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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

CIVIL APPEAL P283/2015

CV2013-04213

BETWEEN

JIMMY WILSON

First Appellant

KENNETH MENDES

Second Appellant

LESTER WILSON

Third Appellant

AND

ROSA DARDAINE

Respondent

PANEL: N. BEREAUX J.A.

J. JONES J.A.

P. RAJKUMAR J.A.

DATE OF DELIVERY: 13th May, 2020

APPEARANCES:

Mr. G. RAPHAEL on behalf of the Appellants

Ms. E. NYACK instructed by Ms. S. Gray on behalf of the Respondent

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I have read the Judgment of Jones J.A. and I agree with it.

Bereaux J.A.

Justice of Appeal

I too agree.

Rajkumar J.A.

Justice of Appeal

JUDGMENT

1. This is an appeal from a probate action in which the Judge found in favor of

the last of three wills executed by Raymond Dardaine, deceased (the Testator).

During his lifetime the Testator executed three wills dated April 27 1997,

October 18 2005 and February 12 2010 respectively. The question for the

Judge’s determination was which of the two later wills was the last will and

testament of the Testator.

2. Before the Judge the Appellants, the nephews of the Testator and the

executors of the 2005 will, proffered 2005 will as the last will and testament of

the Testator. While mounting no direct challenge to the 2005 will the

Respondent, the widow of the Testator and the sole beneficiary under the

2010 will, sought to have the 2010 will declared to be the last will and

testament of the Testator and propounded. The Judge found in favor of the

2010 will (the Will). Since no challenge was mounted to the 2005 will should

the Appellants succeed in this appeal it will result in the 2005 will being

declared the last will and testament of the Testator and admitted to probate.

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3. At the time of his death on September 1 2010 the Testator was 82 years old.

His cause of death was certified on his death certificate as coma, CVA sacral

ulcers and Alzheimer’s disease. It is accepted by both sides that at the time of

the execution of the Will the Testator was suffering from Alzheimer’s disease.

In her defence the Respondent describes him as having “partial” Alzheimer’s

disease at the time.

4. The evidence, adduced by the Respondent, is that the Testator was a heavy

drinker and only stopped drinking after he went to the hospital in August 2010.

The Testator was at the time of his death living with the Respondent in a house

owned by him situate at Knights Court Cascade (the Cascade property). He

had been living with the Respondent, first as his common law wife and then as

his wife, for over 30 years. The Cascade property had been previously owned

by the Testator and his first wife. Of that union the Testator had two daughters

both of whom survived him. He had no other children.

5. All three wills had been executed during the period of the Testator’s

relationship with the Respondent. The earlier wills had been prepared by the

same attorney. This attorney gave evidence at the trial of the preparation and

execution of the 2005 will. Both of the earlier wills provided for the Cascade

property to be sold and the proceeds divided equally between the Respondent

and the Testator’s daughters. The Will however was prepared by another

attorney and made different provisions. In it the Testator left nothing for his

two daughters and everything for the Respondent.

6. No medical evidence was adduced by the Respondent as to what was meant

by partial Alzheimer’s disease. The only medical evidence in the case was

adduced by the Appellants. This evidence consisted of the medical records of

the Testator from the Port of Spain General Hospital and the evidence of a

psychiatrist. The psychiatrist never examined the Testator. His evidence was

based solely on the contents of the medical records and conclusions drawn by

him from those records. These records revealed that the Testator had been

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hospitalized on two occasions: September 2008 when he was admitted to the

Hospital for the ingestion of rat poison and, immediately prior to his death, in

August 2010 when he was admitted for bed sores. A scan of the Testator’s

brain done on August 28 2010 showed brain atrophy consistent with a

diagnosis of Alzheimer’s dementia.

7. The evidence of the psychiatrist was that the records documented symptoms

and behavior consistent with moderate to severe dementia of Alzheimer’s

type. He noted that the records detailed that on admission in 2008 the medical

history taken noted a medical history of Alzheimer’s disease, hypertension and

hemorrhoids, that the Testator was forgetful, had attempted to pull out the IV

line and not orientated in time and place; the day after his admission he was

aggressive and restless and still disoriented to time and place. Further that, on

September 29 2008, he was experiencing episodes of confusion and urinating

on the floor. The psychiatrist’s evidence was that this was consistent with

Alzheimer’s disease.

