Court of Appeal
Civil Appeal 1 of 1990
27th September, 1990
KENNETH ST. L. HENRY, P.
SIR DENIS E.G. MALONE, J.A.
NICHOLAS J.O. LIVERPOOL, J.A.

Mr. Denys Barrow S.C. and Mr. Eamon Courtenay for Appellants
Mr. Manuel Sosa S.C. for Respondent Marqus De Four

Probate - Writ of Summons to have Will established - Caveats having been entered by Testator next of kin - Burden of Proof of due execution of the Will and the Testator's mental comeptence is on the proponders of the Will - Circumstances when an Appellate Court will interfer with the exercise of the trial judge's discretion on findings of facts.

J U D G M E N T

HENRY, P.

The Appellants by writ claimed "to be executors of the last will dated the 7th day of February 1977 of Clyde DeFour, late of Belize City, building contractor, deceased, who died on the 9th day of February, 1977, and to have the said will established." The Writ was issued against the Respondents as next of kin of the deceased who had entered a caveat. The First Respondent is a brother of the deceased. Notice of Appeal was served on his attorney on the record but he did not appear nor was he represented at the hearing of the appeal. The Second Respondent is the lawful son of the deceased. Although the Writ was filed in 1978 the pleadings were not closed until 1988 and the trial took place in December 1989. At the conclusion of the trial the learned trial judge in a written judgment dated March 7, 1990 declined to grant to the Appellants probate of the will of Clyde DeFour, whom he declared to have died intestate. This is an appeal against that judgment. The three grounds of appeal argued by Mr. Barrow are as follows.

(6) The learned trial judge misdirected himself in giving undue weight to the contents of a letter as evidence of the testator's mental incapacity subsequent to the day on which the will was executed in preference to sworn testimony as to the testator's mental capacity at the time of execution, which was not challenged.

(7) The learned trial judge erred in law in rejecting the testimony of the attesting witness.

(8) The learned trial judge erred in law in holding that "the onus of proof had shifted to the propounders of the will to remove the suspicion" as to the testator's mental capacity.

The five grounds of appeal argued by Mr. Courtenay are as follows:

(1) The learned trial judge misdirected himself in failing to find that the will was executed by the testator personally and in finding the contrary.

(2) The learned trial judge erred in holding that the will was irregular and unusual.

(3) The learned trial judge misdirected himself in holding that the will was irregular on the face of the attestation clause.

(4) The learned trial judge misdirected himself in holding or proceeding upon the basis that there was some obligation to alter the attestation clause in the will after its execution by the testator and by the person who signed the testator's name.

(5) The learned trial judge misdirected himself in holding that the wills Act required some particular form of attestation clause for the will or the clause to be valid.

In support of these grounds Counsel made five submissions:

1. It is open to this appellate Court to find, that the view of the witness Ernest Staine taken by the learned trial judge was ill-founded and that the trial judge has not taken proper advantage of his having seen and heard the witness.

2. That the positive evidence of due execution of the will of Clyde DeFour ought to have been accepted by the trial judge, and the trial judge misdirected himself in rejecting the evidence for the Plaintiffs.

3. That there was no evidence before the Court which raised any suspicion as to the validity of the will.

4. That the will of Clyde DeFour was duly executed.

5. That at the time of execution of his will Clyde DeFour was (1) of sound mind, memory and understanding and (2) knew and approve of the contents of his will.

The only witness who gave evidence for the Appellants with regard to the execution of the will they sought to establish was Mr. Ernest Staine an attorney responsible for its preparation. Mr. Staine's evidence is that he received instructions for preparation of the will from the deceased at his house some 4 months before his death. At that time the deceased was fully competent although ill and in bed and apparently requiring the use of a wheel chair. He prepared a draft will in accordance with the deceased's instructions retained a copy and took the original to the deceased's home. The deceased read it was satisfied that it accorded with his instructions but, asked that it be left with him for a while to think about it. On February 7, 1977 he received information from Pastor Middleton of the Seventh Day Adventist Mission as a result of which the copy draft will was made into a fair draft which he took to the Belize City Hospital. The deceased who was then lying on a bed in hospital told him that he was ready to sign the will and had sent Bob Panton, (the first Appellant) to his house to get the draft will so that a fair copy could be made. Mr. Staine indicated to the deceased that he had already prepared the will for signature and at the deceased's request he read the document to him. The deceased expressed himself as satisfied that it conformed with the draft and said he was ready to execute it. Mr. Staine then called a nurse and with her help got the deceased in a semi-upright position where he then tried to sign the will he held the pen but could only make scratches and could not form the letters of his name. Mr. Staine suggested that he make an X and he did so twice but, not being satisfied, asked Mr. Staine to sign his name, which Mr. Staine did. Thereafter Mr. Staine and the nurse, one Sandra Scott, signed as attesting witnesses. The deceased, Mr. Staine said, was alert and knew everything that was happening around..

It seems clear that, on this evidence, the deceased was of sound mind, memory and understanding and knew and approved of the contents of the will and that the will was duly executed. The only witness for the Respondent was Mr. Eric Defour who produced a letter from the First Appellant posted on the morning of February 9, 1977 in which the writer referring to the deceased, stated:

"His condition has worsened. He is detoriating every day. Aparently I don't think that he will recover. If he does it will be very surprising. I don't know if you are aware of his illness. He is paralyzed from his waist down. His hands are getting numb; and he suffers tightness across his chest, and severe pains. I was there tonight and his speech is going off. I have difficulty to understand what he is saying."

