Daughter’s appeal dismissed, injunctive orders varied
IN a case where a duplicate of a Will had been submitted for probate in the absence of the original, which had been kept by the testatrix, the court was satisfied that the presumption of the destruction of the Will animo revocandi had been rebutted. The court held that this was due to the fact that the beneficiary under the Will had lived with the testatrix for most of her life, the Will had been made soon after the return of the beneficiary to the testatrix’s home some five months before her death the testatrix had shown the respondent the Will.  The testatrix only child (a daughter) had estranged herself from the testatrix and although claiming a good relationship with her mother in her later years had not been told about the Will.
The testatrix  would have been aware that if she had died  intestate  her daughter would succeed to her estate , although the testatrix would have been aware of the existence of the duplicate Will  she  took no steps to destroy or cancel it.   The Will had not been kept in a very secure place and several persons had had access to the room in which it had been kept after the testatrix’s death, and the daughter had admitted going through the testatrix’s papers after her death.
Daughter, Hapijan Sattar, appealed to the Court  of Appeal of Guyana against an order of a judge of the High Court admitting a duplicate of her deceased mother’s Will to  probate on the  application of Sarogni Dass (the respondent) and also against an injunction restraining the appellant from entering or remaining  in certain property forming part of the deceased’s  estate.
The facts are set out in the judgment of the Court delivered by Chancellor Kenneth George.
Attorney-at-Law R.E.O. Moriah appeared for the appellant, while Mr. R. Gajraj represented the respondent.
According to Chancellor George:  “In the court below the respondent had sought to prove  in solemn form a duplicate  original will purported to have been  executed  by  Biphni Abdulsatar  (also known s Bibi  Sattaur), deceased , on August 22, 1985.
The respondent sought an injunction  to restrain the appellant  from entering or remaining  in the property  of the deceased’s s estate situate at Lot 57,  Blygezight,  or interfering with her possession of it.
The deceased ,  whose husband had predeceased her, died on  May 14, 1986, less than one year after making the will.   The respondent was her niece and the  appellant her only child.  The respondent was 35 years old at the time that she gave evidence in July 1988 and the appellant 44 years .
Except for a four-year period between 1980 and 1984, the respondent had lived with the deceased continuously from infancy or early childhood until her death. Their relationship was more that of mother and child than aunt and niece, except for the making of the will, all the above facts were admitted by the appellant  in her statement of defence  and counterclaim.
The will itself, which was made after the respondent had returned to live  with the deceased,  is an uncomplicated document .  The respondent was named executrix and, except for a bequest of $50 to the appellant, the deceased left the residue of her estate to the respondent.
The last time that the respondent said that she had seen the will was in December 1985, some four months after it was made  and some five months before her aunt’s death.
The deceased had shown it to her at their home at 57  Blygezight.    She kept the Will in vanity, along with other documents.  After her death a search was made for the will.  It was not found.   The  appellant who at the time of her mother’s death   was living with a  paramour  at Mahaicony on being informed of the death, travelled to the home  at Blygezight  and has been living there ever since.   She admitted  that she had searched among the mother’s papers  but said  she did not find a will.
The  circumstances  surrounding  the making of the will were  given by Mr. Dabi Dyal, an attorney at law of over  30 years’ experience .  The respondent  admitted  that she was once employed by him as a typist  for about eight months. Thereafter she obtained other employment but did not relinquish all connections with the office which she would visit from time to to time.
Mr. Dyal said that he had known the deceased through a mutual friend, Mrs. Allan Singh, at whose home he had met her on a few occasions. She intimated to him he desire to make a will and had made an appointment to attend at his office for that purpose on  August 22,  1985.
After receiving instructions he drafted a will which he caused to be typed  in duplicate.
Thereafter he called her into his inner office where he read the typed copy . The testatrix  agreed that its  contents  accorded with her wishes  and he called his secretary  and a typist who signed both copies  of the will in the deceased’s presence after themselves  seeing her affix her signature.
Also present was the mutual friend Mrs. Allan Singh. After signing he noticed that there was need to initial certain typing changes and this was done no doubt at his request, by the testatrix and the witnesses in that order.   The original was handed to the deceased whilst he kept the duplicate original in his office.
Also giving evidence was Mr. Dyal’s  secretaty.    His typist had by then left his employ.   However, it was the secretary who had typed the Will. She corroborated Mr. Dyal’s evidence as regards what transpired in his inner office.
In her evidence the appellant said that the property at Blygezight was owned by both her parents, with whom she grew up.  Unfortunately,  the fact of their joint ownership  was mot pleaded,  but from the transport tendered  it is clear that it was owned  in common by both her parents.
The appellant married in April 1967 after eloping with her husband to be.   She said that she lived away from her parents for about four months and then returned to the home, but lived a separate existence from them.  She was still living there in 1980 when her father died.   She did not say when she again left her parents home, but admitted that she was living  at Mahaicony  when her mother died , although she would  visit her at weekends.
As for the respondent, she said that she returned to Blygezight in 1984 was with her permission and that of her mother and was intended to be temporary However,   she remained on. She received the news  of her mother’s death  at  Mahaicony,  and immediately  journeyed  to  Blygfezight where  the respondent  showed her some papers , but no Will. She denied removing  a will from her mother’s  home  and asserted that  there were no  differences  between herself and her mother .Both parties  are agreed  that the deceased  was at all times  possessed of her full faculties.
The trial judge found that the will had been properly executed and that there were no suspicious s circumstances surrounding its making.  He also  held  that the presumption  of the revocation OF THE WILL, which had last been  seen in the testatrix’s possession ,  due to the fact  of its absence  after death, had been  rebutted.   Accordingly, he admitted the duplicate original Will to probate and also granted  the other reliefs sought, viz. a mandatory injunction restraining the appellant from remaining in the premises  at 59 Blygezight  or interfering with the respondent’s occupation.
It is against these orders that the appellant now appeals to this court.
The trial judge’s decision is challenged on two main grounds.   These are (i) the decision was against the weight of the  evidence  in that  the presumption of the destruction of the will animo revocandi  had not been rebutted and (ii) the evidence disclosed  circumstances  of suspicion  surrounding  the making of the will and those had not been dissipated by the evidence.
Chancellor  George in the judgment added, “In my opinion the above facts and circumstances were  sufficient  to   rebut  the presumption that would  otherwise  have arisen.   Accordingly I agree with the trial judge’s decision in so far as it pronounced  fpr the force  and validity of the deceased’s will.
“However , having regard to the fact  that the appellant’s father  was the owner  of one half share   in the property at Blygezight and to the uncontradicted evidence  of the appellant that he had died intestate  she would be entitled to a  two-thirds share in his estate.  It was therefore inappropriate for the judge to have granted the other reliefs sought by the respondent.
“Accordingly the trial judge’s decision must be amended to delete the injunctive reliefs that he had ordered:
‘Having regard to the grounds filed and argued I have no other alternative  than to dismiss the appeal.  But the order of the trial judge must be varied to delete any reference to injunctive reliefs in favour of the respondent.
“In the circumstances each party will bear his own costs of the appeal. The Appeal was dismissed.