8. With respect to Alzheimer’s disease the psychiatrist stated that it was a

progressive disorder; that it was not reversible and got worse over time. He

noted that the impairment in orientation to time, place and person in addition

to other difficulties like problem with recall, concentration, attention and

executive functioning made it difficult for individuals with Alzheimer’ disease

to manage their affairs or know the extent of their properties. In severe cases,

he stated, patients may urinate or defecate in the wrong places due to

impaired memory, level of confusion and disorientation.

9. The psychiatrist concluded that based on the time line of symptoms and

behavior the Testator may have been unable to understand the extent of his

property or able to manage his affairs less that 7 months before his death. He

accepted, however, that persons with Alzheimer’s disease could have lucid

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intervals the extent and frequency of which may vary depending on the

existence of other illnesses.

10. The Judge accepted the evidence of the psychiatrist. He accepted that there

was evidence of the onset of Alzheimer’s disease at the time of the execution

of the Will. He was of the opinion however that given the psychiatrist’s

evidence of the possibility of lucid intervals the onset of Alzheimer’s disease

on the Testator was not determinative of his capacity or whether he knew and

approved of the contents at the time of execution. He was of the view that the

actual evidence of the persons who saw and knew the Testator closer to the

time of the making of the Will was more important. In this regard, he said, he

preferred the evidence of the Respondent and her witnesses as giving an

accurate account of the Testator’s state of mind at the time.

11. The evidence of the preparation and execution of the Will was adduced by the

Respondent. This evidence comprised that of the Respondent, the Attorney at

Law (the Attorney) who prepared the Will and, Stephen Edwards, one of the

witnesses to the Will. From this evidence the Judge concluded that the

Testator had testamentary capacity on February 12 2010; that he knew and

approved the contents of the Will and that there was nothing inherently

suspicious about the circumstances under which the Will was made.

12. The Appellants contend that (i) the decision of the Judge cannot be supported

having regard to the pleadings and the evidence and (ii) the decision is against

the weight of the evidence. They submit that the Judge was wrong in coming

to the decision that at the time of execution of the Will the Testator had the

requisite testamentary capacity and that he knew and approved of its

contents. They also contend that the Will was executed in suspicious

circumstances.

13. The basis of their challenge to the Will is that at the time of its execution the

Testator was suffering from Alzheimer’s disease. This, they claim, affected his

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capacity to understand the nature and effect of his actions in executing the

Will; the extent of the property that he was disposing or comprehend or

appreciate the claims to which he ought to have given effect. The two

questions raised for our determination on this appeal therefore are: (i) did the

Testator have the requisite testamentary capacity at the time of making the

Will; and (ii) did the Testator know and approve of its contents. These were

ultimately issues of fact for the Judge’s determination.

14. The role of a Court of Appeal in determining challenges to a trial judge’s

findings of fact is well known. In this jurisdiction the principles to be applied

have been definitively stated in the case of Beacon Insurance Co Ltd. v

Maharaj Bookstores Ltd. [2014] UKPC 21. Essentially an appellate court will

be loath to disturb a trial judge’s findings of fact unless it can be shown that

the judge was plainly wrong.

15. A determination of the circumstances when a trial judge would be considered

plainly wrong requires an examination of whether it was in fact permissible in

the face of the evidence as a whole for the trial judge to make the findings of

fact made: see also Thomas v Thomas [1947] AC 484. One example of a trial

judge being plainly wrong would be where the judge failed to properly analyse

the entirety of the evidence: see also Choo Kok Beng v Choo Kok Hoe [1984]

2 MLJ 165. In the case of a trial judge being plainly wrong the matter then

becomes at large for the appellate court.

16. In the instant appeal the Judge made two errors that lead me to the conclusion

that he was plainly wrong. He failed to properly direct himself on the burden

of proof with respect to the challenges to the Will, on whom it lay and what

was required to discharge the burden of proof. He failed to appreciate that,

despite the Will being rational on its face and duly executed, given the

Testator’s Alzheimer’s disease the burden of proof with respect to capacity

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was on the Respondent. It was for the Respondent to prove affirmatively that

at the time of execution the Testator was of competent understanding. The

consequence of this was that he failed to properly analyse the evidence in the

light of the burden of proof.

17. In addition the Judge failed to consider the internal inconsistencies in the

Attorney at Law’s evidence with respect to the instructions given to her for the

preparation of the Will. The question of the receipt of instructions was a

material consideration in determining whether the Testator knew and

approved of the contents of the Will. In accepting the evidence of the Attorney

without taking these inconsistencies into account the Judge failed to properly

analyse the entirety of the evidence on the preparation and execution of the

Will and therefore fell into error. The result of these errors on the part of the

Judge is that the matter is now at large for our determination.

