

was a patient. When he visited his ex-wife at the hospital she could not

communicate with him.

Witness Statement of Sanjay Pooran

[40] The Claimant, son of the Deceased, supported his father’s evidence in all points.

He too asserted that his mother was never known by the name ‘Pijaya’; she never

referred to herself by that name nor did anyone ascribe it to her. He denied that

Kavita Daly was his mother’s friend and asserted that Ms. Daly’s evidence that she

was such a friend and knew the Deceased by the name ‘Pijaya’ was false.

[41] This witness testified that EC Sirjoo and Company were his mother’s attorneys

who attended to all her business transactions. He also knew Aurora Coker, a law

clerk employed at the Offices of EC Sirjoo and Company, however, he never saw

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her or any member of staff of the law firm attend his mother’s house to conduct

business.

[42] The Claimant supported his father’s testimony that they both cared for the

Deceased since her diagnosis and particularly upon her return from the United

Kingdom in May 2007. He asserted that he saw her every day and gave details of

her deterioration until her eventual death.

[43] He stated that on the 16th May 2007 the Deceased experienced difficulty breathing

and was put on oxygen. She could not eat and suffered rapid weight loss and

weakness. She was fed soups and given rehydration salts. A couple days after

being put on oxygen, the Deceased could not go to the bathroom on her own. Her

blood count was very low and on the advice of Dr. Waveney Charles her blood

was tested daily.

[44] Sanjay stated further that a few days later the glands in her neck, arms and legs

became swollen. Her low haemoglobin caused severe lethargy and shortness of

breath; she could neither swallow nor speak above a whisper. Between 15th to 22nd

May 2007, though never completely unconscious, she would ‘drift away’ to the

extent where she seemed unaware of her surroundings or those around her.

[45] The Claimant and his father consulted with Dr. Chen, Dr. Charles and the

Deceased’s doctor from the United Kingdom, Professeor Victor Hoffbrand. They

planned to take her to the United Kingdom for treatment but she was too weak to

travel. On the advice of Dr. Charles they sought to admit his mother to Medical

Associates for a blood transfusion to give effect to the plan to take her to the United

Kingdom. The Claimant stated that when the ambulance arrived, the Deceased’s

mother and aunt locked the gate and refused to allow it entry onto the premises

for 20 minutes until the Claimant was able to obtain entry. His mother fell

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unconscious and had to be resuscitated by his father before removal to the

hospital.

[46] Despite receipt of a transfusion, the Deceased died at hospital on the 25th May 2007.

[47] He took asserted that his mother did not inform him that she had made a will nor

had he seen Ms. Coker at the Defendant’s home.

Cross examination of Sanjay Pooran

[48] In cross examination this witness asserted that the signature affixed to the will

‘appears to be a replication of [the Deceased’s] signature and it resembles her

signature.’ However, he could not say whether the driver’s permit number entered

below her signature was hers because he did not check.

[49] Mr. Pooran revealed that he knew little details about the lands at Morvant owned

by the Deceased, or about her jewellery and bank accounts. He could not itemise

his mother’s jewellery and did not know what had become of it.

[50] This witness admitted that prior to his mother’s death neither he nor his father had

been locked out of the house where his mother lived. After his mother returned

home from the United Kingdom on the 15th May 2007, his relationship with the

Defendant, his grandmother became toxic but he could not say why that was. He

tried to repair it after his mother’s death but was unsuccessful. He acknowledged

that the relationship between his father and grandmother was also toxic.

[51] Mr. Pooran was acquainted with Aurora Coker for many years and revealed that

his mother spoke of Ms. Coker often. He, however, did not know Herman Lee

King. He also clarified that he was not challenging the signature on the will.

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Witness Statement of Dr. Waveney Charles

[52] This witness, a Consultant Haematologist testified that she knew the Deceased

since 1994 during her tenure at the Dermatology Clinic at Port of Spain General

Hospital.

[53] In 1996 she diagnosed the Claimant as suffering from monoclonal gammopathy of

undetermined significance and advised that at that stage intervention was not

advisable. They developed a close, personal and professional relationship until Dr.

Pooran’s death in 2007.

[54] Dr. Charles stated that the Deceased was diagnosed with Waldenstroms

Macroglobulinaemia (Waldenstroms) by Professor Hoffbrand of the Royal Free

Hospital in London, United Kingdom. She received treatment for her condition in

the United States and the United Kingdom, but her condition deteriorated over

time until April 2007 when she was diagnosed with an extremely aggressive B cell

lymphoma in the United Kingdom.