The letter appears to be dated February 9, 1977 but the learned trial judge accepted Mr. Barrow's suggestion that it was actually written in the night of February 8 and dated February 9 in anticipation of being posted on that day. The learned trial judge expressed the view that this letter or the information disclosed in it was "some evidence from which an inference may be drawn that the testator at the time of the alleged execution of the will was not of sound mind memory or understanding and too ill to know and approve of its contents" although as he stated it is possible for a patient to be "clear minded and alert one day and mentally gone the next". He referred to the "doubt cast on Mr. Staine's unsatisfactory evidence in cross examination about the testator's soundness of mind memory understanding and his approval of the contents of the will "which he said was "by and large supported" by the letter. He set out in some detail portions of the cross examinations. Ultimately he concluded:

"If the Court is disatisfied with the evidence of the attesting witness, and I am by no means satisfied, and the other attesting witness is not called, and I have no evidence of any efforts, or if so, what efforts, were made to locate Sandra Scott; or to call witnesses still alive today who were present at the testator's death bed to lend credence to Mr. Staine's assertion of due execution by direction, the testator's mental capacity, and his knowledge and approval of the contents of the will, the Court is competent to decline to grant probate of the instrument propounded. (See Tristram and Cootes 24th Ed.p. 596 and pp. 659 - 672.)"

It is clear therefore that the learned trial judge did not accept the evidence of Mr. Staine notwithstanding the fact that he is an attorney who stood to gain nothing from the Will and had no apparent connection with any of the beneficiaries under it.

The principles on which an appellate court acts where a trial judge's decision is based on his assesment of the credibility of a witness are well known. They are set out by Lord Thankerton in Watts (or Thomas) v. Thomas (1947) A.C. 484 at 487 as follows:

"1. Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen; and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion;

11. The Appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence;

111. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witness, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will, vary according to the class of case, and, it may be, the individual case in question."

The principles on which an appellate court acts in relation to the exercise of a trial judge's discretion are also set out by Lord Brandon in The Abidin Daver (1984) 1AER 470 at 482 as follows:

"It follows that, where the judge of first instance has exercised his discretion in one way or the other, the grounds on which an appellate court is entitled to interfere with the decision which he has made are of a limited character. It cannot interfere simply because its members consider that they would, if themselves sitting at first instance, have reached a different conclusion. It can only interfere in three cases: (1) where the judge misdirected himself with regard to the principles in accordance with which his discretion had to be exercised; (2) where the judge, in exercising his discretion, has taken into account matters which he ought not to have done or has failed to take into account matters which he ought to have done; or (3) where his decision is plainly wrong."

In applying these principles I consider first whether the learned trial judge's decision was based on his assesment of the credibility of Mr. Staine or whether, as counsel for the Appellants submits, it was based on suspicions which did not relate to the execution of the will and were not, as the decision of the English Court of Appeal in Davis v. Mayhew (1927) AC 264 indicates, capable of displacing the doctrine Omnia Praesumuntur Rite Esse Acta.

It is true that the learned trial judge dealt at some length with what he referred to as a misleading application in relation to the service of the citation against Phillipa DeFour, the widow of the deceased. He also referred to Mr. Staine's failure to obtain an affidavit from Nurse Scott, the other attesting witness or to trace her, and to the failure to call any other witness who may have been present at the time of execution of the will. The learned trial judge appeared also to have been troubled by the fact that the will made no provision for the wife and lawful son of the deceased in Trinidad. The Suspicions which may have been aroused by the application for substituted service of the citation on Mrs. DeFour were not relevant to the execution of the will nor was the fact that the will made no provision for the wife and lawful son of the deceased. The failure to make any effort to trace Mrs. Scott or any other person who may have been present when the will was executed was however matter which the learned trial judge was entitled to take into account in assessing Mr. Staine's credibility. The defence as pleaded was that the deceased was not at the time of sound mind memory and understanding and did not know and approve of the contents of the will, the execution of which was obtained by undue influence. It is reasonable to expect that Mr. Staine having prepared the will, signed it on the testator's instructions and witnessed it some effort would have been made to locate any other persons who would have been able to support his evidence as to the circumstances of its execution. On his own evidence he wanted a nurse to witness the will because he wanted "someone who deals with patients who would be in a position to testify if necessary to the competence of the testator." This can only refer to the mental competence of the testator and suggests that there may have been in Mr. Staine's mind at best a question as to this. In these circumstances it seems curious that no effort was made to trace at least the person who Mr. Staine himself thought would be in a position to testify if necessary to that competence. Looking at the judgment as a whole it seems to me that while the learned trial judge may have entertained suspicions about several matters which were not relevant to the execution of the will his ultimate decision was based on his assessment of the credibility of Mr. Staine and what he referred to as "doubt cast on Mr. Staine's unsatisfactory evidence". It is true that Mr. Staine was never cross-examined to suggest positively that the testator was not mentally competent when the will was signed, but the reluctance to put such a suggestion is understandable since the Respondents apparently had no witness to give evidence in support of it. The learned trial judge who observed the witness was nevertheless in the best position to weigh his evidence.

I am not satisfied that the learned trial judge has not taken proper advantage of his having seen and heard the witness, nor can I say that he was wrong in rejecting the evidence of the witness.

He correctly stated that the burden is on the propounders of the will to prove due execution, that they start with the advantage of the maxim "ominia praesumuntur" but that the maxim applies with less force in the case of irregular or unusual wills and this will was irregular in that the attestation clause did not state that the signature of the testator was made by his direction. Mr. Staine being the only witness as to the due execution of the will and the learned trial judge having entertained doubt or suspicion as to his evidence, it was in my view correct to say that the onus lay in the propounders of the will to remove that doubt or suspicion and, as a consequence, suspicion as to the mental competence of the testator.

That onus not having been discharged the decision not to grant probate was inevitable.

I would dismiss the appeal.

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