The Law

18. The applicable law is not in dispute. To succeed the Respondent is required to

prove that at the time of the execution of the Will the Testator had the capacity

to make the Will and knew and approved of its contents. Though similar in

effect these comprise two distinct challenges to the validity of a will.

19. Testamentary capacity refers to the ability of a testator to make dispositions

by way of a will. According to Cockburn CJ in Banks v Goodfellow (1870) LR 5

QB 549 at page 565:

“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 disposing; 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 had been sound, would not have been made.”

20. The law presumes capacity and where on its face a will is rational and has been

executed in accordance with the requirements of the law testamentary

capacity is generally proved. Where however the testator’s capacity is in doubt

it is for the person propounding the will to establish and prove affirmatively

that at the time of the execution of the will the testator was of competent

understanding: Halsbury’s Laws of England, Fourth Edition, volume 17

paragraph 903. See also Sutton v Sadler (1857) 5 WR 880.

21. “Once incapacity before the date of the will has been established the burden

lies on the party propounding the will to show that it was made after recovery

or during a lucid interval and therefore valid. In such a case the will should be

regarded with great distrust and every presumption should in the first instance

be made against it especially where the will is an inofficious one.”: Halsbury

Laws of England para 904. An inofficious will is one where natural affection

and claims of near relationship have been disregarded: per Cockburn CJ in

Banks v Goodfellow at page 750.

22. With respect to knowledge and approval, in the absence of fraud, the fact that

a will has been read over to a capable testator who executes it is sufficient

evidence that the testator knew and approved its contents. While fraud is not

an issue here the Testator’s capacity was in doubt. In addition where the

circumstances under which a will is prepared give rise to a well-founded

suspicion that the will is not that of the testator or does not reflect the

testator’s intentions then a court ought not to pronounce in favor of the will

until that suspicion is removed.

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23. In Barry v Butlin (1838) 2 Moore 480, at pages 482-483 Parke B put it this way:

“The rules of law according to which cases of this nature are to be

decided, do not admit of any dispute, so far as they are necessary to

the determination of the present appeal: and they have been

acquiesced in on both sides. These rules are two; the first that the onus

probandi lies in every case on the party propounding the will; and he

must satisfy the conscience of the Court that the instrument so

propounded is the last will of a free and capable testator. The second

is, that if a party writes or prepares a will, under which he takes a

benefit, that is a circumstance that ought generally to excite the

suspicion of the Court, and calls upon it to be vigilant and jealous in

examining the evidence in support of the instrument, in favour of

which it ought not to pronounce unless the suspicion is removed, and

it is judicially satisfied that the paper propounded does express the true

will of the deceased.”

24. The rule is an evidential rule. It requires the court to be satisfied that the

contents of the will truly represent the testator’s wishes. The standard of proof

required to be met here is the usual civil standard of a balance of probablities.

25. Following Barry v Butlin Peter Gibson LJ in Fuller v Strum [2002] 2 All ER 87 at

page 97 paragraph 33 put it this way:

“What is involved is simply the satisfaction of the test of knowledge

and approval, but the court insists that, given that suspicion, it must be

the more clearly shown that the deceased knew and approved the

contents of the will so that the suspicion is dispelled. Suspicion may be

aroused in varying degrees, depending on the circumstances, and what

is needed to dispel the suspicion will vary accordingly. In the ordinary

probate case knowledge and approval are established by the

propounder of the will proving the testamentary capacity of the

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deceased and the due execution of the will, from which the court will

infer that knowledge and approval. But in a case where the

circumstances are such as to arouse the suspicion of the court the

propounder must prove affirmatively that knowledge and approval so

as to satisfy the court that the will represents the wishes of the

deceased. All the relevant circumstances will be scrutinised by the

court which will be 'vigilant and jealous' in examining the evidence in

support of the will (Barry v Butlin (1838) 2 Moo PC 480 at 483, 12 ER

1089 at 1090 per Parke B).”

26. The presence of suspicious circumstances is therefore a subset of want of

knowledge and approval. According to Halsbury: “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 an instrument of those around him;

or where the testator is of extreme age; or where the 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 declarations or dispositions in

former wills or a general sense of propriety.”

Halsbury’s Laws of England, Fourth Edition, Vol 17 paragraph 907.