[55] This witness related that when the Deceased returned to Trinidad on the 15th May

2007, her physical, emotional and psychological condition had worsened to the

point where she suffered with shortness of breath and ‘progressive difficulty in

communicating and swallowing1’ which necessitated almost daily home visits.

[56] Dr. Charles testified2 that on a visit to the Deceased on the 21st May 2007 with Dr.

Deryck Chen, Consultant Anaesthetist, the Deceased’s condition was obtunded.

Efforts were being made to have her returned to the United Kingdom, however,

1 Para 12 Witness Statement of Waveney Charles filed 26th April 2016 2 Para 13 Witness Statement of Waveney Charles filed 26th April 2016

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the Deceased died on the 25th May 2007 despite having received a blood

transfusion in aid of this object.

Cross examination of Dr. Waveney Charles

[57] Dr. Charles reiterated that she knew the Deceased, her colleague, very well. Very

importantly Dr. Charles also testified that she visited the patient ‘practically every

day from the 15th May 2007 until her death on the 25th May 2007’.

[58] This witness described Dr. Pooran’s condition on the 21st May 2005 as obtunded –

a condition in which the patient is between alert and active and a transient stage

which suggest that she is not as alert or ‘with it as she ought to be’. Her opinion

was that Vijaya’s mental capabilities were affected. She was not fully conscious

but not unconscious. Any statements in that condition are therefore questionable.

The doctor also explained that this issue is a grey area.

[59] In Dr. Charles’ experience critically ill patients have to be reminded of things they

said. The Deceased was in a dire situation on the 21st May 2007 – her red cells were

being broken down so rapidly that if not exchanged she would die.

[60] This witness spoke to the patient who did not appear to understand fully what

was said to her. She could not say if the patient had a transient understanding of

what was said to her. Dr. Charles’ impression was that the Deceased was having

difficulty relating to her circumstances.

Witness Statement of Dr. Deryck Chen

[61] This witness testified that he visited the Deceased on the invitation of Dr. Charles

on the 21st May 2007.

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[62] On arrival he found the Deceased ‘to be in extremis on oxygen therapy via a face

mask’. Upon examination she was severely anaemic, short of breath and deeply

jaundiced. Significantly, Dr. Chen asserted that although the Deceased was

conscious and had known him for over twenty years, she did not recognize him

and was unable to communicate in sentences3.

[63] On the 23rd May 2007 she was admitted to Medical Associates for a blood

transfusion to enable her to travel to the United Kingdom. Although she received

two units of blood, she died on the 23rd May 2007

Cross examination of Dr. Deryck Chen

[64] He testified that prior to the 21st May 2007, he and the Deceased did not have a

doctor/patient relationship. When he visited the Deceased on the 21st May 2007,

her husband, son and a housekeeper were present. Dr. Waveney Charles arrived

later that afternoon sometime after 5:00 pm.

[65] Dr. Chen stated that he spent 45 mins at the Deceased’s bedside, however Dr.

Charles was not present during this time. He also visited the patient at Medical

Associates on the 23rd May 2007.

[66] On the 21st May 2007, he found that her recollection was fluctuating but ‘it was

possible for her to communicate at times’. He could communicate with her ‘some

stimulation’; however, he noted that she was disoriented and had to be prompted.

He could not say whether she recognised him.

3 It was his opinion that it was immediately apparent that the patient presented with significant weight loss, anaemia, dehydration and elevated temperature. This together with the advanced stages of her illness and the protracted treatment that was required had resulted in the patient’s mental and psychological incapacity.

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Cross examination of Professor Allan Victor Hoffbrand

[67] This witness confirmed that he liaised with Dr. Waveney Charles with respect to

the Deceased’s treatment and care over the years. When he last saw her in May

2007 she understood how ill she was. The Deceased was in distress and torn

between staying in the United Kingdom and returning to Trinidad to ‘sort out her

affairs’.

[68] Professor Hoffbrand testified that apart from being distraught, the Deceased was

so distressed that it was difficult to have a conversation with her. He noted that

the Deceased was very anaemic ‘which affects mental capabilities’ however, she

was also capable of understanding what Professor Hoffbrand told her. He could

not speak beyond this about her mental state but also noted that she prioritised

returning to Trinidad before her health. There were occasions when the Deceased’s

husband accompanied her to visit him.

