Court of Appeal
Civil Appeal No. 7 of 1992
14th May, 1993
KENNETH ST. L. HENRY P.
SIR LASCELLES ROBOTHAM J.A.
PROFESSOR TELFORD GEORGES J.A.

Mr. Denys Barrow S.C. for Appellant
Mr. Rodwell Williams for Respondent

Appeal against order of judge granting probate to the Respondent - Testamentary capacity of testator in question - Presumption in favour of propounder of will that it was duly executed and that the testator was of sound mind, memory and understanding and knew and approved the contents of the will - Principles on which an appellate court acts where a trial judge's decision is based on his assessment of the credibility of a witness - Judge failed to take proper advantage of his having seen and heard the witnesses - Presumption in favour of propounder of will rebutted - Appeal allowed - Order set aside.

J U D G M E N T

The Respondent by writ claimed "to be the executor of the last will, dated the 13th day of March, 1991 of Leopold Craig deceased, who died on the 29th day of March, 1991 and to have the said will established." The writ, was issued against the Appellant as a person who had entered a caveat and alleged that he was the sole executor of a will dated March 27th 1990.

At the conclusion of the trial the Chief Justice in a written judgment dated June 26, 1992 granted probate of the instrument dated March 13, 1991 propounded by the Respondent which he found had effectively revoked and suspended the previous testamentary dispositions contained in the instrument of the 27th March, 1990. This is an appeal against that judgment.

Leopold Craig was 80 years old at the time of his death. He had been hospitalized for one week from February 22, 1991 and again for 6 days from March 19, 1991 and died 4 days after being discharged on this second occasion. The cause of death was stated in the certificate of death to be "gastro intestinal bleeding due to (or as a consequence of) malnutrition due to (or as a consequence of) senility". The only medical evidence led was that of Mr. Greg Castillo who said that he was the head of a medical team a member of which was Dr. Avilez who signed the certificate of death. Dr. Castillo rejected a suggestion in cross examination that Mr. Craig was not his patient. He said that he treated Mr. Craig and in a report dated May 8, 1991 said "his general state was that of extreme debility and under nutrition. His mentation was slow and he exhibited signs of disorientation and dementia". That report related to the time of Mr. Craig's "recent hospitalisations at the Belize City Hospital". In evidence the doctor said:

"Dementia is a specific neurological condition that can be caused by a number of factors known and unknown. It has to do with dysfunction of the cortex or brain. It implies that the cognitive functions of the individual have been impaired or lost Cognito - leads to a person - space - person time memory. He was not Mr. Craig. In medical jargon - Deliriul - e.g. from infection, head injury (short term). Dementia implies a more chronic condition and our impression was that Craig's of mind had deteriorated to dementia probably even before he was admitted.

Q. Assuming that he was in hospital in February and say 19/3191 what would have been his condition on 13/3/91?

A. From my memory the deceased had progressed - he had definitely deteriorated or some superficial condition had intervened. I recall he had deteriorated and it was all related. My memory is of his condition on both occasions of his hospitalisation.

Q. Would this person on 1313191 have been able to sign a legal document and know what he was doing?

A. Not in my opinion.

In cross-examination he said:

"Q. Could you tell us in terms of your observations of this patient say on 13/3/91 what degree of communication would you-expect?

A. Patients' mental status fluctuate. This is a fact of medicine. Even though there may, be in drawing a curve, over a period of time, there may be fluctuation. Second comment. In the elderly this is even more apparent. It varies whether they are in hospital. Some people go berserk, in hospital or strange surroundings. Fluctuations also occur depending on who the person is visited by depending on whether it is by person they know or who they don't know. Fluctuations in mentation also occur depending on the illness, underlying, of the patient. I would have expected a form of communication not of a normal person but of an ill person but quite likely in tune with an objective layman opinion 'normal' in his surroundings, that would be at home. This is what the layman would perceive. Medical reality might be different.