27. The interplay between testamentary capacity and knowledge and approval

was considered by Chadwick LJ in the case of Hoff and others v Atherton

[2004] EWCA Civ. 1554. Here, as in the appeal before us, the will was being

challenged on the basis that the testator lacked the requisite capacity and did

not know and approve of the contents. In treating with a submission that

conflated both grounds Chadwick LJ stated:

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“[62] That submission, as it seems to me, betrays a failure to appreciate

that the requirements of testamentary capacity and knowledge and

approval are conceptually distinct. A finding of capacity to understand

is, of course, a prerequisite to a finding of knowledge and approval. A

testator cannot be said to know and approve the contents of his will

unless he is able to, and does, understand what he is doing and its

effect. It is not enough that he knows what is written in the document

which he signs. But if testamentary capacity – the ability to understand

what is being done and its effect – is established, then it is open to the

court to infer that a testator who does know what is written in the

document which he signs does, in fact, understand what he is doing.

And, where there is nothing to excite suspicion, the court may infer

(without more) that a testator who signs a document as his will does

know its contents. It would be surprising if he did not.

[63] Whether those are inferences which should be drawn depends, of

course, on the facts of the particular case. The fact that a beneficiary

has been concerned in the instructions for, and preparation of, the will

excites suspicion that the testator may not know the contents of the

document which he signs – or may not know the whole of those

contents. The degree of suspicion – and the evidence needed to dispel

that suspicion – were considered by this Court in Fuller v Strum [2001]

EWCA Civ. 1879, [2002] 2 All ER 87 paragraphs [32]–[36], [73], [77],

[2002] 1 WLR 1097, 1107C- 1109A, 1122A-C, 1122G-1123C.

[64] Further, it may well be that where there is evidence of a failing

mind - and, a fortiori, where evidence of a failing mind is coupled with

the fact that the beneficiary has been concerned in the instructions for

the will - the court will require more than proof that the testator knew

the contents of the document which he signed. If the court is to be

satisfied that the testator did know and approve the contents of his will

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– that is to say, that he did understand what he was doing and its effect

- it may require evidence that the effect of the document was

explained, that the testator did know the extent of his property and

that he did comprehend and appreciate the claims on his bounty to

which he ought to give effect. But that is not because the court has

doubts as to the testator's capacity to make a will. It is because the

court accepts that the testator was able to understand what he was

doing and its effect at the time when he signed the document, but

needs to be satisfied that he did, in fact, know and approve the

contents – in the wider sense to which I have referred.”

The application of the law to the facts

28. On the medical evidence and given the admission of partial Alzheimer’s

disease by the Respondent the capacity of the Testator was in doubt. Further

by ignoring the claims of his daughters, claims acknowledged in his earlier wills,

the Will was an inofficious one. The burden of proof to establish testamentary

capacity therefore was on the Respondent. In a similar vein the burden of

proof was also on the Respondent to satisfy the Judge that the Will truly

represented the wishes of the Testator. In this regard it was for the

Respondent to dispel any suspicions that may have arisen on the evidence

surrounding the preparation and execution of the Will that the Testator did

not know and approve of the contents.

29. In coming to his decision the Judge seems to have conflated both challenges.

His conclusion that the Testator had the requisite capacity and knew and

approved the contents of the Will was based on his acceptance of the evidence

of the Attorney who prepared the Will. He arrived at his conclusions on

capacity and knowledge and approval despite his recognition that there were

“certain aspects of what would have been expected of a lawyer to be lacking”.

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These aspects he identified as the failure to produce her instructions; not

having the Testator medically examined and her failure to question the

Testator directly about why he was not leaving anything for his two daughters

and why he was leaving the property to the Respondent solely.

30. With respect to these aspects the Judge simply states that their presence

would have put the validity of the Will beyond any doubt. In doing so he failed

to appreciate that rather than simply being matters expected of an attorney at

law these were features that went directly to the elements that the

Respondent was required to establish in order to discharge the burden of

proof upon her with respect to the challenges to the Will.

31. In assessing the evidence of the Attorney the Judge states:

“45. However the court is required to make findings on a balance of

probabilities. The court is not required to find that [the Attorney]

followed a perfect process. There is no specific requirement that

medical evidence should have been obtained. Even so, the evidence of

a general practitioner may not have been that helpful anyway. It would

be rare in this jurisdiction that a report from a psychiatrist would be

sought. I have no reason to think she had any interest to serve in the

matter except the obvious one of defending the quality of her work. I

have no reason to disbelieve her that she met with the testator, took

instructions and satisfied herself about his ability to make the devises

in question. [The Attorney] can be seen to be an independent legal

adviser.

