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, and 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, and 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 the 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 22nd August 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 14th May 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.
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 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 a 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 that 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 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 her desire to make a will and had made an appointment to attend at his office for that purpose on 22nd August, 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 secretary. 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 not 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 she admitted that she was living at Mahaicony when her mother died, although she would visit her at week-ends.
As for the respondent, she said that she returned to Blygezight in 1984 but it was intended to be temporary. However, she remained on. She received the news of her mother’s death at Mahaicony, and immediately journeyed to Blyg ezight 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 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 for 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 Blygezigh, 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. Appeal dismissed.