Q. For how sustained a period would this be?

A. Apparently normally. That is variable-seconds, minutes, hours, days or permanent. There is a spectrum.

The doctor's evidence was significant in two respects. It indicated that on March
13,1991 the testator would not have been able to sign a legal document and know what he was doing. It also indicated that a person in the testator's condition might appear to a layman: normal when in reality he, was not, The Chief Justice dismissed this evidence from a person whom the parties accepted as an expert witness simply by saying:

"The Doctor's evidence in no way destroys this perception of Mr. Pinks [that the testator under-stood quite clearly what was read to him and knew of the contents of the will] for it is clear that the Doctor had the overall supervision of the testator's treatment but that the testator was Dr. Avilez's patient and it was not unusual for the testator to be mentally competent.

If justified by the evidence, a finding that Dr. Castillo merely had the overall supervision of the testator's treatment so that, presumably, the testator was not his patient, may have been of greater significance if Dr. Avilez had given evidence which contradicted Dr. Castillo as to the testator's mental condition. But Dr. Avilez was never called as a witness although he was apparently still in Belize, and the reference to "senility" in the death certificate he signed would, if anything, tend to support Dr. Castillo's evidence. In any event Dr. Castillo specifically denied the suggestion that the testator was not his patient. The mere fact that Dr. Avilez signed the death certificate does not necessarily contradict this and there is no other evidence to the contrary on which a finding that the testator was not Dr. Castillo's patient could be made.

In circumstances in which the Defence alleged that the testator was in such a condition of mind and memory as to be unable to understand what he was doing it seems surprising that the Plaintiff did not seek to call any medical evidence. If it was being alleged that the testator was Dr. Avilez' patient, presumably Dr. Avilez would have been in a good position to testify as to the testator's condition. But he was not called. The Chief Justice relied on the evidence of M r. Pinks, a Justice of the Peace, and Mr. Roy Cumberbatch who signed as attesting witnesses, and of the Plaintiff who was also present, as to the execution of the will. But the evidence of all these witnesses as to the mental condition of the testator must, on the uncontradicted evidence of Dr. Castillo, be viewed with caution as the perception of laymen which would not necessarily reflect medical reality. The evidence of the plaintiff as to the physical condition of the testator hardly seems consistent with the condition of a man who died some 16 days later from malnutrition.

She stated:

"The will was read to my uncle by Mr. Pinks. My uncle said that is OK after Mr. Pinks read the will. On that day, my uncle was sick and he asked me for food. He asked me for bun and spelt it out B U N. This was Easter season. I took him the bun about a day after. He ate it, his appetite was very good, he ate and drank very good. If I give him one pack of juice be would want another one. I saw to it that, he got what he asked for."

Mr. Pinks and Mr. Cumberbatch were both singularly vague as to the terms in which they said the testator expressed his approval of the contents of the will, and Mr. Pinks, made so few inquiries that he was not I even aware that, although blind, the testator had in the past been able to sign his name. Mr. Pinks had known the testator before, "paid no particular attention" to whether he was ill and simply "felt he knew" what he was doing.

On the other hand the Chief Justice largely ignored the evidence of the Defendant/Appellant and his witness Wallington Flowers, saying:

"Me evidence of the Defendant and Wallington Flowers show no more, than that they were involved in did assistance and preparation of breakfast and supper for the most part."

In fact both witnesses as well as one Leonard Santos gave evidence as to the deteriorating physical and mental Condition of the testator, and although they are all interested parties being beneficiaries under the testator's earlier will dated March 27, 1990, nevertheless their evidence is consistent with the evidence of Dr. Castillo and with the circumstances surrounding the death of the testator.

I bear in mind the presumption in favour of the propounder of the will that it was duly executed, that the testator was of sound mind, memory and understanding and knew and approved the contents of the will. I bear in mind also the principles on which an appellate court acts where a trial judge's decision is based on his assessment of the credibility of a witness.

Those principles were stated by Lord Thankerton in Wait (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."

In my view the Chief Justice failed to take proper advantage of his having seen and heard the witnesses. In particular he failed properly to take into consideration the somewhat casual approach of Mr. Pinks and the evidence of Dr. Castillo both as to the testator's condition and as to the layman's perception of persons in the testator's condition. On the totality of the evidence I am of the view that the presumption in favour of the propounder of the will was rebutted and that the Chief Justice erred in granting probate of it. I would allow the appeal and set aside the order made by the Chief Justice.

----------OO----------