46. She also articulated the process she undertook which I accepted

would have been adequate in these circumstances for her to assess

that he had the required testamentary capacity and knew and

understood what he was doing. [The Attorney’s] evidence was of a

number of interactions over a period of time and her taking

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instructions on a different day from the date of execution. These

combined, goes to show that she was in a position to assess the

testator and to set out what were her observations which helps the

court to make a determination. This evidence is also supported by that

of Mr. Edwards. While there were some inconsistencies in the versions

of the [Respondent] and him about the events of the execution, I put

these down to failing memories and the passage of time and each

witness’ ability to perceive the events. I found they largely agreed on

the material matters of the testator’s acknowledgement of what he

was doing with his property.”

32. While strictly speaking the Judge was correct in stating that there was no

specific requirement that medical evidence be obtained each case has to be

considered on the specific facts. This was a case where a medical certificate

was advisable. Of relevance here is the guidance of Templeman J In re

Simpson Deceased; Schaniel and another v Simpson and others (1977) 127

NLJ 487, where he states:

“In the case of an aged testator or a testator who has suffered a

serious illness, there is one golden rule which should always be

observed, however straightforward matters may appear, and

however difficult or tactless it may be to suggest that precautions

be taken: the making of a will by such a testator ought to be

witnessed or approved by a medical practitioner who satisfies

himself of the capacity and understanding of the testator, and

records and preserves his examination and findings.”

33. Here the Testator was 82 years. He had a history of Alzheimer’s disease. He

also had a history of heavy drinking sufficient for the Respondent to attribute

his ingestion of rat poison two years before his death to his drinking.

Approximately six months after making the Will a brain scan showed brain

atrophy consistent with a diagnosis of Alzheimer’s disease. In order to meet

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the burden of proof placed upon the Respondent to establish that the Will was

made by the Testator during a lucid interval medical evidence was advisable.

In its absence the Respondent could only discharge the burden on her to prove

testamentary capacity on very strong evidence.

34. The fact that the Attorney was an independent legal advisor with no interest

to serve or that she met with the Testator, took instructions and satisfied

herself about his ability to make the devises in question was of itself of no

moment to the issue for the Judge’s determination. Insofar as the Judge seems

to have based his assessment of the Testator’s testamentary capacity on this

he was wrong. He failed to appreciate that what he had to determine was not

whether the Attorney satisfied herself about the Testator’s ability to make a

will but rather whether on an objective assessment of the evidence he could

have concluded that the Will was made during one of the Testator’s lucid

intervals.

35. Further he failed to appreciate that even if he was satisfied that the Testator

had the requisite capacity to make the Will in the circumstances of this case

he was also required to be satisfied that the Testator knew and approved of

the contents of the Will in the wider sense referred to by Chadwick LJ in Hoff

v Atherton. These circumstances were the same circumstances that called for

a medical certificate to certify his capacity and the existence of evidence that

pointed to the involvement of the Respondent in the instructions for the Will.

In addition the Will made no provision for his daughters and in that regard was

at variance with the dispositions made by the Testator in earlier wills. These

were all circumstances which ought to have raised alarm bells, or as stated in

Barry v Butlin ought to have “excited the suspicions of the court” and, in

accordance with the established authorities, it was necessary that these

suspicions be dispelled before permitting the Will to be propounded.

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36. With regard to the discharge of the burden of proof the statement of Wooding

CJ in Moonan and another v Moonan and Another (1963) 7 WIR 420 at pages

422-423 holds fast today as it did when it was made:

“We agree entirely with the submission by counsel for the respondents

that the onus of proving testamentary capacity was on the appellants

who were propounding the will. If the matter is left in doubt, then they

fail to prove that the testator was capable of making a will. The

resolution of that issue may be in one of three ways: either that the

court is affirmatively satisfied that Joseph Moonan was sound in mind,

memory and understanding, or that the court is satisfied that he was

not sound in any of these respects, or that the court is left in doubt,

with the result that the issue has to be resolved against the appellants

who, as I said, were propounding the will.”

37. The question that falls for our determination here is not whether the Judge

was correct in accepting the Attorney’s evidence but whether, in the

circumstances of this case the evidence, accepted by the Judge as adequate,

was sufficient to discharge the burden of proof upon the Respondent with

respect to the challenges to the Will. To answer the question it is necessary to

examine the Attorney’s evidence on these issues in the light of the settled

cases.