EVIDENCE FOR THE DEFENDANT

Witness Statement of Roma Pooran

[69] Roma Pooran, substituted Defendant and sister of the Deceased, relied upon her

affidavit evidence given in the application for Letters of Administration with will

annexed of the estate of the Deceased, as did the original Defendant, who also filed

a Hearsay Notice in respect of her evidence since she did not attend court to be

cross-examined. Aurora Coker who prepared the said will also relied upon her

affidavit filed in the earlier proceedings as her evidence in chief. Lastly, Herman

Lee King, Land Surveyor also relied upon his affidavit sworn in the estate

proceedings.

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Cross examination of Roma Pooran

[70] This witness was the Deceased’s sister. She asserted definitively that the Deceased

was only known by the name of Vijaya and that it would not be true that she had

any other name.

[71] She revealed that she and the Deceased married two brothers; however, the

relationship between the Deceased’s husband Shastri and Roma and her husband

was poor prior to 1986.

[72] Despite her close relationship to the Deceased, she had not seen her between

December 2016 to 23rd May 2007. When she needed to see her mother, the

Defendant, she did so at the gate but did not enter the house.

[73] This witness knew when Vijaya became ill with Waldenstrom’s and understood

how serious the illness was. Despite this she did not visit her sister when she

returned from the United Kingdom on the 15th May 2007 or after she was admitted

to Medical Associates on the 23rd May 2007. She finally admitted that she and her

husband had no relationship with Vijaya, her husband and children.

[74] Roma Pooran had a Power of Attorney from her mother and disposed of her assets

but could not recall how much money was realised from the sale of her mother’s

assets.

[75] She stated that Herman Lee King went to see Kavita Daly, attorney at law.

[76] Roma also asserted that Lutchmin told her mother about the will. She saw Ms.

Coker many times in relation to the will, the first occasion being six weeks after

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the Deceased’s death; this was at Coker’s home; this was at the time she was

accompanied by Latchmi Pooran. She first saw the will at Ms. Daly’s office.

[77] Although at the time these proceedings were instituted Lutchmin was alive and in

good health, she gave no instructions to them or their attorney nor did she sign

the Defence. Roma gave instructions for the preparation of the Defence. She told

her attorney that her mother had been prevented from speaking to the Deceased

although her mother never stated this in a witness statement of affidavit.

Witness Statement of Herman Lee King

[78] Mr. Lee King testified that he came to know the deceased in 2004 when she hired

him to regularise 150 acres of land which she owned in Morvant. He remained in

close contact with her from 2004 until her death. During that time she displayed

knowledge and understanding of the Land Tenants Act and familiarity with the

tenants who occupied the lands. Very importantly, Mr. Lee King asserted that on

the 20th May 2007 the Deceased discussed the contents of the will that she was

going to make with him. The Deceased told him that she was aware that the

income from the Morvant land could not repay her loan owed to FCB – she

therefore wanted to bequeath her only asset, the half share in her home in St.

Augustine to her mother and daughter Priya. It was his opinion that the Deceased

was clear minded logical, coherent and business-like when she held this discussion

with him on the 20th May 2007.

Cross examination of Herman Lee King

[79] This witness testified that he had been hired by First Citizens Bank to assess the

Morvant estate which was owned by the Deceased whom he met for the first time

in 2004-2005. He stated that he always met the Deceased at her home but was

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aware that she was a doctor in private practice. He visited her at her house on

several occasions before the last visit on the Sunday before she died (2-3 days

before she died).

[80] Mr. Lee King stated that he saw her very regularly before her death – once a

fortnight. He stated that she was alert at all times and spoke to him about the 152

tenants on the 150 acres of land she owned. She knew the tenants and talked about

them.

[81] Mr. Lee King claimed that on the 20th May 2007, the Deceased spoke to him alone

downstairs in the drawing room of the house, about the contents of her will. She

told him that she intended to draw up a will the next day. He learnt that a will had

been made by someone ‘from a lawyer’s office’ – a woman whose name he could

not remember. He had attended that lawyer’s office 2 to 3 times to see the woman

who spoke to him about the Deceased’s will but could not recall where the

lawyer’s officer was on St. Vincent Street. He could not recall how he got to the

office – just that it was ‘somewhere in town’.

[82] Mr. Lee King received the call from ‘the woman’ on his cell phone although he

could not say how she came to be in possession of his number. He visited that

woman to find out about the Deceased’s estate in Morvant.

