SEVEN appellants (defendants), Eileen Sumintra Bankay and others, were defeated in a Will dispute case against Sukdai Sukhdeo, widow of the deceased, suing herein as one of the executives and residuary beneficiaries named under the last Will & Testament of John Harry Sukhdeo, deceased.

The trial judge who heard the action in the first place rejected the appellants’ testimony of evidence of suspicious circumstances as held by the judge, and declared that the action was dismissed.

The facts are as follows: James Harry Sukhdeo, the deceased testator, was twice married. His first wife, Hiria, bore 8 children, and when she predeceased him, he married Sukdai, who gave birth to six children.

When John Sukhdeo died in 1972, he left three testamentary instruments; and Sukdai brought an action in the High Court, seeking to propound in solemn form the latest of them, in which she shared Sukhdeo’s estate along with her six children.

In the two earlier wills, the seven named appellants — children of the testator’s first wife, Hiria — were all named as beneficiaries; but their names not having appeared in the latest will, they contested the grant of probate on the following grounds:
(1) That Sukhdeo did not sign it

(2) That the will was ineffective as a testamentary document because, in the body of it, the testator’s name “Harry” had been originally written as “Henry”, and the word “West” was written for “East”

(3) That the will was not duly executed

(4) That the deceased had lacked testamentary capacity at the time of its execution.

Having satisfied himself that the onus of proof of the genuineness of the will rested in Sukdai, being the party propounding it, and that none of six alleged circumstances of suspicion attending the due execution was proved, the trial judge pronounced in favour of the will after deciding all four issues against the appellants, who were now seeking to upset those findings.

In finding that the testator did, as a fact, sign the will, the judge resolve an apparent conflict between the evidence of a barrister friend and adviser of the deceased testator, whose veracity and integrity he found to be unquestioned, and his clerk, who impressed him as a witness of truth and reliability, as to how it came about that the name “Henry” was substituted for “Harry” in the body of the will.

The judge accepted the clerk’s version in preference to the barrister’s, because he thought the former seemed to have a better recollection. He thus accepted that both barrister and clerk had endeavoured to tell the truth about the preparation and execution of the will. He, however, rejected as mere conjecture and as unreliable opinion, evidence of a handwriting expert called on behalf of the appellants, who testified that the admitted and disputed signatures on a previous will and on the questioned will were not both made by the deceased testator.

Justice of Appeal, Haynes, held:
(1) – That the credibility of the barrister and his clerk was the crux of the matter.

(2)- That the case was not difficult for the trial judge to adjudicate on the evidence before him. The only alternative to the genuineness of the handwriting was the supposition that it was a carefully planned forgery as an integral part of a criminal conspiracy involving a barrister of 26 years’ standing; his clerk of humbler status, but whose honesty and truthfulness impressed the trial judge tremendously; and presumably the respondent.

(2) – That it was purely a question of fact; and in all the circumstances of this case, this court would not be justified in interfering with the trial judgment.

(3) – That the expert opinion evidence on which the appellants heavily relied to prove the will was not made by the deceased was devoid of reasons for the opinion that the deceased’s signature was a forgery. The evidence only indicated in a general way the matters and things the expert considered in reaching his conclusion. No comparison being made in court, the evidence was unsatisfactory and unhelpful. The trial judge would have been entitled to treat it as valueless, and was not wrong to reject it.

(4) – That the trial judge was justified on high authority in comparing the signature of the disputed will with the admitted signatures of the deceased; and on the evidence of his own eyes, to reach a firm conviction that the signature on the will was indeed that of the testator and no one else.

(5) – That from the finding of the judge — that he believed and accepted the evidence of the respondent and her witness — he must be held to mean that either the proven facts as found by him did not amount to suspicious circumstances, or that they explained away any facts which did amount to suspicious circumstance.

(7) – That the appeal be dismissed, and the order of the court below affirmed; and that the third, fourth and fifth-named defendants do pay costs to the respondent.