38. According to the Judge the Attorney’s evidence of her of interactions over a

period of time and of taking instructions on a day different to the date of

execution demonstrated “that she was in a position to assess the testator and

to set out what were her observations”. The Judge relied on these interactions

and observations to arrive at his conclusions. This evidence, he said, was

supported by the evidence of the witness to the Will.

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39. Essentially the evidence of the Attorney was of a relationship with the

Respondent and the Testator derived from her passing in front of their house

for over 10 years. The relationship, though long with respect to the passage

of time, was superficial at best. According to the Attorney the Testator and

the Respondent would always be liming in front of their house, by themselves

or with other persons, and they would call out to each other. She gives

evidence of discussions in 2009 to 2010 with the Testator’s neighbours, Brian

and Yvonne, in the presence of the Testator and the Respondent and of

introducing her mother to the family. She gives no evidence of having any

individual conversations with the Testator prior to those that resulted in the

preparation and execution of the Will.

40. According to the Attorney she had a working knowledge of Alzheimer’s disease

and knew how to determine whether and when a person suffering from the

disease had lucid intervals. She gives no evidence of how she obtained this

working knowledge. The fact is that at the time she was an Attorney at Law of

only two years standing. She says she arrived at her conclusion that the

Testator suffered from a little Alzheimer’s disease because on certain

occasions he would be sitting outside and would not acknowledge her. She

says that from what she generally observed most of the times he experienced

lucid intervals. According to the Attorney on the days in question the Testator

not only recognized her but he communicated to her in his usual way. From

her evidence it is reasonable to conclude that her assessment of the Testator’s

lucid intervals may have been based on whether or not he recognized her and

whether or not he communicated to her “in his usual way”.

41. Insofar as the witness to the Will, Steve Edwards, provided any insight into the

Testator’s state of mind his evidence is similar in effect to that of the Attorney.

He too seems to have based his assessment on the ability of the Testator to

recognize persons. According to Edwards he did not know that the Testator

was suffering from Alzheimer’s disease. According to him the Testator was in

his “right senses” up to his death. He says “he recognized me up to the last

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time I saw him”. With respect to the execution of the Will he states: “ when

[the Testator] signed the will he was in his right mind and he knew the people

around him and what he was doing. He recognized all the people who were

liming there.” Save with respect to the conversations attendant on the

preparation and execution of the Will and the fact that the Testator could

recognize them neither witness provided any information from which the

Judge could himself assess the Testator’s mental capacity at the time.

42. In examining the circumstances attendant on the preparation and execution

of the 2010 will there is are material inconsistencies between the Attorney’s

evidence in chief, given by witness statement, and her cross-examination. In

her witness statement she recounts two conversations with the Testator. The

first occurred the day before the Will was signed. According to her after being

told by the Respondent that the Testator wanted to make a will leaving

everything to her “ I then went privately to the [Testator] and asked him if he

wanted me to make a will for him leaving everything to the [Respondent]. He

shook his head and said “of course” in his usual very well spoken tone. He then

asked me if I was sure that I was not related to Yvonne and I told him that I

was sure. I told him that I would return the next day with it for him to sign and

he shook his head.”

43. According to her evidence in chief her second conversation occurred the next

day when she went to have the Will executed. She says that she asked the

Testator if he remembered her and why she was there and he indicated that

he did. She then gave the Will to the Testator to read and when he was

finished she read the Will out loud to him and asked him if he understood it.

She says: “ he shook his head as he usually did when he meant yes and then I

gave him the will to sign.” She says she showed him where to sign and he

signed it on his own. She says “ no one assisted him in signing it. The pen

wasn’t writing at first so he scratched it on the paper and when it started to

write properly he signed his name.” She says she then gave him another copy

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of the Will and he signed it without her having to point out where to sign.

Further, she says, that when she passed by the next day he recognized her.

44. Her evidence in chief therefore establishes that the instructions for the Will

were oral; came from the Respondent and that the Testator was only asked to

confirm what had been told to her [the Attorney] by the Respondent. It also

establishes that the contents of the Will were not explained to the Testator.

45. Under cross-examination however while her evidence as to what occurred on

the day of the execution of the Will is basically the same her evidence with

respect to the receipt of the instructions and her visits with the Testator

changed substantially. She denies the conversation with the Respondent. She

says the Respondent simply told her that she wanted to speak with her. Later

in her cross-examination she says that the Respondent told her that the

Testator told her that he wanted her [the Attorney] to prepare a will for him.