[83] Later in his evidence this witness revealed that Ms. Coker contacted him one week

after the Deceased died – he did not speak to any attorney or anyone else about

the will.

[84] This witness could not remember the name of the Deceased, her daughter or

mother even though he accompanied the latter to Magistrates Court and knew

them for several years.

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[85] Astonishingly, his evidence was that the Deceased looked ‘normal’ to him even on

the 20th May 2007. He testified that she walked downstairs to meet him without

assistance and was coherent, business-like during their conversation. He saw no

one taking care of her but did observe her son there on occasion.

[86] He admitted that he swore an affidavit which he prepared but which was

‘formalized’ by the Commissioner. The Deceased did not discuss with him her

health or relationship with her relatives. He knew though, that she had gone

abroad for medical treatment.

[87] The Deceased told him that she wanted to give one half of her share in the St.

Augustine home to her mother and the other half to her daughter. Her bank

accounts, jewellery and other property were not discussed.

Witness Statement of Aurora Coker

[88] This witness was employed by EC Sirjoo and Company, attorneys at law as a Steno

typist and her duties included the preparation of deeds, wills and probate and

letters of administration. She stated that she had known the Roopchand family for

years and had dealt with the Deceased personally on many occasions. She received

instructions from the Deceased in July 2004 and April 2005 with respect to her

lands in Morvant.

[89] Ms. Coker asserted that the Deceased asked her in April 2007 to come to her home

to take instructions for the preparation for a will; however, before she could attend

her home, the Deceased advised that she was going abroad or treatment but would

call Ms. Coker upon her return to Trinidad.

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[90] A few days before the 22nd May 2007 the Deceased contacted her again asking that

she come to the home to take instructions for a will. Ms. Coker did so on the 22nd

May 2007.

[91] Upon attending the Deceased, Ms. Coker deposed that the former was clear and

coherent ‘as she always was4’. The Deceased gave her instructions for the will and

asked Ms. Coker to write the will for her. The Deponent did so and acknowledged

that she made a mistake in the spelling of the Deceased’s name spelling it Pijaya

instead of Vijaya5. When the will was completed, the Deceased ‘got up from her

bed and signed her name in the presence of Ms. Comma and myself6’.

[92] The witness deposed further, that she informed Kavita Daly, attorney at law of the

error in the spelling of the Deceased’s name – the latter assured her that ‘Pijaya’

and Vijaya were one and the same person and she swore an affidavit to that effect.

[93] Ms. Coker insisted that the Deceased was very clear in her instructions for the will.

The latter told her that she had $500,000.00 which she wanted both her children to

have at the age of 45; however, the Deceased did not disclose where the money

was held nor did she give instructions to include this bequest in her will.

[94] Ms. Coker stated that she was the named executor in the will but was forced to

renounce because she felt uncomfortable after Priya Pooran, daughter of the

Deceased, frequented her office to recount the family history. She delivered to

Priya her renunciation and a copy of the original will of the Deceased.

4 Para 7 of Affidavit of Aurora Coker filed on 26th February 2015 5 Para 8 of Affidavit of Aurora Coker filed on 26th February 2015 6 Para 8 of Affidavit of Aurora Coker filed on 26th February 2015

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Cross examination of Aurora Coker

[95] Ms. Coker asserted that she has been employed by Sirjoo and Company for 52

years as a clerk. Her duties included conveyancing and probate work. She had

known the Deceased for over 40 years attending the office of Mr. Sirjoo with her

father. She later attended the office alone with respect to her Morvant lands and

began interacting with Ms. Coker.

[96] The first time that she ever went to the Deceased’s home was on the 22nd May 2007.

The Deceased called the office and asked her to come to her home ‘to do something

personal for her’. The Deceased could not attend that day and she left for the

United Kingdom promising to contact Ms. Coker upon her return.

[97] Upon her return, Vijaya called Ms. Coker at the office and told her that she wanted

to prepare a will. Ms. Coker did not inform her employer although she had never

gone to a client’s home before to prepare a will and take execution of same. She

left her office the next day to visit the Deceased without informing her employer

Mr. Sirjoo.

[98] Aurora Coker stated that she did not know Mr. Herman Lee King and did not

think that she ever spoke to him nor did she have any occasion to speak/consult

with him while preparing agreements for the sale of the Morvant lands. After

Vijaya’s death, she did not contact Lee King nor did he contact her.