She says that she came back the next day and spoke with him. He said he

wanted the place that they were residing in to go to Rosa. She asked if Rosa

was his wife and he said shook his head and said of course. He then asked if

she was related to Yvonne and said that he hoped that she was related to

Yvonne.

46. According to her she prepared a draft of the instructions and took it to him.

She says he scribbled across “the written instructions”. She does not state

what the Testator wrote across the written instructions nor does she produce

these written instructions. Her evidence is that the document was in her office.

47. With respect to the circumstances attendant upon the preparation of the Will

there were therefore three material inconsistencies between her evidence in

chief and that under cross-examination. The first concerned the receipt of

instructions for the Will. The second related to the existence of a typewritten

draft on which there were scribbles made by the Testator. The third

inconsistency relates to the number of times she attended on the Testator for

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the purpose of preparing and executing the Will. In treating with her evidence

the Judge failed to deal with any of these inconsistencies.

48. From this evidence that the Judge concludes that the Testator had the

requisite testamentary capacity and knew and approved of the dispositions

made in the Will.

(a) Testamentary capacity

49. With respect to capacity the Judge seems to rely on the opinion of the Attorney

that the Testator was experiencing a lucid interval. There is nothing to suggest

that the Attorney was qualified to give such an opinion. She gives no evidence

to support her statement that she had a working knowledge of the disease or

that she knew how to determine whether and when a person who suffers from

the disease had lucid intervals.

50. Given the medical evidence, and the Judge’s finding of the onset of Alzheimer’s

disease, this was not a person with any expertise or qualification that would

have allowed her to present any reliable opinion on the Testator’s mental

state. Further the evidence as adduced by her does not support her opinion.

The nature of the relationship between her and the Testator does not assist in

a determination of the Testator’s state of mind at the time of making the Will

or at all. Neither is any assistance as to the Testator’s state of mind derived

from her conversations with the Testator at the time of the preparation or

execution of the Will. Indeed, to the contrary, one conversation stands out as

suggesting that perhaps the Testator was not in his right mind at the time. It

is the question put to her by the Testator about whether she was related to

Yvonne. This was consistent in both versions of what occurred given by the

Attorney. The question simply had no relevance to the discussion on the

dispositions to be made in his Will and suggests an irrationality of mind.

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51. In coming to the conclusion that at the time of making the Will Testator had

the requisite testamentary capacity the Judge was wrong. At best the evidence

presented by the Respondent was inconclusive. In those circumstances in

accordance with statement of Wooding CJ in the case of Moonan, given that

the burden of proof was on the Respondent, the issue ought therefore to have

been resolved against the Respondent.

(b) Knowledge and Approval

52. As with capacity it fell on the Respondent to prove affirmatively that the

Testator knew and approved the dispositions made in the Will. Again the

resolution of that issue could only be in one of the three ways described in

Moonan. Either the evidence affirmatively showed that the Testator at the

time of making the Will understood the nature and effect of the dispositions

made in it or it did not. Where the court is left in doubt that issue must be

resolved against the Respondent as the propounder of the Will.

53. In the instant case, in accordance with the authorities, there were

circumstances that ought to have excited the suspicions of the Judge: the

Testator’s capacity was in doubt; the dispositions in the Will were at variance

with dispositions made by the Testator in his two earlier wills and there was

evidence that pointed to the Respondent, the sole beneficiary under the Will,

having a part to play in giving the instructions for the Will.

54. All of these circumstances gave rise to a suspicion that the Testator may not

have understood the nature of the disposition made in the Will and in making

it may have been the instrument of someone else. These were the aspects of

the case that ought to have concerned the Judge and required him to be

“vigilant and jealous” in scrutinizing all the circumstances attendant on the

preparation and execution of the Will and demanded that he not pronounce

on the Will unless those suspicions were removed and he was judicially

satisfied that the Will expressed the true wishes of the Testator.

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55. The degree of suspicion with which a judge is required to view the evidence

was said by Viscount Simonds in Wintle v Nye [1959] 1 All ER 552 at 557 to

“vary with the circumstances of the case. It may be slight and easily dispelled.

It may, on the other hand, be so grave that it can hardly be removed.” In this

case the circumstances called for a suspicion on the higher end of the scale.