[99] Ms. Coker went to the Deceased’s home before 4:00 pm in the afternoon. She took

no witnesses with her for the execution of the will even though she knew that two

witnesses were required. She usually wrote instructions on a piece of paper – the

names of the executor, beneficiary and bequests and the will is usually typed at

her office; however, on this occasion she took no instructions in writing. As the

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Deceased spoke she wrote the will. She made no notes of what the Deceased

wanted. Vijaya informed her about the extent of her assets.

[100] Importantly, this witness said that the Deceased’s name was Vijaya and she spelt

it for her; Vijaya also spelt the names of her son and her daughter. The Deceased

told her that she had a half share in the house in St. Augustine, $500,000.00 in a

bank but did not say which bank. Ms. Coker knew that Vijaya owned lands in

Morvant but she made no bequest of the lands in the will; further, she revealed

nothing of her other assets.

[101] Ms. Coker testified that the Deceased told her that the lands were sold. This

witness believed that the land had been sold by the bank before she died because

the lands had been mortgaged and the Deceased could not make the payments.

Ms. Coker did not list the properties owned by the Deceased in the will.

[102] This witness testified that the Deceased was lying on her bed but there was no

oxygen tank nor was Vijaya wearing an oxygen mask. Vijaya looked the same way,

her speech was clear, she did speak softly but was coherent. The Deceased

demonstrated no difference in the way that she usually spoke. Physically, this

witness testified that the Deceased had not lost any weight. The Deceased did not

come off the bed while this witness was there but sat up and spoke to her for the

two hours that she was present.

[103] The Deceased called her mother when told that a witness was needed – Ms. Coker

cannot say whether by phone or intercom. Even though she knew the Deceased

was so ill that she needed a nurse, Ms. Coker did not think that a medical report

was required because the Deceased did not took ill and was coherent.

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[104] This witness did not tell Lutchmin, the Deceased’s mother, that she was there to

prepare/execute a will. She took the will with her.

[105] Ms. Coker also stated that she knew all the members of the Pooran family and they

knew her well. Vijaya only sat up for a few minutes to sign the will then she lay

down. The Deceased took the will from Ms. Coker and read it and said that she

was satisfied. Ms. Coker did not read the will over to her. She was not aware that

she would be managing the $500,000.00 for the Deceased’s children until they were

45 years old– she did not know their ages. She did not think that she would be

managing that money at 100 years old despite the fact that she was 76 years old at

the time.

[106] The correction in the will was initialled by Ms. Coker but not the Deceased. The

Deceased spelled her name to Ms. Coker who had never called her by her first

name before. Sher neither thought nor knew that the Deceased was weak.

ANALYSIS & CONCLUSION

[107] The facts of this case gave rise to a suspicion in my mind that the will did not

express the testator’s mind and this suspicion was not removed after I considered

all the evidence in the case. I accepted the evidence of Doctors Pooran, Charles and

Chen with respect to the Deceased’s medical condition upon her return to Trinidad

on 15th May 2007.

[108] The Deceased experienced difficulty breathing and was put on oxygen; the glands

in her neck, arms, and legs became swollen, the low haemoglobin count caused

severe lethargy; as a result she could neither swallow nor speak above a whisper.

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She could not eat and suffered rapid weight loss; shortly after being put on oxygen

she could not go to the bathroom on her own.

[109] Dr. Chen testified that on the 21st May 2007 when he visited Vijaya she was ‘in

extremis, on oxygen therapy via face mask’. She was also severely anaemic, short

of breath and deeply jaundiced. He observed that the Claimant did not recognize

him although they had known each other for over twenty (20) years; further, was

unable to communicate in sentences. He stated further that she presented with

‘significant weight loss’7. He also opined that although her recollection was

fluctuating she could communicate at times with some stimulation. He also said

in cross examination that he could not say whether she recognized him.

[110] Dr. Charles, her main caregiver, who attended the deceased almost every day

upon her return from the United Kingdom on May 15th 2007, corroborated the

above report. She testified that the Deceased suffered shortness of breath and

progressive difficulty in communicating and swallowing which necessitated

almost daily home visits. In cross examination Dr. Charles described Vijaya’s

condition at this time as obtunded – a condition in which the patient was between

periods of consciousness and a transient stage which affected her mental

capabilities. It was her opinion that the Deceased was not fully conscious but not

unconscious. She spoke to the Deceased who did not appear to understand what

was said to her.

[111] This evidence, which I accepted, was in stark contrast to that of Herman Lee King

and Aurora Coker which I found to be uncreditworthy and unreliable.