56. In coming to his conclusion that the Testator knew and approved the contents

of the Will the Judge treated with the question of suspicious circumstances as

a separate issue. He concluded that given the evidence of the Attorney there

was nothing inherently suspicious about how the Will came about.

57. With respect to the dispositions in the earlier wills he said:

“49. There were three previous wills which had shown an intention to

share the property among the [Respondent] and the two daughters of

the testator.

50. What could account for this departure? The [Respondent] said he

wanted to leave the place to her and he had always told her it would

be hers. She said that he had educated the children. And the daughter

in Canada did not have a relationship with him. [The Attorney] seemed

to suggest that she knew this as well.

51. On the other hand, I found it odd that neither of the [Testator’s]

daughters gave evidence in this matter. The evidence may have been

helpful on whether the relationship with their father was strained or

existed at all. There was no explanation as to why they did not give

evidence. They could have easily shown how over the years they had

contact with the [Testator], on what occasions, when they visited and

so on. It would have made it plausible to suggest that something was

odd about the change of wills. The evidence of the Wilsons really could

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not address those matters directly. There were vague references to “as

far as they knew” and so on. But it is clear that there was some cooling

of relations since [the Respondent] had come into the picture

especially in the later years.”

58. In treating with the execution of the Will in suspicious circumstances the Judge

erred. The suspicious circumstances that he was required to deal with were

not freestanding but rather went to the question of whether the Testator knew

and approved of the dispositions made in the Will. In accordance with the

cases certain circumstances will attract suspicions that the testator did not

know and approve of the contents of the will. As acknowledged by Chadwick

LJ in Hoff the fact that a beneficiary may have been concerned with giving

instructions for the will, especially in circumstances as in this case where there

is evidence of a failing mind, ‘will excite the suspicion of the court” that the

testator did not know and approve of the contents.

59. In these circumstances the nature and relationship of the Testator to his

children is not as important as the question of whether at the time of making

the Will the Testator’s mind was brought to bear on the objects of his past

affections and dispositions made by him in earlier Wills. Further the fact that

neither of the Testator’s daughters had given evidence in the matter was of no

relevance to the Judge’s determination here. It was not for them to make

plausible the suggestion that there was something odd about the change of

wills. The burden of proof was on the Respondent to satisfy the Judge that at

the relevant time, that is, at the time of giving the instructions and the

execution of the Will the Testator knew and understood the nature and effect

of the dispositions made in it. That included satisfying the Judge that the

Testator understood that in making the dispositions made in the Will he was

cutting out persons who had been the beneficiaries of his estate in earlier wills.

60. In any event the Judge failed to appreciate that the earlier wills had also been

done during the period of the Respondent’s relationship with the Testator.

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None of the evidence given by the Respondent pointed to the fact that the

Testator’s relationship with his daughters had cooled off after he made the

2005 will. Indeed on the evidence before the Judge the only change in

circumstances was the onset of Alzheimer’s disease in the Testator by the year

2008.

61. Given the circumstances of this case and the factors referred to earlier what

was required to dispel the suspicions that arose on the evidence were the very

things that the Judge accepts were lacking- the production of the written

instructions with the scribbles of the Testator on it and evidence that the

Attorney had questioned him about why he was not leaving anything for his

daughters as he had done in earlier wills. Given the Testator’s capacity and

the evidence of the involvement of the Respondent in the instructions for the

Will this was a case where it was necessary to have evidence that the effect of

the disposition in the Will giving the Cascade property to the Respondent alone

was explained to the Testator. Evidence “that the effect of the document was

explained, that the testator did know the extent of his property and that he

did comprehend and appreciate the claims on his bounty to which he ought to

give effect.” was key for the suspicions raised by the particular circumstances

to be allayed.

62. The evidence adduced by the Respondent of giving him the Will to read and

reading it over to him was insufficient in the circumstances of his incapacity to

satisfy a court that the Testator knew and approved of the dispositions made

in the Will in the wider sense as described by Cockburn LJ in the Hoff case. This

was even more so when coupled with the real possibility that the instructions

for the Will had come from the Respondent. In the circumstances with respect

to this challenge, as with testamentary capacity, the Respondent did not

discharge the burden of proof upon her to prove that the Testator knew and

approved of the Will.

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63. In the circumstances therefore the appeal is allowed and the order of the

Judge set aside. Accordingly the defence and counterclaim is dismissed and

there will be a declaration that the will dated October 18 2005 is the last will

and testament of the Testator Raymond Dardaine and an order that that will

be admitted to Probate.

Judith Jones

Justice of Appeal