7 Witness statement of Dr. Chen para 6

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[112] Mr. King testified that on the 20th May 2007 he met with the Deceased at her home

when she discussed the contents of her will with him in the downstairs portion of

the house. He stated that the Deceased walked down the stairs to meet him

without assistance and was coherent, business like, logical and clear minded. I

formed the view that Mr. Lee King, who had a close relationship with Lutchmin

Roopchand, was deliberately attempting to mislead the court with this evidence.

Based on the medical evidence on the 20th May 2007 the Deceased could

accomplish none of the physical activities described by Mr. Lee King. She could

not walk downstairs unaided, sit up for any period of time or hold discussions

with him as he outlined. I disregarded all of his evidence as a result.

[113] I also completely disregarded the evidence of Aurora Coker who prepared the

will. I found her to be an untruthful witness, lacking in creditworthiness and

completely unreliable.

[114] This witness’ evidence about the Deceased’s condition contradicted the doctors’

who attended her during this time. I formed the view that the deliberate untruths

told by this witness were meant to mislead the court and to support the

Defendant’s case that the will expressed the testator’s intention. Given the physical

condition of the Deceased described above I did not accept this witness’ evidence

that Vijaya:

a) telephoned her on the 21st May 2007 and asked her to come to the house;

b) gave oral instructions for the will;

c) spoke clearly and coherently as before;

d) had not lost weight;

e) sat up in bed and spoke to Ms. Coker for two hours;

[115] These contradictions went to the very root of Ms. Coker’s evidence and are

sufficient to render that evidence totally unreliable. The only reasonable inference

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I could draw from the fact that Ms. Coker sought to assert that the Deceased was

not in the extremely poor physical condition that she clearly was in on the 22nd

May 2007 was to establish falsely that the will was valid because the Deceased was

fully capable of giving instructions for its preparations.

[116] The other circumstances surrounding the preparations of this will which I

considered suspicious are:

a) The purported will is the last will and testament of Pijaya Roopchand-

Pooran which is a name not known to be the name of the Deceased;

b) The evidence of Aurora Coker is that the Deceased read the purported will

before executing same but made no correction of the spelling of her name;

c) The correction made to the body of the purported will was not initialled by

the Deceased of the witness and there is no explanation therefor;

d) The purported will has omitted any disclosure or particulars of the funds

cash which the Deceased held;

e) The purported will appoints Aurora Coker aged 75 years at the time as the

executor;

f) The executor is appointed the trustee to take custody of all cash derived

from the estate and to invest same in financial institutions until each of the

two children of the Deceased shall attain 45 years and at which time the

proceeds are divided between them equally;

g) Based on the ages of the children and the executor:

a. The devise would take effect in 25 years;

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b. The executor/trustee would be aged 100 years at the time.

CONCLUSION

[117] Having heard and see the witness in this case, and taking into account the evidence

adduced before me, I hold the following:

a) The Deceased was not competent at the time of the execution of the purported will;

b) The Deceased was unwell and in an obtunded state and unable to have given

instructions for the preparation of the purported will;

c) The document which purports to be the will of the Deceased was not prepared

upon the instructions of the Deceased nor contains the wishes of the Deceased;

d) The person who prepared and took execution of the purported will is named as

the executor and trustee of the purported will assigned with the control and

management of a significant portion of the estate of the Deceased which was

undisclosed;

e) These cash deposits and other assets of the Deceased including lands in Morvant

which were unknown to the executor and preparer of the purported will are not

set out therein and would have been placed under her control for a further period

of some 25 years after the death of the Deceased;

f) The circumstances surrounding the appointment of the executor and the

preparation of the purported will, which was undertaken at the home of the

Deceased without the knowledge of the attorney at law of the Deceased who has

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acted on her behalf for several years, excites suspicion that the contents of the will

do not express the Deceased’s testamentary intentions;

g) The instructions and content of the will are incredulous, suspicious and beyond

any reasonable or logical explanation.

[118] I therefore pronounce against the validity of the purported will or document dated

22nd May 2007 and make the following Orders:

a) That a Grant of Letters of Administration of the Estate of Vijaya Roopchand-

Pooran also called Vijaya Pooran be issued to the Claimant;

b) That the Defendant Roma Pooran pay the costs of this action to be assessed

in default of agreement;

c) That the Defendant’s counterclaim be dismissed with costs; such costs to be

assessed by a Registrar in default of agreement.

Joan Charles

Judge